Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—E.D. Pa.: Female VA housekeeper, repeatedly referred to as a man, advances non-promotion claims, (Aug 28, 2026)

By Kathleen Kapusta, J.D.

The housekeeper alleged that a required gender bias training after she complained about harassment was ineffective and “disgusting” and resulted in additional taunts and jokes about her gender.

Although a female housekeeper who was repeatedly referred to as a man, questioned about her sexual orientation, and subjected to insulting comments about her gender identification and sexual orientation failed to show that two back-to-back suspensions would have dissuaded a reasonable worker from making or supporting a charge of discrimination, a federal district court denied summary judgment against her Title VII retaliation claim based on her non-promotion to a supervisor position after having filed an EEO complaint. The court also granted summary judgment against her disparate treatment claim as to her suspensions but denied it as to her non-promotion (Watson v. Collins, No. 24-3043 (E.D. Pa. Aug. 26, 2026)).

The employee was hired in 2020 as a housekeeping aide with the Environmental Management Services Department (EMS) at a VA medical center in Pennsylvania and later promoted to a work leader. She claimed that, beginning in June 2022, she began experiencing harassment based on her sex, including coworkers repeatedly referring to her as a man, stating that she would not be fired because she was a man, repeatedly asking questions about her gender, commenting on her sexual orientation, asking her to prove she was a female by exposing herself, asking about her sex life, making insulting comments about her gender identification and sexual orientation, and whispering and laughing at her.

Training. After she complained to management, EMS conducted training on gender harassment, which she claimed was ineffective and led to additional taunts and jokes. Her supervisor purportedly told her the training was held because of her and said “you... could be whatever you want to be,” which she believed was an insinuation that she was a man. Other employees testified the training “was made a joke out of” and did not resolve the issue.

EEO complaint. According to the employee, management stopped assigning her work leader duties in 2023. In March 2023, she filed an EEO complaint with the VA alleging harassment based on her sex, gender identity, and sexual orientation.

Non-promotions. In October and early December 2023, she applied for housekeeping aide supervisor positions, both of which were cancelled purportedly due to clerical errors. She applied for a third housekeeping aide supervisor position in late December and was interviewed by a panel of three individuals, two of whom claimed to be unaware of her EEO complaints. She was not selected for the position.

In May 2024, a coworker allegedly approached her and asked if she was man, explaining that she had heard that a woman at EMS was transgender. She reported the incident to management. In June, two contractors were overheard laughing at the employee and saying “him her” and “them they.” Three days later, one of the contractors yelled derogatory remarks at her and called her a man. In August, she filed another EEO complaint.

Altercations. In October, she was involved in an altercation with three coworkers. Although she claimed she was attempting to stop an argument between two of them, which was supported by two of the coworkers and a witness, the VA, after reviewing video footage of the incident, determined that she did not appear to be trying to break up the fight and suspended her for three days.

The day after the incident, she was involved in a verbal altercation with a male coworker who claimed she cursed at him and called him old. Although she denied raising her voice or using profanities, the VA again determined that she acted unprofessionally and suspended her for five days.

Lawsuit. The employee subsequently sued, asserting claims under Title VII for disparate treatment, hostile work environment, and retaliation. The VA moved for summary judgment on the disparate treatment and retaliation claims.

Retaliation. In support of her retaliation claim, the employee argued that she engaged in protected activity when she filed EEO complaints in March 2023 and August 2024 and when she made internal complaints to her supervisors. She also claimed she suffered adverse actions, including the two suspensions and “removal from leadership duties and isolation from staff,” denial of a promotion following interviews, and an assignment to overnight shifts at the nursing home. While the court found it undisputed that she faced the two suspensions, was not promoted in January 2024, and was reassigned in 2023 to nursing home overnight shifts, it was disputed whether she was removed from leadership duties and was isolated from staff.

Regarding the suspensions, the VA pointed to the Third Circuit’s 2011 decision in McCullers v. Napolitano, which held that evidence of a 14-day suspension, along with certain other actions, would not have dissuaded a reasonable worker from engaging in protected EEO activity. Explaining that McCullers did not establish a per se rule, the court, turning to the facts alleged, found the employee failed to provide sufficient evidence such that a reasonable jury could conclude the suspensions would have dissuaded a reasonable worker from making or supporting a charge of discrimination. There was simply no evidence, said the court, regarding the context of the suspensions that would support such a conclusion.

As to her claims of being removed from leadership duties and being isolated from staff, the court found they also did not rise to the level of an adverse employment action because she again failed to sufficiently detail the specifics of any reduced duties or isolation. Nor was her temporary assignment to overnight shifts at the nursing home sufficient to rise to the level of an adverse employment action because she did not proffer evidence regarding the context and implications of this assignment, other than noting that she was alone on the shift.

Failure to promote. Because failure to promote is undisputedly an adverse action, the court turned to evidence of causation. Arguing that a pattern of antagonism, timing of actions, and evidence of a retaliatory motive demonstrated causation, the employee pointed to continued taunts, ignored reports, and “mocking” regarding the gender pronoun training. She failed to establish, however, if these incidents occurred before her non-promotion.

Addressing the extended timing between her March 2023 EEO complaint and her January 2024 non-promotion, the court pointed out that the EEO complaint was not accepted until July 28, 2023, and the employee first applied for a promotion on October 26, 2023. This job opening was cancelled and the reason for that was disputed.

Regarding her November 20, 2023, interview, the court noted that she was interviewed by three panelists, including one who was aware of her EEO activity and two whose denial of knowledge was disputed. There were also discrepancies between the interview process for her and the ultimate selectee who was interviewed by only two panelists whose awareness and action based on the employee’s EEO activity was also disputed. “Given the repeated cancellations of job openings for which [the employee] applied, proximity to [her] EEO activity, and disparities between the interview process for [her] and the candidate who was hired,” the court found she established a prima facie case of retaliation with respect to her non-promotion.

And though the VA argued that it selected the other candidate because he had a higher combined interview score, the employee argued that this justification relied on the subjective decisions of the interviewers, whom she alleged were aware of her protected conduct. Because it could not weigh the evidence at summary judgment, the court found the VA’s disputed justification for cancelling the initial two job postings and selecting another candidate for the job did not warrant summary judgment on her retaliation claim based on the non-promotion.

Disparate treatment. Finally, addressing the employee’s disparate treatment claim, the court explained that because it had already determined the suspensions were not adverse employment actions, her claim failed as to both.

Regarding her non-promotion, because the parties referred to the selectee as “he,” the court presumed was he not a member of the protected class. While the VA, in arguing the selectee was not treated more favorably, pointed out that the interview panel for the employee consisted of two women and one man, the panel’s composition, said the court, did not determine whether she was subjected to disparate treatment. Finding she established a prima facie case of disparate treatment, the court noted that the VA again argued that it promoted the selectee because of his higher combined interview score. As with the retaliation claim, the court found a genuine dispute of material fact about whether the VA’s nondiscriminatory reason was false and denied summary judgment on this claim as well.

The case is No. 24-3043.

Judge: Rufe, C.

Attorneys: Ian Colton Schenholm (Derek Smith Law Group) for Shimeara Watson. Neelima Vanguri, U.S. Attorneys' Offices, for Denis McDonough.

Cases: SexualHarassment SexDiscrimination Discrimination Retaliation PublicEmployees PennsylvaniaNews GCNNews