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Date: 10-08-2021
Case Style:
KRYSTAL S. ETSITTY v. UTAH TRANSIT AUTHORITY; BETTY SHIRLEY, in her individual and official
capacities
Case Number: 05-4193
Judge: Eric Murphy
Court: UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Denver, CO - Discrimination lawyer represented defendant with alleging the defendants terminated her because she was a transsexual and because she failed to conform to their expectations of stereotypical male behavior charge.
Etsitty is a transsexual who has been diagnosed with Adult Gender Identity
Disorder. Although Etsitty was born as a biological male and given the name
“Michael,” she identifies herself as a woman and has always believed she was
born with the wrong anatomical sex organs. Even before she was diagnosed with
a gender identity disorder, Etsitty lived and dressed as a woman outside of work
and used the female name of “Krystal.” Eventually, Etsitty began to see an
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endocrinologist who prescribed her female hormones to prepare for a sex
reassignment surgery in the future. Etsitty made the decision at that time to live
full time as a woman. While she has begun the transition from male to female by
taking female hormones, she has not yet completed the sex reassignment surgery.
Thus, Etsitty describes herself as a “pre-operative transgendered individual.”
Nearly four years after Etsitty had begun taking female hormones, she
applied for a position as a bus operator with UTA. She was hired and, after
successfully completing a six-week training course, was assigned to a position as
an extra-board operator. As an operator on the extra board, Etsitty was not
assigned to a permanent route or shift. Instead, she would fill in for regular
operators who were on vacation or called in sick. As a result, Etsitty drove many
of UTA’s 115 to 130 routes in the Salt Lake City area over approximately ten
weeks as an extra board operator. While on their routes, UTA employees use
public restrooms.
Throughout her training period at UTA, Etsitty presented herself as a man
and used male restrooms. Soon after being hired, however, she met with her
supervisor, Pat Chatterton, and informed him that she was a transsexual. She
explained that she would begin to appear more as a female at work and that she
would eventually change her sex. Chatterton expressed support for Etsitty and
stated he did not see any problem with her being a transsexual. After this
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meeting, Etsitty began wearing makeup, jewelry, and acrylic nails to work. She
also began using female restrooms while on her route.
Shirley, the operations manager of the UTA division where Etsitty worked,
heard a rumor that there was a male operator who was wearing makeup. She
spoke with Chatterton and he informed her Etsitty was a transsexual and would be
going through a sex change. When Chatterton told her this, Shirley expressed
concern about whether Etsitty would be using a male or female restroom. Shirley
told Chatterton she would speak with Human Resources about whether Etsitty’s
restroom usage would raise any concerns for UTA.
Shirley then called Bruce Cardon, the human resources generalist for
Shirley’s division, and they decided to set up a meeting with Etsitty. At the
meeting, Shirley and Cardon asked Etsitty where she was in the sex change
process and whether she still had male genitalia. Etsitty explained she still had
male genitalia because she did not have the money to complete the sex change
operation. Shirley expressed concern about the possibility of liability for UTA if
a UTA employee with male genitalia was observed using the female restroom.
Shirley and Cardon also expressed concern that Etsitty would switch back and
forth between using male and female restrooms.
Following their meeting with Etsitty, Shirley and Cardon placed Etsitty on
administrative leave and ultimately terminated her employment. Shirley
explained the reason Etsitty was terminated was the possibility of liability for
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UTA arising from Etsitty’s restroom usage. Cardon similarly explained to Etsitty
that the reason for her termination was UTA’s inability to accommodate her
restroom needs. Shirley felt it was not possible to accommodate Etsitty’s
restroom usage because she typically used public restrooms along her routes
rather than restrooms at the UTA facility. Shirley also testified she did not
believe it was appropriate to inquire into whether people along UTA routes would
be offended if a transsexual with male genitalia were to use the female restrooms.
On the record of termination, Shirley indicated Etsitty would be eligible for rehire
after completing sex reassignment surgery. At the time of the termination, UTA
had received no complaints about Etsitty’s performance, appearance, or restroom
usage.
