By: Spencer Baldacci   

The United States District Court for the District of Maryland held that isolated instances of misgendering, verbal insults, and “unprofessional treatment” did not meet the “severe” or “pervasive” threshold under Title VII of the Civil Rights Act of 1964 (“Title VII”).  Faulkenberry v. U.S. Dep’t of Def., No. 1:22-CV-01150-JMC, 2023 WL 3074639, at *11 (D. Md. Apr. 25, 2023).  The court also held that there was no causal link between a protected activity and Faulkenberry being placed on administrative leave.  Id. at *13, 14.  Lastly, the court held that “exacerbated anxiety” resulting from sharing medical records with unauthorized persons constitutes a tangible injury under the Rehabilitation Act.  Id. at *15.

     Stacey Faulkenberry (“Faulkenberry”) was a transgender employee of the U.S. Department of Defense (“DOD”) and a U.S. Army and Army Special Forces veteran.  Faulkenberry specifically worked as a Tasker Workflow Manager within the Defense Information Systems Agency (“DISA”) of the DOD.  Faulkenberry’s direct supervisor was Sharon Ontiveros (“Ontiveros”). During a phone call with Faulkenberry, Ontiveros believed Faulkenberry to be male based on the sound of Faulkenberry’s voice until Faulkenberry informed Ontiveros she was a transgender woman.  After learning that Faulkenberry was transgender, Ontiveros became cold in her demeanor towards Faulkenberry, responding curtly to Faulkenberry for the rest of the call.  Shortly after starting her position as Task Flow Manager, Ontiveros assigned Faulkenberry to the less prestigious and lower-skilled position of Issuance Manager.

     In addition to the change in duties, Ontiveros amended Faulkenberry’s position to reduce Faulkenberry’s “interaction[s] with senior leadership.”  Ontiveros referred to Faulkenberry as “it” and generally did not include Faulkenberry in activities Ontiveros considered “a girls thing” such as group lunch outings.  When Faulkenberry attempted to transfer to a different job within the DOD, the interviewer misgendered Faulkenberry, who lost interest in hiring Faulkenberry after learning that Faulkenberry was a transgender woman.  After this experience, Faulkenberry stated to several coworkers that she was going to “cross the Rubicon” and that “management is going to have a bad day on Monday.”  On April 23, 2018, Ontiveros told Faulkenberry that Faulkenberry was being placed on administrative leave because of her “threat[s] of violence” towards the agency.  Faulkenberry was then escorted out of the building.  Faulkenberry later professed that management placed her on administrative leave because of her “comment that management would have a bad day on Monday.”  While on administrative leave, Faulkenberry submitted medical documents in support of a work accommodation request.  Ontiveros found and forwarded Faulkenberry’s medical records to Ontiveros’s husband, Ontiveros’s personal email, and other members of the staff who were not privileged to the records.  Faulkenberry then experienced “exacerbated anxiety” because of her personal information being shared with coworkers for whom it was not intended.

On May 1, 2018, Faulkenberry filed an informal Equal Employment Opportunity (“EEO”) complaint alleging discrimination and retaliation.  On May 12, 2022, Faulkenberry filed a complaint against the DOD and, on December 15, 2022, filed an amended complaint in the United States District Court for the District of Maryland alleging three counts: “(1) a hostile work environment based on sex and gender identity, (2) retaliation in violation of Title VII, and (3) violation of confidentiality provisions of the Rehabilitation Act.”  Before the court were the DOD’s Motion to Dismiss (“DOD’s Motion”) and Faulkenberry’s Motion for Discovery (“Faulkenberry’s Motion”).

First, the court analyzed whether Faulkenberry exhausted her administrative remedies before petitioning the federal court.  Faulkenberry,2023 WL 3074639, at *8.  Faulkenberry amended her federal complaint to include additional claims not in the original EEO complaint.  Id. at *9.  The U.S. Department of Defense (“DOD”) argued that because the new allegations in the amended complaint were not part of Faulkenberry’s EEO complaint, Faulkenberry did not exhaust all administrative remedies.  Id.  However, the court found that, because the allegations in the amended complaint were “reasonably related” to those in the EEO complaint, Faulkenberry was permitted to bring them forth in court.  Id.

