Jamal v. Saks & Company
MOTION to Dismiss for Failure to State a Claim by Saks & Company, filed. Motion Docket Date 1/20/2015. (Attachments: # 1 Proposed Order)(Mitchell, Michael)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LEYTH O. JAMAL,
SAKS & COMPANY
CASE NO.: 4:14-CV-02782
MOTION TO DISMISS
SAKS & Company (“SAKS” or “Defendant”) files this Motion to Dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure.
NATURE AND STAGE OF THE PROCEEDINGS
Plaintiff, a person of “non-traditional gender” and a former employee of SAKS, filed this
employment discrimination lawsuit under Title VII of the Civil Rights Act of 1964 on September
30, 2014, alleging discrimination and harassment/hostile work environment because of “her [sic]
gender, gender identity, and gender expression,”1 retaliatory discharge,2 and breach of a
purported employment contract.3 SAKS has answered Plaintiff’s Complaint and denies the
allegations made against it. The initial pretrial and scheduling conference is set for February 3,
SUMMARY OF THE ARGUMENT
Plaintiff’s discrimination and harassment claims fail to state a claim upon which relief
can be granted because transsexuals are not a protected class under Title VII. Although
See Plaintiff’s Original Complaint at ¶¶ 66 and 71. Plaintiff’s Complaint also alleges that SAKS engaged in
“unlawful employment practices” under Title VII based on “disability.” Id. at ¶¶ 1-2. However, “Title VII does not
prohibit discrimination because of a disability.” Avina v. JP Morgan Chase Bank, N.A., 413 Fed.Appx. 764, 766, n.
4 (5th Cir. Feb. 23, 2011).
Id. at ¶ 89.
Id. at ¶ 103.
Plaintiff’s claims are also couched in terms of “gender” discrimination, Plaintiff’s Complaint
makes clear that the gravamen of Plaintiff’s claims are alleged discrimination and harassment
based on Plaintiff’s status as a transsexual. In addition, Plaintiff’s claims of discrimination and
harassment/hostile work environment because of “her [sic] gender” (i.e., female) are outside the
scope of Plaintiff’s EEOC charge, which did not assert that Plaintiff was discriminated against
based on status as a female.4 Plaintiff’s retaliation claim fails to state a claim because it is well
settled that transsexuals are not protected by Title VII. Thus, Plaintiff’s alleged complaints were
not protected. Plaintiff’s breach of contract claim fails to state a claim because employee
handbooks are not contracts as a matter of law. Therefore, the Court should dismiss Plaintiff’s
claims with prejudice.
STANDARD OF REVIEW
Rule 12 of the Federal Rules of Civil Procedure allows a court to eliminate actions that
are fatally flawed in their legal premises and destined to fail, thus sparing the litigants the
burdens of unnecessary pretrial and trial activity. Spivey v. Robertson, 197 F.3d 772, 774 (5th
Cir. 1999). To withstand a Rule 12(b)(6) motion, a complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007); see also Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368, 372
(5th Cir. 2008) (quoting Twombly, 550 U.S. at 570). The pleading standard in Rule 8(a) of the
Plaintiff filed a charge of discrimination with the EEOC on or about July 2, 2012. Id. at ¶ 13 & Ex. A. In the
charge, Plaintiff asserted in relevant part: “I believe that I have been discriminated against based on my gender, male
(transgender), in violation of Title VII of the Civil Rights Act of 1964, as amended.” Ex. A. “In considering a Rule
12(b)(6) motion, the district court may consider ‘an undisputably authentic document that a defendant attaches as an
exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.’” Brock v. Baskin-Robbins USA
Co., 113 F.Supp.2d 1078, 1092 (E.D. Tex. 2000) (quoting Steinhardt Group, Inc. v. Citicorp, 126 F.3d 144 (3d Cir.
1997)); accord Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (“[A] court may consider a writing referenced
in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is
unquestioned”); Voigt v. County of Victoria, No. V-07-cv-101, 2008 WL 2474575 at *1 (S.D. Tex. June 13, 2008)
(“[A] court does not transform a motion to dismiss into one for summary judgment by considering documents attached
to a defendant’s motion to dismiss that are central to the plaintiff’s claim but were left out of the complaint.”); Shanklin
v. Fernald, 539 F.Supp.2d 878, 883 (W.D. Tex. 2008).
Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), (citing Twombly, 550
U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556).
In ruling on a motion to dismiss, a court should consider only those facts stated on the face of
the complaint or incorporated into the complaint by reference, and matters of which judicial notice
may be taken. Lovelace v. Software Spectrum, 78 F.3d 1015, 1017 (5th Cir. 1996). If a complaint
omits facts concerning pivotal elements of a plaintiff’s claim, a court is justified in assuming the nonexistence of those facts. Ledesma v. Dillard Dept. Stores, 818 F. Supp. 983, 984 (N.D. Tex. 1993).
