SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES

Margie Brandon v. The Sage Corporation,

Case No. 14-51320, U.S. Court of Appeals for the Fifth Circuit,

Case No. 5:12-CV-1118, U.S. District Court for the Western District of Texas

The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of 5th Cir. R. 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.

1. U.S. Equal Employment Opportunity Commission

Amicus Curiae

2. P. David Lopez

Carolyn L. Wheeler

Lorraine C. Davis

Anne W. King

Attorneys for Amicus Curiae U.S. Equal Employment Opportunity Commission

s/ Anne W. King___________

Attorney of record for the

Equal Employment

Opportunity Commission

SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES. i

TABLE OF CONTENTS. ii

TABLE OF AUTHORITIES. iii

STATEMENT OF INTEREST. 1

STATEMENT OF THE ISSUE. 1

STATEMENT OF THE CASE. 2

I. Statement of Facts. 2

II. District Court Decision. 8

SUMMARY OF THE ARGUMENT. 10

ARGUMENT. 10

I. Discrimination against transgender persons is cognizable as discrimination because of sex under Title VII. 10

II. An individual who opposes discrimination against transgendered persons may bring a retaliation claim under Title VII. 15

III. A jury could conclude that Sage retaliated against Brandon because she opposed conduct she reasonably believed violated Title VII. 20

CONCLUSION.. 24

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE

ECF CERTIFICATE

TABLE OF AUTHORITIES

Cases

Barnes v. City of Cincinnati,

401 F.3d 729 (6th Cir. 2005) ……………………………………………………..12

Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53 (2006) ……………………………………………………...……22, 23

Chavez v. Credit Nation Auto Sales,

49 F. Supp. 3d 1163 (N.D. Ga. 2014) …………………………………………….14

Doe v. United Consumer Fin. Servs., No. 1:01 CV 1112,

2001 WL 34350174 (N.D. Ohio Nov. 9, 2001) …………………………………..14

EEOC v. Boh Bros. Constr. Co., L.L.C.,

731 F.3d 444 (5th Cir. 2013) ……………………………………………..14, 18, 20

Etsitty v. Utah Transit Auth.,

502 F.3d 1215 (10th Cir. 2007) …………………………………...............12-13, 19

Finkle v. Howard Cnty.,

12 F. Supp. 3d 780 (D. Md. 2014) ………………………………………………..13

Glenn v. Brumby,

663 F.3d 1312 (11th Cir. 2011) ………………………………………12, 14, 17, 20

Hart v. Lew,

973 F. Supp. 2d 561 (D. Md. 2013) ………………………………………………14

Hertz v. Lezenac Am., Inc.,

370 F.3d 1014 (10th Cir. 2004) …………………………………………………..22

Johnson v. Univ. of Cincinnati,

215 F.3d 561 (6th Cir. 2000) ……………………………………………………..22

Kastl v. Maricopa Cnty. Cmty. Coll. Dist.,

325 F. App’x 492 (9th Cir. 2009) ………………………………………………...12

Long v. Eastfield Coll.,

88 F.3d 300 (5th Cir. 1996) …………………………………………………..15, 21

Lopez v. River Oaks Imaging & Diagnostic Grp., Inc.,

542 F. Supp. 2d 653 (S.D. Tex. 2008) ……………………………………………13

Mitchell v. Axcan Scandipharm, Inc., No. Civ.A. 05-243,

2006 WL 456173 (W.D. Pa. Feb. 17, 2006) ……………………………………...14

Myers v. Cuyahoga Cnty.,

182 F. App’x 510 (6th Cir. 2006) ………………………………………………...12

Oncale v. Sundowner Offshore Oil Servs., Inc.,

523 U.S. 75 (1998) ………………………………………………………..……...18

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989) …………………………………………………….........11, 18

