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Wednesday, September 17, 2014

Transgender Auto Tech Found Sleeping

By: Tommy Eden


Jennifer Chavez was employed as an automobile technician at Credit Nation Auto Sales who sells and repairs automobiles in Austell, Georgia. At the time of her hire, Jennifer was known as Louie Chavez and presented as a male, according to court documents.

In the summer of 2009, according to court documents, Jennifer decided to go through a gender transition because she "did not want to die having lived a lie."  Jennifer decided to inform Credit Nation of her intention to transition from a male to a female and later testified in deposition that the managers and staff were both extraordinarily kind regarding her decision to transition. The manager made sure that all employees understood the no harassment policy and that anyone who committed an infraction would be terminated.

Jennifer claimed in her lawsuit that the supportive environment at Credit Nation ended two weeks after she announced the intended transition and was told to "tone things down" after her visits to the other technicians' stalls, talking about surgeries, including breast augmentation.

Later the Credit Nation President met with Jennifer about coming to work or leaving work wearing dresses, skirts and heels in the service department work area because the attire violated Credit Nation's workplace rules. Technicians at Credit Nation are required to wear work pants, a uniform shirt, and rubber soled shoes that allow technicians to walk on greasy and slippery surfaces.

In December 2009, Credit Nation approved Jennifer’s request for two weeks of paid leave, even though she had accrued only a week of vacation time at that point, to accommodate her sex reassignment surgery. Jennifer raised a number of unisex restroom issues for which Credit Nation sought advice of legal counsel. Jennifer was also issued two disciplinary warnings.

On January 8, 2010, according to court documents, Jennifer arrived at work and clocked in at 7:39 a.m. and decided to sit in the back of one of the cars she was working on to try and get a little bit warm. She then went to sleep in the back of the car and a photograph of her sleeping was sent to the manager.  On January 11, 2010, Jennifer was terminated for sleeping while on the clock on company time in violations of the Employee Handbook. Another employee, who did not have previous write-ups in his file, had been terminated for sleeping on the clock.

Jennifer was allowed to file an EEOC Charge for transgender sex discrimination under Title VII and later filed a Title VII lawsuit in the Federal District Court for the Northern District of Georgia. Credit Nation filed a motion for summary judgment which was granted in its favor last week. Although the Judge held that under existing 11th Circuit Court case precedent Jennifer could file a transgender based case, he also held that her termination was for sleeping on the job and not transgender issues. The comparator evidence was critical to the Judge’s ruling. The case is Jennifer Chavez v. Credit Nation Auto Sales.

Common Sense Counsel: In these difficult cases bullet proofing your discharge decision is absolutely critical. Updating your handbook language to cover gender identification and sexual orientation language should be one of your first priorities, with updated training, deciding now on restroom solutions and finding a source for guidance when confusion reigns in your workplace.

Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com and follow on twitter tommyeden3