Kozak v. CSX Transp.

Docket Number20-CV-184S
Decision Date01 August 2023
PartiesLEAH KOZAK, Plaintiff, v. CSX TRANSPORTATION, INC., Defendant.
CourtU.S. District Court — Western District of New York




In this action, Plaintiff Leah Kozak, a transgender woman, alleges that Defendant CSX Transportation, Inc., unlawfully discriminated against her on the basis of sex and disability when it terminated her employment after she urinated in a rail yard, a practice for which she claims non-transgender non-disabled employees are not disciplined. Before this Court is CSX's motion for summary judgment. (Docket No. 50) This Court will grant CSX's motion as to Kozak's disability claim, but deny it as to her sex-discrimination claim because there exist disputed issues of material fact that preclude summary judgment.


Unless otherwise noted, the following facts are undisputed for purposes of the motion for summary judgment. This Court takes the facts in the light most favorable to Kozak, the non-moving party. See Mitchell v. City of New York, 841 F.3d 72, 75 (2d Cir. 2016) (at summary judgment, a court “views the evidentiary record in the light most favorable to ... the non-moving party).

Kozak was employed by CSX from September 1999 until her dismissal in July 2019. (Complaint, Docket No. 1, ¶ 37.) In late 2018, she came out as transgender and began to transition to female. (Id., ¶ 42.) She began taking hormone-suppressing medication to treat her gender dysphoria. The medication she was taking, spironolactone, had a side effect of frequent urination. (Id., ¶ 45.) She also began to present with more feminine characteristics and body styling. (Id., ¶¶ 43-45.) In December 2018, she informed Mike Lewandowski, a CSX supervisor, of her transition. (Docket No. 68, ¶ 3.) Kozak informed Lewandowski that she would need to urinate more frequently due to her medication but did not request permission to use the bathroom more frequently. (Id., ¶¶ 7-8.) Kozak asserts that she did not specifically request additional bathroom access because she believed that she was permitted to urinate in the rail yard as needed. (Id.) At some later point, Kozak told Lewandowski that it would be helpful to have portable toilets in the rail yard. (Id., ¶ 17.)

On June 13, 2019, while Kozak was working in CSX's Buffalo rail yard, she urgently needed to urinate. (Id., ¶¶ 48, 51.) During a pause in the rail activity, she walked to a nearby shanty and urinated against it, taking care not to expose herself. (Id., ¶¶ 52-54.) The parties dispute how far the shanty was from the nearest restroom, with both sides submitting map images purporting to show the locations of available restrooms. (Compare Docket No. 75-1 with Docket Nos. 68, ¶¶ 47, 49; 71-1.) The parties also dispute whether CSX rules permitted Kozak to stop working and take the time she would need to walk to the nearest bathroom to relieve herself. (Compare Docket No. 75-1, ¶ 8 with Docket No. 68, ¶¶ 40, 50-52.) Kozak asserts that employees only left their work areas to walk to a building with a restroom for a bowel movement, not when they needed to urinate. (Docket No. 68, ¶ 51.) The record contains emails from CSX employees stating that it was a common practice, if a restroom was not nearby, for employees to urinate outdoors. (See Docket No. 70-2.) CSX employee Joseph Stachewicz declared that, in his 23 years of employment at CSX, “there has never been a problem with having to urinate outside because there are no facilities available.” (Docket No. 70-6 at p. 2.)

Trainmaster Amanda Dellinger was monitoring CSX's movable security cameras at this time as part of her job. (Docket No. 50-3 at p. 8.) Stachewicz declared that he had overheard Dellinger saying transgender people were “unnatural and disgusting and against God.” (Docket No. 70-6 at p. 2.) Dellinger testified that she did not remember saying this but also testified that she “did not agree” with Kozak's gender transition. (Docket No. 50-3 at p. 20.)

