Dawson v. H & H Electric Inc
OPINION AND ORDER denying 16 Motion for Summary Judgment. The case will proceed to a jury trial. Signed by Judge Susan Webber Wright on 9/15/2015. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PATRICIA Y. DAWSON
H&H ELECTRIC, INC.
NO: 4:14CV00583 SWW
OPINION and ORDER
Plaintiff Patricia Dawson (“Dawson”), a transgender woman, brings this action pursuant
to Title VII of the Civil Rights Act of 1964, as amended, against her former employer, H&H
Electric, Inc. (“H&H”). Dawson charges that H&H wrongfully terminated her employment
because of her sex. Before the Court is H&H’s motion for summary judgment [ECF Nos. 16, 17,
18], Dawson’s response in opposition [ECF Nos. 19, 20, 21], and H&H’s reply [ECF No. 25].
Also before the Court is an amicus curiae brief by the Equal Employment Opportunity
Commission [ECF No. 26].1 After careful consideration, and for reasons that follow, the motion
I. Summary Judgment Standard
Summary judgment is proper if the evidence, when viewed in the light most favorable to
the non-moving party, shows that there is no genuine issue of material fact and that the
defendant is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v.
Catrett, 477 U.S. 371, 322 (1986). When a nonmoving party cannot make an adequate showing
on a necessary element of the case on which that party bears the burden of proof, the moving
The Commission takes the position that discrimination against an individual because he
or she is transgender is cognizable as discrimination because of sex in violation of Title VII.
party is entitled to judgment as a matter of law. Celotex, 477 at 322-23. A factual dispute is
genuine if the evidence could cause a reasonable jury to enter a verdict for either party. Miner v.
Local 373, 513 F.3d 854, 860 (8th Cir. 2008). “The mere existence of a factual dispute is
insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative
under prevailing law.” Celotex, 477 U.S. at 331.
Dawson has been diagnosed with gender dysphoria, which she explains “is the medical
diagnosis given to individuals whose gender identity–their innate sense of being male of
female–differs from the sex they were assigned at birth and who experience distress as a result.”2
In 2008, when Dawson was known as Steven and presented as a male, H&H hired her to work as
an electrical apprentice. H&H provided electrical contract work for Remington Arms Company
(“Remington”), and Dawson was assigned to work at Remington’s plant in Lonoke, Arkansas.
Dawson worked at the Lonoke job site from June 2012 until her termination in September 2012,
and during that time period, Marcus Holloway (“Holloway”), H&H’s vice president, served as
Dawson Dec., ¶7 [ECF No. 19-1, at 3]. Regarding the terms “gender dysphoria,”
“transgender,” and “transsexual,” the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders (Fifth ed. 2013)(“DSM–5”) provides as follows:
Gender dysphoria as a general descriptive term refers to an individual’s
affective/cognitive discontent with the assigned gender but is more specifically
defined when used as a diagnostic category. Transgender refers to the broad
spectrum of individuals who transiently or persistently identify with a gender
different from their natal gender. Transsexual denotes an individual who seeks, or
has undergone, a social transition from male to female or female to male, which in
many, but not all, cases also involves a somatic transition by cross-sex hormone
treatment and genital surgery (sex reassignment surgery).
DSM-V at 451.
her direct supervisor.
As part of her therapy for gender dysphoria, Dawson began the process of transitioning
from male to female, and in June 2012, she changed her legal name to Patricia Yvette Dawson.
Initially, Dawson refrained from discussing her transition with anyone at work, and she
continued to use the name Steve. But on Friday, June 22, 2012, Dawson informed Holloway that
she was transgender, and she showed him her new driver’s license, which bore her new name
and a female gender designation.
The parties present entirely different accounts of events that followed Dawson’s
disclosure to Holloway. Dawson testifies that when she told Holloway about her transgender
status, he appeared stunned and stated: “You’re one of the best people I have. I’d hate to lose
you.”3 She also recalls that Holloway instructed her not to tell anyone else at work about her
gender transition, and he stated that he needed the weekend to think about what to do.4 Contrary
to Dawson’s recollection, Holloway remembers only that he and Dawson had a brief discussion
about her name change and the need to have her payroll information changed.5 According to
Holloway, he merely told Dawson that he was on his way out of town and that the following
Monday, he would notify payroll about her name change.6
Dawson testifies that on Monday, June 25, 2012, Holloway instructed her to complete
new employment forms with her legal name, but he repeated that she should not discuss her
Dawson Dec., ¶11 [ECF No. 19-1, at 3]; see also Dawson Dep., 118 [ECF No. 19-2, at
Dawson Dec., ¶11 [ECF No. 19-1, at 3].
Holloway Dec., ¶9 [ECF No. 16-1, at 2].
gender transition with anyone at work, and he denied her request to openly use her legal name,
wear women’s clothing, or use the women’s restroom at work.7 Remington’s policies required
H&H employees to complete safety training, which was documented, and to sign daily log books
upon entering the plant. Dawson asked Holloway if she could use her legal name to sign
Remington’s safety training documents and log books, but Holloway refused her request.8
Dawson reports that she obeyed Holloway’s orders and refrained from discussing her
gender transition at work, but her coworkers began discussing her name change and transgender
status when she was not present. Dawson recalls that one coworker told her that he knew about
her name change and asked which name he should use to address her.
