Nicole Wittmer v. Phillips 66 Company
915 F.3d 328
| 5th Cir. | 2019Background
- Wittmer, a transgender woman, received a conditional job offer from Phillips 66 in August 2015 that was rescinded after a background check revealed she had been terminated earlier than she had represented.
- Wittmer emailed Phillips 66 accusing them of transgender discrimination; Phillips 66 said it learned of her transgender status only after that email.
- The district court granted summary judgment for Phillips 66, finding Wittmer failed to make a prima facie Title VII case and failed to show pretext; the district court assumed Title VII prohibits transgender discrimination based on persuasive out-of-circuit decisions.
- On appeal the Fifth Circuit noted controlling Fifth Circuit precedent (Blum v. Gulf Oil) holding Title VII does not cover sexual orientation; the district court had not mentioned or distinguished Blum.
- The Fifth Circuit affirmed on evidentiary grounds: Wittmer failed the fourth McDonnell Douglas prima facie element (no comparator evidence) and failed to raise a genuine dispute that Phillips 66’s nondiscriminatory reason (misrepresentations) was pretext.
- The panel declined to decide whether Title VII covers transgender or sexual-orientation discrimination, reaffirming that Blum remains binding in the Fifth Circuit; Judge Higginbotham and Judge Ho separately concurred, emphasizing precedent and statutory interpretation concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Title VII prohibits discrimination based on transgender status | Wittmer: Title VII’s prohibition of discrimination “because of sex” encompasses transgender status (as other circuits have held) | Phillips 66: took no position on the novel question on appeal; defended judgment on evidentiary grounds | Court: did not decide the statutory question; affirmed on the merits because plaintiff failed to make a prima facie case and failed to show pretext |
| Whether plaintiff established a prima facie case under McDonnell Douglas (comparator evidence) | Wittmer: alleged rescission was due to transgender status | Phillips 66: plaintiff offered no evidence that non-transgender applicants were treated more favorably | Held: Wittmer failed the fourth prong—no comparator evidence; summary judgment appropriate |
| Whether Phillips 66’s stated reason (misrepresentations) was pretext for discrimination | Wittmer: argued the timing and subsequent email indicated discriminatory motive | Phillips 66: offered evidence that rescission was due to background discrepancies and occurred before it knew of transgender status | Held: No genuine issue that employer’s nondiscriminatory reason was pretext; summary judgment affirmed |
| Whether Blum v. Gulf Oil remains binding precedent in the Fifth Circuit | Wittmer/district court: relied on persuasive out-of-circuit rulings interpreting Title VII to cover transgender status | Phillips 66/appellate panel: Blum remains binding and was not addressed by the district court | Held: Blum remains binding; court nevertheless affirmed on independent evidentiary grounds without reaching whether Title VII covers transgender or sexual orientation discrimination |
Key Cases Cited
- Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (holds Title VII covers sexual-orientation discrimination)
- EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) (holds Title VII covers discrimination against transgender employees)
- Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc) (holds Title VII covers sexual-orientation discrimination)
- Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) (Fifth Circuit precedent rejecting Title VII coverage for homosexuality)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (Sup. Ct. 1973) (establishes burden-shifting framework for circumstantial discrimination cases)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (Sup. Ct. 1989) (discusses sex-stereotyping as evidence of sex discrimination)
- Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (Sup. Ct. 1998) (same-sex harassment actionable under Title VII)
- Gonzales v. Oregon, 546 U.S. 243 (Sup. Ct. 2006) (majors-canon/"elephants in mouseholes" principle in statutory interpretation)
- FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (Sup. Ct. 2000) (limits expansive statutory readings on major questions)
- Loving v. Virginia, 388 U.S. 1 (Sup. Ct. 1967) (racial classifications and marriage prohibitions condemned)
- Meritor Sav. Bank v. Vinson, 477 U.S. 57 (Sup. Ct. 1986) (Title VII covers hostile work environment/sexual harassment)