Etsitty filed suit against UTA and Shirley, alleging they had engaged in
unlawful gender discrimination, in violation of Title VII and the Equal Protection
Clause of the Fourteenth Amendment. She claimed she was terminated because
she was a transsexual and because she failed to conform to UTA’s expectations of
stereotypical male behavior. The defendants filed a motion for summary
judgment, arguing transsexuals are not a protected class under Title VII or the
Equal Protection Clause and that Etsitty was not terminated for failing to conform
to male stereotypes. The district court granted the motion. In doing so, it agreed
transsexuals are not a protected class and concluded there was no evidence that
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Etsitty contends it is unnecessary for this court to engage in the McDonnell 1
Douglas analysis because it is “undisputed” that UTA had a discriminatory
motive. See Heim v. Utah, 8 F.3d 1541, 1546 (10th Cir. 1993) (noting McDonnell
Douglas burden-shifting analysis is inapplicable where there is direct evidence of
discrimination). When viewed in context, however, the evidence directly
supports only the conclusion that Etsitty was terminated because of UTA’s
concerns regarding her restroom usage, a motive which is not discriminatory for
(continued...)
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Etsitty was terminated for any reason other than Shirley’s stated concern about
Etsitty’s restroom usage.
III. Analysis
This court reviews a district court’s decision to grant summary judgment de
novo. Green v. New Mexico, 420 F.3d 1189, 1192 (10th Cir. 2005). Summary
judgment is appropriate “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). In making the determination
of whether summary judgment was appropriate, this court views all the evidence
and draws all reasonable inferences in favor of the nonmoving party. Green, 420
F.3d at 1192.
A. Title VII
In the Title VII context, this court applies the three-part burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973). Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005). Under 1
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(...continued) 1
reasons further discussed below. Because Etsitty cannot establish an “existing
policy which itself constitutes discrimination,” her claim of unlawful
discrimination rests on indirect evidence and the McDonnell Douglas analysis
applies. See Jones v. Denver Post Corp., 203 F.3d 748, 752 (10th Cir. 2000)
(quotation omitted).
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this framework, the plaintiff must first establish a prima facie case of prohibited
employment action. Id. If the plaintiff does so, the burden shifts to the employer
to articulate a “legitimate, nondiscriminatory reason for its adverse employment
action.” Id. (quotations omitted). If the employer satisfies this burden, “summary
judgment is warranted unless the employee can show there is a genuine issue of
material fact as to whether the proffered reasons are pretextual.” Id. Because this
court concludes transsexuals are not a protected class under Title VII and because
Etsitty has failed to raise a genuine issue of material fact as to whether UTA’s
asserted non-discriminatory reason for her termination is pretextual, this court
concludes the district court properly granted summary judgment on Etsitty’s Title
VII claims.
1. Prima Facie Claim
Title VII provides that “[i]t shall be an unlawful employment practice for
an employer . . . to discharge any individual, or otherwise to discriminate against
any individual . . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e2(a)(1). While Title VII is a remedial statute which should be liberally construed,
see Jackson v. Cont’l Cargo-Denver, 183 F.3d 1186, 1189 (10th Cir. 1999), it
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should not be treated as a “general civility code” and should be “directed only at
discrimination because of sex.” Oncale v. Sundown Offshore Servs., Inc., 523
U.S. 75, 80 (1998). Thus, the threshold question in this case is whether Etsitty’s
claim can properly be construed as a claim that she was terminated or
discriminated against “because of sex.” If it cannot, as UTA argues and the
district court held, Etsitty has not presented an actionable legal claim under Title
VII and summary judgment was properly granted. The question of whether, and
to what extent, a transsexual may claim protection from discrimination under
Title VII is a question this court has not previously addressed.
On appeal, Etsitty presents two separate legal theories in support of her
contention that she was discriminated against because of sex in violation of Title
VII. First, she argues discrimination based on an individual’s identity as a
transsexual is literally discrimination because of sex and that transsexuals are
therefore a protected class under Title VII as transsexuals. Alternatively, she
argues that even if Title VII does not prohibit discrimination on the basis of a
person’s transsexuality, she is nevertheless entitled to protection under Title VII
because she was discriminated against for failing to conform to sex stereotypes.
See Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (holding that Title VI
protected a woman who failed to conform to social expectations concerning how a
woman should look and behave, establishing that Title VII’s reference to “sex”
encompasses both the biological differences between men and women and gender
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discriminations, i.e., discrimination based on a failure to conform to stereotypical
gender norms).
a. Transsexuals as a Protected Class
Etsitty first argues she is protected under Title VII from discrimination
based on her status as a transsexual. She argues that because a person’s identity
as a transsexual is directly connected to the sex organs she possesses,
discrimination on this basis must constitute discrimination because of sex.
