Wittmer v. Phillips 66 Company

Filing 30

MEMORANDUM AND OPINION entered GRANTING 14 MOTION for Summary Judgment . Final judgment to be entered by separate order. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NICOLE C. WITTMER,
Plaintiff,
v.
PHILLIPS 66 COMPANY,
Defendant.

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April 04, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-2188

MEMORANDUM AND OPINION GRANTING THE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
Nicole Wittmer, a transgender woman, sued Phillips 66 Company for unlawful
discrimination based on her sex after Phillips rescinded a job offer it had made after interviewing
her. (Docket Entry No. 1). Phillips moved for summary judgment, Wittmer responded, and
Phillips replied. (Docket Entry Nos. 14, 16, 20, 24). The court held a hearing at which the
parties presented argument. After careful consideration of the motion, response, and replies; the
record evidence; the arguments of counsel; and the applicable law, the motion for summary
judgment is granted. This case is dismissed by final judgment separately entered. The reasons
are explained below.
I.

Background
Wittmer applied for a position as an Instrument and Reliability Engineer with Phillips at

the Borger Refinery in Borger, Texas, on May 31, 2015. (Docket Entry No. 14-2 at 2). Wittmer
interviewed on August 3 with the Engineering and Reliability Team Lead, David Long; the
Maintenance Manager, Karl Sosebee; and a panel that included the Human Resources Manager,
Ellen Fulton; the Area Reliability Engineer, Lou Cardinale; the Core Craft Team Leader, David

1

Gaines; and the Maintenance Engineering Team Lead, Michael Massey. (Id.; Docket Entry No.
14-16 at 2; Docket Entry No. 14-18 at 2). During her interviews, Wittmer discussed projects she
was currently performing as an employee at Agrium, and said that she was looking for a new job
because Agrium wanted her to spend more time working in Canada than she wanted to. (Docket
Entry No. 14-14 at 5).
On August 10, Phillips offered Wittmer the position. The offer was in writing and stated
that it was conditioned on certain requirements, including satisfactory results of a background
check. (Docket Entry No. 14-6). Wittmer accepted the offer on August 14. Wittmer received a
generic hiring email from Phillips telling her that she would receive emails from an independent
background-check company, HireRight, with information about completing the background
check. (Docket Entry No. 14-7; Docket Entry No. 16-4).
HireRight completed the background check and issued a report. The report informed
Phillips’s Human Resources Partner, Jacqualine Wilkinson, of a discrepancy in Wittmer’s
employment history with Agrium. The report showed that Wittmer was not currently employed
with Agrium on August 3, the date of her interview with Phillips. (Docket Entry No. 16-9).
According to the report, Wittmer initially told HireRight that her employment with Agrium had
ended on August 1, 2015, but Agrium told HireRight that Wittmer’s employment ended on
August 2. (Id.; Docket Entry No. 14-2 at 2–3; Docket Entry No. 16-5 at 7). When Wittmer
interviewed with Phillips on August 3, she described herself as still employed by Agrium.
On September 2, Wilkinson informed Fulton of the discrepancy. (Docket Entry No. 169). Fulton contacted Wittmer to ask her about it. (Docket Entry No. 16-9; Docket Entry No. 142 at 3). In response, Wittmer emailed Fulton a copy of her July 28, 2015 termination letter from
Agrium, stating that Wittmer’s employment with Agrium was terminated without cause effective
2

