05-001906 Madalynn A. Shepley vs. Lazy Days Rv Center, Inc. Status: Closed Recommended Order on Tuesday, June 5, 2007.

Summary: A transgendered person is not a member of a protected class for purposes of a sex discrimination claim.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MADALYNN A. SHEPLEY, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1906

)

LAZY DAYS RV CENTER, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

On September 1, 2005, an administrative hearing in this

case was held in Tampa, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Craig L. Berman, Esquire

Berman Law Firm , P.A.

111 Second Avenue, Northeast

Suite 810

St. Petersburg, Florida 33701

For Respondent: Richard C. McCrea, Jr., Esquire

Luisette Gierbolini, Esquire

Zinober & McCr ea, P.A.

201 East Kennedy Boulevard, Suite 800

Post Office Box 1378

Tampa, Florida 33601 - 1378

STATEMENT OF THE ISSUE

The issue in the case is whether the Respondent unlawfully

terminated the employment of the Petitioner.

PRELIMINARY STATEMENT

On May 24, 2005, the Florida Commission on Human Relations

(FCHR) forwarded to the Division of Administrative Hearings, a

Petition for Relief filed by Madalynn A. Shepley (Petitioner)

against Lazy Days RV Center, Inc. (Respondent).

The hearing was initially scheduled for July 29, 2005, and

was continued upon the joint request of the parties.

The Petitioner, an anatomical male, is a pre - operative

transsexual person living as a female. In respect to the

Petition er's wishes, the Petitioner was addressed as female

during the hearing; however, because the Petitioner is legally a

male, he is referred to as a male for purposes of this

Recommended Order.

At the hearing, the Petitioner presented the testimony of

Allen Kelley and testified on his own behalf. The Respondent

presented the testimony of Allen Kelley and had E xhibits 1 and 2

admitted into evidence.

The one - volume T ranscript of the hearing was filed on

September 11, 2005. Proposed Recommended Orders were filed on

October 3, 2005, pursuant to an agreement by the parties.

FINDINGS OF FACT

1. The Petitioner was born in 1964 as an anatomical male

named Andrew Allen Shepley. The Petitioner married a female in

1984. The couple separated in December 2000. During the course

of the marriage , the couple produced four children. They

divorced in July 2002.

2. The Respondent is a large recreational vehicle

dealership located in Seffner, Florida. The winter months are

the busy season for sales and service of recreational vehicles,

and the Respondent may employ several hundred employees at that

time.

3. In August 1999, the Petitioner began employment as a

technician (essentially a mechanic) with the Respondent. His

duties as a technician included inspection s and service and

repair responsibilities for recreational vehicles. He also

sometimes performed "walk - throughs" with vehicle purchasers at

the time of delivery during which features and operations of the

vehicle are discussed with the new owner.

4. Th e Petitioner worked for the Respondent for

approximately one year, and then in about August 2000, he moved

with his wife and children to Chicago where his wife's family

was located.

5. In December 2000, the Petitioner returned to Florida

after separatin g from his wife. He sought a job and was again

employed as a technician by the Respondent.

6. Although the Petitioner was born anatomically male, he

psychologically identifies himself as female. The Petitioner

has been aware of the issue since his early childhood. For

various reasons, in Spring 2001, the Petitioner began a course

of psychotherapy.

7. During the psychotherapy, the Petitioner was diagnosed

with gender identity disorder, a condition wherein the

psychological perspective of a person does not correspond to the

anatomical gender into which the person was born.

8. After the diagnosis, the Petitioner continued with

psychotherapy and in June 2001 began transitioning into living

as a female, initially on a part - time basis. He lived as a

fem ale during non - work hours and as a male during his hours of

employment. As time passed, the Petitioner decided to begin

living as a female on a full - time basis.

9. In July 2001, the Petitioner requested approval from

the Respondent to take the last wee k of the year as vacation

during which he planned to visit his children in Chicago. He

also intended to begin living full - time as a female during the

vacation.

10. Some co - workers were already aware of the Petitioner's

intent to begin living as a femal e. The Respondent's

technicians work in teams of between six and ten employees per

team. Each team has a foreman. Andrew Dietz was the foreman

for the Petitioner's team. The Petitioner advised Mr. Dietz at

some point in mid - 2001 that he had been diagno sed with gender

identity disorder and was planning to transition to life as a

female. The Petitioner believes that for various reasons other

employees may have been aware of the situation.

11. In August 2001, the Petitioner informed the

Respondent's hu man relations office that he intended to begin

living as a female on a full - time basis and would return to work

after the December vacation as a female. The human relations

office apparently was supportive of the Petitioner's decision.

12. The human re lations office informed Allen Kelley of

the Petitioner's intent to begin living a s a female. Mr. Kelley

was the manager in charge of the Respondent's service and

delivery operations. There is no evidence that Mr. Kelley had

any concerns about or objectio ns to the Petitioner's decision to

live as a female.