Although this court has not previously considered whether transsexuals are
a protected class under Title VII, other circuits to specifically address the issue
have consistently held they are not. See Ulane v. E. Airlines, Inc., 742 F.2d 1081,
1084 (7th Cir. 1984); Sommers v. Budget Mktg., Inc., 667 F.2d 748, 749-50 (8th
Cir. 1982); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir.
1977). In Ulane, the Seventh Circuit explained that the definition of sex should
be given its “common and traditional interpretation” for purposes of interpreting
Title VII. 742 F.2d at 1086. Based on this traditional definition, the court held
the statute’s prohibition on sex discrimination means only that it is “unlawful to
discriminate against women because they are women and men because they are
men.” Id. at 1085. Because the plaintiff in Ulane could show only that she was
discriminated against as a transsexual, rather than as a woman or a man, the court
concluded Title VII could provide no protection. Id. at 1086-87.
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This court agrees with Ulane and the vast majority of federal courts to have
addressed this issue and concludes discrimination against a transsexual based on
the person’s status as a transsexual is not discrimination because of sex under
Title VII. In reaching this conclusion, this court recognizes it is the plain
language of the statute and not the primary intent of Congress that guides our
interpretation of Title VII. See Oncale, 523 U.S. at 79 (“[S]tatutory prohibitions
often go beyond the principal evil to cover reasonably comparable evils, and it is
ultimately the provisions of our laws rather than the principal concerns of our
legislators by which we are governed.”). Nevertheless, there is nothing in the
record to support the conclusion that the plain meaning of “sex” encompasses
anything more than male and female. In light of the traditional binary conception
of sex, transsexuals may not claim protection under Title VII from discrimination
based solely on their status as a transsexual. Rather, like all other employees,
such protection extends to transsexual employees only if they are discriminated
against because they are male or because they are female.
While Etsitty argues for a more expansive interpretation of sex that would
include transsexuals as a protected class, she acknowledges that few courts have
been willing to adopt such an interpretation. Even the Sixth Circuit, which
extended protection to transsexuals under the Price-Waterhouse theory discussed
below, explained that an individual’s status as a transsexual should be irrelevant
to the availability of Title VII protection. Smith v. City of Salem, 378 F.3d 566,
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574 (6th Cir. 2004). Further, this court has explicitly declined to extend Title VII
protections to discrimination based on a person’s sexual orientation. See Medina
v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005). Although there is
certainly a distinction between a class delineated by sexual orientation and a class
delineated by sexual identity, Medina nevertheless demonstrates this court’s
reluctance to expand the traditional definition of sex in the Title VII context.
Scientific research may someday cause a shift in the plain meaning of the
term “sex” so that it extends beyond the two starkly defined categories of male
and female. See Schroer v. Billington, 424 F. Supp. 2d 203, 212-13 & n.5
(D.D.C. 2006) (noting “complexities stem[ming] from real variations in how the
different components of biological sexuality . . . interact with each other, and in
turn, with social psychological, and legal conceptions of gender”); cf. Brown v.
Zavaras, 63 F.3d 967, 971 (10th Cir. 1995) (stating that the possibility that sexual
identity may be biological suggests reevaluating whether transsexuals are a
protected class for purposes of the Equal Protection Clause). At this point in time
and with the record and arguments before this court, however, we conclude
discrimination against a transsexual because she is a transsexual is not
“discrimination because of sex.” Therefore, transsexuals are not a protected class
under Title VII and Etsitty cannot satisfy her prima facie burden on the basis of
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This court is aware of the difficulties and marginalization transsexuals 2
may be subject to in the workplace. The conclusion that transsexuals are not
protected under Title VII as transsexuals should not be read to allow employers
to deny transsexual employees the legal protection other employees enjoy merely
by labeling them as transsexuals. See Smith v. City of Salem, 378 F.3d 566, 575
(6th Cir. 2004) (“Sex stereotyping based on a person’s gender non-conforming
behavior is impermissible discrimination, irrespective of the cause of that
behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim
where the victim has suffered discrimination because of his or her gender nonconformity.”). If transsexuals are to receive legal protection apart from their
status as male or female, however, such protection must come from Congress and
not the courts. See Ulane v. E. Airlines, 742 F.2d 1081, 1087 (“[I]f the term ‘sex’
as it is used in Title VII is to mean more than biological male or biological
female, the new definition must come from Congress.”).