July 28 and that she would be paid through August 2. (Docket Entry No. 14-9 at 3).
After Wittmer emailed Fulton, on September 3 and 4, Wittmer sent a series of unsolicited
and uninvited emails to Fulton and other Phillips employees. Wittmer wrote on September 3:
“Every female engineer at Agrium Borger has quit in the past 5 months. I myself left work in
tears on occasion.” (Docket Entry No. 14-8 at 4). Wittmer wrote another email on September 4:
“All of the 3 female engineers at Agrium Borger have resigned within the past 4 months
including me. One of the[m] Kaitlin told me she file[d] an EEOC complaint against them.” (Id.
at 5).
On September 8, Fulton conferred with Sosebee and Long about Wittmer’s
inconsistencies in describing her employment status and the emails Wittmer had sent. They
decided to rescind Wittmer’s job offer because of the inconsistent reports Wittmer had given
about her employment with Agrium at the time of her Phillips interview. (Docket Entry No. 142 at 3; Docket Entry No. 14-16 at 2; Docket Entry No. 14-18 at 2). Before relaying the decision
to Wittmer, Fulton emailed the Phillips Employee Relations Advisor, Jermaine Davis, asking
him to review the decision. (Docket Entry No. 14-11). Fulton also sought advice from Refining
and Labor Relations Manager, Peter Terenzio, and the Borger Refinery Manager, Pete Stynes,
before notifying Wittmer of the decision to rescind the employment offer. (Docket Entry No.
14-2 at 3).
Two days later, on September 10, before Fulton informed Wittmer of the decision to
rescind the offer, Wittmer sent Fulton and the Phillips Shared Services Recruitment Associate,
Jennifer Edwards, another unsolicited email. Wittmer wrote:
I became aware that you all found out that I am a transsexual
woman. No one ever comes and says that is why we do not want
you. But to make up a false reason to is not Christian. Not only
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does you[r] diversity policy disallow discrimination, there are also
several federal laws that prohibits discriminating against me also.
(Docket Entry No. 14-8 at 8). Fulton responded with an email, stating that Phillips was unaware
of Wittmer’s status as “a transsexual woman until receiving [her] email.” (Id.). Fulton assured
Wittmer that “[t]his knowledge will not influence our decision one way or another” and
reminded her that Phillips had expressed concern about the discrepancies revealed during her
background check. (Id.). About 25 minutes after Fulton sent that email, Wittmer began sending
another series of unsolicited and confusing emails to various Phillips employees. To Fulton and
Edwards she wrote:
When I talk in a very loud area, buy [sic] voice lowers. And
Agrium let me go because the manger kept getting feedback from
the other that thought I was a man. I did not want to talk about it
because it hurts me very much and I did not want to cry in front of
any of you. That is why I did not want to talk about Agrium with
you.
(Docket Entry No. 14-8 at 13). The next day she wrote to Fulton: “Can were [sic] get together
with the ACLU and discuss this firsts.” (Id. at 16). On September 12, Wittmer wrote to Fulton
and Edwards: “Attached are a few laws that you may not be aware of,” and included an
attachment called “Transsexual protection laws.” (Id. at 18).
That same day, Wittmer sent Edwards, Fulton, Long, and Cooper the following email:
I know now beyond a shadow of a doubt that you are wrongly
trying to rescind my employment offer because I am a transsexual
woman. There is a great deal of misinformation about transsexual
women that is clouded by transgender trouble makers and I am not
under their umbrella. In fact, there is a transsexual female Judge in
Houston, TX. I have a long history of excellence at my job
because I focus on my job and nothing else. I do not belong to any
Transgender groups or associations. I belong to the society of
women engineer, and support girls inc and the girl scouts. I also
have belonged to a few Christian women church groups. I have a
great deal of experience this will be extremely valuable to the
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Borger Refinery.
Also the only document that GOD has touched is the TEN
COMMANDMENTS, and he says not to lie and to love thy
neighbor as thyself.
(Id. at 19). On September 14, Wittmer emailed a Phillips employee named Anna La Rock,
stating:
Press release
I applied for a position at the Phillips 66 refinery in Borger, Texas.
They did a thorough background and job check. They found out
that I am a transsexual woman. Because of that they rescinded my
job offer.
(Id. at 21–22).
Fulton called Wittmer on September 14 to formally rescind the Phillips employment
offer. Fulton sent an email the next day to confirm the decision and explain the reasoning.
“Upon follow up on information received post-offer during the pre-employment process, it was
determined that you were not employed at the time of your interview. Your employment with
Agrium had already ceased at the time of your interview. We have decided to rescind your offer
because you were not forthright during the interview about your employment and led us to
believe information that was not the case.” (Docket Entry No. 14-12).1 It is undisputed that
Wittmer represented that she was currently employed with Agrium during her interview with
Phillips on August 3. It is also undisputed that different sources showed three conflicting dates