When she observed Kozak walk away from her post, Dellinger followed her with the camera and observed Kozak standing with her back to the camera, in a stance that indicated that she was urinating. (Id. at p. 9.) Dellinger informed Lewandowski, her supervisor, about what she had observed. (Id. at p. 10.) Dellinger asserts that Lewandowski instructed her to pull Kozak off duty and begin disciplinary proceedings. (Id. at p. 10.) Kozak asserts that, in her experience, the only time workers are taken immediately off the job is when there is a dangerous error, such as passing a red light. (Docket No. 68, ¶ 70.)

A hearing was held on June 20, 2019, at which CSX hearing officer Josh Greenway presided. (Docket No. 50-5.) Kozak was charged with the “lewd act of urinating in public.” (Id. at p. 3.) Dellinger chose the charging language asserting that Kozak had committed a “lewd act.” (Id. at p. 11.) During the hearing, Dellinger testified to her observations of Kozak, and Kozak admitted to urinating against the shanty. (Id.) When Kozak's union representative asked what rules Kozak had violated, Dellinger first asked, “as far as the rule I charged her with, or is there an actual rule?” (Id. at p. 7.) Dellinger later stated that Kozak had violated Rule 104.1, stating that “employee behavior must be respectful and courteous,” and Rule 2000.1, stating that employees must “observe all local, state, and federal laws and regulations.” (Docket No. 50-5 pp. 8-9.)

Dellinger was “sequestered” after her testimony, but upon her return to the hearing, she stated that she had “googled” the legal issue, and stated that Kozak had broken the law because “public urination is illegal in all 50 states.” (Id. at pp. 16, 32.) Dellinger provided a printout of the website she had consulted for this research. (Id. at pp. 44-46.) Greenway subsequently found Kozak guilty of violating both of the named CSX rules. (Docket No. 70-5 at p. 2.)

By notice dated July 16, 2019, CSX informed Kozak that she was dismissed from service because she had been found guilty of the “lewd act of urinating in public on CSX property,” in violation of CSX Rules 104.2 and 2000.1. (Docket No. 50-8.) An arbitration board ultimately reinstated Kozak to her position but declined to grant her back pay. (Docket No. 70-1 at p. 3.)

Sometime after Kozak's dismissal, CSX installed portable toilets in the yard. (Id. at p. 18.)

Kozak filed a complaint alleging discrimination on the basis of disability and sex on February 10, 2020. (Docket No. 1.) On November 18, 2022, CSX moved for summary judgment on all of Kozak's claims. (Docket No. 50.) After briefing, this Court took the motion under advisement without oral argument.


Kozak maintains that CSX discriminated against her based on her disability in violation of the ADA by failing to provide a sufficiently close restroom and then dismissing her after she was forced to urinate against the shanty. Kozak further contends that CSX dismissed her because of transgender status, in violation of Title VII.

CSX seeks summary judgment on Kozak's ADA and Title VII claims. It argues that Kozak is not covered by the ADA, that she has not made a prima facie case of sex discrimination, and that a reasonable jury could not find that CSX's reason for terminating her was a pretext.

A. Disability Discrimination under the ADA

CSX makes three arguments regarding Kozak's ADA claim. First, it argues that Kozak's gender dysphoria diagnosis is excluded by a section of the ADA that specifically excludes certain “gender identity disorders” from coverage. It also argues that, even if the ADA applied to Kozak, no reasonable jury could find that she is disabled under the ADA's definition of disability. Finally, it argues that no jury could find that it failed to accommodate Kozak's alleged disability.

1. Legal Standards

The Americans with Disabilities Act of 1990, 42 U.S.C. § 12112, provides that [n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112 (a). “Discriminating” includes failing to make reasonable accommodations for an “otherwise qualified individual with a disability.” 42 U.S.C. § 12112 (5)(a).

The statute defines a disability as “a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.” 42 U.S.C. § 12102.

Major life activities “include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102 (2)(A). “Major life activities” also include the operation of a major bodily function, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 42 U.S.C. § 12102 (2)(B).

The ADA categorically excludes certain groups from coverage. As is relevant here, Section 12211 specifically excludes from the definition of disability: (1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; (2) compulsive gambling, kleptomania, or pyromania; [and] (3) psychoactive substance use disorders resulting from current illegal use of drugs.” 42 U.S.C. § 12211 (b).

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