United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
GREN SCHOLER JUDGE
Kyle Berghorn brings this Title VII action against Defendant
Xerox Corporation alleging he was terminated for failing to
conform to traditional gender stereotypes. Defendant moves
for summary judgment [ECF No. 47], arguing that the claim
fails as a matter of law because: Plaintiff is not a member
of a protected class and all of his allegations of
discrimination relate to his sexual orientation; Plaintiff
was not treated less favorably than similarly situated
coworkers; and, Defendant articulated a legitimate,
non-discriminatory reason for the termination. For the
reasons that follow, the Court grants Defendant's Motion.
Special Order 3-318, this case was transferred from the
docket of Judge Sam A. Lindsay to the docket of this Court on
March 8, 2018.
was formerly employed by Defendant as a senior manager
overseeing a team of auditors. Am. Compi. 1; Def.'s App.
0034:1-9, 0069:9-20. Plaintiff alleges that Defendant fired
him because "he failed to conform to traditional
sex-based stereotypes" by "ha[ving] sex with men,
ha[ving] romantic attraction to men, and exhibit[ing] gay
mannerisms." Pl.'s Resp. 1; Am. Compl. ¶ 56.
Defendant, however, contends that it terminated Plaintiff for
misusing his corporate AMEX card. Def.'s Br. 16-19.
Plaintiff claims that Defendant's reason for terminating
him is pretextual, and that the investigation began to
determine "whether [Plaintiff] and [a male colleague]
were having a sexual and/or romantic relationship."
Pl.'s Resp. 5; Def.'s App. 0747:10-19.
moves for summary judgment arguing that Plaintiff has not
established a prima facie case of gender stereotyping because
Plaintiff is not a member of a protected class, all of
Plaintiffs allegations arise out of his sexual orientation
and not his failure to conform to gender norms, and Plaintiff
was not treated less favorably than similarly situated
coworkers. Def.'s Br. 20-25. Additionally, Defendant
asserts that it articulated a legitimate, non-discriminatory
reason for the termination-Plaintiffs alleged misuse of the
corporate AMEX card-and that Plaintiff cannot establish that
this reason is pretextual. Id. at 26-32.
"shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). In making this determination,
courts must view all evidence and draw all reasonable
inferences in the light most favorable to the party opposing
the motion. United States v. Diebold, Inc., 369 U.S.
654, 655 (1962). The moving party bears the initial burden of
informing the court of the basis for its belief that there is
no genuine issue for trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
party bears the burden of proof on an issue, she "must
establish beyond peradventure all of the essential elements
of the claim or defense to warrant judgment in [her]
favor." Fontenot v. Upjohn Co., 780 F.2d 1190,
1194 (5th Cir. 1986), When the nonmovant bears the burden of
proof, the movant may demonstrate entitlement to summary
judgment either by (1) submitting evidence that negates the
existence of an essential element of the nonmovant's
claim or affirmative defense, or (2) arguing that there is no
evidence to support an essential element of the
nonmovant's claim or affirmative defense. Celotex,
477 U.S. at 322-25. Once the movant has made this
showing, the burden shifts to the nonmovant to establish that
there is a genuine issue of material fact so that a
reasonable jury might return a verdict in its favor.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). Moreover, "[c]onclusory
allegations, speculation, and unsubstantiated
assertions" will not suffice to satisfy the
nonmovant's burden. Douglass v. United Servs. Auto.
Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
Factual controversies are resolved in favor of the nonmoving
party "only when an actual controversy exists, that is,
when both parties have submitted evidence of contradictory
facts." Olabisiomotosho v. City of Houston, 185
F.3d 521, 525 (5 th Cir. 1999) (citing McCallum
Highlands, Ltd. v. Wash. Capital Dus, Inc., 66 F.3d 89,
92 (5th Cir. 1995)).
alleges that Defendant violated Title VII by terminating him
because of his perceived non-conformity with gender
stereotypes. See Pl.'s Br. 1; Am. Compl.
¶¶ 56, 59. Title VII prohibits employment
discrimination against "any individual. . . because of
such individual's . . . sex." 42 U.S.C. §
2000e-2(a)(1). A plaintiff cannot sustain a Title VII sex
discrimination claim without showing that the discrimination
occurred because of sex. Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998). "To establish
a prima facie case of discrimination, the plaintiff must
either present direct evidence of discrimination or, in the
absence of direct evidence, rely on circumstantial evidence
using the McDonnell Douglas burden-shifting
analysis." Wittmer v. Phillips 66 Co., 915 F.3d
328, 332 (5th Cir. 2019). Under McDonnell Douglas,
the plaintiff carries the burden of showing that: (1) he is a
member of a protected class; (2) he was qualified for the
position; (3) he suffered an adverse employment action; and
(4) similarly situated employees who were outside the
plaintiff s protected class were treated more favorably.
See Id. (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)); Willis v. Coca
Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006).
"If a plaintiff establishes a prima facie case, the
burden shifts to the employer to show it had a legitimate,
nondiscriminatory reason for [the adverse employment
action]." Wittmer, 915 F.3d at 332. If the
employer meets this burden, "the presumption of
discrimination disappears, and the burden shifts back to the
plaintiff to show either that the proffered reason was a
pretext for discrimination, or that the plaintiffs protected
status was another motivating factor for the decision,"
Id. (citing Alvarado v. Tex. Rangers, 492
F.3d 605, 611 (5th Cir. 2007)).
all evidence and drawing all reasonable inferences in the
light most favorable to Plaintiff, the Court finds that
Defendant is entitled to summary judgment because all of the
facts showing the alleged discrimination relate to Plaintiffs
sexual orientation, rather than to his failure to conform to
gender norms. In the alternative, the Court finds that
Plaintiff has not met his burden of showing that similarly
situated employees who were outside the plaintiffs protected
class were treated more favorably under nearly identical
Discrimination "Because of Sex
some circuits disagree, the Fifth Circuit has held that
"Title VII does not prohibit discrimination on the basis
of sexual orientation." Wittmer, 915 F.3d at
330; see also Blum v. Gulf Oil Corp.,597 F.2d 936,
938 (5th Cir. 1979) ("Discharge for homosexuality is not
prohibited by Title VII or Section 1981, "). This Court
shall follow Fifth Circuit binding precedent. Plaintiff could
satisfy Title VII's "because-of-sex
requirement," however, "with evidence of [his]
perceived failure to conform to traditional gender
stereotypes." E.E. O. C. v. Boh Bros. Constr.
Co., 731 F.3d 444, 454 (5th Cir. 2013) (enbanc)
(citingDavis, v. Chevron, U.S.A., Inc., 14 F.3d
1082, 1085 (5th Cir. 1994)). In other words, Plaintiff needs
to show that his termination occurred because he looked or
acted contrary to male stereotypes, not because he was
homosexual. See Price Waterhouse v. Hopkins, 490
U.S. 228, 235, 250-52 (1989) (finding discrimination because
of sex where an employer passed a woman for partnership for
acting "aggressive," "macho," and ...