1
Wittmer wrote an email the following day to Edwards, Fulton, Long, and Cooper, stating:
This is to confirm a phone call that I received from Ellen Fulton, on
9/14/2015 at 15:18 CST, that she has decided to renege on the job offer
to me for Instrument and reliability engineer at the Borger Refinery
because I am a transsexual woman.
(Docket Entry No. 14-8 at 23).
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for the end of her Agrium employment—July 28, August 1, and August 3—all before, or on the
day of, her in-person interview with Phillips during which she described herself as currently
employed at Agrium. It is undisputed that Phillips learned—from an Agrium letter that Wittmer
provided to Phillips—that her employment with Agrium had been terminated effective July 28,
which was before Wittmer interviewed at Phillips and said she was still an Agrium employee.
On October 5, Wittmer wrote to HireRight disputing its report of her dates of
employment with Agrium. (Docket Entry No. 16-5 at 6). Wittmer submitted an employment
verification from Agrium showing that her employment terminated on August 3, 2015. (Docket
Entry No. 15-2 at 12). HireRight completed its investigation on November 17 and verified that
Wittmer’s employment with Agrium had ended on August 3, 2015, the date of the Phillips
interview. (Id. at 14). There is no evidence that HireRight notified Phillips of the results of its
investigation.
In October 2016, Wittmer filed a charge of discrimination with the Equal Employment
Opportunity Commission.

She claimed that the offer was rescinded because of sex

discrimination. (Docket Entry No. 15-2 at 2). The EEOC investigated and issued a right-to-sue
letter. (Docket Entry No. 15-2 at 24).
In this suit, Wittmer alleges that Phillips rescinded her job offer based on her identity as a
transgender woman and her failure to conform to female sex stereotypes. After discovery,
Phillips moved for summary judgment.
II.

The Legal Standards
A.

Summary Judgment

“Summary judgment is appropriate only if ‘there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.’” Vann v. City of Southaven,
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Miss., 884 F.3d 307, 309 (5th Cir. 2018) (citations omitted); see also FED. R. CIV. P. 56(a). “A
genuine dispute of material fact exists when the ‘evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Burrell v. Prudential Ins. Co. of Am., 820 F.3d 132,
136 (5th Cir. 2016) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). “The
moving party ‘bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of [the record] which it believes demonstrate the absence
of a genuine issue of material fact.’” Brandon v. Sage Corp., 808 F.3d 266, 269–70 (5th Cir.
2015) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
“Where the non-movant bears the burden of proof at trial, ‘the movant may merely point
to the absence of evidence and thereby shift to the non-movant the burden of demonstrating . . .
that there is an issue of material fact warranting trial.’” Kim v. Hospira, Inc., 709 Fed. App’x
287, 288 (5th Cir. 2018) (quoting Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d
527, 536 (5th Cir. 2015)). While the party moving for summary judgment must demonstrate the
absence of a genuine issue of material fact, it does not need to negate the elements of the
nonmovant’s case. Austin v. Kroger Tex., L.P., 864 F.3d 326, 335 (5th Cir. 2017) (quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1076 n. 16 (5th Cir. 1994)). A fact is material if “its
resolution could affect the outcome of the actions.” Aly v. City of Lake Jackson, 605 Fed. App’x
260, 262 (5th Cir. 2015) (citing Burrell v. Dr. Pepper/Seven UP Bottling Grp., Inc., 482 F.3d
408, 411 (5th Cir. 2007)). “If the moving party fails to meet [its] initial burden, the motion [for
summary judgment] must be denied, regardless of the nonmovant’s response.” Pioneer
Exploration, LLC v. Steadfast Ins. Co., 767 F.3d 503 (5th Cir. 2014).
“When the moving party has met its Rule 56(c) burden, the nonmoving party cannot
survive a summary judgment motion by resting on the mere allegations of its pleadings.” Bailey
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v. E. Baton Rouge Parish Prison, 663 Fed. App’x 328, 331 (5th Cir. 2016) (quoting Duffie v.
United States, 600 F.3d 362, 371 (5th Cir. 2010)). The nonmovant must identify specific
evidence in the record and articulate how that evidence supports that party’s claim. Willis v.
Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014). “This burden will not be satisfied by ‘some
metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated
assertions, or by only a scintilla of evidence.’” Jurach v. Safety Vision, LLC, 642 Fed. App’x
313, 317 (5th Cir. 2016) (quoting Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.
2005)). In deciding a summary judgment motion, the court draws all reasonable inferences in
the light most favorable to the nonmoving party. Darden v. City of Fort Worth, 866 F.3d 698,
702 (5th Cir. 2017).
B.