Dawson testifies that she
repeatedly sought Holloway’s permission to use her legal name at work and explained to him
that, despite her silence, other employees were aware of her gender transition. According to
Dawson, Holloway denied each request and cautioned her: “We are guests here [at Remington’s
job site]. Let’s not rock the boat.”9
Beginning the week of September 7, 2012, Dawson defied Holloway’s orders and began
to wear a bra, women’s clothing, and makeup to work. Subsequently, Holloway told Dawson
that he had received a report that she had worn a blouse to work, and he ordered her not to do it
again.10 Dawson testifies that when Holloway reprimanded her for inappropriate attire, he asked
Dawson Dec., ¶12 [ECF No. 19-1, at 2-3].
Dawson Dec., ¶ 16 [ECF No. 19-1, at 4].
Dawson Dec., ¶13 [ECF No. 19-1, at 4]; see also Dawson Dep., 126-127 [ECF No. 19-2,
Holloway Dep., 21 [ECF No. 19-3, at 17]. In deposition, Holloway stated that
Dawson’s blouse presented a safety issue. See Holloway Dep., 19-19 [ECF No. 19-2, at 14-15].
Holloway acknowledges that he didn’t see the blouse in question, but he recalls receiving a
her whether she was trying to drive him into early retirement, and he complained that people
were constantly approaching him to talk about her.11 Holloway denies making those
On September 17, 2012, Dawson trained an H&H employee named Stephan Wood.
Dawson recalls that Wood asked her whether she was permitted to sign Remington’s safety
records and log books with her legal name. Dawson states that when she responded that she was
required to sign the name “Steven,” Woods inquired whether the circumstances raised
falsification of documents, safety, or liability issues, to which Dawson responded, “I would think
so.” 13 Later that afternoon, Holloway terminated Dawson’s employment. Dawson testifies that
Holloway approached her and said, “I’m sorry, Steve. You do excellent work, but you’re too
much of a distraction. I’m going to have to let you go. I cannot afford to risk this contract over
After exhausting her administrative remedies, Dawson commenced this lawsuit, claiming
that H&H terminated her employment because of her sex, in violation of Title VII. Specifically,
Dawson charges that H&H terminated her employment “because of her gender transition” and
“because it perceived [her] to be a man who did not conform to gender stereotypes associated
report that it was low cut. See id. When asked to specify the safety concern presented by a lowcut blouse, Holloway responded: “Your safety.” Id.
Dawson Dec., ¶21 [ECF No. 19-1, at 5].
Holloway Dep. 66 [ECF No. 19-3, at 28].
Dawson Dec., ¶22 [ECF No. 19-1, at 6; see also Dawson Dep., 131-132 [ECF No. 19-2,
Dawson Dec., ¶ 23 [ECF No. 19-1, at 6].
with men . . . or because it perceived [her] to be a woman who did not conform to gender
stereotypes associated with women . . . . ”15
In moving for summary judgment, H&H initially argues: “[T]ranssexuals may not claim
protection under Title VII solely from discrimination based solely on their status as a
transsexual; as has been repeatedly recognized by federal courts, Title VII does not provide a
basis for protected status because sexual orientation is not listed as a protected class under Title
VII . . . . ”16
This argument ignores Dawson’s asserted theory of discrimination--that she was
terminated because of her gender transition and her failure to conform to gender stereotypes.
It is well settled that Title VII’s interdiction of discrimination “because of [an]
individual’s sex,” 42 U.S.C. § 2000e-2(a)(1), prohibits an employer from taking adverse action
because an employee’s behavior or appearance fails to conform to gender stereotypes. See Price
Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S.Ct. 1775 (1989), superseded on other grounds
by statute as stated in Burrage v. United States, 134 S. Ct. 881, 889 n.4 (2014);17 see also Lewis
Compl., ¶ 36-37 [ECF No. 1, at 6].
Def.’s Br. Supp. Summ. J. [ECF No. 18], 4-5.
