Monegain v. Va. Dep't of Motor Vehicles

491 F.Supp.3d 117

Tracy MONEGAIN, Plaintiff,

v.Commonwealth of Virginia DEPARTMENT OF MOTOR VEHICLES, et al., Defendants.

Civil Action No. 3:19cv721

United States District Court, E.D. Virginia, Richmond Division.

Signed September 30, 2020

Monica L. Mroz, Linda Leigh Rhoads Strelka, Thomas Eugene Strelka, Strelka Law Office PC, Roanoke, VA, Jillian Todd Weiss, Pro Hac Vice, Law Office of Jillian T. Weiss PC, Brooklyn, NY, for Plaintiff.

E. Lewis Kincer, Jr., Office of the Attorney General, Sarah Flynn Robb, Hunton Andrews Kurth LLP, Richmond, VA, for Defendants.

MEMORANDUM OPINION

M. Hannah Lauck, United States District Judge

This matter comes before the Court on Defendants Michael Baxter, Rena Hussey, and Jeannie Thorpe's (collectively, the "Individual Defendants") Motion to Dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6).¹ (ECF No. 19.) Plaintiff Tracy Monegain responded, (ECF No. 23), and the Individual Defendants replied, (ECF No. 24). This matter is ripe for disposition. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.² For the reasons that follow, the Court will grant in part and deny in part the Individual Defendants’ Motion to Dismiss.

I. Factual and Procedural Background

Monegain, a former Virginia Department of Motor Vehicles ("DMV") employee, brings this five-count Complaint in which she alleges that she suffered discrimination, harassment, retaliation, and constitutional violations due to her transition to a female gender identity and gender expression during her employment with the DMV. The Complaint brings claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ("Title VII"),³ 42 U.S.C. § 1983,⁴ and the First⁵ and Fourteenth⁶ Amendments of the Constitution of the United States of America. Monegain brings Counts I through III against Defendant DMV—which has not moved to dismiss the claims against it—and Counts IV through V against Defendants Baxter, Hussey, and Thorpe.

A. Factual Allegations ⁷

Monegain "is a female citizen of the United States" who "has a female gender identity[,] ... a feminine gender expression[,] ... [and] is transgender."⁸ (Compl. ¶¶ 16–19, ECF No. 1.) Monegain worked at the DMV as a "Technical Services Supervisor from October 1993 [until] her unlawful and involuntary resignation [twenty-five years later] on or about January 5, 2018." (Id. ¶¶ 3, 4.) The DMV is "an organized and existing department of the government of the State of Virginia and is an employer as that term is defined by Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h)." (Id. ¶ 5.) At all relevant times, the DMV "employed more than 500 employees," (id. ), including Baxter, Hussey, and Thorpe. (Id. ¶ 6). Hussey and Baxter were "at all relevant times ... General Administrative Manager[s] of the [DMV]." (Id. ) "Thorpe was, at all relevant times, a Human Resource Manager of the [DMV]." (Id. ) The Individual Defendants are sued in their individual capacities. (Id. )

1. Monegain Begins to Experience Harassment at Work

In March 2016, thirteen years after beginning employment at the DMV, Monegain informed her supervisor, Michael Baxter, "that she was transgender." (Id. ¶ 34.) Monegain "asked Baxter to keep this information private." (Id. ¶¶ 34–35.) Following this initial conversation, Baxter "repeatedly asked [Monegain] about whether she intended to come out to her employees and the rest of the department; whether she wanted surgeries, and what gender dysphoria is and how it affected a person."⁹ (Id. ¶ 36.) Monegain "advised Baxter that she was unsure what her plans were and that it was not time for her to come out at work." (Id. )

On March 29, 2016, Monegain learned of a conversation involving three of her subordinates, including Scott Vaughan, in which she "was called ‘gay’ and ‘faggot’ because she was living with a man." (Id. ¶¶ 38, 39.) Monegain confronted the participants, "who confirmed that the conversation had occurred," and informed them "that the conversation was inappropriate ... should not have occurred .... [and] instructed them to refrain from such conversations going forward." (Id. ¶¶ 40–42.) Monegain reported the conversation to Baxter who told Monegain "that it was just ‘boys being boys.’ " (Id. ¶¶ 43–44.) Neither Baxter nor the DMV took action to address the conversation. (Id. ¶ 45.)

