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On timely motion, the court must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a federal statute.

4.

As an aggrieved party, named in the main complaint of Plaintiff United States Equal

Employment Opportunity Commission (EEOC), Plaintiff/Intervenor Branson has a

statutory right to intervene in this action pursuant to Title VII of the Civil Rights Act

of 1964, 42 U.S.C. 2000e-5(f)(1).

5. 42 U.S.C. 2000e-5(f)(1) states as follows, in pertinent part:

The person or persons aggrieved shall have the right to intervene in a civil

action brought by the Commission or the Attorney General in a caseinvolving a government, governmental agency, or political subdivision.

6. This motion is timely made. There is no prejudice to Plaintiff United States Equal

Employment Opportunity Counsel or Defendant Lakeland Eye Clinic by permitting

Plaintiff/Intervenor to intervene, as no Scheduling Order has been entered, no pretrial

scheduling conference has been held, nor has any discovery been conducted as of the

date and time of filing of this motion. SeeStallworth v. Monsanto Co., 558 F.2d 257,

263-264 (5th Cir. 1977).

7. The parties have conducted a conference pursuant to Fed. R. Civ. P. 26(f), in which

putative Plaintiff/Intervenors counsel was included by consent of all parties, and as

to which Plaintiff/Intervenor requests nunc pro tunc approval from this Court to

satisfy the requirements of Fed. R. Civ. P. 26(f).

8. Plaintiff/Intervenor would be prejudiced if this motion for intervention were denied,

which would result in denying Ms. Branson her rights under 42 U.S.C. 2000e-5(f),

and the ability to protect her interests under 42 U.S.C. 2000e-1, et seq.

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GROUNDS FOR JOINDER OF

ADDITIONAL FEDERAL CLAIMS

9. Plaintiff/Intervenor also moves under Fed. R. Civ. P. 18(a) to join her federal claim

for hostile work environment arising out of the same case or controversy under

Article III of the U.S. Constitution.

10.Rule 18(a) states as follows:

A party asserting a claim, counterclaim, crossclaim, or third-party claim

may join, as independent or alternative claims, as many claims as it has

against an opposing party.

11.Rule 18(a) grants plaintiffs complete freedom to join in a single action all claims that

they may have against any of the defendants. In re Beef Industry Antitrust Litigation,

600 F.2d 1148, 1168 (1979); Nationwide Mutual Co. v. Ft. Myers Total Rehab. Ctr.,

Inc.,657 F. Supp. 2d 1279, 1286 (M.D. Fla. 2009).

12.Federal courts have long recognized that the aggrieved party has both a right to

intervene in EEOC litigation and a right to request joinder of claims or pursue legal

theories of liability not originally pursued by the EEOC. See generally Fed. R. Civ. P.

24(a)(1); Gen. Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980) (recognizing that the

litigation strategy pursued by the EEOC may differ from that preferred by the

aggrieved, and that for this reason the aggrieved has a right to intervene and represent

her own interests). See also In re Beef Industry Antitrust Litigation, 600 F.2d 1148,

1168 (1979); Nationwide Mutual Co. v. Ft. Myers Total Rehab. Ctr., Inc., 657 F.

Supp. 2d 1279, 1286 (M.D. Fla. 2009).


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13.Should this Court grant Plaintiff/Intervenors motion to intervene under Rule

24(a)(1), Ms. Branson is then entitled under Rule 18(a) to move for joinder of related

federal claims not brought by the EEOC.

14.As alleged in the putative Complaint in Intervention filed as Exhibit A hereto,

Plaintiff/Intervenor experienced discrimination on account of sex sufficient to

constitute a hostile work environment and was later terminated by Defendant

because of sex, and thereafter timely filed a Charge of Discrimination with the EEOC

alleging that she was discriminated against in violation of Title VII.

15.Plaintiff/Intervenors original Charge of Discrimination and supplemental statement

identified sufficient facts, names, and events relating to and putting the EEOC on

notice of probable grounds for hostile work environment based on sex as well as

unlawful termination. See Plaintiffs EEOC Charge, annexed hereto as Exhibit B.

16.As set forth in the Plaintiffs EEOC Charge, she made the following statements

regarding the facts and circumstances:

a. Shortly after I told the Owner, Dr. Kevin Dorsett, he and other doctors thathe managed, stopped referring clients to me.

b. The Administrator of the Clinic, Janet Townsend, indicated, by words andtone of voice, that she, Dr. Kevin Dorsett were not supportive of my

gender transition and gender expression, and that she and the Respondentconsidered my appearance and expression to be problematic.

c. This disapproval were manifested in words by, among other things, Ms.Townsends discussion with a tech clinician at the Lakeland Clinic, Donna

Martin, in which she asked, What do you think about thisMichael/Michele thing?

d. Ms. Townsend also said to Ms. Martin next time Ill be more careful inmy interviewing skills.


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e. Ms. Martin communicated to Ms. Branson her understanding thatAdministrator Townsend and the Lakeland Clinic considered Ms.

Bransons gendered expression to be problematic.

17.

The charge itself lists a date range of April 1, 2011 to June 10, 2011, rather than a

specific date, for the discriminatory acts, implying that the claim included an

environmental element.

18. Procedural technicalities are not to stand in the way of Title VII complainants, and

the specific words of the charge of discrimination need not presage with literary

exactitude the judicial pleadings which may follow. Sanchez v. Standard Brands,

431 F.2d 455, 461, 465 (5th Cir. 1970) (permitting a national origin claim to flow

from the words of the original sex discrimination claim).

19. The allegations in a judicial complaint filed pursuant to Title VII may encompass

any kind of discrimination like or related to allegations contained in the charge and

growing out of such allegation during the pendency of the case before the

Commission..Id. at 466.

20.It is not necessary that the EEOC investigate or make findings of reasonable cause on

a particular claim in order to bring the claim in a judicial complaint, so long as it is

implicit in the EEOC charge. Gamble v. Birmingham Southern R. Co., 514 F.2d 678,

688 n.5 (Former5th Cir. 1975)

21.For example, the 11th Circuit has allowed an employee to assert retaliation claims

growing out of her race and sex discrimination allegations, noting that the judicial

complaint was like or related to, or grew out of the allegations contained in her

EEOC charge because the facts alleged in her EEOC charge could have supported an


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explanation that she was discharged because of retaliation. Gregory v. Ga. Dept of

Human Resources, 355 F.3d 1277 (11th

Cir. 2004).

22.

Cases in which the 11th

Circuit and courts in the Middle District of Florida have

refused to allow assertion of hostile work environment claims on the basis of an

EEOC charge involve different circumstances not present in this case.

23.The 11thCircuit has refused to allow an employee to assert hostile work environment

claims as growing out of a race termination charge, where all of the factual

allegations related to termination, none to incidents of harassment, and the date of

termination was noted as both the earliest and latest date of discriminatory conduct.

Green v. Elixir Indus., Inc., 152 F. Appx. 838, 841 (11th Cir. 2005), reh. den.,2005

U.S. App. LEXIS 29473 (11th Cir. 2005).

24.The 11th

Circuit has also refused to allow hostile work environment claims where

there is no allegation in the EEOC charge that reasonably points to the kind of

pervasive and oppressive conditions that would allow us to conclude that she intended

to have the EEOC investigate the workplace for a hostile work environment. Ramon

v. AT&T Broadband, 195 Fed.Appx. 860, 86264, 866 (11th Cir. 2006)

25.Similarly, the Middle District of Florida has refused to allow hostile work

environment claims where the charge "focuse[d] exclusively on perceived sexual

discrimination against her, on a date certain, for a particular reason, in a particular

manner, from a specified source, and with a particular consequence (her termination)"

and "fail[ed] (by label, by factual allegation, by temporal scope, or otherwise) to

identify or even intimate the notions of retaliation or sexual harassment"). Bridges v.


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Standard Pacific of Tampa GP, Inc., 2007 U.S. Dist. LEXIS 4051, *5*6 (M.D. Fla.

2007)

26.

In the present case, unlike Green, Ramon and Bridges, the EEOC charge contains

factual information about several instances of hostility based on sex, and the charge

references a range of dates, rather than a single date. Thus, by the factual allegations

and by temporal scope, a hostile work environment claim in Bransons judicial

complaint is reasonably related to her EEOC charge.

27.After conducting an investigation, the EEOC determined that Defendant had

discriminated against Plaintiff/Intervenor in violation of Title VII and other federal

statutes, and elected to bring only claims related to Ms. Bransons unlawful

termination under federal law.

