Dive Brief:
- A transgender nurse did not provide sufficient evidence to establish that she was subjected to a hostile work environment because of her gender before being terminated, a federal judge said Tuesday in granting summary judgment to her former employer.
- Thomas Jefferson University Hospital in Philadelphia, Pennsylvania, said the nurse was fired for “serious deficiencies in performance that created a risk to patient safety,” according to court documents filed in the U.S. District Court for the Eastern District of Pennsylvania (Barry v. Thomas Jefferson University Hospitals, Inc.).
- The nurse alleged discrimination, retaliation and a hostile work environment under Title VII of the Civil Rights Act of 1964, the Pennsylvania Human Relations Act and the Philadelphia Fair Practices Ordinance. Neither the hospital nor the attorney for the plaintiff responded to requests for comment before press time.
Dive Insight:
The plaintiff alleged that she was “frequently” misgendered and deadnamed and listed at least a dozen instances of harassment between sending a coming out email Dec. 27, 2022, and her termination May 16, 2023 — or “at least one incident about every twelve days,” per court documents.
“When intentional, deadnaming and misgendering are at best dismissive of a person’s identity and at worst communicate an unwillingness to accept how another person presents in a manner suggesting that someone is unwelcome or perhaps even unsafe. This is particularly so at a point in time where transgender individuals are targeted and vilified in public discourse,” U.S. District Judge Gerald McHugh said.
The plaintiff identified alleged incidents of harassment throughout her tenure, first when she was male-identifying, then as a nonbinary and transgender person and also as a bisexual individual.
Even though “a reasonable jury could find [the plaintiff] experienced severe or pervasive discrimination” given “the severity and frequency of the alleged harassment,” the nurse’s superiors were not informed of the alleged behavior early enough to address it, the judge ruled.
“The record here does not support a finding that decision-makers were made aware of the conduct alleged until after the Final Warning, and therefore they did not have sufficient opportunity to address the situation prior to [the plaintiff]’s termination,” McHugh said.
Although the alleged misconduct took place between 2019 and 2023, the plaintiff did not notify HR until April 2023, per court records. HR then investigated the behavior and interviewed every witness named in the complaints. However, the vice president of patient care services decided to terminate the plaintiff in early May 2023 while the investigation was still underway.
The vice president’s “undisputed testimony was that he was unaware of [the plaintiff]’s complaint to HR or the ongoing investigation,” according to court records.
The plaintiff was placed on a performance improvement plan in summer 2020 “for failing to follow medication administration guidelines and parameters for patients and documenting accurate intake and output documentation for assigned shifts on patients,” court documents showed.
The “performance issues continued,” per court documents, including an incident on April 22, 2023, in which a patient fell after the plaintiff allegedly allowed them to get out of bed to provide a urine sample, even though there was “an order prohibiting movement because the patient was disoriented and lacked capacity to make decisions.”
“Based on these several incidents and their impact on patient safety, a factfinder could reasonably find a non-discriminatory rationale for [the plaintiff]’s termination,” the judge ruled.
