Labor & Employment Law Daily Wrap Up, DISCRIMINATION—W.D. Pa.: Transgender sales associate, fired after unprofessional texts, attendance issues, fails to show sex, disability bias, (Apr 22, 2025)

By Kathleen Kapusta, J.D.

The employee, who had been diagnosed with gender dysphoria, began transitioning from female to male prior to his employment with Foot Locker.

Granting summary judgment to Foot Locker on the Title VII and state-law sex discrimination claims of a transgender sales associate, a federal court in Pennsylvania pointed out that he never disclosed his transgender status to anyone at the store and the decisionmakers in his termination did not know he was transgender when he was fired. Nor could he advance his ADA disability discrimination claim, said the court, citing evidence he no longer suffered from gender dysphoria during employment with Foot Locker (Eubanks v. Foot Locker Retail, Inc. dba Foot Locker at Ross Park Mall, No. 2:23-cv-1923 (W.D. Pa. Apr. 21, 2025)).

The employee, who had been diagnosed with gender dysphoria, began transitioning from female to male in 2018. Before he began working at Foot Locker in December 2021, he underwent a double mastectomy, a hysterectomy, and testosterone therapy. He never told anyone at the store about his diagnosis or that he was a transgender male.

Weak asf. In October 2022, the employee sent a text message to the store manager in a group chat with six other employees stating that his work schedule was weak “asf” and noting in a follow-up message that “I know you can read the words didn’t [sic] stutter.” The store manager showed the messages to the district manager, who brought them to the attention of a People Solutions Field Manager, who in turn opened an investigation into the employee’s conduct. In December, the employee had seven call-offs or no-call/no-shows for work.

Transgender status disclosed. At some point in December, after the no-call/no-shows, the son of the employee’s ex-girlfriend came into the store and disclosed the employee’s transgender status. According to the employee, the next day the store manager called him “it” and “little faggot,” and a coworker called him a “dyke” and referred to him by the name he previously used on several occasions. He also claimed that he was told others were making homophobic slurs behind his back. Although he complained to an assistant store manager, the assistant manager never forwarded those complaints to the store manager, district manager, or field manager.

Termination. In January 2023, the field manager, citing the employee’s unprofessional texts and his attendance issues, recommended his termination. The district manager then instructed the store manager to fire the employee. Not until after he was fired did he complain to the company’s HR hotline.

Sex discrimination. Arguing that the employee failed to make out a prima facie case of sex discrimination, Foot Locker claimed he could not show his termination happened under circumstances that raised an inference of discrimination. Though he pointed to two coworkers whom he claimed were similarly situated—an assistant manager and a store associate—neither were transgender, neither sent unprofessional text messages to their supervisor and coworkers, and neither were subject to an internal investigation or disciplinary proceedings.

Nor was he able to show a causal connection between his transgender status and his termination, said the court, noting that he never disclosed his status to anyone at Foot Locker and there was no evidence, other than his own speculation, that either manager knew he was a transgender male until he filed his lawsuit.

Cat’s paw theory. The employee, however, argued that the store manager, who was not a decisionmaker in his termination, manipulated the investigation that led to his firing. But he conceded that he sent the October text messages, that he used inappropriate language in those messages, and that he was absent on seven days in December. There was also no evidence the store manager knew of his transgender status until December when his ex-girlfriend’s son visited the store, which was after the employee sent the text messages and after his no-call, no-shows. Nor was there any evidence the store manager talked to the district or field managers about the investigation into the employee’s conduct after she learned he was transgender.

No pretext evidence. Even assuming the employee had established a prima facie case, Foot Locker proffered a legitimate, nondiscriminatory reason for his termination—unprofessional text messages and chronic absenteeism—and the employee failed to show pretext. There was no evidence, observed the court, that the decisionmakers knew of his transgender status, that similarly situated employees were treated better, or that any sales associate who sent unprofessional text messages to their supervisor and had seven unexcused absences in a month was not fired.

Disability discrimination. The employee next argued that Foot Locker discriminated against him by firing him because of his gender dysphoria. Although courts, in recent years, have grappled with whether dysphoria can be classified as an ADA disability, the court here declined to address that issue. Pointing instead to the employee’s testimony that he no longer suffered from gender dysphoria at the time of his employment with Foot Locker, the court found the record evidence showed he did not believe he was disabled at that time. Further, he testified that he did not think he was dismissed because he was transgender but rather because he was speaking up for himself.

In addition, he never mentioned his gender dysphoria to anyone at Foot Locker and the decisionmakers in his termination had no knowledge of his alleged disability. Thus, without a causal connection, a reasonable jury could not rationally conclude that he was subjected to disability discrimination in violation of the ADA or state law.

Hostile work environment. Granting summary judgment as well against the employee’s hostile work environment claim, the court found no evidence he experienced severe or pervasive discrimination. Though he claimed that after his ex-girlfriend’s son came to the store, the store manager called him “it” and “little faggot” and a coworker called him “dyke” and referred to him by his prior name on several occasions, none of these comments were physically threatening.

And while he pointed to a comment made by a former store manager who said that the employee would not understand a conversation about sports because he was not a real man, that occurred months before the events at issue here and at most was an isolated comment by an individual who had no role in his termination.

Retaliation. Turning finally to the employee’s ADA retaliation claim, while he argued that he opposed an unlawful practice when he complained to the assistant manager about his coworkers’ homophobic slurs, there was no evidence he complained about comments or conduct related to his alleged disability of gender dysphoria. He also failed to establish a causal connection between his termination and his report of harassment to the assistant manager, said the court, noting his performance was already under review when he complained to the assistant manager and his termination came weeks after that complaint; thus, the temporal gap between his report of harassment was not suggestive of causation.

Nor did he establish a pattern of antagonism between when he made his complaint to the assistant manager and his termination, the court observed, noting a lack of evidence the decisionmakers in his termination even knew of his complaint.

The case is No. 2:23-cv-1923.

Judge: Stickman, W., IV

Attorneys: Joshua P. Ward (J.P. Ward & Associates) for Ebbynn Eubanks. Erin L. Leffler (Shook, Hardy & Bacon) for Foot Locker Retail, Inc.

Companies: Foot Locker Retail, Inc.; Foot Locker at Ross Park Mall

Cases: Discrimination SexDiscrimination DisabilityDiscrimination Retaliation Discharge PennsylvaniaNews