Loretta Eure is a woman who apparently identifies as a man. In December 2010, Eure began working as a truck-driving instructor at The Sage Corporation’s San Antonio location. Eure reported to San Antonio School Director Margie Brandon (“Brandon”), Western Regional Director Barbara Blake (“Blake”), and President Gregg Aversa (“Aversa”) as her supervisors. At the beginning of her employment, Eure claimed that she received insufficient training because her trainer, Noel Smith (“Smith”) only permitted her to shadow him for twenty-four hours.
Eure also claimed that Smith subjected her to “sarcasm and innuendos,” in which Smith complained about having to instruct Eure and expressed his desire to work in Brandon’s supervisory role. Eure reported these comments to her supervisor, Brandon. In March 2011, Carmela Campanian (“Campanian”), a National Project Director for Sage, arrived at the San Antonio campus to conduct specialized training. Brandon alleged that, early that day, Campanian saw Eure with a student and asked Brandon, “What is that and who hired that?” Brandon alleged that Campanian then said, “Please don’t tell me that is a Sage instructor” and informed Brandon that Sage did not hire “cross genders.” After Brandon told Campanian that she hired Eure because Eure was qualified and filled the school’s need for a bilingual instructor, Brandon alleged that Campanian told her, “We will deal with you seriously for hiring that.” Brandon further alleged that Campanian indicated she would discuss the matter with Sage’s President, Gregg Aversa (“Aversa”) and discuss appropriate punishment for Brandon.
On that day or the following day, Brandon alleged that she reviewed the instructor schedule that Campanian had reworked. Brandon alleged that when she told Campanian that Eure had been omitted from the schedule, Campanian indicated that the omission was purposeful and asked Brandon if she understood the severity of the consequences for hiring a transgender instructor. That same day, Campanian informed Eure that Eure could not use a particular truck with her student and Eure proceeded with the student’s lesson in a different truck. After Eure returned from the lesson, Brandon’s assistant, Maria Solis (“Solis”), informed Eure that Campanian had called her to the office. When Eure met with Campanian, Eure alleged that Campanian said “I’ve never had to deal with something like this.” In response, Eure asked, “What do you mean? Because I’m gay?” Eure alleged that Campanian paused and then said that Eure was insubordinate. Eure alleged that Campanian then received a phone call and dismissed Eure from her office. Eure immediately reported this incident to Brandon. Later that evening, Eure called Brandon again to discuss the incident. At the same time, she attempted to report the incident to Aversa, but she obtained Aversa’s contact information through a search engine and mistakenly emailed the incorrect Aversa. When the incorrect recipient informed her of the mistake, she redirected the complaint to Aversa on March 31, 2011.
Because Aversa was out of town, Blake responded to the complaint on behalf of Aversa on April 1, 2011. Blake asked that Eure call Sage’s Vice President and General Counsel Chris Thropp sometime that day to discuss the matter over the phone. On April 4, 2011, Eure submitted a charge of discrimination with the EEOC, which alleged discrimination based on sex against Sage. That same day, Aversa returned from his trip and spoke with Eure. Aversa asked Eure to consider returning to work and assured Eure that he planned to investigate the incident further. On April 5, 2011, Aversa replied to Eure’s email, expressing his apologies for the events that unfolded, his intention to address the matter with Campanian, and his support for Eure’s return to work. He also stated that “[t]he reports from [Brandon] on your teaching skills and your overall performance were very positive and encouraging to Barb Blake and to me.” On April 6, 2011, Eure replied that she would need additional information about the hours that she would be able to work and whether Brandon and Solis would be returning before she agreed to return to work. Eure never returned to work and sued for sex discrimination under Title VII. Sage moved for summary judgment.
The U.S. District Court for the Western District of Texas granted the motion, holding that:
…although Price Waterhouse provides a vehicle for transgender persons to seek recovery under Title VII, neither the Supreme Court nor the Fifth Circuit have held that discrimination based on transgender status is per se gender stereotyping actionable under Title VII. Without any briefing from the parties on the issue, this Court declines to hold otherwise. Because Eure has failed to present evidence showing that the discrimination was motivated by her failure to act as a stereotypical woman would, Eure has not presented a cognizable gender stereotyping claim and cannot succeed in showing that the discrimination or hostile work environment claim that she presents is “because of sex,” as Title VII requires.
The Texas federal court does not mention the EEOC’s position in the Macy case, which makes very clear that transgender persons are covered by Title VII and Price Waterhouse. We note that Eure’s attorney did not seem to raise the Macy decision in his opposition to the motion for summary judgment.
This is a bad decision and we hope Eure appeals.