Evans v. Ga. Reg'l Hosp.

850 F.3d 1248

Jameka K. EVANS, Plaintiff-Appellant,

v.GEORGIA REGIONAL HOSPITAL, Charles Moss, et al., Defendants-Appellees.

No. 15-15234

United States Court of Appeals, Eleventh Circuit.

March 10, 2017

Gregory R. Nevins, Lambda Legal Education and Defense Fund, Gerald Richard Weber, Jr., Law Offices of Gerry Weber, LLC, ATLANTA, GA, for Plaintiff-Appellant.

Gail S. Coleman, Equal Employment Opportunity Commission, Office of General Counsel-Appellate Services, WASHINGTON, DC, Amicus Curiae for EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

Before WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and MARTINEZ,^* District Judge.

MARTINEZ, District Judge:

Jameka Evans appeals the sua sponte dismissal of her employment discrimination complaint, filed pursuant to 42 U.S.C. § 2000e et seq ., in which she alleged that she was discriminated against because of her sexual orientation and gender non-conformity, and retaliated against after she lodged a complaint with her employer's human resources department. We have carefully reviewed the Appellant's and amicus curiae's initial and supplemental briefs,¹ and have had the benefit of oral argument. For the reasons set forth below, we affirm the district court's dismissal order in part, and vacate and remand in part.

I.

Evans filed a pro se complaint against Georgia Regional Hospital ("Hospital"), Chief Charles Moss, Lisa Clark, and Senior Human Resources Manager Jamekia Powers, alleging employment discrimination under Title VII in her job as a security officer at the Hospital. Evans also moved for leave to proceed in forma pauperis before the district court, and for appointment of counsel. In her complaint, Evans alleged the following facts, which this Court accepts as true.²

Evans worked at the Hospital as a security officer from August 1, 2012, to October 11, 2013, when she left voluntarily. During her time at the Hospital, she was denied equal pay or work, harassed, and physically assaulted or battered. She was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a "traditional woman[ly] manner." Although she is a gay woman, she did not broadcast her sexuality. However, it was "evident" that she identified with the male gender, because of how she presented herself—"(male uniform, low male haircut, shoes, etc.").

Evans had not met Powers before the harassment began and had never discussed her sexual preference with her. Yet, Evans was punished because her status as a gay female did not comport with Moss's gender stereotypes and this caused her to experience a hostile work environment. For example, a less qualified individual was appointed to be her direct supervisor. Moreover, internal e-mails provided evidence that Moss was trying to terminate Evans by making her employment unbearable, because she had too much information about his wrongdoing in the security department.

Evans also explained that her employers had violated some regulations or policies and that she had initiated an investigation. After Evans lodged her complaints about these violations, Powers asked Evans about her sexuality, causing Evans and "others" to infer that her sexuality was the basis of her harassment and that upper management had discussed it during the investigation. Finally, Evans provided that she was harassed and retaliated against because she spoke to human resources about Moss's discriminatory behavior. Evans also reserved the right to amend her complaint should new information arise.

Evans attached to her complaint a "Record of Incidents." This report stated that Moss had repeatedly closed a door on Evans in a rude manner, that she experienced scheduling issues and a shift change, and that a less qualified individual was promoted as her supervisor. She detailed the problems she had with her new supervisor, Corporal Shanika Johnson, and asserted that Johnson scrutinized and harassed her. Evans also asserted that someone had tampered with her equipment, including her radio, clip, and shoulder microphone.

Evans also included an e-mail from Harvey Sanchez Pegues, which stated that Moss had harassed Pegues on a daily basis, had a habit of favoritism, changed Pegues's schedule frequently, had created a tense and unpleasant work environment, and had a habit of targeting people for termination. Evans also attached a letter from Jalisia Bedgard, which stated that Johnson and Moss had expected Evans to quit because of Johnson's promotion and, if not, because of a bad shift change that would cause Evans scheduling conflicts. Another attached letter from Cheryl Sanders, Employee Relations Coordinator in the human resources department at the Hospital, indicated that the Hospital had investigated Evans's complaints of favoritism, inconsistent and unfair practices, and inappropriate conduct, and had found no evidence that she had been singled out and targeted for termination. Finally, Evans attached e-mail correspondence between Pegues and Evans, which indicated that: (1) Pegues believed that Moss was trying to target Evans for termination because she had substantial evidence of wrongdoing against him, and (2) Moss had changed the qualifications of a job to prevent other candidates from qualifying.