Although Etsitty identifies herself as a woman, her Price Waterhouse 3
claim is based solely on her status as a biological male. Etsitty does not claim
protection under Title VII as a woman who fails to conform to social stereotypes
about how a woman should act and appear.
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her status as a transsexual. See Plotke, 405 F.3d at 1099 (requiring plaintiff to 2
show she belonged to a protected class as part of her prima facie showing).
b. Price Waterhouse Theory
Etsitty next argues that even if transsexuals are not entitled to protection
under Title VII as transsexuals, she is nevertheless entitled to protection as a
biological male who was discriminated against for failing to conform to social
stereotypes about how a man should act and appear. She argues that although 3
courts have previously declined to extend Title VII protection to transsexuals
based on a narrow interpretation of “sex,” this approach has been supplanted by
the more recent rationale of Price Waterhouse. Etsitty contends that after Price
Waterhouse, an employer’s discrimination against an employee based on the
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employee’s failure to conform to stereotypical gender norms is discrimination
“because of sex” and may provide a basis for an actionable Title VII claim.
In Price Waterhouse, the plaintiff was a woman who was denied
partnership in an accounting firm at least in part because she was “macho,”
“somewhat masculine,” and “overcompensated for being a woman.” 490 U.S. at
235 (quotations omitted). One partner advised her she could improve her chances
for partnership if she would “walk more femininely, talk more femininely, dress
more femininely, wear make-up, have her hair styled, and wear jewelry.” Id.
(quotation omitted). In concluding the plaintiff had met her burden of
establishing gender played a motivating part in the employment decision, a
plurality of the court explained that “an employer who acts on the basis of a belief
that a woman cannot be aggressive, or that she must not be, has acted on the basis
of gender.” Id. at 250; see also id. at 272-73 (O’Connor, J., concurring in the
judgment) (shifting burden to employer where plaintiff established her failure to
conform to stereotypes was a substantial factor in the employment decision). The
court stated that “we are beyond the day when an employer could evaluate
employees by assuming or insisting that they matched the stereotype associated
with their group.” Id. at 251.
A number of courts have relied on Price Waterhouse to expressly recognize
a Title VII cause of action for discrimination based on an employee’s failure to
conform to stereotypical gender norms. See, e.g., Bibby v. Philadelphia Coca
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Cola Bottling Co., 260 F.3d 257, 262-64 (3d Cir. 2001); Nichols v. Azteca Rest.
Enters., 256 F.3d 864, 874-75 (9th Cir. 2001); Higgins v. New Balance Athletic
Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999); Doe by Doe v. City of
Belleville, 119 F.3d 563, 580-81 (7th Cir. 1997), vacated on other grounds, 523
U.S. 1001 (1998). In fact, the Sixth Circuit recently relied on Price Waterhouse
to recognize a cause of action for a transsexual claiming protection under Title
VII. See Smith, 378 F.3d at 572-75; Barnes v. City of Cincinnati, 401 F.3d 729,
737 (6th Cir. 2005). In so holding, the court explained that just as an employer
who discriminates against women for not wearing dresses or makeup is engaging
in sex discrimination under the rationale of Price Waterhouse, “employers who
discriminate against men because they do wear dresses and makeup, or otherwise
act femininely, are also engaging in sex discrimination, because the
discrimination would not occur but for the victim’s sex.” Smith, 378 F.3d at 574;
cf. Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215-16 (1st Cir. 2000)
(concluding a transsexual could state a claim for sex discrimination under Equal
Credit Opportunity Act by analogizing to Title VII); Schwenck v. Hartford, 204
F.3d 1187, 1201-02 (9th Cir. 2000) (relying on Title VII case law to conclude that
violence against a transsexual was violence because of gender under the Gender
Motivated Violence Act).
This court need not decide whether discrimination based on an employee’s
failure to conform to sex stereotypes always constitutes discrimination “because
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of sex” and we need not decide whether such a claim may extend Title VII
protection to transsexuals who act and appear as a member of the opposite sex.