28.The fact that the EEOC chose not to bring additional, colorable federal claims against

Defendant does not foreclose Plaintiff/Intervenors right to move for joinder of

related federal claims concomitant with her motion for intervention as of right.

Gamble v. Birmingham Southern R. Co., 514 F.2d 678, 688 n.5 (Former 5th Cir.

1975).

29.Therefore, joinder of Plaintiff/Intervenors additional federal claim is proper.

GROUNDS FOR JOINDER OF

RELATED STATE LAW CLAIMS

30.Plaintiff/Intervenor also moves under Fed. R. Civ. P. 18 to join her state claims which

are related to existing claims in this action brought by the EEOC and which are

within this Courts supplemental jurisdiction pursuant to 28 U.S.C. 1367(a). See


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alsoArbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006) (recognizing that Title VII

plaintiffs may avail themselves of the opportunity 1367 provides to join related state

law claims and pursue complete relief in a federal-court lawsuit).

31.Pursuant to 28 U.S.C. 1367(a), federal courts have supplemental jurisdiction of

pendant state law claims.

32.28 U.S.C. 1367(a) states as follows:

Except as provided in subsections (b) and (c) or as expressly providedotherwise by Federal statute, in any civil action of which the district courts

have original jurisdiction, the district courts shall have supplemental

jurisdiction over all other claims that are so related to claims in theaction within such original jurisdiction that they form part of the

same case or controversy under Article III of the United States

Constitution. Such supplemental jurisdiction shall include claims thatinvolve the joinder or intervention of additional parties. (emphasis added)

33.The constitutional case or controversy requirement confers supplemental

jurisdiction over all state law claims which arise out of a common nucleus of

operative fact with a substantial federal claim. Parker v. Scrap Metal Processors,

Inc., 468 F.3d 733, 74243 (11th Cir. 2006).

34.The 11thCircuit has held that state civil rights claims may be heard in a Title VII

action under 1367, unless the issues therein are novel or complex. Ingram v. School

Board, 167 Fed. Appx. 107. 108 (11th

Cir. 2006).

35.This has been specifically recognized with regard to the Florida Civil Rights Act

(FCRA). See, e.g.,EEOC v. Autozone, Inc., !""# %&'& ()*+& ,-./' 00#123*3-4

(M.D. Fla. 2006) (permitting supplemental jurisdiction over FCRA claims in Title VII

intervention); Lawrence v. Wal-Mart Stores, Inc., 236 F. Supp. 2d 1314, 1323 n.11


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(M.D. Fla. 2002) (same). Even quite different state law claims may be joined under

1367. See, e.g., Murphy v. Aventura, 2008 U.S. Dist. LEXIS 80647, *5*9 (S.D.

Fla. 2008) (Title VII case permitting state claims of defamation, bad faith wrongful

termination, intentional interference with business relations, injunction and

declaratory judgment, but not breach of contract, fraud in the execution, and

conspiracy to defraud relating to an alleged separate agreement prior to

employment.); Vamper v. UPS, 14 Supp. 2d 1301, 1305 (S.D. Fla. 1991) (exercising

supplemental jurisdiction in Title VII case over state law of assault and battery and

negligent retention).

36.Plaintiff/Intervenors state law claims are so related to the Title VII claims that they

form part of the same case or controversy under Article III. Because both claims

under Title VII and the FCRA have the same requirements of proof and use the same

analytical framework, the Court should exercise supplemental jurisdiction over Ms.

Bransons FCRA claims.

37.Pursuant to 28 U.S.C. 1367(c) federal courts may decline to exercise supplemental

jurisdiction over pendant state claims in only a limited set of circumstances. As

interpreted by the 11th

Circuit, there are only four situations where declining

jurisdiction is permissible: (a) where the claim raises a novel or complex issue of state

law; (b) where the state law claim substantially predominates; (c) where the district

court has dismissed all claims over which it had original jurisdiction; or (d) in

exceptional circumstances where there are other compelling reasons for declining

jurisdiction. Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 743 (11th

Cir.


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2006). Determination of whether jurisdiction shall be denied pursuant to 1367(c)

shall be made on the pleadings. L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735

F.2d 414, 427 (11th

Cir. 1984) citing United Mineworkers v. Gibbs, 373 U.S. 715,

72728 (1966).

38.None of these circumstances are present, and thus there is no basis on which this

Court should deny Plaintiff/Intervenors motion to join her related state law claims.

39.Moreover, Plaintiff/Intervenor would be invariably harmed if not permitted to join her

state law claims to this action.

40.Under the FRCA, Plaintiff/Intervenor has the right to challenge Defendants

discriminatory conduct under state employment nondiscrimination laws that prohibit

forms of sex discrimination, including hostile work environment, in addition to

unlawful termination. The rights afforded under the FRCA mirror Title VII. See, e.g.,

Wright v. Sanderstein Investments, LLC, 914 F.Supp.2d 1273, 1286 (N.D. Fla. 2012)

citingWoodham v. Blue Cross and Blue Shield of Florida, Inc. , 929 So.2d 891, 894

(Fla. 2002).

41.Though the EEOC has enforcement authority granted to it by Title VII, these powers

are limited to enforcement of federal laws. This means that without joinder of

Plaintiff/Intervenors additional state law claims to this action Ms. Branson would be

forced to pursue parallel or subsequent judicial proceedings in state or federal court

that would focus on the same common nucleus of operative fact that

Plaintiff/Intervenor would ordinarily expect to be tried in the same judicial


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proceeding as enforcement of her rights under the Title VII action brought by the

EEOC.

42.

Unfortunately for Ms. Branson, the prospect of splitting her state and federal claims

into multiple proceedings runs the risk of violating existing rules against claim

splitting. As recognized by the U.S. Supreme Court, the 11th

Circuit and its inferior

courts, and Florida courts, claim-splittingboth of related federal claims and related

state claimsshould be avoided because res judicata, claim preclusion, or issue

preclusion attach to these separate proceedings. See, e.g., Elgin v. Dept of Treasury,

132 S.Ct. 2126, 2147 (2012) (dissent) (observing that preventing claim-splitting is

key to curbing undesirable claim preclusion in later litigation) citing Col. River Water

Conserv. Dist. v.U.S., 424 U.S. 800, 817 (1976) and Stone v. Dept of Aviation, 453

F.3d 1271, 1278 (10th

Cir. 2006) (A plaintiff's obligation to bring all related claims

together in the same action arises under the common-law rule of claim preclusion

prohibiting the splitting of actions.); Burstein v. Rumball, 297 Fed.Appx. 918 (11th

Cir. 2008) (holding claim or issue preclusion flows where the same main litigants,

litigate the same or substantially similar issues in separate proceedings); Trustmark

Ins. Co. v. ESLU, Inc., 299 F.3d 1265 (11th

Cir. 2002) (onus is on the plaintiff to

ensure all related claims are brought or properly joined in a single litigation); Moore

v. Potter, 2006 WL 2092277 (M.D. Fla. 2006) (noting that plaintiffs in employment

discrimination suits must make all efforts to ensure all related claims are brought in

same suit or they stand the risk of having subsequent cases dismissed on res judicata

grounds); Stanley Builders, Inc. v. Nacron, 238 So.2d 606 (Fla.1970) (identifying


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four policy considerations predicating the rule against claim splitting: (a) finality in

court cases promotes stability in the law; (b) multiple lawsuits arising out of a single

incident are costly to litigants and an inefficient use of judicial resources, and (c)

multiple lawsuits cause substantial delay in the final resolution of disputes); Dept of

Agriculture and Consumer Servs. v. Mid-Florida Growers, 570 So.2d 892 (Fla. 1990)

(The rule against splitting causes of action makes it incumbent upon plaintiffs to

raise all available claims involving the same circumstances in one action.).

43.The Florida courts have specifically held that, where an employee asserts state law

FCRA claims in a federal Title VII action, any other state law claims arising from the

same core of fact are precluded in state court. See, e.g., Dalbon v. Womens Specialty

Retailing Group, 674 So. 2d 799 (Fla. App. 1996) (Fla. 4 thDCA 1996). Thus, if one

of Ms. Bransons state law claims are not permitted in this proceeding, there is an

exceedingly strong risk that such claim would be lost.

THE RELATIONSHIP BETWEEN PROHIBITION OF

TRANSGENDER BIAS UNDER TITLE VII AND THE FRCA

44.As to the relationship between Ms. Bransons federal and state claims, the FCRA

clearly encompasses Ms. Bransons claims of sex discrimination.

