Late last week, a three-judge panel sided with T-Mobile and its leave program administrator, Broadspire Services Inc., in a discrimination lawsuit brought by a transgender former employee. The opinion describes how, based on the record, T-Mobile Services USA Inc.’s firing of the plaintiff, Elijah Olivarez, was not discriminatory, but rather “ordinary business practice.”
The court explains that Olivarez was employed as a retail store associate for T-Mobile from approximately December 2015 to April 2018. During 2016, “a supervisor allegedly made demeaning and inappropriate comments about Olivarez’s transgender status,” which Olivarez responded to by filing a complaint with human resources.
T-Mobile then allegedly retaliated by reducing Olivarez’s hours to part-time from September to November 2016. In September 2017, the panel wrote, “Olivarez stopped coming to work in order to undergo egg preservation and a hysterectomy.”
The next month, the plaintiff requested leave to be applied retroactively from September to December 2017. Broadspire Services granted Olivarez unpaid leave for that period, and paid medical leave for two weeks thereafter. In addition, the company granted Olivarez’s request for an extension of leave through mid-February 2018, but denied the employee’s further extension request.
T-Mobile reportedly fired Olivarez on April 27, 2018. The plaintiff filed suit against T-Mobile and Broadspire in November 2019 alleging interference, discrimination, and retaliation under the federal Family and Medical Leave Act, discrimination and retaliation under Title VII of the Civil Rights Act of 1964, and discrimination under the Americans with Disabilities Act (ADA).
The district court granted the defendants’ first motions to dismiss, chiefly because the amended complaint did not demonstrate that as a member of a protected class, Olivarez was singled out and discriminated against in the workplace. The trial court permitted the plaintiff to replead once more, but eventually dismissed the second amended complaint for the same reason. Olivarez timely appealed, raising only the Title VII and ADA claims.
The appellate panel reasoned that though Olivarez suffered an adverse employment action, the plaintiff did not show that T-Mobile “would have behaved differently toward an employee with a different gender identity.” The complaint, the opinion stated, was void of facts comparing T-Mobile’s treatment of the plaintiff to any other worker. Hence, it found no proof of the alleged discrimination and affirmed the lower court’s decision.
The plaintiff is represented by the Law Office of Jillian T. Weiss P.C., T-Mobile by Thompson Knight LLP, and Broadspire by Nilan Johnson Lewis P.A. and Lorance Thompson P.C.
