June 23, 2006

Court says 'he-she' is a slur, but dismisses case anyway

by Eric Resnick

Cincinnati--The Sixth Circuit Court of Appeals agrees with a transsexual woman that �he-she� is a slur, but didn�t reinstate her employment discrimination case.

The three judge appellate panel unanimously agreed May 31 with Susan Myers of Chillicothe on a few more points than the federal judge who had dismissed her case, but said that the evidence did not support reinstating it against Cuyahoga County, her former employer.

Myers was fired from her position with the county�s Department of Health and Human Services in 1998 after 16 years of service without incident, after losing a promotion bid to Elsie Caraballo, who then became Myers� supervisor.

Myers claimed discrimination based on her disability, race, and sex under Title VII of the 1964 Civil Rights Act.

The case was filed in January 2003 and was assigned to Northern Ohio District federal judge Patricia A. Gaughn, who dismissed the case on the county�s motion for summary judgment.

Gaughn ruled that Myers did not present enough evidence to sustain any of the claims. Specifically, Gaughn did not believe that Caraballo and her supervisor, Luis Vazquez, showed animus toward Myers by calling her a �he-she.�

Myers appealed to the Sixth Circuit, where the case was heard April 20 by circuit judges Karen Karen N. Moore, Richard A. Griffen, and Richard D. Cudahy, who was sitting from the Seventh Circuit.

Myers was represented by Randi Barnabee of Bedford. Cuyahoga County was represented by James Cochran of the prosecutor�s office.

�We agree with Myers that calling a transsexual or transgendered person a �he-she� is a deeply insulting and offensive slur, and we agree that using that term is strongly indicative of a negative animus towards gender nonconforming people,� Moore wrote in the panel�s opinion. �In the context of all the evidence in this case, however, we cannot conclude that the statement by itself is sufficient to create a jury question on the issue of pretext.�

Moore wrote that the �he-she� reference occurred �years before the problems . . . that led to her disciplinary offenses and ultimately her termination.�

�There is no evidence that the remark was related to Cuyahoga County�s decision to terminate her.�

The court also said that Myers just did not have enough evidence to support her claim under the Americans with Disabilities Act.

�The intermittent irritability that Myers might have experienced from her adjustment disorder if she remained in her existing employment location appears to be exactly the sort of minor interference with a major life activity that the Supreme Court views as falling short of the definition of a disability under the ADA,� wrote Moore.

The panel also disagreed with Gaughn, and said that Myers did have a case of �reverse race discrimination,� but said that the county�s documentation of the other disciplinary offenses neutralized that claim. Myers did not, according to Moore, adequately refute the charges at the time.

The court left intact previous rulings allowing for transsexuals to bring discrimination cases based on sex stereotyping under Title VII.

The Sixth Circuit was the first to come to that landmark conclusion in 2004 in a case brought by a transsexual firefighter, Smith v. City of Salem.

In that case, Barnabee represented Jimmie Lee Smith.

Ironically, it was an earlier case involving Myers that allowed Smith to go forward.

Myers was the first transsexual in the nation protected under Title VII when she sued a later temporary employer that discriminated against her by calling her �Mrs. Doubtfire� in front of other employees.

That suit did survive the employer�s motion for summary judgement, and Myers settled favorably in 2003.

In this case, however, the judges believed that the evidence, not the law Myers helped create, was insufficient.

�Unfortunately for Myers,� wrote Moore, �she has failed to produce sufficient evidence to create a genuine issue as to pretext. Myers has been unable to show that either the county�s articulated reason of her disciplinary offenses has no basis in fact, that the disciplinary offenses did not actually motivate the county�s decision to discharge her, or that the disciplinary infractions are insufficient to motivate her discharge.�

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