NICOLE C. WITTMER, Plaintiff - Appellant
PHILLIPS 66 COMPANY, Defendant-Appellee
from the United States District Court for the Southern
District of Texas
HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
C. Ho, Circuit Judge.
the past two years, three circuits have construed Title VII
of the Civil Rights Act of 1964 to prohibit employers from
discriminating on the basis of either sexual orientation or
transgender status. See Zarda v. Altitude Express,
Inc., 883 F.3d 100 (2nd Cir. 2018) (en banc); EEOC
v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d
560 (6th Cir. 2018); Hively v. Ivy Tech Cmty. Coll. of
Ind., 853 F.3d 339 (7th Cir. 2017) (en banc).
district court here examined these recent out-of-circuit
rulings, found them "persuasive," and thus
"assume[d]" that Title VII prohibits transgender
discrimination, in a published opinion. Wittmer v.
Phillips 66 Co., 304 F.Supp.3d 627, 634 (S.D. Tex.
2018). In doing so, the district court expressly stated that
"the Fifth Circuit has not yet addressed the
have addressed the issue. In Blum v. Gulf Oil Corp.,
597 F.2d 936 (5th Cir. 1979), we expressly held that Title
VII does not prohibit discrimination on the basis of sexual
orientation. Yet the district court did not mention, let
alone distinguish, Blum. Most notably, it did not
contend that Title VII applies to transgender status but not
sexual orientation. To the contrary, the court concluded that
the "same" analysis applies to transgender status
and sexual orientation alike. Wittmer, 304 F.Supp.3d
remains binding precedent in this circuit to this day. Our
sister circuits-including those favorably quoted in the
district court's published opinion-recognize
Blum as our precedent. See Zarda, 883 F.3d
at 107-8 (recognizing historic "consensus among our
sister circuits" foreclosing sexual orientation claims
under Title VII, including Blum); Hively,
853 F.3d at 341- 42 ("recognizing . . . Fifth
Circuit's precedent in Blum"); see also
Evans v. Ga. Reg'l Hosp., 850 F.3d 1248, 1255 (11th
Cir. 2017) (Blum is "binding precedent"
that "forecloses" sexual orientation discrimination
claims under Title VII).
district courts within the Fifth Circuit have likewise
repeatedly acknowledged that Blum is binding circuit
precedent. See, e.g., O'Daniel v.
Indus. Serv. Solutions, 2018 WL 265585, *7 (M.D. La.
Jan. 2, 2018) ("The Fifth Circuit has specifically held
that discharge based upon sexual orientation is not
prohibited by Title VII . . . . Blum is binding
precedent"); Berghorn v. Texas Workforce
Comm'n, 2017 WL 5479592, *4 (N.D. Tex. Nov. 15,
2017) ("The court . . . is bound by Fifth Circuit
precedent, not Seventh Circuit precedent.").
nevertheless affirm the district court on other grounds. The
district court correctly granted summary judgment for the
employer, because the employee failed to present sufficient
evidence to support a prima facie case of discrimination, and
because the employee failed to present a genuine issue of
material fact concerning pretext.
Wittmer, a transgender woman, applied for an Instrument and
Reliability Engineer position with Phillips 66 in 2015.
Phillips 66 conducted four interviews, including an in-person
interview on August 3.
these interviews, Phillips 66 asked about Wittmer's
current employment with Agrium. They discussed on-going
projects at Agrium that would require significant future
travel to Canada as the reason Wittmer was looking for a new
job. On August 10, Phillips 66 offered Wittmer the job,
contingent on passing certain background checks.
