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Berghorn v. Xerox Corp.

United States District Court, N.D. Texas, Dallas Division

May 23, 2019

KYLE BERGHORN, Plaintiff,
v.
XEROX CORPORATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          KAREN GREN SCHOLER JUDGE

         Plaintiff 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.

         I. BACKGROUND

         Per 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.

         Plaintiff 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.

         Defendant 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.

         II. LEGAL STANDARD

         Courts "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).

         When a 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)).

         III. ANALYSIS

         Plaintiff 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)).

         Viewing 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 circumstances.

         A. Discrimination "Because of Sex

         Although 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 ...


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