Morrison v. Brumby

• Decision Date: 02 July 2010
• Docket Number: Civil Action No. 1:08-CV-2360-RWS.
• Citation: 724 F.Supp.2d 1284
• Parties: Vandiver Elizabeth GLENN f/k/a Glenn Morrison, Plaintiff, v. Sewell R. BRUMBY, Glenn Richardson, Casey Cagle, Eric Johnson, and Robyn J. Underwood, all in their official capacities, Defendants.
• Court: U.S. District Court — Northern District of Georgia

724 F.Supp.2d 1284

Vandiver Elizabeth GLENN f/k/a Glenn Morrison, Plaintiff,

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

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

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

July 2, 2010.

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

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

ORDER

RICHARD W. STORY, District Judge.

This case comes before the Court on Plaintiff's Motion for Summary Judgment against Defendant Sewell R. Brumby [37], Defendants Glenn Richardson, Casey Cagle, Eric Johnson, and Robyn J. Underwood's Motion for Summary Judgment [45], Defendants' Motion for Summary Judgment (“All Defendants' Motion”) [46], and Plaintiff's Motion for Order of Dismissal of Defendants Richardson, Cagle, Johnson, and Underwood with Prejudice and without Assessment of Costs (“Plaintiffs Motion for Dismissal”) [58].

Background

I. Plaintiff's Gender Identity Disorder

Plaintiff Vandiver Elizabeth Glenn was born a biological male. ¹ (Plaintiff's Statement of Material Facts (“PF”), Dkt. No. at ¶ 24; Defendant Sewell Brumby's Response to Plaintiff's Statement of Material Facts (“Response to PF”), Dkt. No. 51 at ¶ 24). Since puberty, Glenn has had a deep persistent awareness that she is a woman. ² (PF at ¶ 25). In early 2005, Glenn was diagnosed with gender identity disorder (“GID”). ( Id. at ¶ 26). GID is a diagnosis listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”). ( Id. at ¶ 16). The diagnostic criteria for GID are: a strong and persistent cross-gender identification; persistent discomfort with one's sex or sense of inappropriateness in the gender role of that sex; no concurrent physical intersex condition; and resulting clinically significant distress or impairment in social, occupational, or other important areas of functioning. ( Id. at ¶ 17). The DSM-IV notes that GID can be “distinguished from simple nonconformity to stereo-typical sex role behavior by the extent and pervasiveness of the cross-gender wishes, interests, and activities,” and “represents a profound disturbance of the individual's sense of identity with regard to maleness or femaleness.” (Defendants' Statement of Undisputed Material Facts (“DF”), Dkt. No. [46-3] at ¶ 47).

The World Professional Association for Transgender Health (“WPATH”) ³ recommends a triadic therapeutic protocol for the treatment of GID, which includes: 1) hormone therapy; 2) a real-life experience (“RLE”) by living full-time as a member of the new gender; and 3) sex reassignment surgeries. ⁴ ( Id. at ¶ 23). Starting in 2005, Glenn began to take steps to transition from male to female under the supervision of health care providers. ( Id. at ¶ 31; DF at ¶ 4). Plaintiff underwent electrolysis to remove facial hair, began hormone therapy to make her body more feminine and suppress testosterone, and also began living as a woman outside of the workplace. (PF at ¶ 32; DF at ¶¶ 3-8). In April 2006, Plaintiff underwent surgical procedures, including a brow lift, liposuction, and narrowing of her jaw line in order to appear more feminine. (DF at ¶ 11).

In the Spring of 2006, Plaintiff began a therapist-client relationship with Dr. Erin Swenson, a licensed marriage and family therapist with a Ph.D. in psychological services. ( Id. at ¶ 27-28). In 2006, Glenn was also diagnosed by Dr. Swenson as having GID. ⁵ In her expert report she states that in the years leading up to Glenn's therapy for GID, Glenn experienced clinical depression, at times severe enough to put her at risk of suicide. (Swenson Report at 2). Dr. Swenson is of the opinion that if Glenn were unable to secure treatment for GID the depression would reemerge and significantly impair her ability to work or properly function socially. ( Id.).

During the course of therapy, Dr. Swenson recommended that it would be appropriate for Glenn to commence the real-life experience by living full-time as a woman. (PF at ¶ 49). Dr. Swenson's report notes that the successful completion of RLE is a prerequisite to sex reassignment surgery. (Swenson Report at 3). Dr. Swenson states that RLE is central to the treatment of individuals with severe GID and requires at least a year of living full time in the preferred gender expression. ( Id.). RLE would ideally provide the individual with psychological relief, and Dr. Swenson observed that Glenn's transition to this point has provided her with significant psychological relief. ( Id.; PF at ¶ 34). Plaintiff has not, as of yet, undergone sex reassignment surgery. (DF at ¶ 12-13).