Rosa v. Park W. Bank & Trust Co.,

214 F.3d 213 (1st Cir. 2000) ……………………………………………………...12

Schroer v. Billington,

577 F. Supp. 2d 293 (D.D.C. 2008) ………………………………………13, 19, 20

Schwenk v. Hartford,

204 F.3d 1187 (9th Cir. 2000) ………………………………………………..12, 17

Shannon v. Bellsouth Telecomm., Inc.,

292 F.3d 712 (11th Cir. 2002) ……………………………………………………22

Smith v. City of Salem,

378 F.3d 566 (6th Cir. 2004) …………………………………………12, 14, 17, 18

Sommers v. Budget Mktg., Inc.,

667 F.2d 748 (8th Cir. 1982) ……………………………………………………..16

Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-cv-375E(SC),

2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003) …………………………………14

Ulane v. E. Airlines,

742 F.2d 1081 (7th Cir. 1984) ……………………………………………………16

Willis v. Cleco Corp.,

749 F.3d 314 (5th Cir. 2014) ……………………………………………………..21

Statutes

42 U.S.C. §§ 2000e et seq.………………………………………………………....1

42 U.S.C. § 2000e-2(a)(1) ………………………………………………………..11

42 U.S.C. § 2000e-3(a) ……………………………………………………….......15

Administrative Materials

EEOC Compliance Manual § 8-II(B)(2) …………………………………………22

Lusardi v. McHugh, Appeal No. 0120133395

(EEOC Apr. 1, 2015) ………………………………………………………...…...16

Macy v. Holder, Appeal No. 0120120812,

2012 WL 1435995 (EEOC Apr. 20, 2012) …………………………...15, 16, 17, 20

STATEMENT OF INTEREST

The U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the primary agency charged by Congress with administering, interpreting, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal raises the issue of whether opposition to discrimination based on transgender status constitutes protected activity under Title VII’s anti-retaliation provision. This appeal also raises further questions relating to the merits of appellant’s Title VII claim, including whether an employer’s assertion that it will significantly diminish an employee’s compensation may constitute a materially adverse action. Because these issues are important to the effective enforcement of Title VII, the Commission respectfully offers its views to the Court. See Fed R. App. P. 29(a).

STATEMENT OF THE ISSUE

Whether a reasonable jury could determine that Appellee Sage Corporation retaliated against Appellant Margie Brandon based on her opposition to discrimination based on transgender status.

STATEMENT OF THE CASE

I. Statement of Facts [1]

Appellant Margie Brandon was School Director for Appellee Sage Corporation’s (“Sage”) San Antonio truck driving school, beginning around May 2010. ROA.670 (RE.T7) (Brandon Decl. ¶ 1).

Around December 2010, Brandon interviewed Lorenzo Eure (then known as Loretta Eure) for an instructor position and recommended hiring him. ROA.310; ROA.459-61; ROA.567 (Eure Dep. 28:10-18; Brandon Dep. 42:16-44:9; 150:11-20). Sage’s Safety Manager approved Eure’s hire based on a background check and a Department of Transportation assessment. ROA.568; ROA.671 (RE.T7) (Brandon Dep. 151:1-25; Brandon Decl. ¶ 3). Eure was paid on an hourly basis, and his responsibilities included conducting classroom training and providing on-the-road training in truck driving. ROA.325 (Eure Dep. 43:16-25). Eure worked part time, about 26 to 28 hours a week, but Brandon told him he would soon receive additional hours when the San Antonio school launched expanded services for Sanjel, Inc., a long-time client of Sage. ROA.238; ROA.325-26 (Campanian Aff. ¶ 6; Eure Dep. 43:20-44:11).

Eure is transgender: his gender identity (male) is different from the sex assigned to him at birth (female). ROA.665 (RE T.5) (Eure Decl. ¶ 4). When Eure worked at Sage, he presented as a male and he had taken steps towards transitioning from female to male (including a hysterectomy, mastectomy, and testosterone therapy) before starting at Sage. ROA.308-09; ROA.354; ROA.391; ROA.665 (RE T.5) (Eure Dep. 26:3-27:9; 72:13-24; Eure Dep. Ex. 1; Eure Decl. ¶ 4). Eure was known as “Loretta Eure” when he worked at Sage and later changed his name to “Lorenzo Eure.” ROA.287-88 (Eure Dep. 5:8-6:2).

In March 2011, Sage’s Carmella Campanian visited the San Antonio school in conjunction with Sage’s expansion of driver training services for the Sanjel company. ROA.238 (Campanian Aff. ¶ 6). Campanian introduced herself to the San Antonio school staff as Sage’s co-founder and Vice President. ROA.495; ROA.667 (RE.T6); ROA.670 (RE.T7) (Brandon Dep. 78:10-15; Solis Decl. ¶ 4; Brandon Decl. ¶ 2). Campanian, who is located in Montana, served as the National Project Director in charge of the Sanjel driver training program. ROA.237-38 (Campanian Aff. ¶¶ 2, 6). Sage has provided driver training services to Sanjel since 1994, and in June 2010 Sage entered into an expanded contract with Sanjel, which included launching driver training for Sanjel at the San Antonio school. ROA.238 (Campanian Aff. ¶¶ 6-7) (describing “multi-million dollar expansion”). Before Campanian’s visit, Brandon spoke to Campanian by phone on one occasion, and found her “pushy” and “abrasive” to a degree that made Brandon “uncomfortable.” ROA.486-92 (Brandon Dep. 69:22-75:1). Brandon reported her impression of Campanian to her own supervisor, Barbara Blake. ROA.487 (Brandon Dep. 70:8-14). Blake acknowledged that Campanian “is very difficult to work with,” but warned Brandon, “You’re on your own on that one.” ROA.487 (Brandon Dep. 70:8-14).