Instead, because we conclude Etsitty has not presented a genuine issue of material
fact as to whether UTA’s stated motivation for her termination is pretextual, we
assume, without deciding, that such a claim is available and that Etsitty has
satisfied her prima facie burden.
2. Legitimate Nondiscriminatory Reason
Assuming Etsitty has established a prima facie case under the Price
Waterhouse theory of gender stereotyping, the burden then shifts to UTA to
articulate a legitimate, nondiscriminatory reason for Etsitty’s termination. Plotke,
405 F.3d at 1099. At this stage of the McDonnell Douglas framework, UTA does
not “need to litigate the merits of the reasoning, nor does it need to prove that the
reason relied upon was bona fide, nor does it need to prove that the reasoning was
applied in a nondiscriminatory fashion.” EEOC v. Flasher Co., 986 F.2d 1312,
1316 (10th Cir. 1992). Rather, UTA need only “explain its actions against the
plaintiff in terms that are not facially prohibited by Title VII.” Jones v. Denver
Post Corp., 203 F.3d 748, 753 (10th Cir. 2000) (quotation omitted).
UTA has explained its decision to discharge Etsitty was based solely on her
intent to use women’s public restrooms while wearing a UTA uniform, despite the
fact she still had male genitalia. The record also reveals UTA believed, and
Etsitty has not demonstrated otherwise, that it was not possible to accommodate
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her bathroom usage because UTA drivers typically use public restrooms along
their routes rather than restrooms at the UTA facility. UTA states it was
concerned the use of women’s public restrooms by a biological male could result
in liability for UTA. This court agrees with the district court that such a
motivation constitutes a legitimate, nondiscriminatory reason for Etsitty’s
termination under Title VII.
Etsitty argues UTA’s concern regarding which restroom she would use
cannot qualify as a facially non-discriminatory reason because the use of
women’s restrooms is an inherent part of Etsitty’s status as a transsexual and,
thus, an inherent part of her non-conforming gender behavior. Therefore, she
argues, terminating her because she intended to use women’s restrooms is
essentially another way of stating that she was terminated for failing to conform
to sex stereotypes.
Title VII’s prohibition on sex discrimination, however, does not extend so
far. It may be that use of the women’s restroom is an inherent part of one’s
identity as a male-to-female transsexual and that a prohibition on such use
discriminates on the basis of one’s status as a transsexual. As discussed above,
however, Etsitty may not claim protection under Title VII based upon her
transsexuality per se. Rather, Etsitty’s claim must rest entirely on the Price
Waterhouse theory of protection as a man who fails to conform to sex stereotypes.
However far Price Waterhouse reaches, this court cannot conclude it requires
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employers to allow biological males to use women’s restrooms. Use of a
restroom designated for the opposite sex does not constitute a mere failure to
conform to sex stereotypes. Cf. Nichols, 256 F.3d at 875 n.7 (explaining that not
all gender-based distinctions are actionable under Title VII and that “there is [no]
violation of Title VII occasioned by reasonable regulations that require male and
female employees to conform to different dress and grooming standards”).
The critical issue under Title VII “is whether members of one sex are
exposed to disadvantageous terms or conditions of employment to which members
of the other sex are not exposed.” Oncale, 523 U.S. at 80 (quotation omitted).
Because an employer’s requirement that employees use restrooms matching their
biological sex does not expose biological males to disadvantageous terms and
does not discriminate against employees who fail to conform to gender
stereotypes, UTA’s proffered reason of concern over restroom usage is not
discriminatory on the basis of sex. Thus, it is not “facially prohibited by Title
VII” and may satisfy UTA’s burden on the second part of the McDonnell Douglas
framework.
3. Pretext
Once UTA has advanced a legitimate, nondiscriminatory reason for
Etsitty’s termination, the burden shifts back to Etsitty to “show there is a genuine
issue of material fact as to whether the proffered reason[] [is] pretextual.” Plotke,
405 F.3d at 1099. “A plaintiff demonstrates pretext by showing either that a
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discriminatory reason more likely motivated the employer or that the employer’s
proffered explanation is unworthy of credence.” Stinnett v. Safeway, Inc., 337
F.3d 1213, 1218 (10th Cir. 2003) (quotation omitted). Such a showing may be
made by revealing “such weaknesses, implausibilities, inconsistencies,
incoherence, or contradictions, in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could . . . infer that the employer did not act
for the asserted non-discriminatory reasons.” Jencks v. Modern Woodmen of Am.,
479 F.3d 1261, 1267 (10th Cir. 2007) (quotation omitted). Although this court
must resolve all doubts in Etsitty’s favor, “[m]ere conjecture that the employer’s
explanation is pretext is insufficient to defeat summary judgment.” Anderson v.
Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999).
In support of Etsitty’s contention that she was terminated for failing to
conform to gender stereotypes and not because of UTA’s concern regarding her
restroom usage, she relies primarily on the testimony of Shirley and Cardon.
Specifically, she points to Shirley’s deposition testimony in which she stated,
“We both felt that there was an image issue out there for us, that we could have a
problem with having someone who, even though his appearance may look female,
he’s still a male because he still had a penis.” Additionally, Cardon testified,
“We have expectations of operators and how they appear to the public. . . . [I]f
we see something that is considered radical or could be interpreted by the public
as being inappropriate, we talk to the operators about that and expect them to
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have a professional appearance.” Etsitty argues these statements provide
sufficient evidence to allow a rational jury to conclude she was terminated
because she was a biological male who did not act and appear as UTA believed a
man should.
If these statements stood alone, they may constitute sufficient evidence of
pretext to preclude summary judgment. A complete review of the deposition
testimony, however, indicates otherwise. Although the specific statements cited
by Etsitty address Etsitty’s appearance, they fall within the larger context of an
explanation of UTA’s concerns regarding Etsitty’s restroom usage. Immediately
after Shirley mentions Etsitty’s appearance, she explains the problem with this
appearance is that she may not be able to find a unisex bathroom on the route and
that liability may arise if Etsitty was using female restrooms. When Cardon was
asked what he found unprofessional about Etsitty’s appearance, he similarly
responded with concerns about her restroom usage. Thus, the isolated and
tangential comments about Etsitty’s appearance are insufficient to alone permit an
inference of pretext. Instead, the testimony of Shirley and Cardon, viewed in its
entirety and in context, provides further support for UTA’s assertion that Etsitty
was terminated not because she failed to conform to stereotypes about how a man
should act and appear, but because she was a biological male who intended to use
women’s public restrooms.
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In addition to the statements made by Shirley and Cardon, Etsitty argues
UTA’s asserted reason for her termination must be pretextual because UTA had
no reason to be concerned regarding her use of women’s restrooms. In support of
this claim, Etsitty makes the following arguments: (1) UTA could not be subject
to liability, as a matter of law, for allowing a male-to-female transsexual
employee to use women’s restrooms; (2) UTA had received no complaints
regarding Etsitty’s restroom usage; (3) UTA made no attempt to investigate
whether there were unisex restrooms available; and (4) because Etsitty looked and
acted like a woman, no one would know she was not biologically female and
therefore could not take offense to her use of women’s restrooms.
None of the arguments raised by Etsitty is sufficient to raise a genuine
issue as to whether UTA’s asserted concern regarding her use of the women’s
restrooms is pretext. Although Etsitty states in her brief that there is no evidence
she intended to use female restrooms, she admitted at oral argument that she was
required to use female restrooms and that she informed Shirley of this at their
meeting prior to her termination. Thus, UTA’s belief that Etsitty intended to use
female restrooms was well-grounded. While Etsitty contends this fact should not
have given rise to her termination, her argument is more akin to a challenge to
UTA’s business judgment than a challenge to its actual motivation. Nevertheless,
“[t]he relevant inquiry is not whether [the defendant’s] proffered reasons were
wise, fair or correct, but whether [it] honestly believed those reasons and acted in
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good faith upon those beliefs.” Exum v. United States Olympic Comm., 389 F.3d
1130, 1138 (10th Cir. 2004) (quotation omitted) (alterations in original).