Title VII

Title VII prohibits employment discrimination against “any individual . . . because of
such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of
discrimination, an employee must present direct evidence of discrimination or, in the absence of
direct evidence, rely on circumstantial evidence using the McDonnell Douglas burden-shifting
analysis. For this analysis, the employee carries the burden and must prove that (1) she belongs
to a protected class; (2) she applied for and was qualified for the position; (3) she was rejected
despite being qualified; and (4) others similarly qualified but outside the protected class were
treated more favorably. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see
also Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006).

If a plaintiff

establishes a prima facie case, the burden shifts to the employer to show it had a legitimate, nondiscriminatory reason for rescinding the offer. See McDonnell Douglas, 411 U.S. at 802. If the
employer can show a legitimate, non-discriminatory reason, the presumption of discrimination
8

disappears, and the burden shifts back to the employee to show that the proffered reason was a
pretext for discrimination or that the employee’s protected status is another motivating factor for
the decision. See Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007); Agoh v. Hyatt
Corp., 992 F. Supp. 2d 722, 736–37 (S.D. Tex. 2014).
Actionable sex discrimination under Title VII includes discrimination against those who
do not conform to sex or gender stereotypes. See Price Waterhouse v. Hopkins, 490 U.S. 228,
250–51 (1989). “Numerous courts, including ours, have 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. Const. Co., L.L.C., 731 F.3d 444,
454 (5th Cir. 2013); see also Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1042 (8th
Cir. 2010) (discrimination against women who do not wear dresses or make-up precludes
summary judgment for the defendant).
III.

Analysis
Until recently, transgendered persons have not been recognized as a protected class under

Title VII.

“[C]ourts have been reluctant to extend the sex stereotyping theory to cover

circumstances where the plaintiff is discriminated against because the plaintiff’s status as a
transgender man or woman, without any additional evidence related to gender stereotype nonconformity.” Eure v. Sage Corp., 61 F. Supp. 3d 651, 661 (W.D. Tex. 2014); see also Etsitty 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 and [a plaintiff] cannot satisfy her prima
facie burden on the basis of her status as a transsexual.”).
Within the last year, several circuits have expanded Title VII protection to include
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discrimination based on transgender status and sexual orientation.

The failure-to-conform

stereotyping protection from Price Waterhouse has been expanded to include transgender
persons. The Sixth Circuit recently held that “Title VII protects transgender persons because of
their transgender or transitioning status, because transgender or transitioning status constitutes an
inherently gender non-conforming trait.” Equal Emp’t Opportunity Comm’n v. R.G. & G.R.
Harris Funeral Homes, Inc., No. 16-2424, 2018 WL 1177669, at *9 (6th Cir. Mar. 7, 2018). The
Sixth Circuit explained that an employer cannot take action against an employee “based on that
employee’s status as a transgender person without being motivated, at least in part, by the
employee’s sex.” Id. at *8. The Sixth Circuit explained that “discrimination against transgender
persons necessarily implicates Title VII’s proscriptions against sex stereotyping. . . . There is no
way to disaggregate discrimination on the basis of transgender status from discrimination on the
basis of gender non-conformity.” Id. at *9.
In Zarda v. Altitude Express, Inc., No. 15-3775, 2018 U.S. App. LEXIS 4608 (2d Cir.
Feb. 26, 2018) (en banc), the Second Circuit held that discrimination based on sexual orientation
is a form of sex discrimination under Title VII, following the Seventh Circuit’s opinion in Hively
v. Ivy Tech. Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc). The Second Circuit
explained that discrimination for failure to conform to sex stereotypes supports treating sexual
orientation as a protected class. “We now conclude that sexual orientation discrimination is
rooted in gender stereotypes and is thus a subset of sex discrimination.” Zarda, 2018 U.S. App.
LEXIS 4608 at *40. The same is true for discrimination based on transgender status.
Although the Fifth Circuit has not yet addressed the issue, these very recent circuit cases
are persuasive. They consistently recognize transgender status and orientation as protected
classes under Title VII, applying the long-recognized protections against gender- or sex-based
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stereotyping.