13. In September 2001, the Petitioner began hormone

treatments which resulted in physical changes to the

Petitioner's body including breast development, but the

Petitioner testified that the changes w ere not likely visible to

an "untrained eye."

14. The Petitioner also began to let his hair grow longer

than he had previously. He began to wear acrylic fingernail

extensions without polish. His ears were pierced.

15. In December 2001, the Petitioner received a merit pay

increase and was part of a team of technicians receiving an

award for superior service.

16. As planned, the Petitioner took the last week of

December 2001 as vacation.

17. During the Petitioner's vacation, Mr. Kelley conducted

a series of meetings with the teams of service personnel and

advised them that the Petitioner would return to employment as a

female. Some employees expressed discomfort with the

Petitioner's decision during the meetings, but Mr. Kelley

advised them that t he Respondent was going to "work as best we

can to accommodate him."

18. Also during the Petitioner's vacation, the Respondent

re - labeled an existing single - user lockable restroom (previously

identified as a women's facility) as a "unisex" facility to

p rovide restroom access for the Petitioner.

19. On January 2, 2002, the Petitioner returned as a

female to his employment with the Respondent. He wore the same

uniform he wore prior to the vacation. He put colored nail

polish on the acrylic fingernails he had already been wearing.

He added breast forms under the bra he had been wearing prior to

his vacation. He wore makeup, including eye shadow and

lipstick.

20. The Respondent provided to the Petitioner, a nametag

for his uniform identifying him as "Madalynn . "

21. There is no evidence that any person employed by the

Respondent in a management position made any derogatory comments

about the Petitioner, suggested that there should be any change

in the Petitioner's appearance or behavior, or was other wise

unsupportive of the Petitioner's decision to return to work as a

female.

22. Mr. Kelley testified that beginning with the

Petitioner's return to work on January 2, 2002, Mr. Kelley spent

approximately two hours of each day dealing with issues relat ed

to the Petitioner's return to work as a female.

23. Mr. Kelley testified without contradiction that there

were complaints from several unidentified customers, to him and

to sales staff, about having to interact with the Petitioner.

The Petitioner ac knowledged being aware of one specific customer

who complained.

24. Mr. Kelley testified that he advised customers that

the Petitioner was a good technician, but that other employees

were available to work with customers upon request. Mr. Kelley

subseq uently decided to address the issue by assigning other

technicians to conduct vehicle walk - throughs with customers, and

so informed the Petitioner.

25. Mr. Kelley had to twice warn one employee (Bruce

Dickens) who was loudly unhappy with the Petitioner' s decision

to live as a female, but after Mr. Kelley advised Mr. Dickens

that further disruption by Mr. Dickens would result in unpaid

suspension, Mr. Dickens refrained from continuing his

complaints.

26. Mr. Kelley testified as to "threats" relayed t o him by

employees who claimed to have knowledge that other employees

were planning some unidentified action against the Petitioner,

but Mr. Kelley was unable to recall the names of any of the

employees involved in either the threats or the reporting of th e

threats. He did not advise the Petitioner of the alleged

threats. He did not contact law enforcement about the

situation. He made no written record related to the threats.

Mr. Kelley monitored the employee parking area to ascertain

whether any inappr opriate activity was occurring, but observed

nothing of concern.

27. Mr. Kelley testified that between six to twelve times

daily, he observed various groups of technicians standing around

talking, and that he had to enter the service area and direct

the m to return to work. He did not overhear any conversations ,

but assumed that the conversations were related to the

Petitioner.

28. An incident involving graffiti placed in the "unisex"

bathroom was resolved by removal of the graffiti after the

Petition er reported it to management.

29. On January 7, 2002, the Petitioner was called to the

human resources office where Mr. Kelley informed him that he was

a substantial disruption in the workplace and that his

employment was being terminated.

30. Mr. Ke lley testified that he was solely responsible

for making the termination decision. There is no evidence that

Mr. Kelley discussed the termination with the owner of the

Respondent, or that any other employee was involved in

Mr. Kelley's decision.

31. Th e Respondent employed several homosexual technicians

during the period of the Petitioner's employment who were not

subjected to any adverse employment action.

32. The Respondent employed a female employee who

underwent breast enlargement surgery during the time the

Petitioner was employed by the Respondent. The Petitioner

testified that the female was a "distraction" at work that was

not subjected to any adverse employment action.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jur isdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla . Stat . (2005).

