Glenn v. Brumby

• Decision Date: 25 June 2009
• Docket Number: Civil Action No. 1:08-CV-2360-RWS.
• Citation: 632 F.Supp.2d 1308
• Parties: Vandiver Elizabeth GLENN, Plaintiff, v. Sewell R. BRUMBY, Glenn Richardson, Casey Cagle, Eric Johnson and Robyn J. Underwood, in their official capacities, Defendants.
• Court: U.S. District Court — Northern District of Georgia

632 F.Supp.2d 1308

Vandiver Elizabeth GLENN, Plaintiff, v. Sewell R. BRUMBY, Glenn Richardson, Casey Cagle, Eric Johnson and Robyn J. Underwood, in their official capacities, Defendants.

Civil Action No. 1:08-CV-2360-RWS.

United States District Court, N.D. Georgia, Atlanta Division.

June 25, 2009.

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Cole Thaler, Gregory R. Nevins, Lambda Legal Defense and Education Funds, Inc., Atlanta, GA, for Plaintiff.

Nichole Lee Hair, Richard Neal Sheinis, Hall Booth Smith & Slover, P.C.-ATL, Atlanta, GA, for Defendants.

ORDER

RICHARD W. STORY, District Judge.

This Case is before the Court on Defendants' Motion to Dismiss [Dkt. No. 8]. After considering the entire record, the Court enters the following Order.

Background¹

This case arises out of a dispute between Vandiver Elizabeth Glenn (hereinafter "Plaintiff" or "Glenn") and Defendants Sewell R. Brumby (hereinafter "Brumby"), Glenn Richardson (hereinafter "Richardson"), Casey Cagle (hereinafter "Cagle"), Eric Johnson (hereinafter "Johnson"), and Robyn J. Underwood (hereinafter "Underwood") over alleged acts of discrimination against Plaintiff. Plaintiff has sued Defendants in their official capacity under the Equal Protection Clause.

In 2005, Vandiver Elizabeth Glenn was hired by the Georgia General Assembly's Office of Legislative Counsel for the position of Legislative Editor. Glenn's job duties included editing proposed legislation and resolutions for grammar, spelling, and format. Glenn was not involved in any policy-making functions. At the time Glenn was hired and during the substantial duration of employment, Defendants perceived Glenn to be male.

Plaintiff was determined to be male at birth, but later grew to have a female gender identity. In 2005, Glenn was diagnosed with Gender Identity Disorder (hereinafter "GID"). GID has been recognized as a medical condition in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. Text Revision 2000) (hereinafter "the DSM-IV"). Subsequently, Glenn's health care providers determined that gender transition was a medically necessary treatment for Plaintiff's GID. They also recommended that Glenn live full-time prior to the surgery, as a member of the female gender.

In October 2006, Glenn informed Senior Editor Beth Yinger (hereinafter "Yinger"), as the immediate superior, that Glenn was a transsexual with a female gender identity planning to undergo gender transition from male to female in 2007. Yinger indicated that she did not foresee a problem with Glenn's intentions. On October 31, 2006, Glenn came to work in a feminine manner of dress and comportment. Defendant Brumby sent Glenn home, stating that Plaintiff was inappropriately dressed.

In July 2007, Yinger was notified of Glenn's intent to proceed with the gender transition. In September 2007, Glenn provided Yinger with educational materials about gender transitions in the workplace. Yinger passed these materials on to Brumby, who informed Yinger that he was consulting with the leaders of the General Assembly about Plaintiff's situation.

On October 16, 2007, Brumby met with Glenn and confirmed that Glenn intended to undergo transition from male to female and to dress and live as a woman in the workplace. Brumby then fired Glenn because, in the view of Glenn's employers, gender transition surgery and presentation as a woman in the workplace would be seen as immoral, could not happen appropriately in Glenn's workplace, and would make other employees uncomfortable.

Glenn commenced this action asserting two claims against all Defendants pursuant to 42 U.S.C. § 1983 for violation of the Equal Protection Clause for discrimination based on sex and based on medical condition. Plaintiff seeks no damages, but requests only equitable relief and costs associated with this action. All Defendants have moved to dismiss the claims against them.