Applying these recent cases, the court assumes that Wittmer’s status as a

transgender woman places her under the protections of Title VII.
Accepting that Wittmer is a member of a protected class, she fails to point to or submit
record evidence making a prima facie case that Phillips discriminated against her because of her
transgender status or a failure to conform to sex stereotypes. Even assuming a prima facie case,
there is no record evidence to support an inference that Phillips’s stated reasons for rescinding
her offer were false, pretextual, or that Wittmer’s transgender status was a motivating factor in
the decision to rescind the offer. The record shows no evidence that Phillips knew about
Wittmer’s status as a transgender woman until after it had decided to rescind the offer. Phillips
offered Wittmer the job after she met with a number of people for a day of in-person interviews.
None of her interviewers raised any issues, questions, or comments about her appearance, sex, or
mannerisms. Nothing in the record shows that her sex or appearance played any role in the
decision to rescind the offer.
A.

The Prima Facie Case

Without direct evidence of discrimination, Wittmer must rely on circumstantial evidence
to raise a factual dispute as to discrimination using the McDonnell Douglas framework. Using
the McDonnell Douglas analysis, Wittmer’s prima facie case requires showing that: (1) she
belongs to a protected class; (2) she applied for and was qualified for the position; (3) she was
rejected despite being qualified; (4) and others similarly qualified but outside of the protected
class were treated more favorably. The second and third prongs are undisputed. Even assuming
that Wittmer satisfies the first prong because she is transgender, as discussed above, Wittmer
fails on the fourth prong.
To be considered similarly situated, employees must be in “nearly identical
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circumstances.” Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (quoting Little v.
Republic Refining Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991)); see also Skinner v. Brown, 951 F.
Supp. 1307, 1315 (S.D. Tex. 1996) (no prima facie case because the plaintiff “failed to present
any competent summary judgment evidence that others [outside protected class] received more
favorable treatment under similar circumstances”). Wittmer argues that the McDonnell Douglas
standard is not meant to be “onerous,” citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981), and that it is not necessary to meet each prima facie prong to survive summary
judgment. See, e.g., Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)
(“the plaintiff’s failure to produce a comparator does not necessarily doom the plaintiff’s case”).
She argues that she does not need to show that similarly situated applicants outside the protected
class were treated more favorably.

Wittmer relies on discrimination cases that deal with

termination rather than failure-to-hire. In the context of failure-to-hire cases, the Fifth Circuit
recently held that summary judgment is properly granted for failing the fourth prong of the prima
facie case. See Rogers v. Pearland Ind. Sch. Dist., 827 F.3d 403, 408–09 (5th Cir. 2016).
Wittmer has not identified or presented evidence that she was treated less favorably than other
similarly situated non-transgender applicants, or than applicants who made misrepresentations
about their employment status or history. The record evidence shows that the position Wittmer
applied for was not filled. (Docket Entry No. 29 at 1).
Even if Wittmer is correct that she needs only to show an inference of sex discrimination
to meet the fourth McDonnell Douglas prong, she fails to do so. She argues that she has shown
an inference because she had made a prior complaint on a Phillips telephone ethics help line
against the Phillips Sweeny refinery in 2012, claiming unspecified discrimination during a job
interview. (Docket Entry No. 14-14 at 15). When asked if she had any evidence that anyone at
12