34. This case involves an alleged violation of the Florida

Civil Rights Act of 1992, Sections 760.01 - 10, Florida Statutes,

(the "Act"). Sub section 760.10(1)(a), Florida Statutes (2005) ,

provides that it is an unlawful employment practice for an

employer:

To discharge or to fail or refuse to hire

any individual, or otherwise to discriminate

against any individual with respect to

compensation, terms, conditions, or

privileges of employment because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

35. Florida courts have determined that Title VII federal

discrimination law should be used as guid ance when applying the

provisions of the Act. Harper v. Blockbuster Entertainment

Corp. , 139 F.3d 1385 (11th Cir. 1998); Florida Department of

Community Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA

1991).

36. The United States Supreme Court establish ed the

analysis that must be applied in considering an employment

discrimination claim under Title VII in McDonnell Douglas

Corporation v. Green , 411 U.S. 792 (1973), as refined in Texas

Department of Community Affairs v. Burdine , 450 U.S. 248 (1981),

and St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993).

37. The Petitioner has the initial burden of establishing

a prima facie case of unlawful discrimination. In order to meet

the initial burden, the Petitioner must establish that (1) he is

a member o f a protected class; (2) he was subjected to adverse

employment action; (3) the Respondent treated similarly situated

employees more favorably; and (4) he was qualified to do the

job.

38. If the Petitioner succeeds in establishing a prima

facie case, th e Respondent must then articulate some legitimate,

nondiscriminatory reason for the employment decision. The

Respondent need not persuade the trier of fact that it was

actually motivated by the reasons, but must merely set forth,

through the introduction of admissible evidence, the reason for

those actions. Burdine , at 254 - 255.

39. Once the Respondent articulates a reason for the

action taken, the evidentiary burden shifts back to Petitioner

who must prove that the reason offered by the Respondent is not

the true reason, but is merely a pretext for discrimination.

40. The ultimate burden of persuading the trier of fact

that Respondent intentionally discriminated against Petitioner

remains at all times with Petitioner. Burdine , at 253.

41. Here, the Petitioner has failed to establish a prima

facie case of sex discrimination.

42. The evidence clearly establishes that the Petitioner

was qualified to do his job and was subjected to an adverse

employment action.

43. As to whether the Respondent tre ated similarly

situated employees more favorably, the evidence is scant. There

is no evidence that the Respondent employed any other

transgendered persons. Perhaps, given the rationale offered by

the Respondent for the Petitioner's termination, the sole

similarly situated employee was a woman whom the Petitioner

asserted was a distraction after undergoing breast enhancement

surgery; however, the evidence is insufficient to establish that

the distraction related to the employee's breast implants was as

dis ruptive to the workplace as the Petitioner's decision to

alter his gender.

44. In any event, the primary reason that the Petitioner

has failed to establish a prima facie case of sex discrimination

is because the Petitioner is not a member of a protected class.

45. Although the original charge of discrimination

asserted grounds of "physical disability," the subsequently

filed Petition for Relief states that the Petitioner is not

pursuing the complaint on grounds of disability. The Petition

for Relief sets forth three theories under which this claim of

sex discrimination has been pursued.

46. The Petitioner's Petition for Relief asserts that the

Respondent discriminated against the Petitioner as a

"transgendered" or "transsexual" individual. Title V II provides

no protection against discrimination on the basis of

"transgender" or "transsexualism." Ulane v. Eastern Airlines ,

742 F.2d 1081 (7th Cir. 1984), cert. denied 471 U.S. 1017

(1985).

47. The Petitioner's Petition for Relief asserts that the

Res pondent discriminated against the Petitioner as a female in

that anatomical female technicians were not terminated from

employment. However, the Petitioner is by his own

acknowledgement legally and anatomically male.

48. Even were the Petitioner to und ergo a surgical

procedure to alter his physical presentation from male to

female, he will remain male under existing Florida law. See In

re Marriage of Kantaras v. Kantaras , 884 So. 2d 155, 161 (Fla.

2d DCA 2004), review denied , 898 So. 2d 80 (Fla. 2005), wherein

the d istrict c ourt invalidated a marriage between a post -

operative transsexual (female to male) and her female partner,

relying on a finding that the statutory meaning of "male" and

"female" referred to "immutable traits determined at birth."

Acc ordingly, the Petitioner's claim of discrimination as a

female must fail because he is not female.

49. The Petitioner's Petition for Relief also asserts that

the Respondent discriminated against the Petitioner as a male.

Clearly, males are protected by the prohibition against sex

discrimination. Oncale v. Sundowner Offshore Services , 523 U.S.

75 (1998). However, in this case, the theory under which the

Petitioner proceeds is that he was a victim of "sex

stereotyping" and that he was discriminated agai nst because he

failed to conform to a social expectation of male behavior and

appearance.