Brandon testified that Campanian expressed animosity towards Eure soon after her arrival at the San Antonio school, on March 29. ROA.493-95; ROA.671 (RE.T7) (Brandon Dep. 76:5-78:9; Brandon Decl. ¶ 3). Campanian was looking outside the Sage office when she exclaimed, “What the hell is that? What the hell is that out there?” ROA.493; ROA.671 (RE.T7) (Brandon Dep. 76:5-19; Brandon Decl. ¶ 3). Brandon realized that Campanian was referring to Eure, who was working with a student on a truck. ROA.493-94; ROA.671 (RE.T7) (Brandon Dep. 76:20-77:1; Brandon Decl. ¶ 3). Brandon responded that it was Loretta Eure, a Sage instructor. ROA.493-94 (Brandon Dep. 76:20-77:1). Campanian declared, “We don’t hire cross-genders in this company,” and asked who made the decision to employ Eure, inquiring, “[W]ho the hell hired that?” and querying whether Brandon herself hired Eure. ROA.494; ROA.671 (RE.T7) (Brandon Dep. 77:2-18; Brandon Decl. ¶ 3). Brandon responded that Eure was qualified for the instructor position and explained that Sage’s safety department approved the hire. ROA.494; ROA.671 (RE.T7) (Brandon Dep. 77:5-8; Brandon Decl. ¶ 3).

Campanian indicated that Brandon would face consequences for employing Eure, asserting, “[W]e will deal with you seriously for hiring that.” ROA.494; ROA.671 (RE.T7) (Brandon Dep. 77:2-10; Brandon Decl. ¶ 3). Maria Solis, Brandon’s administrative assistant, witnessed this exchange and confirmed Brandon’s account. ROA.667-68 (RE.T6) (Solis Decl. ¶¶ 5, 7, 9). Afterwards, Brandon called Blake, her supervisor, to report Campanian’s comments about Eure. ROA.498-99 (Brandon Dep. 81:20-82:8).

On March 30, Campanian continued berating Brandon, repeating the admonishment that, “[W]e’re going to deal with you seriously for hiring” Eure, and emphasizing that, “I told you yesterday we don’t hire cross-genders.” ROA.506-07 (Brandon Dep. 89:17-90:4). Brandon asked how Campanian planned to “deal with” her, and Campanian responded, “I haven’t made the decision yet. I have to talk to [Sage President Gregg] Aversa. He’s still traveling, and I can’t get a hold [of] him.” ROA.507 (Brandon Dep. 90:5-10).

After this conversation, Campanian made some phone calls; Brandon assumed that she spoke with Aversa, and Campanian acknowledged speaking to Aversa that day. ROA.246; ROA.507 (Campanian Aff. ¶ 26; Brandon Dep. 90:11-12). Then, Campanian called Solis, Brandon’s administrative assistant, into Brandon’s office and told Brandon and Solis to sit down. ROA.507; ROA.668 (RE.T6); ROA.671-72 (RE.T7) (Brandon Dep. 90:11-14; Solis Decl. ¶ 13; Brandon Decl. ¶ 5). Campanian asked Brandon her salary, and Brandon—shocked that Campanian had raised a highly personal question in front of Solis—did not immediately respond. ROA.507; ROA.668 (RE.T6); ROA.671-72 (RE.T7) (Brandon Dep. 90:15-21; Solis Decl. ¶ 13; Brandon Decl. ¶ 5). Campanian then announced, “[O]ur decision to deal with you seriously is to cut your pay in half.” ROA.507; ROA.668 (RE.T6); ROA.671-72 (RE.T7) (Brandon Dep. 90:23-25; Solis Decl. ¶ 13; Brandon Decl. ¶ 5). Brandon protested that cutting her pay would be illegal. ROA.508; ROA.668 (RE.T6); ROA.671-72 (RE.T7) (Brandon Dep. 91:1-6; Solis Decl. ¶ 13; Brandon Decl. ¶ 5).