Analysis

When considering a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a federal court is to accept as true all facts set forth in the plaintiff's complaint. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.2000) (citation omitted); FED R. CIV. P. 12(b)(6). Further, courts must draw all reasonable inferences in the light most favorable to the plaintiff. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n. 1 (11th Cir.1999); FED. R. CIV. P. 12(b)(6). To satisfy the pleading requirements of Federal Rule of Civil Procedure 8, a complaint must contain a short and plain statement showing an entitlement to relief, and the statement must give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); FED. R. CIV. P. 8. See also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (citations omitted); Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005).

The Supreme Court has introduced the plausibility standard for motions to dismiss. See Twombly, 550 U.S. at 553-58, 127 S.Ct. 1955. The non-movant's factual allegations must raise the right to relief above the speculative level. Id. at 553, 127 S.Ct. 1955 The Supreme Court stressed that "[a]sking for plausible grounds . . . does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence [that is relevant]." Id. at 556, 127 S.Ct. 1955.

With this standard as a foundation, the Court shall address Defendants' Motion to Dismiss. Plaintiff asserts two theories of recovery under the Equal Protection Clause of the Fourteenth Amendment: (1) discrimination based on nonconformity to sexual stereotypes and (2) discrimination based on the medical condition known as GID.

I. Equal Protection in the Employment Context

The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of laws." U.S. Const. amend. XIV, § 1. "The central mandate of the equal protection guarantee is that `[t]he sovereign may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective.'" Lofton v. Sec'y of Dept. of Children and Family Svcs., 377 F.3d 1275, 1277 (11th Cir.2004) (quoting Lehr v. Robertson, 463 U.S. 248, 265, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983)). The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." Kicklighter v. Evans County School Dist., 968 F.Supp. 712, 720 (S.D.Ga.1997), citing City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3253-54, 87 L.Ed.2d 313 (1985).

Section 1983 is a statutory vehicle for addressing the violation of civil rights. It provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

42 U.S.C.A. § 1983. In a § 1983 action, a court must determine "whether the plaintiff has been deprived of a right secured by the Constitution and laws." Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). If a constitutional violation cannot be established, then a plaintiff's case is meritless. Id.²

II. Class of One Equal Protection Claims

Defendants contend that Plaintiff is actually asserting a "class of one" claim. Defendants further argue that because class-of-one equal protection claims are barred in a public employment contest, that Plaintiff's claims fail as a matter of law.

A class-of-one equal protection claim is one where the plaintiff alleges that he has been intentionally treated differently from others similarly situated, and there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 563, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). It is not necessary in such a case that the plaintiff show he or she is a member of a particular class of persons or that an entire class is the subject of discrimination. Id. at 564, 120 S.Ct. 1073. The Supreme Court has held that a class-of-one equal protection claim has no place in a public employment lawsuit. Engquist v. Or. Dept. of Agric., ___ U.S. ___, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008).

However, the facts of this case and the allegations made by Plaintiff are not consistent with a class-of-one claim. Plaintiff does not claim that Defendants took action based on characteristics unique solely to Glenn. See N. Pacifica, LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) ("When an equal protection claim is premised on unique treatment rather than on a classification, the Supreme Court has described it as a `class of one' claim."). Rather, Glenn alleges that Defendants engaged in discrimination based on Glenn's GID and failure to conform to sex stereotypes. These claims are not class-of-one claims, but rather classic equal protection claims in that they are based on Glenn's membership in identifiable groups: the group of individuals who have been diagnosed with GID and the group of individuals who fail to conform to sex stereotypes.

It is not necessary for Plaintiff to allege that others in the workplace also violated sex stereotypes or had the same medical condition. See Jefferies v. Harris County Cmty. Action Ass'n, 615 F.2d 1025, 1034 (5th Cir.1980) (holding that employer could not escape liability "because discrimination adversely affects only a portion...