Labor & Employment Law Daily Wrap Up, RETALIATION—D. Md.: Gender-fluid independent contractor failed to show he was fired for complaints about protected characteristic, (Aug 14, 2025)

By Kathleen Kapusta, J.D.

The plaintiff stated that during his employment with the company, he “began growing his hair, losing weight, and eating an estrogen-laden diet, to make his appearance more feminine.”

A gender-fluid individual who was fired a year after he was hired by a company that produces conferences and trade shows for federal agencies failed to show he complained about discrimination based on his gender identity or sexuality when he protested about being asked to remove a picture of a topless woman from his personal cell phone, a federal court in Maryland concluded. Nor was there any evidence the stated reason for his termination—he sent derogatory emails to a business contact—was pretextual, said the court, granting summary judgment against his state-law retaliation claim (Kiver v. Federal Business Counsel, Inc., No. 23-cv-03398-ABA (D. Md. Aug. 13, 2025)).

Gender fluidity. The plaintiff, who was hired in August 2021 as an at-will independent contractor, alleged that his “sexuality, appearance, and gender identity are fluid and during his employment with FBC, [he] began growing his hair, losing weight, and eating an estrogen-laden diet, to make his appearance more feminine.” At no time, however, did he discuss his sexuality, sexual preferences, or gender identity with anyone at work.

Alleged conduct. Nonetheless, he claimed that his coworkers and superiors engaged in multiple instances of discriminatory conduct, including a comment by the CEO in May 2022 about his weight loss that caused him to feel embarrassed and self-conscious. He also claimed that in June, his supervisor, in response to his colorful outfit, commented “I can see you a mile away, we need to talk about your wardrobe.”

When, later that day, he showed his supervisor a picture of his handgun, which had a purple upper receiver, the supervisor stated, “That would be great to carry in the gay pride parade outside.” And when his team, on a work trip to Hawaii, stayed in a hotel with a famous gay bar, the CEO and others allegedly made derogatory comments, including about the color of his cell phone.

Photograph on phone. During the Hawaii trip, the company’s HR manager noticed that whenever the contractor received a notification on his cell phone, a picture of a topless woman would display on the phone’s lock screen. When she asked him about the photograph in front of the CEO, the contractor explained that the phone was for his personal use and was not company phone.

The CEO nevertheless asked him to remove the picture because “it could inadvertently be displayed” while he was representing the company. Though the contractor “saw the wisdom” in this request, he was upset when the CEO asked to see the picture because it was of his girlfriend.

According to the contractor, after this incident, he complained to the CEO about the way the CEO and the HR manager had treated him and how he felt shameful and anxious as a result. There was no evidence, however, that he complained about discrimination based on his sexuality.

Termination. In July 2022, a business contact told the CEO that the contractor had sent derogatory emails about him to his customers. Although the CEO warned the contractor to refrain from that type of conduct, the business contact complained about additional derogatory emails from the contractor the following month. The contractor was fired shortly after that.

Prior proceedings. He then sued, asserting claims under the Maryland Fair Employment Practices Act for sex, sexual orientation, and gender identity discrimination; retaliation; and hostile work environment. The court dismissed his discrimination claim, finding he failed to plead that he was terminated because of his protected class and dismissed his hostile work environment claim because the conduct he faced was not objectively severe or pervasive. His retaliation claim, however, survived the company’s motion.

Retaliation. After discovery, the company, arguing that he failed to show he engaged in protected activity, moved for summary judgment on the contractor’s retaliation claim. Agreeing, the court noted that while he alleged he “protested about the way he had been treated” by the CEO and the HR manager, there was no evidence this referred to any alleged discrimination on the basis of gender, gender identity, or other protected characteristic.

Indeed, said the court, the judge who had declined to dismiss his retaliation claim noted that his complaint “could have provided more detail about what he complained of in late June and early July.” After discovery, the court here observed, “the company put forth direct evidence establishing that the complaint solely regarded the inquiries into the photograph on his phone” and the contractor not only failed to oppose the company’s motion with any sworn testimony or other documentary evidence, he did not appear to contend that in his complaint to the CEO, he complained about discrimination. Because no reasonable jury could find that he complained about anything but the photograph on his phone, the company was entitled to summary judgment on this basis.

No evidence of pretext. In addition, said the court, the company provided a legitimate, nondiscriminatory reason for terminating the contractor—his derogatory emails about one of the company’s business contacts—and he failed to show pretext. He testified that his termination letter stated that he was fired “due to recent issues and concerns” but offered no evidence the company’s concerns about the emails were pretextual. Though he testified that the company’s “behavior became increasingly aggressive and illegal” from the Hawaii trip onward, there was insufficient evidence from which a reasonable factfinder could conclude that retaliation for protected activity was the real reason he was fired.

The case is No. 23-cv-03398-ABA.

Judge: Abelson, A.

Attorneys: Phillip A. Kiver, pro se. Eric William Gunderson (Davis, Agnor, Rapaport & Skalny) for Federal Business Council, Inc.

Companies: Federal Business Counsel, Inc.

Cases: Retaliation StateLawClaims SexDiscrimination Discrimination MarylandNews