Also on March 30, Campanian created a schedule for the San Antonio school instructors that incorporated the Sanjel students. ROA.511-12; ROA.672 (RE.T7) (Brandon Dep. 94:22-95:22; Brandon Decl. ¶ 6). Brandon reviewed this schedule and told Campanian there was a mistake: Campanian failed to include Eure on the schedule. ROA.512; ROA.672 (RE.T7) (Brandon Dep. 95:3-10; Brandon Decl. ¶ 6). Campanian retorted, “Are you stupid? … I’m not putting her on the schedule. Those Sanjel people, they’ll eat her up alive.” ROA.512 (Brandon Dep. 95:11-14). Brandon asked Campanian if she was firing Eure. ROA.512 (Brandon Dep. 95:15). Campanian said no, but clarified, “We’re just not going to give her any hours. Just won’t put her on the schedule.” ROA.512 (Brandon Dep. 95:15-18). Then, Campanian asked Brandon whether she understood the consequences she faced for hiring Eure. ROA.672 (RE.T7) (Brandon Decl. ¶ 2). When Eure saw the schedule, he asked Brandon why he was excluded from the schedule and whether he had been fired. ROA.512-13 (Brandon Dep. 95:23-96:5).

Documentary evidence corroborates Brandon’s account that Campanian reduced Eure’s hours. One version of the instructor schedule for April 4 through April 10 reflects that Eure was scheduled to work six shifts, while a second version of that week’s schedule omits all of Eure’s shifts. Compare ROA.413 with ROA.414. Also, one version of the instructor schedule for March 28 through April 3 reflects possible shifts for Eure on March 31 and April 3, while a second version of that week’s schedule allots those shifts to another instructor. Compare ROA.411 with ROA.412.

Sage acknowledged that Campanian created an instructor schedule and reduced Eure’s hours but provided a different explanation of Eure’s exclusion from the schedule. Campanian claimed that, on March 31, she scheduled a meeting for the next morning (April 1) to determine instructors’ availability for the following week. ROA.248-49 (Campanian Aff. ¶ 29). According to Campanian, Eure had called Campanian earlier on March 31 to report that he had the stomach flu. ROA.248 (Campanian Aff. ¶ 28). Campanian claimed that she tried to contact Eure at home the afternoon of March 31 to apprise him of the instructors’ meeting, but could not reach him. ROA.248-49 (Campanian Aff. ¶ 29). Campanian asserted that she posted the schedule for the following week late on April 1, and that she excluded Eure from the schedule because she could not confirm his availability. ROA.248-49 (Campanian Aff. ¶ 29).

Both Brandon and Eure resigned as a result of Campanian’s conduct. Brandon did not return to work on March 31 and submitted a formal resignation to Sage President Aversa, while Eure resigned on April 4. ROA.342-43; ROA.519-21 (Eure Dep. 60:22-61:1; Brandon Dep. 102:19-104:20).

II. District Court Decision

The district court granted summary judgment to Sage on Brandon’s retaliation claim predicated on her opposition to Campanian’s hostility to transgendered persons. ROA.857 (RE.T4). First, the court held that Brandon “could have reasonably believed that Campanian’s alleged opposition to hiring transgendered persons and decision to remove Eure from the schedule was in violation of Title VII.” ROA.854 (RE.T4). The district court stated that, “[a]lthough transgendered persons are not a per se protected class for Title VII purposes, transgendered persons can prevail on discrimination claims by showing that the discrimination occurred because of a failure to conform to gender stereotypes.” ROA.854 n.7 (RE.T4). Therefore, the district court reasoned, “[b]ecause there is a potential basis for recovery under Title VII through a gender stereotyping theory, [Brandon’s] belief was reasonable.” ROA.854 n.7 (RE.T4).

Second, the district court acknowledged that Brandon’s opposition to Campanian could constitute protected activity, particularly Brandon’s assertion that Eure was qualified when Campanian questioned why she hired Eure and Brandon’s objection when Campanian failed to include Eure on the schedule. ROA.853-55 (RE.T4). The district court did not consider Brandon’s March 29 report to Blake, when she complained about Campanian’s comments. The district court reasoned that Brandon’s opposition was sufficient, explaining that the majority of circuits have recognized that even “informal opposition to a discriminatory practice can constitute protected activity.” ROA.854-55 (RE.T4).

However, the district court held that Brandon’s retaliation claim nevertheless failed because she could not establish a materially adverse action. ROA.857 (RE.T4). The court determined that Campanian’s announcement that Brandon’s pay would be cut in half was not a materially adverse action because “mere threats of pay reduction that never come to fruition would not dissuade a reasonable worker” from protected activity. ROA.857 (RE.T4).

SUMMARY OF THE ARGUMENT

In granting summary judgment to Sage on Brandon’s retaliation claim, the district court incorrectly interpreted the scope of Title VII’s protections against discrimination “because of … sex.” The district court correctly determined that an individual who opposes transgender discrimination may have a “reasonable belief” that such discrimination violates Title VII, but the court’s underlying rationale was flawed. The district court rested its conclusion on the proposition that transgender individuals may bring sex discrimination claims based on a gender-stereotyping theory. Although this is correct, transgender individuals may also bring cognizable sex discrimination claims without specific evidence of gender stereotyping. Additionally, the district court erred in granting summary judgment to Sage because a reasonable jury could conclude that Sage’s announcement that it would cut Brandon’s salary in half constituted a materially adverse action.

