Thursday, August 24, 2017

Failure to Specifically Allege Failure to Conform to Sex Stereotype Did Not Doom Former Nursing Home Employee's Title VII Claim

A federal district court in the Eastern District of Pennsylvania has denied a defendant nursing home's Motion to Dismiss under FRCP Rule 12(b)(6) even though the plaintiff alleged only merely that he is gay and only provided facts about his former supervisor mocking his effeminate behavior.


The plaintiff, Frank "Doe" (the plaintiff filed a motion to proceed anonymously in order to keep private the fact that he is gay), began working as an activities director for the Meadowview Rehabilitation and Nursing Center, a nursing home in Pennsylvania, in May 2015.  In February 2016, the nursing home hired defendant John Chapman.  Around the time of Chapman's hire, two of plaintiff's coworkers warned him that he should not "act gay" around Chapman, one of them telling him to "turn the gay down."

Chapman nevertheless discovered the plaintiff was gay in February 2016 and "repeatedly mocked [him] by referring to him by the female name, 'Frances,' instead of [plaintiff's] real name, 'Frank'" with a high-pitched, effeminate intonation.  Plaintiff repeatedly told Chapman to stop, but he did not.

Around May 2016, Chapman asked the plaintiff privately whether plaintiff thought Chapman did not like him.  Plaintiff "responded that he believed Mr. Chapman had a problem with gay people in general.  Mr. Chapman raised his hand in the air, dropped it in his lap and said, 'Frances!' in a high-pitched, dramatic fashion.  After this conversation, Chapman did not stop mocking plaintiff by calling him "Frances," and did so in front of his coworkers to embarrass him.

On September 22, 2016, Chapman told plaintiff that he had seen him sleeping during a staff meeting the day before, and fired him.  This was an "exaggerated and completely fabricated reason" that Chapman allegedly used as a pretext to fire plaintiff.  Meadowview did not offer plaintiff the progressive discipline it routinely offered its other employees, which would have required a verbal warning, four written warnings and then suspension before termination.  Plaintiff then filed suit in federal district court after exhausting his administrative remedies.


The plaintiff brought his claims of discrimination and retaliation under Title VII and the PHRA.  In their motion to dismiss, defendants argued that plaintiff's claim for wrongful discharge and hostile work environment under Title VII should be dismissed because he alleges discrimination on the basis of sexual orientation only, not on the basis that his conduct did not conform to stereotypes of masculinity.  As just about every circuit has held, except for the 7th circuit, Title VII does not prohibit discrimination on the basis of sexual orientation.

The Court here denied the defendants' motion to dismiss, finding that plaintiff describes himself as the victim of antagonistic treatment due to his perceived effeminate behavior, rather than as a result of his sexual orientation alone.

The Court further found that the plaintiff sufficiently alleged that he was discriminated against because Chapman perceived that he did not conform to Chapman's expectations of what is masculine.  According to the complaint, Chapman apparently found plaintiff to be effeminate, using both a female name, "Frances," to refer mockingly to plaintiff, and a feminine, high-pitched voice when referring to him by this name.  Plaintiff shows that Chapman harassed and, ultimately, fired plaintiff because of his failure to conform to sex stereotypes.

Although the plaintiff did not specifically allege that he actually acted effeminately, the absence of such an allegation does not doom his claim, the court held.  Rather, he must merely show that he was perceived to be a member of a protected category.

The court also found that the plaintiff sufficiently plead a case for retaliation when he asked that Chapman stop with the mocking and names, he was fired, and there was a causal connection because the mocking continued nearly up to the point he was fired.

While this court is allowing this claim to proceed, it's definitely best practice to be sure to know what circuit you are filing this type of claim under and be sure to plead specific language that alleges the defendant discriminated against a plaintiff because of their failure to conform to specific sex stereotype(s).

The case is  Doe v WM Operating, LLC dba Meadowview Rehabilitation & Nursing Center, (EDPa, August 7, 2017).

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