45.Florida courts treat the FCRA as a mirror to Title VII, as explained below in more

detail.

46.The 11th

Circuit has held that Title VIIs prohibition of discrimination because of . . .

sex extends to bias against a transgender person because of their gender non-

conformity. See generally Glenn v. Brumby, 663 F.3d 1312, 1317 (11th

Cir. 2011)


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(discrimination against a transgender individual because of her gender-nonconformity

is sex discriminationregardless of whether it is described as being on the basis of

sex or gender).

47.The GlennCourt based its holding on the 1989 legal holding by the United States

Supreme Court that Title VIIs ban on sex discrimination prohibited discrimination

based on an employees failure toconform to sex stereotypes, inPrice Waterhouse v.

Hopkins, 490 U.S. 228, 250-51 (1989). Glenn, 663 F.3d at 1316.

48.Because of changes in social understanding of the term-of-art sex, the meaning of

sex in Title VII now encompasses gender and gender identity, including transgender

identity. See Jillian T. Weiss, Transgender Identity, Textualism, and the Supreme

Court: What Is the Plain Meaning of Sex in Title VII of The Civil Rights Act of

1964?, 18 Temp. Pol. & Civ. Rts. L. Rev. 573, 60317 (2009) [hereinafter Weiss,

Plain Meaning of Sex in Title VII].

49.

Interpretation of Title VII must also defer to the interpretation of Title VII proffered

by the EEOC inMacy v. Holder, 2012 WL 1435995 (EEOC Appeal No. 0120120821

April 20, 2012) (same), annexed hereto as Exhibit C, wherein the EEOC held that

intentional discrimination against a transgender individual because that person is

transgender is, by definition, discrimination based on . . . sex, and such

discrimination therefore violates Title VII.Id.at *8.

50. The fact that Title VII is silent or ambiguous on the question of discrimination

against a transgender person permits the EEOC to interpret the statute to include such

discrimination. As the United States Supreme Court has stated:


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When a court reviews an agency's construction of the statute which itadministers, it is confronted with two questions. First, always, is the

question whether Congress has directly spoken to the precise question atissue. If the intent of Congress is clear, that is the end of the matter; for the

court, as well as the agency, must give effect to the unambiguouslyexpressed intent of Congress. If, however, the court determines Congress

has not directly addressed the precise question at issue, the court does notsimply impose its own construction on the statute, as would be necessary

in the absence of an administrative interpretation. Rather, if the statute issilent or ambiguous with respect to the specific issue, the question for the

court is whether the agency's answer is based on a permissibleconstruction of the statute.

Chevron v. Natural Resources Defense Council, 467 U.S. 837, 84243 (1984). See

alsoNatl Cable & Telecomm. Assn. v. Brand X, 545 U.S. 967, 98283 (2005) (Only

a judicial precedent holding that the statute unambiguously forecloses the agencys

interpretation, and therefore contains no gap for the agency to fill, displaces a

conflicting agency construction.). Thus, deference is due to the EEOCs

interpretation of Title VII as set forth in Macy, and there is no question that Ms.

Branson is entitled to raise her claims of sex discrimination.

51.The fact that a legislature did not specifically mention transgender or transsexual

persons when passing the statute does not provide any basis for the notion that sex

discrimination therefore cannot be prohibited as to those persons. See Weiss, Plain

Meaning of Sex in Title VII, at 63842.

52.Likewise, the failure of a legislature to pass proposed legislation specifically

containing prohibitions based on gender identity or expression is not evidence of

legislative intent not to include all forms of gender-based discrimination in presently

existing statutes. See, e.g., Cent. Bank of Denver, N.A. v. First Interstate Bank of

Denver, N.A., 511 U.S. 164, 187 (2004) (holding that congressional inaction is not


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persuasive, because it can lead to too many equally tenable inferences); Pension Ben

Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (failure to pass proposed

legislation lacks persuasive significance. See also Brumby, 663 F.3d 1312

(disregarding failure-to-enact argument); Schroer v. Billington, 577 F.Supp.2d 293,

308 (D.D.C. 2008) (same)

53.Even if such interpretations were in line with current canons of statutory construction,

the Supreme Court has held that [t]he Constitutions guarantee of equality must at

the very least mean that a bare congressional desire to harm a politically unpopular

group cannot justify disparate treatment of that group. U.S. v. Windsor, 133 S. Ct.

2675, 2693 (2013). The constitutional infirmity is no less egregious because the

method of enactment is via judicial interpretation of legislative intent. The element of

state action is present because the judicial provision of less protection to a category of

persons is state action sufficient to uphold an equal protection claim. See, e.g.,

Edmonson v. Leesville Concrete, 500 U.S. 614 (1991)(state action found in judicial

act of peremptory challenges) andShelley v. Kraemer, 334 U.S. 1 (1948) (state action

found in judicial upholding of racially restrictive real estate covenants).

54.As to Ms. Bransons state claims, transgender bias is also prohibited under Floridas

Civil Rights Act.

55.Much like Title VII, the FCRA does not expressly delineate all prohibited forms of

discrimination because of . . . sex. Fla. Stat. 760.10(a). Additionally, the FCRA

includes an express provision that mandatesa liberal construction of the statute. Fla.

Stat. 760.01(3). As the Florida Supreme Court has acknowledged in other contexts,


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for these reasons Florida courts read the FCRA broadly. Joshua v. City of Gainesville,

768 So.2d 432, 435 (Fla. 2000).

56.

Florida courts also treat the FCRA as a mirror to Title VII. In treating the FCRA as a

mirror, Florida courts draw from all substantive federal decisions and related federal

agency opinions and guidance to determine the contours of protectionessentially,

everything governing the interpretation of Title VII in federal courts is used to

interpret the metes and bounds of protection under the FCRA for the purposes of

Florida law. See, e.g.,Joshua, 768 So.2d at 435 quoting Green v. Burger King Corp.,

728 So.2d 369, 371 (Fla. 3d DCA 1999) (In addition to tracking much of the

language of Title VII, the stated purpose [of the FCRA] is also in line with its federal

counterpart). See alsoHarper v. Blockbuster Entertainment Corp., 139 F.3d 1385,

1387 (11th

Cir. 1998) (The Florida courts have long held that decisions construing

Title VII are applicable when considering claims under the Florida Civil Rights

Act.); Fla. State Univ. v. Sondel, 685 So.2d 923, 925 n.1 (Fla. 1st DCA 1996)

(Federal case law interpreting Title VII and the ADEA is applicable to cases arising

under the [FRCA].).

57.Coupled with the statutory directive that the FCRA be construed according to the

fair import of its terms and shall be liberally construed to further the general purposes

. . . and the special purposes of the particular provision involved, FCRA, Fla. Stat.

760.01(3), it is necessary that this Court read the FCRAs prohibition of

discrimination because of sex as extending to all forms of transgender bias. Both


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Brumby and Macy and the equitable principles and express language of the FCRA

controlling the statutes interpretation require this outcome.

58.

The Florida Human Rights Commissionthe Florida agency tasked with enforcing

the FCRAhas interpreted the FCRAs prohibition of sex discrimination to reach

transgender bias.

59.In Fishbaugh v. Brevard County Sheriffs Dept, FCHR Order No. 04-103 (2004),

annexed hereto as Exhibit D, the Florida Human Rights Commission interpreted the

FCRA to prohibit transgender discrimination in employment. Similar to the EEOCs

decision in Macy, the Human Rights Commission noted the FCRA does not

expressly exclude transgender bias from the general prohibition of discrimination

because of . . . sex and that the evils not specifically contemplated by the

legislature at the time a statute was enacted can still be found discriminatory. Id.

See also Shepley v. Lazy Days RV Center, Inc., FCHR Order No. 06016 (FCHR 2006)

(holding transgender bias prohibited under FCRA), annexed hereto as Exhibit E.

60.Much like in the federal system, Florida recognizes that an administrative agency

tasked with interpreting and enforcing a statute must be afforded a high degree of

deference in interpreting the statute. Where there is ambiguity or uncertainty as to the

contours of the statute, deference is given. Jackson v. Worldwide Flight Services, Inc.,

960 So.2d 3, 6 (Dist. Ct. App. Fla. 2005) citing Donato v. American Telephone and

Telegraph Co., 767 So.2d 1146, 1153 (Fla. 2000) (We recognize the general rule

that the interpretation of a statue by the administrative agency or body charged with


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its enforcement is entitled to great deference and should not be overturned unless

clearly erroneous) (internal quotation and citation omitted).