On April 4, 2016, Monegain finalized her name change "and her legal name became Tracy Monegain." (Id. ¶ 46.) On April 22, 2016, Baxter offered Monegain a transfer to a different department, which "would constitute a demotion in that it would remove all her direct reports." (Id. ¶ 47.) Baxter told Monegain that he thought the position would reduce Monegain's " ‘day to day stress from the work group,’ a reference to the harassment she was receiving at work from her direct reports and others based on her gender and gender expression." (Id. ¶ 48.) Monegain avers that the "intent and effect of the transfer was to remove [her] from public view because of her gender and gender expression, and an attempt to hide her from public view in order to avoid the need for the DMV to take prompt and effective action to stop the harassment." (Id. ¶ 49.) Monegain states that although Baxter "assured" Monegain he had no "concerns about her work performance or work ethic," Baxter's "demeanor, despite his words, conveyed that ... Baxter was upset with Ms. Monegain because of her gender and gender expression, so that she was not reassured by ... Baxter." (Id. ¶¶ 50–52.) Monegain declined the transfer. (Id. ¶ 54.)

On May 23, 2016, Monegain "filed an EEOC charge alleging that the DMV was violating the Americans With Disabilities Act by refusing to cover her transgender care within her health insurance coverage." (Id. ¶ 55.) Monegain obtained a new drivers’ license and social security card with her changed name, and informed Baxter that "that it was no longer appropriate to sign documents with her prior name .... [as] she was concerned about a litigation risk to herself and to the Department." (Id. ¶¶ 58–59.) Monegain asserts that Baxter "told her to keep signing the documents with her prior name." (Id. ¶ 60.)

2. Monegain Communicates That She Planned to Begin Presenting as Female at Work

Monegain "determined that it was time for her to begin presenting as female at work" and "advised Baxter that she planned to begin presenting as female at work on August 1, 2016." (Id. ¶¶ 61–62.) Monegain states that "presenting as female at work" meant that "she would be wearing clothing, makeup, body styling and hair styling typically associated with a feminine gender expression." (Id. ¶ 63.) Monegain asserts that although "Baxter stated that he would support her transition, his body language indicated to Ms. Monegain in a very obvious manner that he was very uncomfortable with the prospect." (Id. ¶ 64.) Baxter instructed Monegain "to begin informing her work group and other colleagues that she interacted with" and stated that he "would inform Human Resources ("HR") and upper management about her intent to transition." (Id. ¶ 65.)

On July 8, 2016, Baxter informed Monegain that during a meeting, Thorpe had stated "that ‘[i]f we let ‘it’ do this, then they will all come out.’ " (Id. ¶¶ 68–69.) Monegain "was shocked and upset by Thorpe's statement and her antipathy toward Ms. Monegain." (Id. ¶ 70.) Monegain "spoke with her subordinates about her transition" who all "assured her that they were supportive except for Scott Vaughan, who told Ms. Monegain that he would not support any of it and that he no longer wanted anything to do with her if she transitioned." (Id. ¶ 71.) "Neither Baxter nor [the] DMV took any action regarding Vaughan or his comments." (Id. ¶ 72.)

3. Monegain Begins Presenting as Female at Work

On July 29, 2016, Monegain "came into work presenting as a woman for the first time" and wore "clothing, makeup, body styling and hair styling typically associated with a feminine gender expression." (Id. ¶¶ 73–74.) One co-worker made unwelcome sexual comments to Monegain about " ‘pimping girls’ " and her appearance, but when Monegain reported those comments to Baxter he "laughed" and "neither Baxter nor [the] DMV took action to address the comments or environment." (Id. ¶¶ 75–79.) Another coworker "confronted Baxter about allowing Ms. Monegain to dress as a female at work and had asked Baxter to take action against Ms. Monegain." (Id. ¶ 81.) Baxter told the complaining coworker "to get over it but took no further action." (Id. ) Despite several instances of harassment, Monegain reports that "Baxter and [the] DMV took no action to investigate or address Ms. Monegain's complaints." (Id. ¶ 90.) "On information and belief," Monegain avers that Baxter "reported the harassment to Defendant Rena Hussey .... [and] Defendant Jeannie Thorpe." (Id. ¶¶ 92–93.)

On August 21, 2016, Baxter informed Monegain of "a new dress code that was written specifically for her by Baxter," (the "Dress Code Policy"). (Id. ¶ 96.) Monegain asserts that "[n]o other employee was subject to this dress code." (Id. ¶ 97.) "Per this dress code, Ms. Monegain was not allowed to wear dresses, skirts, heels, jeans with any decoration, or, oddly, collars, but was required to always wear a bra and was required to wear a uniform to all Motor Carrier meetings." (Id. ¶ 98.) Although Monegain "expressed to Baxter that she found this to be discriminatory," she "complied ... because she wanted to keep her job." (Id. ¶¶ 99–100.)

On November 9, 2016, Monegain and Baxter "discussed Monegain's request for leave in order to have gender-related surgery." (Id. ¶ 103.) Monegain avers that "Baxter was reluctant to allow her time off but relented after Ms. Monegain explained to him the nature of gender dysphoria and the necessity of this surgery." (Id. ¶ 104.) "Ms. Monegain was off work for most of December 2016 for the surgery." (Id. ¶ 105.) On January 10, 2017, Monegain and Baxter discussed additional gender-related surgery, with...