II. Plaintiff's Employment

In October 2005, Plaintiff, then known as Glenn Morrison and presenting as a man, was hired as an editor by the Georgia General Assembly's Office of Legislative Counsel (“OLC”). (PF at ¶ 1; DF at ¶ 1). In order to be hired as an editor in the OLC, Glenn had to take a test on grammar, spelling, proofreading, and vocabulary. (PF at ¶ 2). She did very well on the test and was recommended for the position by Beth Yinger, the senior editor. ( Id. at ¶ 3). The OLC is responsible for drafting bills for legislators, code revision, and publication of the Georgia session laws. ( Id. at ¶ 6). The staff of the OLC, at all times relevant to this action, included approximately eleven attorneys, eight computer terminal operators, five editors, an office manager, an assistant office manager, and an administrative assistant. ( Id. at ¶ 4). Defendant Sewell Brumby is the head of the OLC and the chief legal counsel for the Georgia legislature. ( Id. at ¶ 5; DF at ¶ 25). Brumby has worked in the OLC continuously since 1978 and in his current position is responsible for OLC personnel decisions. (PF at ¶¶ 11-12; DF at ¶ 26).

In 2006, Glenn informed her direct supervisor, Beth Yinger, that she was transgender and was in the process of becoming a woman. (PF at ¶ 37). However, during the time that Plaintiff worked at OLC she presented as a man on every day but one. ⁶ (DF at ¶ 2; Plaintiff's Response to Defendant Brumby's Statement of Facts (“Response to DF”), Dkt. No. [54], at ¶ 2). On October 31, 2006 (Halloween), Glenn came to work presenting as a woman. (PF at ¶ 38). When Brumby saw her, he told her that her appearance was not appropriate and asked her to leave the office. ( Id. at ¶¶ 39-40). Brumby deemed her appearance inappropriate “[b]ecause he was a man dressed as a woman and made up as a woman.” ⁷ ( Id. at ¶ 41). Brumby stated that “it's unsettling to think of someone dressed in women's clothing with male sexual organs inside that clothing,” and that a male in women's clothing is “unnatural.” (PF at ¶¶ 43, 45). Following this incident, Brumby met with Yinger to discuss Glenn's appearance on Halloween 2006 and was informed by Yinger that Glenn intended to undergo a gender transition. ( Id. at ¶ 47; DF at ¶ 27). Brumby took no adverse employment action against Glenn at that time, and in the months following Halloween 2006, Glenn came to work presenting as a man. (DF at ¶ 28; PF at ¶ 48).

In the fall of 2007, Glenn informed Yinger that she was ready to proceed with gender transition and would begin coming to work as a woman and was also changing her legal name. ( Id. at ¶¶ 50-51; DF at ¶ 29). She gave Yinger written materials about GID and photographs of herself presenting as a woman. ( Id. at ¶ 52). Yinger notified Brumby of Plaintiff's intent and provided him with the written materials and photographs that Glenn had given her. ( Id. at ¶ ¶ 53-54, 60-61). Brumby read the written materials and stated that they “were supportive of the proposition that people should be able to change their sex within the workplace ... and advocated for that proposition and included what I guess you might say are talking points about how such a transition might best be facilitated.” (PF at ¶ 59). Brumby subsequently informed Yinger that he was going to fire Glenn because she was transitioning from a man to a woman. ( Id. at ¶ 83).

III. Plaintiff's Termination

Brumby believed that Glenn's intent to transition while employed at OLC could potentially cause adverse consequences. ⁸ (DF at ¶ 30). At the time of the termination Brumby was aware that gender transition was considered to be a form of medical treatment for a health condition and that counseling was a component of the transition. (PF at ¶¶ 67, 69). He also understood that gender transition entailed assuming the dress and grooming habits of the opposite sex. ( Id. at ¶ 66). Before terminating Glenn, Brumby conducted legal research to determine the legality of firing her based upon her gender transition and also had another OLC attorney, Marie Story, do the same. (PF at ¶¶ 71-72). He concluded that some authority indicated that terminating an employee for undergoing gender transition was illegal, but some authority indicated that such firings are permissible. (PF at ¶¶ 71, 73, 94).

Brumby also contacted a few legislators and employees of OLC to solicit their opinions on the matter. He spoke with Glenn Richardson, then Speaker of the Georgia House of Representatives. (PF at ¶ 76). Speaker Richardson told Brumby that it should be Brumby's decision on how to handle the situation. ( Id. at ¶ 77). Brumby also spoke with Lieutenant Governor Casey Cagle's Chief of Staff, Bradley Alexander, who shared the information with Lieutenant Governor Cagle. ( Id. at ¶¶ 78, 82). Brumby also asked Story and another OLC attorney what they and their fellow OLC employees would think about working with an individual undergoing a gender transition, but neither offered an opinion. ( Id. at ¶ 74-75).

In their pre-termination conversation, Alexander asked Brumby if Glenn had any job performance...