Wittmer v. Phillips 66 Co., Civil Action No. H–17–2188

• Citation: 304 F.Supp.3d 627
• Decision Date: 04 April 2018
• Docket Number: Civil Action No. H–17–2188
• Parties: Nicole C. WITTMER, Plaintiff, v. PHILLIPS 66 COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Texas

304 F.Supp.3d 627

Nicole C. WITTMER, Plaintiff,

v.PHILLIPS 66 COMPANY, Defendant.

Civil Action No. H–17–2188

United States District Court, S.D. Texas, Houston Division.

Signed April 4, 2018

Alfonso Kennard, Jr., Kennard Richard PC, Houston, TX, for Plaintiff.

Shana Johnson Clark, Fazila Issa, Norton Rose Fulbright LLP, Houston, TX, for Defendant.

MEMORANDUM AND OPINION GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Lee H. Rosenthal, Chief United States District Judge

Nicole Wittmer, a transgender woman, sued Phillips 66 Company for unlawful discrimination based on her sex after Phillips rescinded a job offer it had made after interviewing her. (Docket Entry No. 1). Phillips moved for summary judgment, Wittmer responded, and Phillips replied. (Docket Entry Nos. 14, 16, 20, 24). The court held a hearing at which the parties presented argument. After careful consideration of the motion, response, and replies; the record evidence; the arguments of counsel; and the applicable law, the motion for summary judgment is granted. This case is dismissed by final judgment separately entered. The reasons are explained below.

I. Background

Wittmer applied for a position as an Instrument and Reliability Engineer with Phillips at the Borger Refinery in Borger, Texas, on May 31, 2015. (Docket Entry No. 14–2 at 2). Wittmer interviewed on August 3 with the Engineering and Reliability Team Lead, David Long; the Maintenance Manager, Karl Sosebee; and a panel that included the Human Resources Manager, Ellen Fulton; the Area Reliability Engineer, Lou Cardinale; the Core Craft Team Leader, David Gaines; and the Maintenance Engineering Team Lead, Michael Massey. (Id. ; Docket Entry No. 14–16 at 2; Docket Entry No. 14–18 at 2). During her interviews, Wittmer discussed projects she was currently performing as an employee at Agrium, and said that she was looking for a new job because Agrium wanted her to spend more time working in Canada than she wanted to. (Docket Entry No. 14–14 at 5).

On August 10, Phillips offered Wittmer the position. The offer was in writing and stated that it was conditioned on certain requirements, including satisfactory results of a background check. (Docket Entry No. 14–6). Wittmer accepted the offer on August 14. Wittmer received a generic hiring email from Phillips telling her that she would receive emails from an independent background-check company, HireRight, with information about completing the background check. (Docket Entry No. 14–7; Docket Entry No. 16–4).

HireRight completed the background check and issued a report. The report informed Phillips's Human Resources Partner, Jacqualine Wilkinson, of a discrepancy in Wittmer's employment history with Agrium. The report showed that Wittmer was not currently employed with Agrium on August 3, the date of her interview with Phillips. (Docket Entry No. 16–9). According to the report, Wittmer initially told HireRight that her employment with Agrium had ended on August 1, 2015, but Agrium told HireRight that Wittmer's employment ended on August 2. (Id. ; Docket Entry No. 14–2 at 2–3; Docket Entry No. 16–5 at 7). When Wittmer interviewed with Phillips on August 3, she described herself as still employed by Agrium.

On September 2, Wilkinson informed Fulton of the discrepancy. (Docket Entry No. 16–9). Fulton contacted Wittmer to ask her about it. (Docket Entry No. 16–9; Docket Entry No. 14–2 at 3). In response, Wittmer emailed Fulton a copy of her July 28, 2015 termination letter from Agrium, stating that Wittmer's employment with Agrium was terminated without cause effective July 28 and that she would be paid through August 2. (Docket Entry No. 14–9 at 3).

After Wittmer emailed Fulton, on September 3 and 4, Wittmer sent a series of unsolicited and uninvited emails to Fulton and other Phillips employees. Wittmer wrote on September 3: "Every female engineer at Agrium Borger has quit in the past 5 months. I myself left work in tears on occasion." (Docket Entry No. 14–8 at 4). Wittmer wrote another email on September 4: "All of the 3 female engineers at Agrium Borger have resigned within the past 4 months including me. One of the[m] Kaitlin told me she file[d] an EEOC complaint against them." (Id. at 5).