ARGUMENT

I. Discrimination against transgender persons is cognizable as discrimination because of sex under Title VII.[2]

Title VII makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has clarified that the phrase “because of … sex” means “that gender must be irrelevant to employment decisions.” Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989). The plaintiff in Price Waterhouse was a female senior manager who was being considered for partnership in an accounting firm. Id. at 231-32. There was evidence that she was denied partnership because she was considered not feminine enough in dress and behavior. Id. at 235. Her evaluators suggested that she could improve her chances for partnership if she were less “macho” and learned to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. The Court held that the evaluation amounted to prohibited sex stereotyping, explaining that “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. at 251 (citations omitted). The court held that Title VII barred not just discrimination because the plaintiff was a woman, but also discrimination based on the employer’s belief that she was not acting like a woman. Id. at 250-51.

After Price Waterhouse, the courts of appeals have recognized that a transgender plaintiff may state a claim for discrimination because of sex if the defendant’s action was motivated by the plaintiff’s nonconformance with a sex stereotype or norm. See Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (stating that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender”); Smith v. City of Salem, 378 F.3d 566, 572-73 (6th Cir. 2004) (holding that an adverse action taken because of transgender plaintiff’s failure to conform to sex stereotypes concerning how a man or woman should look and behave constitutes unlawful gender discrimination); Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000) (concluding that a transsexual prisoner had stated a viable sex discrimination claim under the Gender Motivated Violence Act because “[t]he evidence offered … show[s] that [the assault was] motivated, at least in part, by Schwenk’s gender—in this case, by her assumption of a feminine rather than a typically masculine appearance or demeanor” and noting that its analysis was equally applicable to claims brought under Title VII);[3] but see Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1222-24 (10th Cir. 2007) (declining to adopt a per se rule that transgender discrimination always amounts to sex discrimination “at this point in time and with the record and arguments before this court,” but not reaching whether Title VII protects “transsexuals who act and appear as a member of the opposite sex”).

Additionally, numerous district courts, including one from within the Fifth Circuit, have concluded that transgender discrimination is cognizable under Title VII. See, e.g., Finkle v. Howard Cnty., 12 F. Supp. 3d 780, 788 (D. Md. 2014) (holding that an officer’s claim that she was discriminated against because of her transgender status was a “cognizable claim of sex discrimination”); Schroer v. Billington, 577 F. Supp. 2d 293, 305-06 (D.D.C. 2008) (“While I would therefore conclude that Schroer is entitled to judgment based on a Price Waterhouse-type claim for sex stereotyping, I also conclude that she is entitled to judgment based on the language of the statute itself.”); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653, 659-61 (S.D. Tex. 2008) (“Title VII and Price Waterhouse … do not make any distinction between a transgendered litigant who fails to conform to traditional gender stereotypes and an ‘effeminate’ male or ‘macho’ female who, while not necessarily believing himself or herself to be of the opposite gender, nonetheless is perceived by others to be in nonconformity with traditional gender stereotypes.”).[4]

Likewise, the Fifth Circuit, outside the transgender discrimination context, has recognized that “a plaintiff can satisfy Title VII’s because-of-sex requirement with evidence of a plaintiff’s perceived failure to conform to traditional gender stereotypes.” EEOC v. Boh Bros. Constr. Co., L.L.C., 731 F.3d 444, 454 (5th Cir. 2013) (en banc) (same-sex harassment case). In reaching its holding, the en banc court relied in part on two transgender discrimination cases, Smith, 378 F.3d at 573, and Glenn, 663 F.3d at 1316. See Boh Bros., 731 F.3d at 454 n.4.

II. An individual who opposes discrimination against transgendered persons may bring a retaliation claim under Title VII.

Because transgender discrimination is cognizable as discrimination “because of … sex” under Title VII, the statute also prohibits retaliation against individuals who oppose such discrimination. 42 U.S.C. § 2000e-3(a) (protected activity includes “oppos[ing] any practice made an unlawful employment practice [under Title VII]”). To establish opposition protected from retaliation under Title VII, employees need only show “at least a ‘reasonable belief’ that the practices [] opposed were unlawful.” Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996).