61.

As a matter of Florida law, the Florida Human Rights Commissions interpretation

of the FCRA is due great deference by Florida courts since there is no indication

that the Commissions interpretation is clearly erroneous.

62.As a matter of Florida law, the Florida Human Rights Commissions decisions in

Fishbaughand Shepleyare not clearly erroneous for at least four reasons.

63.First, the FRCA does not expressly limit the meaning of sex to non-transgender

persons or genders or carve out and exclude discrimination because of . . . that

relates to transgender bias.

64.Second, as Florida courts have long recognized, the term sex, as it appears in the

FCRA, is not subject to a typical plain meaning construction that might be

construed to exclude transgender bias since the term sex, in the context of the

FCRA, is given an expansive scope. See, e.g.,Delva v. Continental Group, Inc., 137

So.3d 371, 375 (Fla. 2014) (holding that the FRCA prohibits discrimination

pregnancy discrimination because such discrimination is subsumed in the general

prohibition of discrimination because of . . . sex); id. at 375 (noting that the

legislature need not amendand the legislatures failure to amendstatute to

expressly clarify that pregnancy discrimination is a form of sex discrimination is not

dispositive to interpretation of the FCRA). See also M.W. v. Davis, 756 So.2d 90 (Fla.

2000) (recognizing the plain meaning canon of statutory interpretation generally);

Wright v. Sanderstein Investments, LLC, 914 F.Supp.2d 1273, 1286 (N.D. Fla. 2012)


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(noting that the meaning of sex under the FCRA extends beyond plain meaning,

capturing forms of sex discrimination not wholly evidenced upon inspection of

statutory text alone).

65.Third, the overarching reasonability of the Fishbaugh and Shepley decisions are

demonstrable in light of parallel developments in federal courts and agencies

grappling with the same issue in the Title VII context.

66.Fourth, while this Court or a Florida court may, if given the opportunity to interpret

the FRCA on its own, proffer a different interpretation of the FRCA, the clearly

erroneous standard requires that such Monday morning quarterbacking not govern. It

is not the job of this Court or any Florida court to review the statute with fresh eyes

and to generate different, equally reasonable, constructions of the same statute. Once

the agency has spoken, the courts are limited to discerning whether the interpretation

is clearly erroneous. GTC, Inc. v. Edgar, 967 So.2d 781, 78586 (Fla. 2007). Thus,

there are no grounds for finding clear error inFishbaugh.

67.Therefore, both Title VIIs and the FRCAs prohibitions of discrimination because

of . . . sex reach transgender bias.

68.As noted above in 5153, no inferences regarding the meaning of the term sex

can properly be drawn from the failure of the Florida legislature to specifically

discuss gender identity or expression, or transgender persons, during enactment, nor

from any failure to pass proposed legislation regarding the same.

69.Therefore, joinder of Plaintiff/Intervenors additional state claims is proper.


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20

70.Pursuant to Rule 24 and Rule 18, a copy of Plaintiff/Intervenors proposed Complaint

In Intervention is being filed herewith.

WHEREFORE, Brandi Branson respectfully requests entry of an Order granting her

leave to intervene and join additional federal and state law claims in this matter as

Plaintiff/Intervenor and acceptance of her Complaint in Intervention as filed as of the

date of the Courts Order. Plaintiff/Intervenor also requests an Order nunc pro tunc

approving Plaintiff/Intervenors participation in the 26(f) conference previously

conducted by the parties, including Plaintiff/Intervenor.

Respectfully submitted this 12th day of December 2014.

RULE 3.01(g) CERTIFICATION

Pursuant to Rule 3.01(g), Local Rules, United States District Court, Middle

District of Florida, the undersigned has conferred with counsel for the Defendant and is

authorized to represent that the Defendant opposes the entry of an order granting this

motion. Plaintiff/Intervenor Branson and Defendant Lakeland Eye Clinic, P.A. have

stipulated to an extension of time for Defendant to answer this motion until Tuesday,

January 6, 2014, and hereby request that the Court grant said extension of time.

s/ J. Kemp BrinsonJ.Kemp Brinson

Fla. Bar No. 752541The Brinson Firm

P.O. Box 582

Winter Haven, FL 33882Phone: 863.288.0234Fax: 863-508-7684

[email protected] for Plaintiff/Intervenor

s/ Jillian T. WeissJillian T. Weiss

Admitted Pro Hac ViceLaw Offices of Jillian T. Weiss

P.O. Box 642

Tuxedo Park, New York 10987Phone: (845) 709-3237Fax: (845) 915-3283



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CERTIFICATE OF SERVICE

I hereby certify that on December 12, 2014, I electronically filed the foregoing with theClerk of the Court by using the CM/ECF system, which will automatically serve all

counsel of record.

s/ Jillian T. Weiss

Jillian T. WeissAdmitted Pro Hac Vice

Law Offices of Jillian T. WeissP.O. Box 642

Tuxedo Park, New York 10987Phone: (845) 709-3237

Fax: (845) 915-3283



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IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF FLORIDA

Tampa Division

UNITED STATES EQUAL

EMPLOYMENT

OPPORTUNITY COMMISSION,

Plaintiff,

v.

LAKELAND EYE CLINIC, P.A.,

Defendant.

CASE NO. 8:14-cv-2421-T35 AEP

BRANDI BRANSONS

COMPLAINT IN INTERVENTION AND DEMAND FOR JURY TRIAL

This is an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.,

Title I of the Civil Rights Act of 1991, 42 U.S.C. 1981a et seq., and the Florida Civil

Rights Act of 1992, Fla. Stat. 760.01 et seq., to correct unlawful employment practices

on the basis of sex and to provide appropriate relief to Brandi Branson (Ms. Branson or

Plaintiff/Intervenor) who was adversely affected by such practices. As alleged with

greater particularity below, Defendant Lakeland Eye Clinic, P.A. (Lakeland Clinic or

Defendant) terminated Ms. Branson, a transgender woman, because of sex.

Case 8:14-cv-02421-MSS-AEP Document 18-1 Filed 12/12/14 Page 1 of 19 PageID 104

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"

JURISDICTION AND VENUE

#$ This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331 because the

action is based on Title VII, 42 U.S.C. 2000e, et seq., a federal statute, pursuant to

28 U.S.C. 1337 because the action is based on a federal statute regulating

commerce, and pursuant to 28 U.S.C. 1343 because the action is based on

deprivation of the Plaintiff/Intervenors right under color of state law as against a

federal law providing for equal rights

"$ This Court has supplemental jurisdiction pursuant to 28 U.S.C. 1367 because the

Florida Civil Rights Act claims form part of the same case or controversy under

Article III of the United States Constitution.

%$ Venue is proper in the United States District Court for the Middle District of Florida

pursuant to 28 U.S.C. 1391(b)(2) because a substantial part of the unlawful

employment practices are alleged to have been committed in Lakeland, Polk County,

Florida, located within the United States District Court for the Middle District of

Florida.

&$ The United States District Court for the Middle District of Florida is the proper forum

in which to litigate the claims of Plaintiff/Intervenor because Defendant has a

physical presence in Lakeland, Polk County, Florida, and Ms. Branson has performed

all relevant work for Lakeland Clinic at that location.


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%

PARTIES

'$ Plaintiff the Equal Employment and Opportunity Commission (EEOC or

Plaintiff) is the agency of the United States of America charged with the

administration, interpretation, and enforcement of Title VII, and is expressly

authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C.

2000e-5(f)(1) and (3).

($ Plaintiff/Intervenor is a citizen of the State of Florida and is a real party in interest.

Specifically, Plaintiff/Intervenor is the person who suffered the discrimination that is

the basis of the EEOCs lawsuit against Defendant Lakeland Clinic.

)$ At all relevant times to this lawsuit, Defendant Lakeland Clinic has continuously been

a Florida professional corporation doing business in the State of Florida and the City

of Lakeland, and has continuously had at least 15 employees.

*$ At all relevant times to this lawsuit, Defendant Lakeland Clinic has continuously been

an employer engaged in an industry affecting commerce within the meaning of

Sections 701(b), (g), and (h) of Title VII, 42 U.S.C. 2000e(b), (g), and (h).

STATEMENT OF FACTS

+$ Defendant employs seven physicians who perform refractive, corneal, and cataract

surgery and treat retinal diseases. It is owned by Dr. Kevin Dorsett, an

ophthalmologist.

#,$ In or about early 2010, Defendant decided to add a hearing division to the eye clinic.

