United States District Court, S.D. Texas, Houston Division
NICOLE C. WITTMER, Plaintiff,
PHILLIPS 66 COMPANY, Defendant.
MEMORANDUM AND OPINION GRANTING THE DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
Rosenthal Chief United States District Judge.
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rescinded a job offer it had made after interviewing her.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.
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).
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).
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.
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).
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.
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).
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).
same day, Wittmer sent Edwards, Fulton, Long, and Cooper the
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
(Id. at 19). On September 14, Wittmer emailed a
Phillips employee named Anna ...