Summary
The Fifth Circuit held that a transgender discrimination claim under Title VII still requires a plaintiff to plead comparator evidence showing less favorable treatment than similarly situated employees outside the protected class, even after *Bostock v. Clayton County* expanded sex discrimination to include gender identity. The court affirmed dismissal of a transgender plaintiff's claim because the complaint only alleged an employee took six months of leave and was terminated after seeking further indefinite leave—failing to state a plausible inference of discrimination. The court also upheld dismissal of ADA and retaliation claims for insufficient pleading and untimeliness, and found no abuse of discretion in denying leave to amend under Rule 16(b) for lack of good cause or reconsideration under Rule 59(e). Key legal topics include Title VII transgender discrimination pleading standards, *McDonnell Douglas* prima facie case, comparator requirement, and Rule 12(b)(6)/Rule 16(b) procedural issues.
Topics
Practice areas
Questions Presented
- Whether the district court erred in dismissing the Title VII discrimination claim for failure to allege facts supporting an inference of transgender discrimination.
- Whether the district court erred in dismissing the ADA discrimination claim.
- Whether the district court erred in denying reconsideration under Rule 59(e) based on Bostock v. Clayton County.
- Whether the district court erred in denying leave to amend the complaint under Rule 16(b) and Rule 15(a).
Holdings
- The complaint failed to allege facts sufficient to support an inference of transgender discrimination, as it did not identify any comparator who was treated more favorably, and therefore dismissal was proper.
- The complaint failed to allege facts showing that the adverse employment action was because of a disability, as it only made a conclusory statement of discrimination.
- Bostock did not change the requirement that a Title VII plaintiff must identify a comparator, so no intervening change in law warranted reconsideration.
- The district court did not abuse its discretion in denying leave to amend because Olivarez failed to show good cause under Rule 16(b) and also had repeatedly failed to cure deficiencies.
- The retaliation claim was untimely under Title VII’s 300-day filing requirement, and Olivarez did not dispute this on appeal.
Key quotations
“Title VII of the Civil Rights Act of 1964 prohibits employers from "discriminat[ing]" against any individual with respect to employment "because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1).” (1)
“An employer discharged a sales employee who happens to be transgender—but who took six months of leave, and then sought further leave for the indefinite future. That is not discrimination—that is ordinary business practice.” (2)
“Bostock nowhere alters the requirement that a plaintiff under Title VII must identify a more favorably treated comparator in order to establish discrimination.” (6-7)
“Title VII protects every American, regardless of sexual orientation or transgender status. It simply requires proof of sex discrimination.” (9)
Factual background
Olivarez, a transgender employee, worked as a retail store associate for T-Mobile from December 2015 to April 2018. In the first half of 2016, a supervisor made demeaning and inappropriate comments about Olivarez's transgender status. After Olivarez complained, T-Mobile allegedly reduced his hours to part-time. In September 2017, Olivarez stopped working to undergo egg preservation and a hysterectomy. He took unpaid leave from September to December 2017, then paid medical leave through December 31, and received an extension through February 18, 2018. T-Mobile denied a further extension in March 2018 and fired Olivarez on April 27, 2018.
Procedural history
Olivarez filed suit alleging discrimination under Title VII, ADA, and FMLA. After multiple amendments, the district court granted defendants' motions to dismiss the Title VII and ADA claims. The district court denied Olivarez's motions for reconsideration and for leave to further amend. Olivarez appealed, challenging the dismissal and the denial of those motions.