Wittmer v. Phillips 66 Co.
304 F. Supp. 3d 627
S.D. Tex.2018Background
- Nicole Wittmer, a transgender woman, accepted a written job offer from Phillips 66 for an engineer position conditioned on a background check; she interviewed on August 3, 2015.
- HireRight's initial background report flagged inconsistent end-dates for Wittmer’s prior employment at Agrium (July 28, August 1, or August 3). Wittmer had represented during her August 3 interview that she was still employed at Agrium.
- After Phillips’ HR investigated the date discrepancy and received Wittmer’s Agrium termination letter (showing termination effective July 28 with pay through August 2), Phillips rescinded the offer on September 14 citing that Wittmer misrepresented her employment status.
- Wittmer sent multiple unsolicited emails to Phillips employees asserting she was transgender and alleging discrimination; Phillips’s decision to rescind preceded most of those emails and Phillips asserts it learned of her transgender status only after her September emails.
- Wittmer filed an EEOC charge and then sued under Title VII alleging sex stereotyping/transgender discrimination; Phillips moved for summary judgment, which the court granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Title VII protects transgender status / sex-stereotype claim | Wittmer: discrimination based on transgender status / failure to conform to female stereotypes is sex discrimination | Phillips: (implicitly) argued decision was nondiscriminatory and based on misrepresentation; Fifth Circuit not settled on transgender protection | Court assumed, based on persuasive recent circuits, that transgender status is protected but proceeded to analysis on other grounds |
| Prima facie case under McDonnell Douglas (comparator / inference) | Wittmer: raised inference of discrimination (points to prior complaints and alleged differential treatment) | Phillips: no similarly situated comparator; no evidence Borger plant knew of prior complaints | Wittmer failed the fourth prong (no nearly identical comparator or evidence creating inference) |
| Legitimate nondiscriminatory reason for rescission | Wittmer: she did not misrepresent or reasonably believed she was still employed | Phillips: offered legitimate reason — inconsistent/misleading statements about Agrium employment dates | Court: Phillips articulated legitimate nondiscriminatory reason (inconsistent employment statements) |
| Pretext / motivating-factor showing | Wittmer: rescission was actually motivated by transgender status or pretextual; her later emails asserting discrimination show motive | Phillips: decision made before knowledge of transgender status; no record evidence of sex-based comments or motive | Court: Wittmer offered no record evidence of pretext; Phillips’s stated reason not rebutted; summary judgment for Phillips |
Key Cases Cited
- Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (sex stereotyping is actionable under Title VII)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for circumstantial discrimination evidence)
- R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 884 F.3d 560 (6th Cir. 2018) (Title VII protects transgender persons via sex-stereotyping theory)
- Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (sexual-orientation discrimination analyzed as sex stereotyping under Title VII)
- LeMaire v. Louisiana, 480 F.3d 383 (5th Cir. 2007) (court should not second-guess employer's nondiscriminatory business decisions)
- Rogers v. Pearland Ind. Sch. Dist., 827 F.3d 403 (5th Cir. 2016) (fail-to-hire cases require similarly situated comparator to establish prima facie case)