Defendant hired Physicians Hearing Services, Inc. (PHSI), a staffing company that


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&

specializes in hearing services, to provide candidates for the position of Director of

Hearing Services. PHSI recommended Ms. Branson for the position.

##$

On or about July 6, 2010 Defendant interviewed and hired Ms. Branson as Director

of Hearing Services. At the time of hire, Ms. Branson presented as male (e.g., used a

traditionally male name, wore male attire, responded to male pronouns, and otherwise

appeared to conform to traditional male gender norms).

#"$ At the time of hire, Defendants written description of the Director of Hearing

Services position did not include responsibility for any specific sales target. Likewise,

Ms. Branson was not notified at the time of hire orally or otherwise that as Director of

Hearing Services she was responsible for a particular sales target.

#%$ Upon information and belief, at the time of hire and for the duration of Ms.

Bransons tenure at Lakeland Clinic, Defendants employer-provided health care plan

included an explicit exclusion of all gender-affirming treatment for transgender

persons, including psychological, hormonal, and surgical care otherwise available to

nontransgender plan enrollees.

#&$ Ms. Branson provided hearing services to patients who were referred to her by

Defendants physicians, and these referrals were Ms. Bransons only source of

patients.

#'$ Ms. Branson performed the duties of her position successfully.

#($ In or about late February 2011, Ms. Branson began wearing feminine attire to work,

including make-up and womens tailored clothing. Ms. Branson observed that co-

workers snickered, rolled their eyes, and withdrew from social interactions with her in


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'

response to her changing appearance and female gender expression. This was based

on gender stereotyping. Defendant was made aware of this conduct.

#)$

In or about April 2011, Defendants managers, acting within the course of their

duties for Defendant, requested a meeting with Ms. Branson, wherein Defendant

confronted Ms. Branson about her changing appearance and female gender

expression. Ms. Branson then informed Defendant that she was undergoing a gender

transition from male to female and that she would be changing her first name to

Brandi.

#*$ Following this meeting, Defendants managers and employees made derogatory

comments about Ms. Bransons gendered appearance, and the ostracism by Bransons

co-workers intensified. This was based on gender stereotyping. Defendant was made

aware of this conduct.

#+$ From about April 2011, until her termination, all but one of Defendants physicians

stopped referring patients to Ms. Branson for hearing services, thereby depriving her

of her client base. This was based on animus due to Ms. Bransons gender, gender

identity or expression, and/or gender transition.

",$ On or about April 2011, the Administrator of Lakeland Clinic, Janet Townsend,

indicated, by words and tone of voice to Ms. Branson and others that Townsend and

Defendant were not supportive of Ms. Bransons gender transition. This was based on

gender stereotyping.


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(

"#$ Townsend also indicated that she and Lakeland Clinic considered Ms. Bransons

appearance and gender expression to be problematic. This was based on gender

stereotyping.

""$ On or about April 2011, Townsend discussed Ms. Bransons gender transition with

tech clinician Donna Martin, asking Martin What do you think of this

Michael/Michele [sic.] thing? Townsend then indicated her disapproval of Bransons

gender transition, warning Martin that next time Ill be more careful in my

interviewing skills. This was based on gender stereotyping. Shortly thereafter,

Martin told Branson about the conversation with Townsend. Martin told Branson that,

based on her conversation with Townsend, both Townsend and the Defendant

disapproved of Bransons gender transition and gender identity and expression.

"%$ On or about June 10, 2011, Townsend called a meeting with Ms. Branson. During

the meeting Townsend told Ms. Branson that she had failed to meet her sales targets.

Townsend went on to say that because of declining sales, Defendant was eliminating

the Director of Hearing Services position. Townsend told Ms. Branson that Defendant

would not hire an employee to replace her since it was closing its hearing services

division. However, no such sales targets existed or were communicated to Ms.

Branson prior to this meeting.

"&$ At the time of her termination, Ms. Branson was successfully performing the

expressly contracted duties of her position.

"'$ On or about August 2011, Defendant hired a replacement for Ms. Branson and

continued to operate its hearing services division. Ms. Branson was replaced by a


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)

male employee who was not a member of the same protected category as Ms.

Branson.

"($

Defendant did not have a policy barring discrimination based on gender identity or

expression, transgender identity, or gender stereotyping.

")$ As a result of the foregoing, Ms. Branson suffered damages.

"*$ Within 300 days of the occurrences alleged herein, Brandi Branson timely filed a

charge with the EEOC and the Florida Commission on Human Relations alleging

violations of Title VII by Defendant Lakeland Clinic, and has exhausted her

administrative remedies. This suit is brought within one year of the administrative

determination of this case. All conditions precedent to the institution of this lawsuit

have been fulfilled.

CAUSES OF ACTION

COUNT 1:

The Defendant Subjected Plaintiff/Intervenor to Harassment and a

Hostile Work Environment in Violation of Title VII of the 1964 Civil

Rights Act and Title I of the Civil Rights Act of 1991.

"+$ Plaintiff/Intervenor realleges and incorporates by reference all allegations in

paragraphs 128.

%,$Plaintiff/Intervenor incorporates by reference the allegations stated in paragraphs 1-

28 of the Complaint filed by the United States Equal Employment Commission.


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*

%#$ Ms. Branson was subjected to harassment and a hostile working environment based

on her gender, gender identity and expression, and gender transition as detailed

above.

%"$ This harassment and hostile working environment was severe, based on the nature of

the harassment, including statements expressing animus towards her gender, gender

identity and expression, and gender transition during the 300 days prior to Ms.

Bransons EEOC complaint, and prior statements as part of a continuing course of

conduct by Defendant and Defendants managers and employees, all of which were

designed to and were likely to humiliate her, and which did have that effect on Ms.

Branson.

%%$ This harassment and hostile working environment was pervasive during the 300 days

prior to Ms. Bransons EEOC complaint, based on the many incidents of harassment,

including many negative statements about her gender, gender identity and expression,

and gender transition as well as prior statements and restrictions as part of a

continuing course of conduct by Defendant and Defendants managers and

employees, all of which were because of Ms. Bransons gender, gender identity and

expression.

%&$ The effect of the harassment and hostile working environment complained of above

has been to deprive Ms. Branson of equal employment opportunities and otherwise

adversely affect her status as an employee because of her sex in violation of Title VII,

Title I of the Civil Rights Act of 1991, and the Florida Civil Rights Act of 1992.


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+

%'$ Defendant was on notice of said practices and hostile working environment because

Defendants managers, including Plaintiff/Intervenors direct supervisors, participated

in and witnessed said practices.

%($ Defendant was on notice of said practices and hostile working environment because

Defendant complained, orally and in writing, to Defendants managers regarding said

practices.

%)$ Defendant failed and refused to investigate and take prompt and effective action

regarding said practices.

%*$ Defendant failed and refused to investigate and take prompt and effective action to

stop the hostile working environment.

%+$ Ms. Branson was threatened with and subjected to tangible employment actions and

materially adverse employment actions by Defendant.

&,$ By creating, condoning and perpetuating a hostile work environment because of Ms.

Bransons gender, gender identity, and gender expression Defendant has acted

intentionally, maliciously, and/or recklessly with regard to her legally protected

rights.

$ As a direct and proximate result of the acts complained of herein, Ms. Branson has

suffered and will continue to suffer loss of compensation and benefits, mental and

emotional distress, humiliation, loss of reputation, loss of enjoyment of life and other

pecuniary and non-pecuniary losses.


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#,

&"$ By reason of the discrimination suffered by Plaintiff/Intervenor, she is entitled to all

legal and equitable remedies available under Title VII, 42 U.S.C. 2000e, et seq.and

Title I of the Civil Rights Act of 1991, 42 U.S.C. 1981a.

COUNT 2:

The Defendant Subjected Plaintiff/Intervenor to Harassment and a

Hostile Work Environment in Violation of the Florida Civil Rights

Act of 1992.

&%$

Plaintiff/Intervenor realleges and incorporates by reference all allegations in

paragraphs 128.

&&$Plaintiff/Intervenor incorporates by reference the allegations stated in paragraphs 1-


&'$ Ms. Branson was subjected to harassment and a hostile working environment based

on her gender, gender identity and expression, and gender transition as detailed

above.

&($ This harassment and hostile working environment was severe, based on the nature of

the harassment, including statements expressing animus towards her gender, gender

identity and expression, and gender transition during the one year prior to Ms.