the Sweeny plant had discussed this oral complaint she had made years earlier with anyone at the
Borger plant, she said “no.” (Id. at 24).
Wittmer argues that in 2012 she also filed an EEOC discrimination charge about the
complaint she made on the telephone ethics helpline against the Phillips Sweeny plant. (Docket
Entry No. 16 at 14–15, Charge No. 451-2012-02417). Wittmer argues that the Phillips Borger
plant should have known of her prior EEOC complaint against the Sweeny plant. (Id.). But
Wittmer testified that she did not refer to her complaint she had made on the ethics helpline in
her 2012 EEOC charge. (Docket Entry No. 14-14 at 15). Phillips provides evidence that it first
learned about the 2012 EEOC charge against Phillips or its Sweeny plant in February 2018,
when Wittmer filed her response to Phillips’s motion for summary judgment. (Docket Entry No.
20 at 1–2). Phillips states that when it contacted the EEOC to learn more about the 2012 charge,
it discovered that Wittmer had not made the charge against the Phillips Sweeny plant, but against
another, unrelated company, Testengeer, Inc. (Docket Entry No. 21). Wittmer has not pointed
to or submitted any evidence supporting an inference that Phillips Borger personnel were aware
of any prior complaint against the Phillips Sweeny plant. Wittmer’s argument is based on an
EEOC charge against a different company.
Wittmer also argues that Phillips focused on the discrepancies in the information she
provided on her employment with Agrium but ignored similar discrepancies in her reports of her
employment history before Agrium.

This argument is unpersuasive.

Phillips focused on

Wittmer’s employment with Agrium because it was her most recent employer, her employment
had ended, and because Wittmer represented that she was actively employed by Agrium at the
time of her Phillips interview on August 3, 2015.
B.

A Legitimate, Nondiscriminatory Reason
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Even if Wittmer made a prima facie showing of discrimination, Phillips has identified a
legitimate, nondiscriminatory reason for rescinding the offer—Wittmer’s inconsistent
descriptions of her employment status with Agrium. See, e.g., Colbert v. Harris Cty. Juvenile
Prob., No. H-13-2770, 2014 WL 7404042 (S.D. Tex. 2014) (a misrepresentation in an initial
interview “satisfied [the] burden to articulate a non-discriminatory reason” for rescinding an
offer of employment).2
The Fifth Circuit has consistently held that a legitimate reason, even if incorrect, defeats a
Title VII claim. See LeMaire v. Louisiana, 480 F.3d 383, 391 (5th Cir. 2007) (the court’s job in
“conducting a pretext analysis is not to engage in second-guessing of an employer’s business
decisions. Our anti-discrimination laws do not require an employer to make proper decisions . . .
. ” And a plaintiff must show more than that an adverse employment action was improperly or
incorrectly made); Delaval v. Ptech Drilling Tubulars, L.L.C., 524 F.3d 476, 480 (5th Cir. 2016)
(“Management does not have to make proper decisions, only non-discriminatory ones.”); Harris
v. Miss. Transp. Comm’n, 329 Fed. App’x 550, 557 (5th Cir. 2009) (“Simply disputing the
underlying facts of an employer’s decision is not sufficient to create an issue of pretext.”)
Sandstad v. CB Richard Ellis, 309 F.3d 893, 899 (5th Cir. 2002) (“The issue at the pretext state
is whether [the employer’s] reason, even if incorrect, was the real reason for [the employee’s]
termination.”). Phillips’s stated reason for rescinding Wittmer’s offer shifts the burden back to
Wittmer to show that the reason was a pretext for discrimination or that discrimination was a

2
Wittmer’s subsequent uninvited emails to Phillips, in which her account of her job status and
termination from Agrium changed after Phillips confronted her about the discrepancies, confirmed
Phillips’s decision to rescind the offer. (Docket Entry No. 14-2 at 3; Docket Entry No. 14-8); see Strong
v. Univ. Healthcare Sys. L.L.C., 482 F.3d 802, 805–06 (5th Cir. 2007); Gollas v. Univ. of Tex. Health
Science Ctr., 425 F. App’x 318, 328 (5th Cir. 2011) (improper conduct is a legitimate reason for an
adverse employment action.).
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motivating factor in the decision.
C.