A magistrate judge subsequently issued a report and recommendation ("R&R"), wherein the magistrate judge granted Evans leave to proceed in forma pauperis , denied her request for appointment of counsel, and sua sponte screened her complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The magistrate judge preliminarily noted that that while the Equal Employment Opportunity Commission ("EEOC") had not indicated that there was an untimeliness issue, Evans reportedly worked at the Hospital from August 2012 through October 2013, and thus, only had 180 days from the alleged discriminatory conduct to file. The magistrate judge also noted that Evans's complaint in the district court needed to be consistent with her EEOC complaint. With respect to Evans's claim of discrimination based on her sexual orientation, or status as a gay female, the magistrate judge reasoned that—based on case law from all circuits that had addressed the issue—Title VII "was not intended to cover discrimination against homosexuals." With regard to Evans's claim of discrimination based on gender non-conformity, the magistrate judge concluded that it was "just another way to claim discrimination based on sexual orientation," no matter how it was otherwise characterized. Additionally, the magistrate judge recommended dismissal of the retaliation claim on the basis that Evans failed to allege that she opposed an unlawful employment practice, given that sexual orientation was not protected under Title VII. Additionally, the R&R noted that Moss, Clark, and Powers were coworkers or supervisors sued in their individual capacities and, therefore, were not actionable defendants under Title VII. Finally, the magistrate judge recommended dismissing all of Evans's claims, with prejudice, without allowing her to leave to amend, because she pled no actionable claim nor seemed likely to be able to do so.

Evans timely objected to the R&R. In particular, Evans argued that her gender non-conformity and sexual orientation discrimination claims were actionable under Title VII as sex-based discrimination. She also argued that, as a pro se litigant, she should have been permitted to amend her complaint, stating that "new supplemental evidence ha[d] arisen that affirm[ed] the consistency of the claims alleged in [her] complaint with the claims investigated in the EEOC charge, satisfying the administrative consistency doctrine," and noting that she had reserved her right to amend in her complaint.

The Lambda Legal Defense and Education Fund, Inc., ("Lambda Legal") requested permission to file an amicus curiae brief in support of Evans's objections to the R&R, which the district court granted. Lambda Legal argued that an employee's status as lesbian, gay, bisexual or transgender ("LGBT"), does not defeat a claim based on gender non-conformity. Lambda Legal also disputed the magistrate judge's assertion that sexual orientation is not an actionable basis under Title VII, and disputed the assertion that all other courts have held so. Lambda Legal also argued that Evans did not need to plead a prima facie case to survive dismissal at the pleading stage. It also disputed the magistrate judge's recommendation that Evans's retaliation claim be dismissed with prejudice, arguing that Evans did not need to actually engage in protected activity to state a claim for retaliation so long as her belief that sexual orientation was covered by Title VII was not unreasonable. Lambda Legal also argued that the magistrate judge's remarks that Evans's claims were untimely and that her complaint was inconsistent with the EEOC investigation were "speculati[ve]" and "premature at best." Lastly, it argued that Evans was entitled to leave to amend, because any necessary amendment would not be futile given Evans's colorable claims.

The district court conducted a de novo review of the entire record and adopted—without further comment—the R&R, dismissed the case with prejudice, and appointed counsel from Lambda Legal to represent Evans on appeal.

On appeal, Evans, with the support of the EEOC as amicus curiae, argues that the district court erred in dismissing her claim that she was discriminated against for failing to conform to gender stereotypes, because an LGBT person may properly bring a separate discrimination claim for gender non-conformity in this Circuit. Evans also argues that, contrary to the district court's assertion, sexual orientation discrimination is, in fact, sex discrimination under Title VII. Evans further argues that the district court erred in concluding that she did not meet the requirements to bring a retaliation claim, because a plaintiff can establish a prima facie case of unlawful retaliation if there is a good faith, reasonable belief that...