“[C]onclusory allegations or legal conclusions set forth as factual allegations will not prevent
dismissal.” Shabazz v. Tex. Youth Comm’n, 300 F. Supp. 2d 467, 470 (N.D. Tex. 2003).
Plaintiff’s discrimination and harassment claims fail to state a claim because
transsexuals are not protected under Title VII.
Title VII prohibits an employer from discriminating against or harassing an employee
“because of [the employee’s] sex.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75,
78 (1998); 42 U.S.C. § 2000e-2(a)(1). “The phrase in Title VII prohibiting discrimination based
on sex” means that “it is unlawful to discriminate against women because they are women and
against men because they are men.” Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th
Cir.1984). “[A] prohibition against discrimination based on an individual’s sex is not
synonymous with a prohibition against discrimination based on an individual’s sexual identity
disorder or discontent with the sex into which they were born.” Id.
Accordingly, it is well established that transsexuals are not a protected by Title VII. See
Etstitty v. Utah Transit Auth., 502 F.3d 1215, 1222 (10th Cir. 2007) (“[D]iscrimination against a
transsexual because she is a transsexual is not ‘discrimination because of sex.’ Therefore,
transsexuals are not a protected class under Title VII.”); Ulane, 742 F.2d at 1087 (“Title VII is
not so expansive in scope as to prohibit discrimination against transsexuals.”); Sommers v.
Budget Marketing, Inc., 667 F.2d 748, 750 (8th Cir. 1982) (“discrimination based on one’s
transsexualism does not fall within the protective purview of [Title VII].”). Oiler v. Winn-Dixie
Louisiana, Inc., 2002 WL 31098541, at *6 (E.D. La. 2002) (“Congress did not intend Title VII to
prohibit discrimination on the basis of a gender identity disorder.”); Sweet v. Mulberry Lutheran
Home, 2003 WL 21525058 (S.D. Ind. 2003) (“Sweet’s intent to change his sex does not support
a claim of sex discrimination under Title VII because that intended behavior did not place him
within the class of persons protected under Title VII.”).5
Plaintiff’s complaint alleges discrimination based on transsexualism.
Although Plaintiff’s discrimination claim is also couched in terms of “gender”
discrimination, Plaintiff’s Complaint makes clear that the gravamen of Plaintiff’s claims is
discrimination based on Plaintiff’s status as a transsexual. For example, Plaintiff’s Complaint
repeatedly refers to Plaintiff using female titles and pronouns (e.g., “Ms. Leyth,” “she,” and
“her”), and also suggests (without expressly stating) that Plaintiff is a “post-transition”
transsexual (i.e., an individual who has undergone a sex reassignement surgery).6 Conversely,
Plaintiff claims that SAKS required Plaintiff to use the men’s restroom7 and that SAKS
employees intentionally “misgendered” Plaintiff by using male pronouns (“he,” “him,” “his”) to
Accord Dobre v. National R.R. Passenger Corp. (Amtrak), 850 F.Supp. 284, 286-87 (E.D. Pa. 1993) (“Congress
did not intend Title VII to protect transsexuals from discrimination on the basis of their transsexualism.”); Powell v.
Read’s, Inc., 436 F. Supp. 369, 370 (D. Md. 1977) (“The gravamen of the Complaint is discrimination against a
transsexual and that is precisely what is not reached by Title VII.”).
See Plaintiff’s Original Complaint at ¶¶ 28-29.
Id. at ¶ 27.
describe Plaintiff.8 Plaintiff’s Complaint makes no allegations that Plaintiff was discriminated
against based on any alleged status as a man.9 Consequently, Plaintiff’s Complaint fails to state a
claim. See Eure v. Sage Corp., No. 5:12–CV–1119–DAE, 2014 WL 6611997, at *2, 7 (W.D.
Tex. Nov. 29, 2014) (granting summary judgment in employer’s favor on transsexual plaintiff’s
gender discrimination claim because the plaintiff’s allegations related solely to the plaintiff’s
status as a transgender person); Grossman v. Bernards Tp. Bd. of Educ., 1975 WL 302 (D.N.J.
1975), aff’d without opinion, 538 F.2d 319 (3d Cir. 1976) (“despite the plaintiff’s conclusory
allegations of sex discrimination, it is nevertheless apparent on the basis of the facts alleged by
the plaintiff that she was discharged by the defendant school board not because of her status as a
female, but rather because of her change in sex from the male to the female gender.”).