Bransons administrative complaint, and prior statements as part of a continuing

course of conduct by Defendant and Defendants managers and employees, all of

which were designed to and were likely to humiliate her, and which did have that

effect on Ms. Branson.


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##

&)$ This harassment and hostile working environment was pervasive during the one year

prior to Ms. Bransons administrative complaint, based on the many incidents of

harassment, including many negative statements about her gender, gender identity

and expression, and gender transition as well as prior statements and restrictions as

part of a continuing course of conduct by Defendant and Defendants managers and

employees, all of which were because of Ms. Bransons gender, gender identity and

expression.

&*$ The effect of the harassment and hostile working environment complained of above

has been to deprive Ms. Branson of equal employment opportunities and otherwise

adversely affect her status as an employee because of her sex in violation of the

Florida Civil Rights Act of 1992, Fla. Stat. 760.01 et seq.

&+$ Defendant was on notice of said practices and hostile working environment because

Defendants managers, including Plaintiff/Intervenors direct supervisors, participated

in and witnessed said practices.

',$ Defendant was on notice of said practices and hostile working environment because

Plaintiff/Intervenor and others complained, orally and in writing, to Defendants

managers regarding said practices.

'#$ Defendant failed and refused to investigate and take prompt and effective action

regarding said practices.

'"$ Defendant failed and refused to investigate and take prompt and effective action to

stop the hostile working environment.


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#"

'%$ Ms. Branson was threatened with and subjected to tangible employment actions and

materially adverse employment actions by Defendant.

'&$

By creating, condoning and perpetuating a hostile work environment because of Ms.

Bransons gender, gender identity, and gender expression Defendant has acted


rights.

''$As a direct and proximate result of the acts complained of herein, Ms. Branson has




'($ By reason of the discrimination suffered by Plaintiff/Intervenor, she is entitled to all

legal and equitable remedies available under the Florida Civil Rights Act of 1992,

Fla. Stat. 760.01 et seq.

COUNT 3:

The Defendant Wrongfully Terminated Plaintiff/Intervenor Because

of Her Gender, Gender Identity, and Gender Expression in Violation

of Title VII of the 1964 Civil Rights Act and Title I of the Civil Rights

Act of 1991.

')$ Plaintiff/Intervenor realleges and incorporates by reference all allegations in

paragraphs 128.

'*$Plaintiff/Intervenor incorporates by reference the allegations stated in paragraphs 1-



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#%

'+$ Ms. Bransons coworkers and Defendants managers openly ridiculed her gender

identity and expression, appearance, and gender transition in the four month period

leading up to her termination.

(,$ Townsend, Ms. Bransons direct supervisor, made repeated negative comments about

Ms. Bransons gender, gender identity and expression as well as her gender transition

to Ms. Branson privately, to Ms. Branson when Defendants other employees were

present, as well as to Defendant employees when Ms. Branson was not present.

When Townsend made these disparaging remarks, she asserted that Defendant shared

the same opinion.

(#$ As described above, direct supervisor Townsend indicated to one of Defendants

employees that she would be hyper-vigilant in screening candidates for positions with

Defendant, suggesting this would ensure a person of Ms. Bransons protected class

was not hired in the future.

("$

As described above, when Townsend fired Ms. Branson, Townsend indicated that the

hearing services department would be eliminated because of flagging sales.

Townsend also indicated that Ms. Branson had failed to meet target sales goals,

suggesting the elimination of Ms. Bransons department and position was a result of

Ms. Bransons failure to meet the terms of her employment. Townsend also stated

that Defendant would not fill Ms. Bransons position since the hearing services

department was being eliminated.

(%$ As described above, at the time of hire, Ms. Bransons position did not have target

sales goals.


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#&

(&$ As described above, Defendant did not close the hearing services department.

('$ As described above, Defendant hired a male who conformed to traditional male

gender norms to replace Ms. Branson.

(($ By permitting and condoning Townsends decision to terminate Ms. Branson despite

Townsends past open ridicule of Ms. Bransons gender, gender identity and

expression, and gender transition Defendant has acted intentionally, maliciously,

and/or recklessly with regard to her legally protected rights.

()$ By permitting and condoning Townsends decision to terminate Ms. Branson in part

or in whole because Ms. Branson did not meet personal sales targets that had not

previously existed or been communicated to Ms. Branson, Defendant has acted


rights.

(*$The reason given by Defendant for Ms. Bransons termination was a pretext for sex

discrimination.

(+$Defendants decision to terminate Ms. Branson was because of her sex, and/or sex

was a motivating factor in the decision to terminate her.

),$ As a direct and proximate result of the acts complained of herein, Ms. Branson has





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#'

)#$ By reason of the discrimination suffered by Plaintiff/Intervenor, she is entitled to all

legal and equitable remedies available under Title VII, 42 U.S.C. 2000e, et seq.and

Title I of the Civil Rights Act of 1991, 42 U.S.C. 1981a.

COUNT 4:

The Defendant Wrongfully Terminated Plaintiff/Intervenor Because

of Her Gender, Gender Identity, and Gender Expression in Violation

of the Florida Civil Rights Act of 1992.

)"$ Plaintiff/Intervenor realleges and incorporates by reference all allegations in

paragraphs 128.

)%$Plaintiff/Intervenor incorporates by reference the allegations stated in paragraphs 1-


)&$ Ms. Bransons coworkers and Defendants managers openly ridiculed her gender

identity and expression, appearance, and gender transition in the four month period

leading up to her termination.

)'$ Townsend, Ms. Bransons direct supervisor, made repeated negative comments about

Ms. Bransons gender, gender identity and expression as well as her gender transition

to Branson privately, to Ms. Branson when Defendants other employees were

present, as well as to Defendant employees when Ms. Branson was not present.

When Townsend made these disparaging remarks, she asserted that Defendant shared

the same opinion.

)($ As described above, direct supervisor Townsend indicated to one of Defendants

employees that she would be hyper vigilant in screening candidates for positions with


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#(

Defendant, suggesting this would ensure a person of Ms. Bransons protected class

was not hired in the future.

))$

As described above, when Townsend fired Ms. Branson, Townsend indicated that the

hearing services department would be eliminated because of flagging sales.

Townsend also indicated that Ms. Branson had failed to meet target sales goals,

suggesting the elimination of Ms. Bransons department and position was a result of

Ms. Bransons failure to meet the terms of her employment. Townsend also stated

that Defendant would not fill Ms. Bransons position since the hearing services

department was being eliminated.

)*$ As described above, at the time of hire, Ms. Bransons position did not have target

sales goals.

)+$ As described above, Defendant did not close the hearing services department.

*,$ As described above, Defendant hired a male who conformed to traditional male

gender norms to replace Ms. Branson.

*#$ By permitting and condoning Townsends decision to terminate Ms. Branson despite

Townsends past open ridicule of Ms. Bransons gender, gender identity and

expression, and gender transition Defendant has acted intentionally, maliciously,

and/or recklessly.

*"$ By permitting and condoning Townsends decision to terminate Ms. Branson on part

or on whole because Ms. Branson did not meet personal sales targets that had not

previously existed or been communicated to Ms. Branson, Defendant has acted


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#)


rights.

*%$

By its termination of Plaintiff/Intervenor because of Ms. Bransons gender, gender

identity, and gender expression, Defendant has acted intentionally, maliciously,

recklessly with regard to her legally protected rights.

*&$The reason given by Defendant for Ms. Bransons termination was a pretext for sex

discrimination.

*'$Defendants decision to terminate Ms. Branson was because of her sex, and/or sex

was a motivating factor in the decision to terminate her.

*($ As a direct and proximate result of the acts complained of herein, Ms. Branson has




*)$

By reason of the discrimination suffered by Plaintiff/Intervenor, she is entitled to all

legal and equitable remedies available under the Florida Civil Rights Act of 1992,

Fla. Stat. 760.01 et seq.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff/Intervenor respectfully requests that this Court:

A. Grant a permanent injunction enjoining Defendant Lakeland Clinic, its

officers, successors, assigns, and all persons in active concert or participation

with it, from engaging in any employment practice which discriminates on the


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#*

basis of gender, gender identity and expression, and gender transition,

including but not limited to discharging its trans employees because of their

gender, gender identity and expression, and gender transition, any other

employment practice which discriminates on the basis of their protected

status;

B. Order Defendant Lakeland Clinic to institute and carry out polices, practices,

and programs which provide equal employment opportunities for transgender

persons, and which eradicate the effects of past unlawful employment

practices;

C. Order Defendant Lakeland Clinic to make whole Brandi Branson, by

providing appropriate backpay with prejudgment interest, in amounts to be

determined at trial, and other affirmative relief necessary to eradicate the

effects of its unlawful employment practices, including but not limited to,

frontpay;

D. Order Defendant Lakeland Clinic to make whole Brandi Branson, by

providing compensation for past and future pecuniary losses resulting from

the unlawful employment practices described in paragraphs above, including

but not limited to job search expenses and medical expenses not covered by

the Employers employee benefit plan, in amounts to be determined at trial;

E. Order Defendant Lakeland Clinic to make whole Brandi Branson by providing

compensation for past and future nonpecuniary losses resulting from the

unlawful employment practices complained of, including but not limited to,


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#+

emotional pain and suffering, inconvenience, loss of enjoyment of life, and

humiliation, in amounts to be determined at trial;

F.