Here, the district court correctly concluded that Brandon could have reasonably believed that Campanian’s actions violated Title VII. However, EEOC takes a different view of the underlying rationale for this conclusion. The district court held that Brandon’s belief was reasonable “[b]ecause there is a potential basis for recovery under Title VII through a gender stereotyping theory.” ROA.854 n.7 (RE.T4). In EEOC’s view, Brandon could have reasonably believed that Campanian’s antipathy towards employing transgender persons violated Title VII in and of itself, because “considerations of gender stereotypes will inherently be part of what drives discrimination against a transgendered individual.” Macy v. Holder, Appeal No. 0120120812, 2012 WL 1435995, at *8 (EEOC Apr. 20, 2012). Although this point may appear minor because the district court nevertheless determined that Brandon had a reasonable belief, it is important to clarify the proper basis for determining that Brandon engaged in opposition protected under Title VII.

The district court acknowledged that “transgendered persons can prevail on discrimination claims by showing that the discrimination occurred because of a failure to conform to gender stereotypes,” but stated that “transgendered persons are not a per se protected class for Title VII purposes.” ROA.854 n.7 (RE.T4). In support, the district court cited Boh Brothers, Etsitty, Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), and Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982). ROA.854 n.7 (RE.T4). In making this statement, the district court appeared to assert that transgender persons may bring Title VII claims by providing evidence of gender stereotyping beyond their transgender status. To the extent that the district court meant that transgender individuals must provide additional evidence of gender stereotyping to establish a cognizable Title VII claim, this interpretation of the statute is not correct.

In the Commission’s view, discrimination against transgender individuals is inherently animated by gender stereotypes. Macy, 2012 WL 1435995, at *8; see also Lusardi v. McHugh, Appeal No. 0120133395, at *11 n.6 (EEOC Apr. 1, 2015) (explaining that “Macy [] held that discrimination on the basis of transgender status is per se sex discrimination” and found “that a plaintiff need not have specific evidence of gender stereotyping”). As the Eleventh Circuit has emphasized, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. [T]he very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” Glenn, 663 F.3d at 1316 (citations omitted) (second alteration in original). And, as the Sixth Circuit explained, discriminating against an individual because of his or her transgender status inherently entails sex-based considerations. See Smith, 378 F.3d at 574-75 (“[D]iscrimination against a plaintiff who is transsexual—and therefore fails to act and/or identify with his or gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman.”). Therefore, “[w]hen an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment “related to the sex of the victim.’” Macy, 2012 WL 1435995, at *7 (quoting Schwenk, 204 F.3d at 1202).

The district court cited Ulane and Sommers to support its view of Title VII, but both decisions pre-date Price Waterhouse. The Supreme Court has since rejected the two rationales these courts used to decline to extend protections to transgender individuals—a narrow definition of “sex” and a refusal to expand protections beyond the protected groups originally considered by Congress. To begin, as noted, Price Waterhouse makes clear that Title VII does not simply prohibit discrimination based on biological sex, but also “the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” 490 U.S. at 251 (citations omitted); see also Smith, 378 F.3d at 573 (“[T]he approach in [] Sommers[] and Ulane … has been eviscerated” by Price Waterhouse’s holding that “Title VII’s reference to ‘sex’ encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.”). Moreover, in Oncale v. Sundowner Offshore Oil Services, Inc., 523 U.S. 75 (1998), in ruling that same-sex harassment is actionable, the Supreme Court explicitly rejected the notion that Title VII only proscribes types of discrimination specifically contemplated by Congress. Id. at 79-80 (explaining that “statutory prohibitions often go beyond the principal evil [they were passed to combat] 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”); see also Boh Bros., 731 F.3d at 454 (same).

The district court also relied on Etsitty, but that decision is weak support for the district court’s position. While Etsitty declined to adopt a per se rule that transgender discrimination is discrimination “because of … sex,” the Tenth Circuit acknowledged that other courts had relied on Price Waterhouse to “recognize a cause of action for [] transsexuals claiming protection under Title VII,” although it did not reach that question itself. 502 F.3d at 1223-24. Further, Etsitty relied on decisions rendered before Price Waterhouse and Oncale—including Ulane and Sommers—which, for the reasons discussed above, see supra at 17-18, are no longer viable. See Etisitty, 502 F.3d at 1221.

Additionally, underpinning the Etsitty court’s rejection of a broader per se rule was its interpretation of Title VII as prohibiting discrimination against men or women, but not against individuals who change their sex. See 502 F.3d at 1222 (emphasizing the “traditional binary conception of sex” and the “two starkly defined categories of male and female”). The court’s reasoning is flawed. As Schroer v. Billington highlights, discrimination against someone for changing genders is itself evidence of sex discrimination. 577 F. Supp. 2d at 305-06. Schroer analogized to a religious conversion: an employer that fires an individual for converting from Christianity to Judaism, and that harbors no bias against Christians or Jews but only converts, has discriminated “because of religion.” Id. at 306. The court concluded that “[n]o court would take seriously the notion that ‘converts’ are not covered by the statute. Discrimination ‘because of religion’ easily encompasses discrimination because of a change of religion.” Id. (emphasis in original). It follows that discrimination against transgender individuals—those who have changed their gender expression—“is literally discrimination ‘because of … sex.’” Id. at 302.