Plaintiff failed to exhaust administrative remedies concerning claims of
discrimination and harassment because of “her gender.”
To the extent Plaintiff’s Complaint can be read as asserting a claim that Plaintiff was
subjected to discrimination and/or harassment based on any alleged “post-transition” status as a
female (i.e., because of “her gender”10), Plaintiff failed to exhaust administrative remedies as a
matter of law. As explained above, Plaintiff’s EEOC charge does not allege that SAKS
discriminated against or harassed Plaintiff because of any alleged status as a female.
Accordingly, any such claim is barred because a plaintiff cannot bring claims in a civil lawsuit
under Title VII that were not included in his EEOC charge. Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974); Fine v. GAF Chemical Corp., 995 F.2d 576, 578 (5th Cir. 1993); see also
Reno v. Metropolitan Transit Auth., 977 F.Supp. 812, 818-19 (S.D. Tex. 1997) (J. Gilmore)
Id. at ¶ 28-29.
Indeed, the Complaint expressly disclaims any status as a man by referring to Plaintiff using female titles and
See Plaintiff’s Original Complaint at ¶¶ 66, 71.
(holding that plaintiff could not assert a sexual harassment claim when the EEOC charge alleged
only sex, age, and race discrimination).
Plaintiff has failed to state a claim for retaliation under Title VII.
Because it is well settled that transsexuals are not protected by Title VII, Plaintiff’s
retaliation claim also fails to state a claim as a matter of law. An employee’s subjective belief
that discrimination has occurred is not reasonable where established precedent holds that the
conduct that the employee opposed does not violate Title VII. See Clark County School District
v. Breeden, 532 U.S. 268, 271 (2001). In Breeden, the plaintiff asserted that she was discharged
in retaliation for complaining that a single sex-related joke constituted sexual harassment.
Breeden, 532 U.S. at 269-270. The Supreme Court rejected the plaintiff’s retaliation claim,
reasoning that “[a] recurring point in [our] opinions is that simple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to discriminatory changes in
the ‘terms and conditions of employment.’” Id. at 271 (internal quotes omitted). Thus, the Court
held that “[n]o reasonable person could have believed that the single incident recounted [by the
plaintiff] violated Title VII’s standard.” Id. (emphasis added). Accordingly, the Court held that
the plaintiff’s complaint about the single incident did not constitute protected activity for
purposes of the plaintiff’s retaliation claim. Id. Likewise, in this case, it is clear that Title VII
does not protect transsexuals. Thus, Plaintiff’s retaliation claim also fails to state a claim.
Plaintiff has failed to state a claim for breach of contract because
employment handbooks are not contracts as a matter of law.
Plaintiff’s breach of contract claim is based solely on his assertion that SAKS’ alleged
conduct violated the anti-discrimination policy contained in SAKS’ employee handbook.11
However, it is well-settled that policies in an employee handbook do not create a contract. See
See Plaintiff’s Original Complaint at ¶¶ 95-103.
Werden v. Nueces County Hospital District, 28 S.W.3d 649, 651 (Tex. App.–Corpus Christi
2000, no pet.); Gamble v. Gregg County, 932 S.W.2d 253, 255 (Tex. App.–Texarkana 1996, no
writ). Specifically, “[i]n an employment-at-will situation, an employee policy handbook or
manual does not, of itself, constitute a binding contract for the benefits and policies stated unless
the manual uses language clearly indicating an intent to do so.” Id. Likewise, “[a] personnel
manual does not create property interests in the stated benefits and policies unless some specific
agreement, statute, or rule creates such an interest.”
Gamble, 932 S.W.2d at 255; accord
Werden, 28 S.W.3d at 651. Accordingly, Plaintiff failed to state a claim for breach of contract
because the Complaint does not allege facts that would permit a reasonable inference that SAKS
is liable for breach of contract, as required by Twombly and Igbal.
For the foregoing reasons, Defendant SAKS & Company respectfully asks this Court to
dismiss Plaintiff’s claims with prejudice and award Defendant its costs, fees, and such other relief
to which it may be entitled.
/s/ Michael D. Mitchell
Michael D. Mitchell #00784615
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
500 Dallas, Suite 3000
Houston, Texas 77002-4709
Tel: (713) 655-5756
Fax: (713) 655-0020
DEFENDANT SAKS & COMPANY
CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of December, 2014, I electronically filed the
foregoing with the Clerk of the Court using CM/ECF system, which will send notification of
such filing to the following:
KATINE & NECHMAN, L.L.P.
1834 Southmore Blvd., (Almeda Road)
Houston, Texas 77004
/s/ Michael D. Mitchell
Michael D. Mitchell
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