Pretext or Motivating Factor

Wittmer makes two arguments to show pretext.

First, she argues that she did not

misrepresent her employment at Agrium during her interview at Phillips because she talked only
about work she had done in the past at Agrium. Her deposition testimony undermines her
argument. Wittmer testified that during her interview she talked about her current projects at
Agrium, stating that she still worked there, and that she was looking for a different job because
Agrium wanted her to go to Canada. In fact, she had already received notice that Agrium
terminated her employment effective several days before her Phillips interview. (Docket Entry
No. 14-14, Ex. 3 at 5–7).
Second, Wittmer argues that she reasonably believed that she was still employed with
Agrium at the time of her interview with Phillips. This argument is equally unavailing. When
Phillips confronted her about the discrepancy, she readily admitted it and provided a letter from
Agrium stating that her employment had terminated effective July 28, 2015. (Docket Entry No.
14-9). She also said that she was paid through August 2, but she had told HireRight that her
employment ended August 1, 2015. That was the information Phillips had when it made the
rescission decision.
Wittmer later filed a complaint with HireRight to change the record as to the date her
Agrium job ended to August 3, 2015.

(Docket Entry No. 15-2 at 12–19).

The Agrium

termination letter, dated July 28, stated that Wittmer was paid through August 2, 2015, reflected
in her pay stub. (Docket Entry No. 15-4). The letter from Agrium shows that on July 28,
Wittmer was on notice that her employment with Agrium was terminated. Wittmer knew that
she was terminated on July 28, before the Phillips interviews, in which she talked about Agrium
15

as her current employer.
A termination date is the date an employee “receives notice of termination, and not the
final date of employment.” Allen v. Cty. of Galveston, 352 F. App’x 937, 939 (5th Cir. 2009); see
also Del. State Coll. v. Ricks, 449 U.S. 250, 257–58 (1980) (the filing period started when the
tenure decision was made and communicated to employee, even though the loss of the position
occurred later); Stith v. Perot Sys. Corp., 122 F. App’x 115, 117 (5th Cir. 2005) (“The operative
date . . . is the date of notice of termination, rather than the final date of employment.”) (citing
Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988). These cases involve the date
limitations began, but the treatment of when an employee is on notice of termination applies here
as well.
Wittmer similarly fails to present or point to any record evidence supporting an inference
that her transgender status was a motivating factor in Phillips’s decision to rescind her offer. It is
undisputed that Phillips made the decision to rescind Wittmer’s offer several days before
Wittmer informed the company of her transgender status. There is no evidence that anyone at
Phillips knew of Wittmer’s status before she sent the September 10 email, nor that her status
motivated Phillips’s decision to rescind the offer.
Wittmer argues that her email to Fulton and Edwards on September 10, stating she is a
transgender female, was a protected complaint of sex discrimination because she referred to
Phillips’s diversity policy and the federal prohibition of sex discrimination. (Docket Entry No.
14-8 at 8).3 She sent the email to Phillips stating that she was transgender after Phillips had

3
Job applicants can raise protected complaints under Title VII’s anti-retaliation provision. See 42 U.S.C.
§ 2000e-3(a); Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61–62 (2006). However,
Wittmer is not raising a retaliation claim here, and merely stating that she is transgender and that Phillips
has a nondiscrimination policy is not a protected complaint. The analysis for such a claim would be the
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decided to rescind the offer and had taken steps to make sure it was done properly.
Wittmer neither presents nor points to record evidence to support an inference that
Phillips’s legitimate reasons for rescinding the offer were a pretext for discrimination, or that her
later-related information about her transgender status was a motivating factor in the decision to
rescind the offer.
IV.

Conclusion
Phillips’s motion for summary judgment is granted. Final judgement is entered by

separate order.
SIGNED on April 4, 2018, at Houston, Texas.

___________________________________
Lee H. Rosenthal
Chief United States District Judge

same, and the record evidence shows that Phillips made its decision to rescind the job offer before
Wittmer made any claim about her transgender status.
17