Finally, the district court cited Boh Brothers, likely as an illustration that individuals may bring Title VII sex discrimination claims predicated on “discrimination [that] occurred because of a failure to conform to gender stereotypes.” ROA.854 n.7 (RE.T4). Boh Brothers involved a Title VII claim alleging that a male employee suffered harassment because he failed to conform to the harassers’ gender stereotypes. See Boh Brothers, 731 F.3d at 449. In Boh Brothers, evidence of gender stereotyping was integral to demonstrating that the harassment occurred “because of … sex.” Id. at 457. But it does not follow from Boh Brothers that a transgender individual—who is “defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes,” Glenn, 663 F.3d at 1316—must provide additional evidence of gender stereotyping to bring a Title VII claim. Instead, “evidence of gender stereotyping is simply one means of proving sex discrimination” in transgender and other sex discrimination claims. Macy, 2012 WL 1435995, at *8.

III. A jury could conclude that Sage retaliated against Brandon because she opposed conduct she reasonably believed violated Title VII.

The record evidence presents a genuine issue of fact as to whether Sage retaliated against Brandon because she opposed Campanian’s hostility to employing transgender persons (and Eure in particular) and Campanian’s reduction of Eure’s work hours. To establish a retaliation claim, Brandon must demonstrate (1) protected activity; (2) an adverse employment action; and (3) a causal link between the protected activity and adverse employment action. Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014).

First, Brandon may establish protected activity through evidence showing that she “oppos[ed] … an unlawful employment practice,” 42 U.S.C. § 2000e-3(a), and demonstrating “at least a ‘reasonable belief’ that the practices [] [she] opposed were unlawful.” Long, 88 F.3d 300 at 304. Here, Brandon could have reasonably believed that Campanian’s conduct was unlawful because Campanian expressed animus towards transgender individuals, disparaging “cross-genders” in reference to Eure. ROA.494. Or, Brandon could have reasonably believed that Campanian’s conduct was unlawful because Campanian’s antipathy towards Eure was based on her perception that Eure did not conform to his assigned sex. See ROA.308-09; ROA.354; ROA.391; ROA.494; ROA.665 (RE.T5).

Moreover, as the direct court correctly determined, Brandon can show that her opposition to Campanian’s conduct constituted protected activity. Brandon voiced opposition directly to Campanian by defending Eure’s qualifications when Campanian expressed antipathy towards hiring transgender individuals and objecting when Campanian omitted Eure from the schedule. ROA.494; ROA.512; ROA.671-72 (RE.T7). Brandon also voiced opposition to her supervisor, Blake, by reporting Campanian’s comments. ROA.498-99. Any of Brandon’s expressions of opposition are sufficient to establish protected activity. As the district court acknowledged, numerous circuits have recognized that even informal opposition may constitute protected activity, and a complaint to one’s supervisor plainly qualifies. See ROA.854-55 (RE.T4) (citing, e.g., Hertz v. Lezenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004); Shannon v. Bellsouth Telecomm., Inc., 292 F.3d 712, 715 n.2 (11th Cir. 2002); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000)); see also EEOC Compliance Manual § 8-II(B)(2) (“A complaint or protest about alleged employment discrimination to a manager, union official, co-worker … or anyone else constitutes opposition.”), available online at http://www.eeoc.gov/policy/docs/retal.html (last visited Apr. 20, 2015).

Second, a jury could determine that Campanian’s announcement of Brandon’s pay cut was a materially adverse action. A “materially adverse” action is one that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The district court held that Brandon could not establish retaliation because “mere threats of pay reduction … cannot constitute a materially adverse employment action.” ROA.857 (RE.T4). But the district court made two key errors. For one, the district court characterized Campanian’s announcement regarding Brandon’s pay as a “threat,” although a reasonable jury could find it was intended to convey a decision that had already been made. See ROA.507; ROA.668 (RE.T6); ROA.671-72 (RE.T7). Additionally, the district court’s categorical rule that threatened pay cuts do not constitute materially adverse actions cannot be squared with Burlington Northern. That is especially clear in this case, where the promised pay cut was quite substantial—half of Brandon’s salary—and Campanian had presented herself as one of Sage’s owners and co-founders. ROA.495; ROA.507; ROA.667-68 (RE.T6); ROA.670-72 (RE.T7). “Context matters” when it comes to assessing materially adverse actions, and “the significance of any given act of retaliation will often depend upon the particular circumstances.” Burlington Northern, 548 U.S. at 69. Here, where a company higher-up announced that Brandon would undergo a significant salary cut, there is a genuine issue as to whether Brandon suffered a materially adverse action.