In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775 (1989), the plaintiff
adduced evidence that she was denied a partnership at Price Waterhouse because she did not
conform to the decision makers’ expectations of how a woman should behave and appear. The
decision makers called the plaintiff “macho,” commented that she needed “a course at charm
school,” and advised her that she should “walk more femininely, talk more femininely, dress
more femininely, wear make-up, have her hair styled, and wear jewelry.” Price Waterhouse, 490
U.S. at 235, 109 S.Ct. at 1782. A plurality of the Court found that such comments were
indicative of gender discrimination and held that Title VII’s prohibition of discrimination
because of sex encompasses discrimination based on a failure to act in conformity with gender
stereotypes. See id., 490 U.S. at 250–51, 109 S.Ct. 1775 (plurality opinion); id. at 258–61, 109
S.Ct. 1775 (White, J., concurring); id. at 272–73, 109 S.Ct. 1775 (O'Connor, J., concurring). The
Court noted: “As for the legal relevance of sex stereotyping, we are beyond the day when an
v. Heartland Inns of America, L.L.C., 591 F.3d 1033, 1039 (8th Cir. 2010)(noting that “an
adverse employment decision based on gender non-conforming behavior and appearance is
impermissible under Price Waterhouse”). The Court finds that Dawson pleads facts sufficient to
state a legally viable claim that H&H discriminated against her because of her sex in violation of
H&H next argues that there are no genuine issues for trial because Dawson is unable to
establish a prima facie case of sex discrimination, and she cannot show pretext. Consistent with
the parties’ arguments, the Court will analyze Dawson’s claim under the three-part framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972). Under that framework,
Dawson must establish a prima facie case by showing that (1) she is a member of a protected
class; (2) she met the legitimate expectations of her employer; (3) she suffered adverse
employment action (termination); and (4) the adverse employment action (termination) occurred
under circumstances giving rise to an inference of discrimination. See Wheeler v. Aventis
Pharms., 360 F.3d 853, 857 (8th Cir. 2004). If Dawson makes a prima facie showing, the
burden shifts to H&H to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. Then, the burden shifts back to Dawson to present evidence that the stated
reason for adverse action is pretext for discrimination. Id.
With respect to Dawson’s prima facie showing, H&H does not dispute that she met the
legitimate expectations of her employer18 or that she suffered adverse employment action. H&H
employer could evaluate employees by assuming or insisting that they matched the stereotypes
associated with their group . . . . ” Id. at 251, 109 S.Ct. 1775.
It is undisputed that prior to Dawson’s termination, she had received merit-based pay
contends only that Dawson is without evidence sufficient to establish an inference of sex
discrimination because she cannot show that she received less favorable treatment than similarlysituated employees, who are not members of her protected class. However, such comparative
evidence is not the exclusive means by which Dawson may establish an inference of
discrimination. Lewis v. Heartland Inns of America, L.L.C., 591 F.3d 1033, 1039 -1040 (8th Cir.
2010). “The touchstone inquiry remains whether circumstances permit a reasonable inference of
discrimination.” Id.(emphasis added). Here, Dawson presents evidence that when she told
Holloway about her transgender status, he stated: “You’re one of the best people I have. I’d hate
to lose you.” Dawson also offers evidence that Holloway instructed her not to “rock the boat”
and that he repeatedly forbade her to use her legal name, talk about her transgender status, or
wear feminine clothes at work. Dawson’s evidence further shows that soon after she disobeyed
Holloway’s orders and began wearing makeup and feminine attire at work, Holloway terminated
her employment and told her that she was too much of a distraction. The Court finds that
Dawson has provided ample evidence from which a reasonable juror could find that she was
terminated because of her sex.
The Court now turns to the issue of pretext. H&H’s proffered reason for terminating
Dawson is that she threatened to sue Remington and did so without first discussing her workrelated problem with her immediate supervisor, as required by H&H’s employment handbook.
Holloway testifies that on September 17, 2012, the day he terminated Dawson, Remington
employees Virgil Bennett and Danny Hopkins (“Hopkins”) beckoned him to a meeting.19
According to Holloway, Hopkins told him that he called the meeting because a Remington
Holloway Dep., 5-6 [ECF 19-3, at 21-28].
employee overheard Dawson state that she could sue Remington because she had not received
safety training under her legal name. Holloway further testifies that Hopkins stated: “We don’t
appreciate one of your employees making a comment about Remington and where we work. We
feel like you need to remove her from our job site due to, you know, the threat that she made.”20
Dawson presents evidence that casts serious doubt on Holloway’s testimony. In
deposition, Hopkins recalled that he talked to Holloway only once regarding Dawson and that
the topic of discussion was that Dawson’s hoop earrings presented a safety concern. Hopkins
denied that he told Holloway that Dawson had threatened to sue Remington or that Hopkins
suggested that Holloway should remove Dawson from Remington’s job site.21 Considering this
evidence, together with Holloway’s alleged comments evidencing a discriminatory attitude and
the close temporal proximity between Dawson’s feminine appearance at work and Holloway’s
decision to terminate her employment, the Court finds that Dawson has carried her burden to
show that H&H’s proffered reason is merely pretext for sex discrimination. See Erickson v.
Farmland Indus., Inc., 271 F.3d 718, 727 (8th Cir. 2001)(explaining that evidence of a
discriminatory attitude may serve as evidence of pretext); Fitzgerald v. Action, Inc., 521 F.3d
867, 876 (8th Cir. 2008)(noting that temporal proximity may affect the reasonableness of
inferences drawn from other evidence).
For the reasons stated, Defendant’s motion for summary judgment [ECF No. 16] is
DENIED, and the case will proceed to a jury trial.
Holloway Dep., 26 [ECF 19-3, at 72].
Hopkins Dep., 33-36 [ECF 19-11, at 5-7].
IT IS SO ORDERED THIS 15TH DAY OF SEPTEMBER, 2015.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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