Roberts v. Clark Cnty. Sch. Dist.

Decision Date04 October 2016
Docket Number2:15–cv–00388–JAD–PAL
Citation215 F.Supp.3d 1001
Parties Bradley ROBERTS, Plaintiff v. CLARK COUNTY SCHOOL DISTRICT, Defendant
CourtU.S. District Court — District of Nevada

Gary Marshall Gilbert, Kathleen J. England, Gilbert & England Law Firm, Las Vegas, NV, Jason Maier, Danielle J. Barraza, Maier Gutierrez Ayon, Las Vegas, NV, Margaret A. Mcletchie, Mcletchie Shell LLC, Las Vegas, NV, for Plaintiff.

Ethan Thomas, Patrick H. Hicks, Wendy M. Krincek, Littler Mendelson, Las Vegas, NV, for Defendant.

Order Granting in Part Bradley Roberts's Motion for Partial Summary Judgment, Denying the School District's Countermotion for Partial Summary Judgment, and Granting Roberts's Motion for Leave

Jennifer A. Dorsey, United States District Judge

Plaintiff Bradley Roberts is a transgender police officer with the Clark County School District ("CCSD") who identifies as a male officer. When CCSD prohibited Roberts from using either the men's or women's bathrooms, Roberts sued for discrimination, retaliation, and hostile-work environment.

The parties cross-move for partial summary judgment, and I am asked to decide whether this bathroom ban violated Title VII, which prohibits employers from discriminating on the basis of "sex." CCSD argues that Title VII only prohibits discrimination based on biological sex, not gender identity. But Title VII prohibits discrimination based on sex stereotypes, too, and the record shows that the district's bathroom ban was based on precisely the sort of stereotyping that the Ninth Circuit has found Title VII to prohibit. So I grant Roberts partial summary judgment on the school district's discrimination liability under both Title VII and Nevada law. Because neither party has demonstrated an absence of material fact on the remaining issues in this case, however, I otherwise deny their motions and refer this case for a mandatory settlement conference.

The Factual Record

The Clark County School District hired Bradley Roberts as a campus monitor in 1992. At that time, he was known as Brandilyn Netz and aspired to be a police officer.2 In 1994, Roberts graduated from the Northern Nevada Law Enforcement Academy and was hired by CCSD as a police officer.3 Roberts held that position without incident for seventeen years.

A. Brandilyn Netz becomes Bradley Roberts.

In 2011, Roberts began dressing

for work like a man, grooming like a man, and identifying himself as a man. And he started using the men's bathroom at work.4 When others complained that a woman was using the men's bathroom, Roberts's commanding officers, Sgt. Anthony Jones and Lt. Young, scheduled a meeting with him.5 Roberts confirmed that it was him and explained that he was transgender and in the process of transitioning into a man.6 He also told them that he wants to be known as Bradley Roberts and use the men's bathroom.7

But Roberts's commanding officers told him that he could not use the men's rooms and that he should confine himself to the gender-neutral restrooms "to avoid any future complaints."8 In response, Roberts sent a letter to his superiors again explaining that he was changing his name to Bradley J. Roberts, wanted his coworkers to use male pronouns to reference him, and that he would comply with the men's grooming code.9

B. CCSD officially bans Roberts from both the men's and women's bathrooms.

The district responded to Roberts's letter by holding a second meeting on November 14, 2011, with Capt. Anthony York, Lt. Young, Roberts, and his union representative.10 Roberts repeated his requests: he wanted his coworkers to refer to him as a man, and he wanted to use the men's restrooms.11 Capt. York said no: as far as CCSD was concerned, Roberts would not be referred to as a man or allowed to use the men's restroom until he could provide official documentation of a name and sex change.12

Two days later, Capt. York asked Roberts to appear for a third meeting.13 York explained that the purpose of the meeting was to "discuss the issues in [Roberts's] memo to the department" and "facilitate ... department action as soon as possible."14 Capt. York and Clark County's General Counsel Jon Okazaki told Roberts that they had decided he could informally use a man's name for the time being, but that "all official and formal documents" would contain his female name until he obtained a court order and a name-change packet from human resources.15 Okazaki further explained that Roberts was banned from the men's restrooms until he had a documented sex change.16 Okazaki told Roberts that he was required "to use a gender-neutral or single occupancy restroom," not the female restrooms.17