September 2, Ellen Fulton, Phillips 66's Human Resources
Manager, informed Wittmer that the background check uncovered
a discrepancy: Agrium terminated Wittmer on July 28, with pay
continuing through August 2.
response, Wittmer acknowledged the discrepancy, but did not
think "it was that big of a deal." Wittmer sent
Fulton the July 28 termination letter from Agrium, clearly
stating that their employment relationship ended on July 28.
and several other Phillips 66 executives conferred on
September 8. Everyone at the meeting agreed that the offer of
employment should be rescinded due to Wittmer's
September 10, Wittmer sent an unsolicited email to Fulton and
another Phillips 66 employee, accusing them of transgender
discrimination. Fulton responded that Phillips 66 was unaware
of Wittmer's transgender status prior to the email, and
that in any event, the information would not affect Phillips
September 14, Fulton formally rescinded the offer of
employment. Fulton explained that it was due to the
discrepancies revealed during the background check after the
initial conditional offer.
later, in October 2016, Wittmer filed a charge of
discrimination with the EEOC against Phillips 66. Wittmer
claimed that Phillips 66 rescinded its offer because of
transgender discrimination. The EEOC issued a right-to-sue
sued Phillips 66 under Title VII for discrimination on the
basis of transgender status. Without distinguishing or even
mentioning Blum, Wittmer claimed that Title VII
prohibits transgender discrimination.
66 took no position on whether Title VII prohibits
transgender discrimination. Instead, Phillips 66 moved for
summary judgment on the grounds that (1) Wittmer failed to
state a prima face case of discrimination on the basis of
transgender status, and (2) Wittmer failed to present a
genuine issue of material fact that the non-discriminatory
reason offered by Phillips 66 was pretextual.
district court granted summary judgment to Phillips 66 on
both grounds. Wittmer appealed.
appeal, Phillips 66 continues to take no position on whether
Title VII prohibits discrimination on the basis of
transgender status. It instead seeks affirmance on the
specific evidentiary grounds on which it prevailed in the
appeal nevertheless attracted substantial amicus attention on
the question of whether Title VII prohibits transgender
discrimination. The EEOC filed an amicus brief that took no
position whether the judgment below should be affirmed or
reversed. The EEOC simply asked this court to hold that Title
VII does indeed prohibit discrimination on the basis of
transgender status. Similarly, various organizations, led by
the National Center for Lesbian Rights, filed an amicus brief
that, like EEOC, concluded that Title VII prohibits
transgender discrimination, and took no position on the
EEOC requested the opportunity to participate in oral
argument. We granted the request. In addition, we appointed
Adam Mortara as amicus curiae to brief and argue the contrary
interpretation of Title VII-just as the Second Circuit did in
Zarda. The EEOC subsequently withdrew its request to
participate in oral argument, due to the government shutdown.
So the National Center amici asked us if they could take the
EEOC's place at the podium. We granted that request as
judgment is appropriate "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."
VII prohibits employment discrimination against "any
individual . . . because of such individual's . . .
sex." 42 U.S.C. § 2000e-2(a)(1). 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. Under
McDonnell Douglas, the plaintiff carries the burden
to prove that (1) he belongs to a protected class; (2) he
applied for and was qualified for the position; (3) he was
rejected despite being qualified; and (4) others similarly
qualified but outside the protected class were treated more
favorably. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). See also Willis v. Coca Cola
Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006).
plaintiff establishes a prima facie case, the burden shifts
to the employer to show it had a legitimate,
nondiscriminatory reason for rescinding the offer.
McDonnell Douglas, 411 U.S. at 802. If the employer
can show a legitimate, non-discriminatory reason for not
hiring the plaintiff, 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 plaintiff's protected status
was another motivating factor for the decision. Alvarado
v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007). To
overcome a legitimate, nondiscriminatory reason for
termination, the plaintiff must show something beyond
disagreement with the employer's decision. Bryant v.
Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005)
("Disparate treatment of similarly situated employees is
one way to demonstrate unlawful discrimination and
claim fails at both steps. To begin with, Wittmer failed to
establish a prima facie case of discrimination. Specifically,
Wittmer did not present evidence that any non-transgender
applicants were treated better, as required under the fourth
prong of McDonnell Douglas. See Rogers v.
Pearland Indep. Sch. Dist., 827 F.3d 403, 408-09 ...