50. The Petitioner relies on Price Waterhouse v. Hopkins ,

490 U.S. 228 (1989) to support his claim. In Price Waterhouse ,

the partners at an accounting firm initia lly declined to act

upon a female senior manager's candidacy for partnership and

then, in the following year, refused to reconsider her

candidacy. According to the Court's opinion, one partner

described the candidate as "macho." Another partner stated th at

she "overcompensated for being a woman." The partner

responsible for explaining the decision to the candidate advised

her that she should "walk more femininely, talk more femininely,

dress more femininely, wear make - up, have her hair styled, and

wear j ewelry." The candidate charged the firm with

discrimination on the basis of sex. The Supreme Court held that

the comments reflected sex stereotyping and were evidence of sex

discrimination.

51. Here, there is no evidence that any person in

management made any derogatory comments about the Petitioner or

suggested that there should be any change in appearance or

behavior. There is no evidence that the Respondent was

unsupportive of the Petitioner's decision to return to work as a

female.

52. Further, courts have not extended Price Waterhouse to

encompass factual situations wherein the person alleging sex

discrimination has assumed the dress and behavior of a gender

other than that into which the complainant was born.

53. In Oiler v. Winn - Dixie , 2 0 0 2 WL 31098541 (E.D. La.

2002), a male truck driver for Winn - Dixie was terminated for

engaging in "cross - dressing" during non - work hours. The

d istrict c ourt held that such behavior was not protected under

Title VII prohibitions against sex discrimination, stating:

After much thought and consideration of the

undisputed facts of this case, the Court

finds that this is not a situation where the

plaintiff failed to conform to a gender

stereotype. Plaintiff was not discharged

because he did not act sufficientl y

masculine or because he exhibited traits

normally valued in a female employee, but

disparaged in a male employee . . . . The

plaintiff was terminated because he is a man

with a sexual or gender identity disorder

who, in order to publicly disguise himsel f

as a woman, wears women's clothing, shoes,

underwear, breast prostheses, wigs, make - up,

and nail polish, pretends to be a woman, and

publicly identifies himself as a woman named

" Donna. "

Id. at *5.

54. The c ourt further wrote:

This is not just a mat ter of an employee of

one sex exhibiting characteristics

associated with the opposite sex. This is a

matter of a person of one sex assuming the

role of a person of the opposite sex. After

a review of the legislative history of T itle

VII and the authoriti es interpreting the

statute, the Court agrees with Ulane and its

progeny that Title VII prohibits

discrimination on the basis of sex, i.e.

biological sex. While Title VII's

prohibition on the basis of sex includes

sexual stereotypes, the phrase "sex" has not

been interpreted to include sexual identity

or gender identity disorders.

Id. at *6.

55. More recently, in Etsitty v. Utah Transit Authority ,

2005 WL 1505610 (D. Utah 2005) a pre - operative transsexual

employee challenged his termination on the bas is of gender non -

conformance and transsexuality. In rejecting the claim, the

c ourt stated:

There is a huge difference between a woman

who does not behave as femininely as her

employer thinks she should, and a man who is

attempting to change his sex and ap pearance

to be a woman. Such drastic action cannot

be fairly characterized as a mere failure to

conform to stereotypes.

Id. at *5.

56. The Petitioner has offered no case law that could

support a conclusion that transsexuality is no more than a

failure to conform to stereotype, or that the protections of

either Title VII or the Act have been extended to address

discrimination against an employee who is transsexual.

57. It shou ld be noted that the Respondent has asserted

that even if the Petitioner wer e entitled to legal protection

under the Act, the disruption to the Respondent's business was

sufficient to support the Petitioner's termination. The primary

case cited in support of the assertion is Matima v. Celli , 228

F.3d 68 (2d Cir . 2000). However t he facts of that case are

sufficiently distinguishable to render the case inapplicable

here.

58. In Matima , the Court found that the evidence

established that the terminated employee was confrontational and

antagonistic, and that the termination was sup portable on those

grounds even in the absence of unlawful rationale for the

termination.

59. In this case, there is no evidence that the Petitioner

was other than a good employee who received both a pay raise and

a service award immediately prior to his return to work as a

female. Five days after his return, Mr. Kelley decided to end

the Petitioner's employment with the Respondent, and the

Petitioner has no recourse under the Florida Civil Rights Act

for the decision.

RECOMMENDATION

Based on the fore going Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a f inal o rder DISMISSING the complaint of discrimination

filed by the Petitioner in this case.

DONE AND ENT ERED this 8th day of Novemb er , 2005 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9 675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of November , 2005 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Commission on Human Relations

2009 Apal achee Parkway, Suite 100

Tallahassee, Florida 32301

Richard C. McCrea, Jr., Esquire

Luisette Gierbolini, Esquire

Zinober & McCrea, P.A.

201 East Kennedy Boulevard, Suite 800

Post Office Box 1378

Tampa, Florida 33601 - 1378

Craig L. Berman, Esquire

Berman Law Firm, P.A.

111 Second Avenue , Northeast

Suite 810

St. Petersburg, Florida 33701

Cecil Howard , General Counsel

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All par ties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.