Order Defendant Lakeland Clinic to pay Brandi Branson punitive damages for

its intentional, malicious and/or reckless conduct described above, in amounts

to be determined at trial;

G. Grant such further relief as the Court deems necessary and proper in the

public interest; and

H. Award Plaintiff/Intervenor her costs of this action and reasonable and

necessary attorneys fees.

JURY TRIAL DEMANDED

Plaintiff/Intervenor requests a jury trial on all questions of fact raised by her complaint.

Dated: December 12, 2014

Respectfully submitted,

s/ J. Kemp BrinsonJ.Kemp Brinson

Fla. Bar No. 752541The Brinson Firm

P.O. Box 582Winter Haven, FL 33882

Phone: 863.288.0234

Fax: [email protected] for Plaintiff/Intervenor

s/ Jillian T. WeissJillian T. Weiss

Admitted Pro Hac ViceLaw Offices of Jillian T. Weiss

P.O. Box 642Tuxedo Park, New York 10987

Phone: (845) 709-3237

Fax: (845) [email protected] for Plaintiff/Intervenor


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1

STATE OF FLORIDACOMMISSION ON HUMAN RELATIONS

CONNIE FISHBAUGH,

Petitioner,

v.

BREVARD COUNTY SHERIFFS

DEPARTMENT,

Respondent.

EEOC Case No. NONEFCHR Case No. 22-02697DOAH Case No. 03-1139

FCHR Order No. 04-103

ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFULEMPLOYMENT PRACTICE ON DISABILITY BASIS AND REMANDING FOR

INVESTIGATION ON GENDER (SEX) BASISPetitioner, CONNIE FISHBAUGH, filed a complaint of discrimination pursuant to

Florida Civil Rights Act of 1992, Sections 760.01-760.11, Florida Statutes, alleging thatthe Respondent, BREVARD COUNTY SHERIFFS DEPARTMENT, committed anunlawful employment practice causing her to terminate her employment because ofdisability and gender (sex). The allegations set forth in the complaint were determined to

be outside the jurisdiction of the Commission and on February 21, 2003, the ExecutiveDirector issued his determination of no jurisdiction. The Petitioner filed a Petition forRelief. The final hearing was placed in abeyance following a telephonic hearing in whichthe parties agreed to file stipulated facts, briefs and proposals on the issue of whethertranssexualism is a disability under the Florida Civil Rights Act of 1992 and whethertranssexuals may maintain an action for sex discrimination under said Act.

Administrative Law Judge Daniel M. Kilbride, having considered the filedmaterials, issued his Recommended Order of Dismissal dated March 21, 2003.

The Commission panel designated below considered the record of this matterand determined the action to be taken on the Recommended Order.

Findings of Fact

The ALJ found that the Petitioner suffered from a Gender Identity Disorder (GID),also know as transsexualism, which is a recognized mental health disorder under boththe Diagnostic and Statistical Manual of Mental Disabilities (4

thed.) and the International

Classification of Disease (World Health Organization, 10thed.). The ALJ further goes

into the method of treatment and impact of the disorder on the Petitioner, including sex-reassignment therapy. He found that, several years following her surgery, Petitionerapplied for a position with the Respondent and successfully completed the required pre-employment medical and psychological testing. She informed them of her transgender


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status before she applied, and was hired as a deputy sheriff with no restrictions noraccommodations on her ability to perform the essential functions of her position.

We adopt the Administrative Law Judges findings of fact.

Conclusions of Law

As to disability basis

The ALJ concluded that there is no basis for a finding that transsexualism is adisability pursuant to FCRA because the underlying federal law and the regulations thatconstrue the ADA and the Rehabilitation Act specifically exclude the condition oftranssexualism as a disability. He concluded that Florida should follow thoseinterpretations. He limited the application of the prior FCHR case of Smith v. City ofJacksonville, Jacksonville Correctional Institute, DOAH # 88-5451, 1991 WL 833882(1991); FCHR # 86-985 (1992), because it involved a pre-operative transsexual withsignificant medical disabilities and the facts in the case occurred under the FloridaHuman Rights Act of 1977 and was prior to the enactment of the Florida Civil Rights Actof 1992 and the federal ADA and the amendments to the Rehabilitation Act. The Panelagreed with his analysis.

Since the Panel determined that transsexualism was not a covered disabilityunder FCRA, it did not need to find that Petitioner established aprima faciecase ofdisability discrimination. The Petitioner must establish that (s)he is handicapped withinthe meaning of the ADA or the Florida Civil Rights Act of 1992 (760.10, FloridaStatutes(2000)). Milton v. Scrivner, Inc., 53 F.3d 1118, 1123 (10th Cir.1995); Brand v.Florida Power Corp., 633 So.2d 504, 509-10 (Fla. 1st DCA 1994). This can be showneither by demonstrating a physical impairment that substantially limits one or more of themajor life activities and presenting a record of such an impairment; or being regarded ashaving such impairment. 42 U.S.C. 12102(2); 29 C.F.R. 1630.2(g), (i).

In the instant case, however, it should be noted that there was no showing thatthe Petitioner is currently suffering from a disability that is an impairment thatsubstantially limits one or more of the major life activities. In fact, the ALJ specifically

found that, prior to undergoing sex-reassignment, Petitioner experienced many of thesame impairments found in the Smith case, but that, after undergoing sex-reassignment,Petitioner successfully completed Respondents required pre-employment medical andpsychological testing. She did not have any restrictions or request any accommodationson her ability to perform the essential requirements of her position.

As to sexual discrimination basis

Although Title VII does not contain the specific prohibition found in the ADA andRehabilitation Acts, it does have a significant case history that is instructive.

The ALJ concluded that Petitioner has alleged that Respondent discriminatedagainst her because she is a transsexual and not because she is a woman. He

concluded that the reasoning in Ulane v. Eastern Airlines, Inc. 742 F2d 1081 (7

th

Cir.1984) applies in which the court rejected transsexualism as being protected by Title VIIand, thus the FCRA. The ALJ further concluded that, although some states haveadopted more liberal definitions of sex to include sexual orientation, there is nostatutory nor case law to suggest that Florida is one of those states that has recognizedtranssexualism as a class protected from discrimination.

Both sides have cited cases where sex discrimination has been found, or notfound, involving sexual orientation and gender based harassment. Each side seems to


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rely upon a major case which is immediately distinguished or not followed in significantcases later heard.

For example, the ALJ relies upon Holloway v Arthur Andersen & Co., 566 F2d659 (9

thCir. 1977) to support his reliance upon Ulane, supra. The Petitioner points out

that the same court, in Schwenk v. Hartford, 204 F.3d 1187, at 1201 (9thCir. 2000)

overruled its holding in Holloway by adopting the logic and language of PriceWaterhouse v. Hopkins, 490 U.S. 228 (1989). Similarly, the reliance of the Petitioner onthe expansion of actionable items under Oncale v. Sundowner Offshore Oil Services,Inc., 523 U.S. 75 (1998), is somewhat misplaced by the failure of a number of courts toextend it and often restricting it solely to the facts before the Oncale court; thereby,distinguishing that case and its holdings from theirs. See, Simonton v. Runyon, 232F3d 33 (2

ndCir. 2000); see also, Valdez v. Clayton Industries, 107 Cal Rptr2d 15

(Cal.App.2nd DCA 2001), EEOC v. Harbert-Yeargin, Inc., 266 F3d 498 (6thCir.

2001); Johnson v. Fresh Mark et al., 2004 WL 1166553 (6thCir. 2004).