Third, to establish causation, Brandon can point to direct links between her opposition and the materially adverse action. Brandon defended hiring Eure in response to Campanian’s animosity towards employing transgender persons (or individuals who do not conform to gender stereotypes). ROA 494 (“We don’t hire cross-genders in this company.”). In response, Campanian explicitly warned that Brandon would face consequences, asserting, “[W]e will deal with you seriously for hiring [Eure].” ROA.494; ROA.671 (RE.T7). When Brandon objected to Campanian’s reduction of Eure’s hours, Campanian repeated that Brandon would face consequences for hiring Eure. ROA.672 (RE.T7). And, when Campanian announced Brandon’s salary cut, she described the pay reduction as “our decision to deal with you seriously,” echoing the same language. ROA.507; ROA.668 (RE.T6); ROA.671-72 (RE.T.7). On this record, a jury could view Campanian’s warnings that “we will deal with you seriously” as evidencing a strong causal link between Brandon’s opposition and the promised pay cut.

CONCLUSION

For the reasons discussed above, the Commission respectfully urges this Court to reverse the district court’s grant of summary judgment.

Respectfully submitted,

P. DAVID LOPEZ s/ Anne W. King_____

General Counsel ANNE W. KING

Attorney

CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT

Acting Associate General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

LORRAINE C. DAVIS 131 M St. NE, Fifth Floor

Assistant General Counsel Washington, DC 20507

(202) 663-4699

anne.king@eeoc.gov

[1] Except for the record citations, the Statement of Facts is nearly identical to the Statement of Facts in the EEOC’s amicus brief in Eure v. The Sage Corporation, No. 14-51311 (5th Cir.).

[2] The EEOC understands the term “transgender” to refer broadly to a person whose gender identity or expression is different from the sex assigned to him or her at birth.

[3] See also Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 F. App’x 492, 493 (9th Cir. 2009) (concluding that, after Price Waterhouse, “it is unlawful to discriminate against a transgender (or any other) person because he or she does not behave in accordance with an employer’s expectations for men or women”); Myers v. Cuyahoga Cnty., 182 F. App’x 510, 519 (6th Cir. 2006) (concluding that “Title VII protects transsexual persons from discrimination for failing to act in accordance and/or identify with their perceived sex or gender”); Barnes v. City of Cincinnati, 401 F.3d 729, 733, 736-39 (6th Cir. 2005) (holding that the demotion of a “preoperative male-to-female transsexual” police officer because he did not “conform to sex stereotypes concerning how a man should look and behave” stated a claim of sex discrimination under Title VII); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 214-15 (1st Cir. 2000) (applying Price Waterhouse to conclude, under the Equal Credit Opportunity Act, that plaintiff stated a claim for sex discrimination because “it [was] reasonable to infer” that bank refused to provide a loan application because plaintiff’s “traditionally feminine attire” “did not accord with his male gender”).

[4] See also Chavez v. Credit Nation Auto Sales, 49 F. Supp. 3d 1163 (N.D. Ga. 2014) (“Because Title VII protects discrimination based on gender stereotypes, Plaintiff can assert a sex discrimination claim because Plaintiff was transitioning from a male to a female, and Plaintiff essentially claims that the failure to conform to male stereotypes caused Plaintiff’s termination.”); Mitchell v. Axcan Scandipharm, Inc., No. Civ. A. 05-243, 2006 WL 456173, at *2 (W.D. Pa. Feb. 17, 2006) (transgender plaintiff may state a claim for sex discrimination by “showing that his failure to conform to sex stereotypes of how a man should look and behave was the catalyst behind defendant’s actions”); Tronetti v. TLC HealthNet Lakeshore Hosp., No. 03-cv-375E, 2003 WL 22757935, at *4 (W.D.N.Y. Sept. 26, 2003) (transsexual plaintiff may state a claim under Title VII “based on [] alleged discrimination for failing to ‘act like a man’”); Doe v. United Consumer Fin. Servs., No. 1:01-cv-1112, 2001 WL 34350174, at *2-5 (N.D. Ohio Nov. 9, 2001) (termination based on non-conformity with gender expectations is actionable under Title VII); cf. Hart v. Lew, 973 F. Supp. 2d 561, 579 (D. Md. 2013) (assuming without deciding that Title VII protects transsexual individuals).