After the meeting ended, Capt. York sent Roberts, Chief Ketsaa, Lt. Young, and Okazaki proposed language for a memo regarding Roberts's name change:

Officer Netz, P# 183 is in the final process of a name change to Brad Roberts. In order to assist Officer Netz with this transition, effective immediately, the department will be recognizing him as Brad and using male pronouns in our interaction with him. As soon as Officer Netz's official name is changed to Brad Roberts, he will be using that name on a legal basis.18

Roberts responded, "[t]hat's great and to the point."19 He also asked Capt. Young to "include the [Nevada Equal Rights Commission] document or parts thereof, that you feel should be included" so that his coworkers and commanding officers understand that asking "below the belt" questions may constitute sexual harassment.20 Capt. York responded: "I am in receipt of your request and have forwarded it to the Legal Department for input."21

C. Clark County circulates an email informing Roberts's coworkers that they should refer to him as a man.

A few days after their third meeting with Roberts, Capt. York, Chief Ketsaa, Lt. Young, and Okazaki emailed the entire department that Roberts was changing his name; that everyone should recognize him by his new name, Brad, and use male pronouns when referring to him; and that discriminating on the basis of gender identity violates Nevada law.22 Roberts claims that this email "blindsided" him;23 he thought his name change would be treated like any other personnel matter and that the announcement would be sent to supervisors and managers only—not to the entire department.24

In early December, Roberts's name-change petition was granted.25 He immediately updated his driver's licence to identify his gender as male and submitted a completed name-change packet to human resources.26 Once again, Clark County issued a department-wide email explaining that Roberts had changed his name and that now his name change would take effect for purposes of his official department records.27 But Roberts's records were apparently never updated, because in January 2012, he received a new insurance card listing his gender as "female."28

D. Roberts files administrative charges and CCSD lifts the bathroom ban.

Roberts filed an administrative charge with the Nevada Equal Rights Commission ("NERC") that same month.29 He alleged gender-identity discrimination on account of the bathroom ban, and harassment during the November meetings with CCSD officials.30

Capt. York and Okazaki responded to NERC that "Officer Netz's name was legally changed to Bradley Joseph Roberts [and] CCSDPD has changed Officer Roberts'[s] name in its records accordingly had acknowledge his identity with the male gender."31 The next day, NERC notified Roberts that his administrative charge would not be mediated because the school district refused to participate.32

But no records had been updated. In February, Roberts contacted human resources and asked them to update his gender.33 In March, however, a secretary reported to Capt. York that "Officer Roberts'[s] gender in the HR records still appears as a female."34 And the bathroom ban remained in effect.

In May, NERC issued a probable-cause finding and informed Roberts that CCSD likely discriminated against him.35 NERC then set Roberts's case for a public hearing.36 But a month before the hearing, the department issued a new bathroom policy so that Roberts was no longer singled out and required to use the gender-neutral bathrooms.37

CCSD's general counsel emailed Chief Ketssa, Capt. Young, and others to inform them that Roberts had been notified of the new bathroom policy and "that as of this date he was no longer directed to use single occupant/gender neutral bathrooms at non-school District sites."38 He also wrote "that the notice of hearing be withdrawn and this case closed as it is moot."39 A week later, NERC did just that—it issued a three-line notice of withdrawal that closed Roberts's case because the school district had allegedly "taken measures" that rendered his complaint "moot."40

Roberts responded by filing a second administrative charge that alleged sex discrimination based on the bathroom ban, offensive comments made by coworkers, and the department-wide emails.41 He also alleged that the district retaliated against him and subjected him to a hostile-work environment because he filed the NERC complaint42 and various coworkers asked prying questions and made crude gestures and remarks to Roberts.43

By February of 2012, CCSD still had not updated Roberts's gender in his personnel records.44 Two years later, the Equal Employment Opportunity Commission sent Roberts a right-to-sue letter45 and he commenced this action.46

E. The lawsuit and cross-motions for partial summary judgment

Roberts alleges that the department subjected him to discrimination, harassment, and retaliation, and he asserts six claims: gender discrimination and harassment under Title VII; gender-identity expression and harassment under Nevada's Anti–Discrimination Statute, NRS 613.330 ; and retaliation under Title VII and NRS 613.340.47

While discovery in this case was ongoing, Roberts moved for partial summary judgment and requested a finding that he was subjected to discrimination, harassment, and retaliation during the period that the...

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