The Price Waterhouse case, however, deals with discrimination of a woman anddoes not set out a separate protected class for transsexuals. Therefore, the issue asposed by the ALJ is somewhat misleading. It would be better stated, Can a transsexualmaintain a case of sex discrimination in the workplace? The ALJ failed to consider

under what conditions may a transsexual, as a woman or man, maintain an action fordiscrimination based on sex.

Petitioner argues in her exceptions that the ALJ mischaracterizes Petitionersclaim. The ALJ stated that Petitioner has alleged that Respondent discriminated againsther because she is a transsexual and not because she is a woman. Petitioner states thather claim is based on a claim of sex (gender) discrimination as a woman where thecomplainant is perceived not to conform to sex stereotypes or because the complainanthas changed sex. The Commission concludes that the reasoning in Price Waterhouse v.Hopkins, 490 U.S. 228 (1989), applies where the court found that a claim ofdiscrimination could be found where a perception that a person failed to conform tostereotyped expectations of how a woman should look and behave. See, also, Oncalev. Sundowner Offshore Oil Services, Inc., 523 U.S. 75 (1998) to show that evils not

specifically contemplated by Congress when it enacted Title VII can still be founddiscriminatory. Therefore, a transsexual, as a man or woman, may maintain an actionfor discrimination based on sex.

We modify the conclusions of law accordingly.

In modifying these conclusions of law of the Administrative Law Judge, weconclude:(1) that the conclusions of law being modified are conclusions of law over which theCommission has substantive jurisdiction, namely conclusions of law stating what must bedemonstrated to establish a prima facie case of unlawful discrimination under the FloridaCivil Rights Act of 1992; (2) that the reason the modification is being made by theCommission is that the conclusions of law as stated run contrary to previous Commission

decisions on the issue; and (3) that in making these modifications the conclusions of lawwe are substituting are as or morereasonable than the conclusions of law which have been rejected. See, Section120.57(1)(l), Florida Statutes (2001).

We adopt the Administrative Law Judges conclusions of law as modified.

Exceptions


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Petitioner filed exceptions to the Administrative Law Judges RecommendedOrder in an eleven page document entitled, Petitioners Exceptions to RecommendedOrder of Dismissal. Exceptions one through three dealt with the claim for discriminationbased on disability and are stricken. Exceptions four and five relate to the claim fordiscrimination based on sex and are accepted to the extent they support the conclusionsof the Commission that, as a man or woman, transsexuals may maintain an action forsexual discrimination.

Dismissal

The Request for Relief and Complaint of Discrimination on the basis of disability isDISMISSED with prejudice.

Remand

The Complaint of Discrimination on the basis of sex is hereby reinstated and afinding is made that the Commission has jurisdiction to investigate said complaintconsistent this order.

The parties have the right to seek judicial review of this Order. TheCommission and the appropriate District Court of Appeal must receivenotice of appeal within 30 days of the date this Order is filed with the Clerkof the Commission. Explanation of the right to appeal is found in Section120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure9.110.

Done and Ordered this20th

day of August, 2004.For The Florida Commission on Human Relations.

Commissioner Gayle Cannon,

Panel Chairperson;Commissioner Keith A. Roberts; and Commissioner Aletta ShutesFiled this 20

thday August, 2004,

in Tallahassee, Florida.

Violet Crawford, Clerk of theCommission on Human Relations2009 Apalachee Parkway, Suite 100Tallahassee, FL 32301(850) 488-7082, Ext. 1032


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STATE OF FLORIDACOMMISSION ON HUMAN RELATIONS

MADALYNN A. SHEPLEY,

Petitioner,

v.

LAZY DAYS RV CENTER, INC.

Respondent.

EEOC Case No. NONEFCHR Case No. 23-00302DOAH Case No. 05-1906FCHR Order No. 06-016

FINAL ORDER AWARDING RELIEF FROM AN UNLAWFUL EMPLOYMENTPRACTICE

On October 25, 2002, Petitioner, MADALYNN A. SHEPLEY, filed a complaint ofdiscrimination pursuant to Florida Civil Rights Act of 1992, Sections 760.01-760.11,Florida Statutes, alleging that the Respondent, LAZY DAYS RV CENTER, INC.,committed an unlawful employment practice by terminating him due to his disability andsex (gender). The initial determination of the Executive Director was that theCommission lacked jurisdiction to investigate the complaint. Subsequently, the Petitionerfiled a Petition for Relief and a hearing was held on May 7, 2004, in Tampa, Florida. Atthe hearing, the results of a telephone conference call held between counsel for both

parties and Administrative Law Judge Daniel Manry on May 6, 2004, along with theparties joint stipulations, were placed into the record. The ALJ, having considered thefiled materials, issued his Recommended Order of Dismissal dated June 22, 2004,upholding the decision of the Executive Director and recommending dismissal of thePetition. A Commission panel reviewed the recommended order and found that theCommission had jurisdiction to investigate the complaint on the basis of sexual (gender)discrimination and lacked jurisdiction on the basis of disability. FCHR Order # 04-140.

The allegations set forth in the complaint were remanded for investigation and on April18, 2005, the Executive Director issued his determination that there was no reasonablecause to believe that a discriminatory act occurred. Subsequently, the Petitioner filed aPetition for Relief and was given a formal evidentiary hearing in Tampa, Florida, onSeptember 1, 2005, before Administrative Law Judge William F. Quattlebaum. The ALJ

issued his recommended order for dismissal on November 4, 2005.

The Commission panel designated below considered the record of this matter, heard oralarguments on January 26, 2006, and determined the action to be taken on theRecommended Order.

Findings of Fact


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Conclusions of Law

The Administrative Law Judge concluded that the Petitioner failed to establish aprima facie case of sex discrimination. The ALJ specifically stated in his conclusion thatthe Petitioner failed to state a prima facie case because the Petitioner was not a memberof a protected class.

The Commission has adopted conclusions of law that, to establish a prima faciecase of discrimination in termination cases, the employee must prove (1) he/she wasterminated; (2) he/she belongs to a group protected by the statute; (3) he/she wasqualified for the job; and (4), after his/her termination, the employer hired a person, orretained persons having comparable or lesser qualifications, not in petitioners protectedclass. Felidio Martinez v Orange County Fleet Manager, 21 F.A.L.R. 163, at 164 (FCHR1997); Arnold v. Department of Health and Rehabilitative Services, 16 F.A.L.R. 576, at582 (FCHR 1993). The evidence demonstrated that all four conditions were met in thiscase: (1) termination; (2) protected group-male; (3) qualified; and (4) retention of otheremployees not in protected group.

In addition, the ALJ further analyzed the case in light of the three theoriespresented in the Petition for Relief. The ALJ concluded that Title VII and Florida StatuteChapter 760 provide no protection against discrimination on the basis of transgender ortransexualism. The ALJ further concluded that the Petitioner was a male and, as such,

cannot sustain an action based upon discrimination as a female. The ALJ did, however,conclude that, on one of the three theories (grounds) stated in the Petition for Relief, thePetitioner was a member of a protected class (male). These conclusions are consistentwith Commissions Order # 04-140 that remanded the case for further investigation and,ultimately, initiated the Petition for Relief upon which the ALJ conducted his formalevidentiary hearing at DOAH.

The Petitioner relies on Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), tosupport his claim that he was discriminated against because he failed to conform to asocial expectation of male behavior and appearance. The ALJ noted that there was noevidence, prior to termination, that any person in management made any derogatorycomments or took any action not supportive of the Petitioners desire to return to work asa female. He further concluded that the courts have not extended Price Waterhouse toencompass factual situations wherein the person alleging sex discrimination has

assumed the dress and behavior of a gender other than that into which thecomplainant/petitioner was born. The ALJ cited two federal district court cases (one inLouisiana and the other in Utah) to support his view.The ALJ seems to ignore several federal circuit court cases cited by Petitioner in hisproposed recommended order and, further, in his exceptions to the RecommendedOrder. The cases of Smith v City of Salem, 378 F.3d 566 (6

thCir. 2004) and Schwenk v.

Hartford, 204 F.3d 1187 (9thCir. 2000) were specifically cited in the Petitioners proposed

order where Petitioner cited the Smith court holdings:After Price Waterhouse, an employer who discriminates against women because, forinstance, they do not wear dresses or makeup, is engaging in sex discrimination becausethe discrimination would not occur but for the victims sex. It follows that employers whodiscriminate against men because they do wear dresses and makeup, or otherwise actfemininely, are also engaging in sex discrimination, because the discrimination would not

occur but for the victims sex. 378 F.3d at 574Sex stereotyping based on a persons gender non-conforming behavior is impermissibledisc

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Documents