Next, the court held that Faulkenberry’s allegations did not meet the threshold for a hostile work environment.  Specifically, the court found that the facts alleged were insufficiently “severe or pervasive to alter . . . conditions of employment and to create an abusive work environment.” Faulkenberry, 2023 WL 3074639,at *10, (quoting Strothers v. City of Laurel, 895 F.3d 317, 328 (4th Cir. 2018)).  The court utilized the Hooten standard, which states that the discrimination faced “should be judged from the perspective of a reasonable person” for an actionable claim.  Faulkenberry,2023 WL 3074639, at *10.

The court determined that Faulkenberry’s claims were not “pervasive” or “severe” as they were “sporadic occurrences” that did not involve physical threats.  Faulkenberry, 2023 WL 307463,at *11.  Ontiveros and others had misgendered Faulkenberry; however, it was merely occasional and not consistent occurrences.  Id.  While the court stated that Ontiveros’ unwelcoming behavior towards Faulkenberry was “[reprehensible],” the court found that this behavior also did not meet the threshold for “severe or pervasive.”  Id. at *10-12.  Lastly, the court found that the alleged harassment did not have an overall negative effect on Faulkenberry’s work or productivity, thereby leading the court to conclude that the discrimination did not lead to a hostile work environment.  Id. at *11.

In its second holding, the court held that there was no retaliation towards Faulkenberry for making administrative, workplace, and EEO complaints about discrimination.  Faulkenberry, 23 WL 3074639,at *14.  A retaliation claim requires “(1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link between” the two.  Id. at *12.  The court found that Faulkenberry’s placement on administrative leave was related to her making perceived physical threats rather than her conversations about making EEO or administrative complaints.  Id. at *13.  Faulkenberry’s amended complaint “admits that the reason for her placement on administrative leave” was due to her comments saying, “management would have a bad day on Monday” and that she was going to “cross the Rubicon.”  Id. at *13-14.  The court reasoned that Faulkenberry being escorted out of the building and placed on administrative leave following her perceived threats was appropriate considering her background in combat and military training.  Id.

Finally, the court held that Faulkenberry’s “exacerbated anxiety” from Ontiveros sharing confidential medical documents meets the tangible injury requirement.  Id. at *15.  The Rehabilitation Act requires the plaintiff to “show that an unauthorized disclosure of medical information resulted in a tangible injury.”  Id. at *14.  Faulkenberry shared medical documents with a new supervisor as part of her reassignment request.  Id. at *15.  Ontiveros then shared those medical records with her husband and other staff members who did not need them and were part of Faulkenberry’s claims.  Id.  The court stated that the supervisors may have a “right to know of the necessary restrictions and accommodations” but not the exact contents of the medical record.  Id.

The Faulkenberry decision further established the threshold required for cases of sex discrimination regarding Title VII.  Members of the LGBTQIA+ community, especially transgender women, are frequently the victims of violence, verbal and physical harassment, and many types of discrimination inside and outside of the workplace.  The standard imposed by the court for transgender employees to allege workplace discrimination is high and therefore likely to deter individuals from seeking relief in court.  Practitioners should be mindful that isolated incidents of misgendering will not meet the threshold of severe and pervasive harassment for hostile work environment claims.  While there are many levels of harassment, practitioners seeking relief in court for their transgender clients will need to focus on incidents that are severe in nature and occur often over a substantial period of time.

Spencer Baldacci is a 2^nd year J.D. candidate at the University of Baltimore School of Law and a first-year staff editor for Law Forum. After graduating from Boston University in 2015 with a B.A. in Political Science and a minor in Italian Studies, Spencer worked in the non-profit world for seven years with a predominant focus on immigrant rights and homelessness alleviation and prevention. In the Summer of 2023, Spencer interned for the Maryland State Ethics Commission. During her 2L Summer, Spencer will be a legal fellow for the Access to Counsel for Evictions Program at Maryland Legal Aid. Spencer is also the Treasurer for the Environmental Law Society and has translated documents from Spanish to English for the Immigrant Rights Clinic at the University of Baltimore. Spencer plans to pursue a career in public interest law after graduation.