On September 8, Fulton conferred with Sosebee and Long about Wittmer's inconsistencies in describing her employment status and the emails Wittmer had sent. They decided to rescind Wittmer's job offer because of the inconsistent reports Wittmer had given about her employment with Agrium at the time of her Phillips interview. (Docket Entry No. 14–2 at 3; Docket Entry No. 14–16 at 2; Docket Entry No. 14–18 at 2). Before relaying the decision to Wittmer, Fulton emailed the Phillips Employee Relations Advisor, Jermaine Davis, asking him to review the decision. (Docket Entry No. 14–11). Fulton also sought advice from Refining and Labor Relations Manager, Peter Terenzio, and the Borger Refinery Manager, Pete Stynes, before notifying Wittmer of the decision to rescind the employment offer. (Docket Entry No. 14–2 at 3).

Two days later, on September 10, before Fulton informed Wittmer of the decision to rescind the offer, Wittmer sent Fulton and the Phillips Shared Services Recruitment Associate, Jennifer Edwards, another unsolicited email. Wittmer wrote:

I became aware that you all found out that I am a transsexual woman. No one ever comes and says that is why we do not want you. But to make up a false reason to is not Christian. Not only does you[r] diversity policy disallow discrimination, there are also several federal laws that prohibits discriminating against me also.

(Docket Entry No. 14–8 at 8). Fulton responded with an email, stating that Phillips was unaware of Wittmer's status as "a transsexual woman until receiving [her] email." (Id. ). Fulton assured Wittmer that "[t]his knowledge will not influence our decision one way or another" and reminded her that Phillips had expressed concern about the discrepancies revealed during her background check. (Id. ). About 25 minutes after Fulton sent that email, Wittmer began sending another series of unsolicited and confusing emails to various Phillips employees. To Fulton and Edwards she wrote:

When I talk in a very loud area, buy [sic] voice lowers. And Agrium let me go because the manger kept getting feedback from the other that thought I was a man. I did not want to talk about it because it hurts me very much and I did not want to cry in front of any of you. That is why I did not want to talk about Agrium with you.

(Docket Entry No. 14–8 at 13). The next day she wrote to Fulton: "Can were [sic] get together with the ACLU and discuss this firsts." (Id. at 16). On September 12, Wittmer wrote to Fulton and Edwards: "Attached are a few laws that you may not be aware of," and included an attachment called "Transsexual protection laws." (Id. at 18).

That same day, Wittmer sent Edwards, Fulton, Long, and Cooper the following email:

I know now beyond a shadow of a doubt that you are wrongly trying to rescind my employment offer because I am a transsexual woman. There is a great deal of misinformation about transsexual women that is clouded by transgender trouble makers and I am not under their umbrella. In fact, there is a transsexual female Judge in Houston, TX. I have a long history of excellence at my job because I focus on my job and nothing else. I do not belong to any Transgender groups or associations. I belong to the society of women engineer, and support girls inc and the girl scouts. I also have belonged to a few Christian women church groups. I have a great deal of experience this will be extremely valuable to the Borger Refinery.

Also the only document that GOD has touched is the TEN COMMANDMENTS, and he says not to lie and to love thy neighbor as thyself.

(Id. at 19). On September 14, Wittmer emailed a Phillips employee named Anna La Rock, stating:

Press release

I applied for a position at the Phillips 66 refinery in Borger, Texas. They did a thorough background and job check. They found out that I am a transsexual woman. Because of that they rescinded my job offer.

(Id. at 21–22).

Fulton called Wittmer on September 14 to formally rescind the Phillips employment offer. Fulton sent an email the next day to confirm the decision and explain the reasoning. "Upon follow up on information received post-offer during the pre-employment process, it was determined that you were not employed at the time of your interview. Your employment with Agrium had already ceased at the time of your interview. We have decided to rescind your offer because you were not forthright during the interview about your employment and led us to believe information that was not the case." (Docket Entry No. 14–12).¹ It is undisputed that Wittmer represented that she was currently employed with Agrium during her interview with Phillips on August 3. It is also undisputed that different sources showed three conflicting dates for the end of her Agrium employment—July 28, August 1, and August 3—all before, or on the day of, her in-person interview with Phillips during which she described herself as currently employed at Agrium. It is undisputed that Phillips learned—from an Agrium letter that Wittmer provided to Phillips—that her employment with Agrium had been terminated effective July 28, which was before Wittmer interviewed at Phillips and said she was still an Agrium employee.

On October 5, Wittmer wrote to HireRight disputing its report of her dates of employment with Agrium. (Docket Entry No. 16–5 at 6). Wittmer submitted an employment verification from Agrium showing that her employment terminated on August 3, 2015. (Docket Entry No. 15–2 at 12). HireRight completed its investigation on November 17 and verified that Wittmer's employment with Agrium had ended on August 3, 2015, the date of the Phillips interview. (Id. at 14). There is no evidence that HireRight notified Phillips of the results of its investigation.

In October 2016, Wittmer filed a charge of discrimination...