While this court may disagree with UTA that a male-to-female
transsexual’s intent to use women’s restrooms should be grounds for termination
before complaints have arisen, there is insufficient evidence to permit an
inference that UTA did not actually terminate Etsitty for this reason. To the
contrary, all of the evidence suggests UTA did in fact terminate Etsitty because of
its concerns about her restroom usage. Both at the time of Etsitty’s termination
and in subsequent deposition testimony, Shirley consistently explained the
termination decision in terms of her concerns regarding liability for UTA and the
inability of UTA to accommodate Etsitty’s restroom needs. Although Shirley and
Cardon specifically asked Etsitty whether she possessed male genitalia, such an
inquiry is not the “smoking gun” Etsitty suggests. Rather, the record is clear that
this inquiry was only relevant to UTA’s evaluation of whether Etsitty’s restroom
usage could become a problem.
UTA’s legitimate explanation is not made implausible by any of the
circumstantial evidence relied on by Etsitty in her brief. The fact UTA had not
yet received complaints about Etsitty’s restroom usage at the time of the
termination does not mean UTA could not have been concerned about such
complaints arising in the future, especially where Etsitty had only recently begun
using the women’s restroom. Similarly, Etsitty has pointed to nothing in the
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record to indicate the feasibility of an investigation into the availability of unisex
restrooms along each of UTA’s routes or the likelihood complaints would arise.
Therefore, in this case, Shirley’s failure to conduct such an investigation has
little, if any, bearing on the veracity of her stated concern.
Etsitty’s reliance on Cruzan v. Special School District #1 to call into
question UTA’s asserted motivation is also misplaced. 294 F.3d 981 (8th Cir.
2002). In Cruzan, the Eighth Circuit held that a male-to-female transsexual’s use
of the women’s employee restroom does not create a hostile work environment for
purposes of a Title VII sexual harassment claim. Id. at 984. Even if such a rule
were to be adopted in this circuit and applied to actions arising outside the
employment context, however, it would say nothing about whether UTA was
nevertheless genuinely concerned about the possibility of liability and public
complaints. The question of whether UTA was legally correct about the merits of
such potential lawsuits is irrelevant. See Exum, 389 F.3d at 1137 (“To show
pretext, the plaintiff must call into question the honesty or good faith of the
[employer].”)
Finally, Etsitty argues that because UTA typically resolves complaints
about its employees’ restroom usage simply by requiring the employees to stop
using the restroom for which the complaint was received, Etsitty was treated
differently than similarly situated employees. See Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1232 (10th Cir. 2000) (noting plaintiff may show
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pretext “by providing evidence that he was treated differently from other
similarly-situated, nonprotected employees”). The prior complaints received by
UTA, however, involved problems with the cleanliness of the restrooms and with
UTA employees congregating around a hotel swimming pool. An employee’s use
of bathrooms designated for the opposite sex is sufficiently different from these
prior problems as to make UTA’s treatment of restroom complaints in the past of
little significance to the question of pretext in the case at bar.
Thus, there is no evidence in the record of any “weaknesses,
implausibilities, inconsistencies, incoherence, or contradictions” in UTA’s
asserted legitimate, nondiscriminatory reason for Etsitty’s termination. Jencks,
479 F.3d at 1267 (quotation omitted). Etsitty has therefore failed to raise a
genuine issue as to whether UTA’s proffered reason is pretextual and the district
court properly granted summary judgment on Etsitty’s Title VII claim.
B. Equal Protection
With respect to Etsitty’s Equal Protection claims brought pursuant to §
1983, she makes no arguments aside from her Title VII claim that she was
discriminated against because of sex. Instead, she simply makes the conclusory
statement that the elements of a disparate treatment claim are the same whether
the claim is brought under § 1983 or Title VII. See Maldonado v. City of Altus,
433 F.3d 1294, 1307 (10th Cir. 2006), overruled on other grounds, Burlington N.
& Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2414-15 (2006) (“In
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disparate-treatment discrimination suits, the elements of a plaintiff's case are the
same whether that case is brought under §§ 1981 or 1983 or Title VII.” (quotation
and alterations omitted)). Because Etsitty does not argue there was a violation of
the Equal Protection Clause separate from her Title VII sex discrimination claim,
her Equal Protection claim fails for the same reasons discussed above. Cf. Brown,
63 F.3d at 971 (holding transsexual plaintiff was not a member of a protected
class for purposes of the Equal Protection Clause).
Outcome: For the foregoing reasons, this court affirms the district court’s grant of
summary judgment to the defendants.
Plaintiff's Experts:
Defendant's Experts:
Comments: