The Employer's Legal Resource: Update: Transgender Professor's Title VII Claims Survive Summary Judgment in Oklahoma Federal Court
We first told you about Dr. Rachel Tudor, the transgender professor at Southeastern Oklahoma State University, in our August 2015 newsletter. To recap: the University hired Tudor, who was born a male, as an assistant English professor in 2004. In the summer of 2007, Tudor announced her intention to transition from male to female and began to present as a woman. She applied for and was denied tenure in 2009, and the University ultimately fired her in 2011.
Tudor sued the University and the Board of Regents, claiming she was discriminated against and subject to a hostile work environment because of her transition in gender. Our previous article discusses the survival of Tudor's claim on a motion to dismiss. Now we have an update. The federal court in the Western District of Oklahoma has denied the University's motion for summary judgment, and Tudor's claims will proceed to trial (barring any settlement or other resolution in the interim).
On summary judgment, the University argued there were an insufficient number of instances in which Tudor faced any purported hostility. Tudor responded that "every day over the course of a four-year period she had restrictions on which restrooms she could use, restrictions on how she could dress, what makeup she could wear," and was "subjected to hostilities from administrators targeting her gender, such as using an improper pronoun to refer to her." The Western District of Oklahoma agreed with Tudor and found that the incidents she mentioned were evidence of a workplace filled with "sufficiently severe or pervasive" insulting or offensive conduct against her.
The University also argued that Tudor had not taken advantage of any preventative or corrective measures available to her, but the Court rejected this argument because the policies in effect at the time of the alleged conduct did not address discrimination or harassment toward transgender persons.
The University further alleged that Tudor could not demonstrate pretext to refute the University's stated non-discriminatory reasons for her termination and denial of tenure. The University argued that the decision to deny tenure "was a subjective matter based upon decisions made at the administrative level and that the Court should grant deference to the administration's decisions on this issue." But Tudor's response included evidence "which suggests substantial procedural irregularities in the decision to deny her tenure," including certain decision makers' refusals to give any reason for the denial, one of whom later planted a backdated letter in Tudor's portfolio spelling out some rationales for the denial, the University president's instruction for a second decision maker to write the letter giving the president's reason for the denial of Tudor's tenure, and an expert witness's report that the University's evaluations of Tudor's "scholars hip and service did not match the articulated criteria for tenure and promotion evaluation." The Court found that Tudor had offered at least some evidence that the University's reasons for denying her tenure were pretextual—in other words, that it was sufficient to show "some weakness, implausibility, inconsistency, or incoherencies" in the University's explanation—to survive summary judgment and send the case to a jury.
By Rebecca D. Bullard, email@example.com