Labor & Employment Law Daily Wrap Up, RETALIATION—S.D. Ohio: Lion’s Den retail chain defeats transgender worker’s Title VII claims over firing, (Sep 14, 2026)

By Brandi O. Brown, J.D.

The employee was fired allegedly for theft after store records showed unusually heavy use of a coupon code during one of her shifts and surveillance footage revealed that customers frequently received the discount without presenting the required coupon.

A transgender former retail associate for the Lion’s Den, a national retail chain that sells adult entertainment products, failed to advance Title VII discrimination and retaliation claims after a federal district court in Ohio found no evidence her termination stemmed from gender identity rather than repeated policy violations, including misuse of a customer discount code. The court also struck portions of the employee’s affidavit under the “sham affidavit” doctrine, finding that new allegations of customer harassment contradicted earlier sworn testimony (Deshayes v. LDM Retail Associates, Inc., No. 2:24-cv-04160 (S.D. Ohio Sept. 2, 2026)).

The employee worked as a part-time retail sales associate for the Lion’s Den for approximately six months. A transgender woman, the employee was openly transgender during the hiring process and began working at an Ohio store in September 2022. Her duties included assisting customers, operating the cash register, stocking merchandise, and cleaning the store. According to the court, she initially received positive feedback regarding her performance.

Objected to DVD titles. In January 2023, the employee raised concerns about DVD covers sold at the store that contained terms she viewed as offensive toward transgender individuals, including terms such as “t-girl,” “transsexual,” and “trannies.” She discussed the issue with store management and later elevated her concerns to district management. Company officials ultimately declined to alter the display or remove the products. She alleged that shortly afterward, she began receiving disciplinary notices, including warnings related to attendance, cell phone use, and customer-service concerns.

Coupon code use. In February 2023, management reviewed store records showing unusually heavy use of a coupon code during one of the employee’s shifts. According to the employer, surveillance footage demonstrated that customers frequently received the discount without presenting the coupon to the employee, as required under company policy. Management concluded that the employee had used the code far more often than other workers (applying it to a majority of the customer transactions) and determined that her conduct constituted theft under company rules. She was terminated on March 6, 2023.

After obtaining a right-to-sue notice from the EEOC, the employee filed suit alleging gender-identity discrimination and retaliation in violation of Title VII. The company moved for summary judgment on both claims.

Sham affidavit? Before reaching the merits, the court addressed an affidavit submitted by the employee in opposition to summary judgment. In that affidavit, she alleged for the first time that customers had propositioned her, threatened her, groped her, harassed her because of her gender identity, and that she repeatedly complained to managers about the conduct.

The court found those allegations inconsistent with her earlier deposition testimony and interrogatory responses, which identified only her complaints about the DVD titles. In addition, it noted that she did not mention this in the complaint and that while the store manager described the employee as “complain[ing] about things all the time,” he also made it clear that this was related to the DVD titles and the employee’s belief that negative customer reviews about her was because of her transgender identity, about which he added “there’s no way for me to know.”

Applying the Sixth Circuit’s sham-affidavit doctrine, the court struck the relevant portions of the affidavit, concluding that the newly asserted allegations would unfairly prejudice the employer because they directly contradicted prior sworn statements.

Nonbinary comparators. Turning to the discrimination claim, the court considered whether the employee could satisfy the requirement that similarly situated employees outside her protected class were treated more favorably. She identified two coworkers as comparators. The court rejected the employer’s argument that the coworkers were automatically invalid comparators because they also fell within a broader transgender or gender-nonconforming population (they both identified as nonbinary), explaining that it agreed with the employee’s “theoretical proposition that discrimination against a transgender female is not disproven by tolerance of non-binary individuals.”

“In simple terms,” the court explained, “[the employee] is alleging gender discrimination, and her gender identity is appreciably distinct from that of her comparators.”

Different disciplinary histories. However, the court agreed with the employer that the employee lacked evidence showing they engaged in comparable coupon misuse or had similar disciplinary histories. Without evidence that similarly situated employees received more favorable treatment, she could not establish a prima facie case of discrimination, the court concluded.

The court also emphasized that the employee had been hired while openly transgender and worked alongside other employees whose gender identities did not conform to traditional binary classifications, noting that there was “a complete lack of any evidence suggesting that [the employer]’s decisionmakers had discriminatory animus toward transgender women.”

Protected activity? As for her retaliation claim, based on her objection to allegedly offensive language appearing on DVD covers sold in the store, the court concluded that her conversations with management did not rise to the level of opposition to an unlawful employment practice protected by Title VII. It pointed to deposition testimony in which the employee acknowledged that she was not challenging the company’s decision to sell the DVDs and characterized her discussions with management as efforts to start a conversation rather than formal complaints. According to the court, merely expressing displeasure with workplace conditions or merchandise did not constitute protected opposition activity under Title VII.

In a footnote, the court also added that although it “need not conclusively decide this issue, case law from this circuit strongly suggests that LDM’s display of the offensively titled DVDs is not an unlawful employment practice.”

No evidence it was retaliatory. Even assuming the DVD-related complaints were protected, the court found no evidence the company’s disciplinary actions or eventual termination were retaliatory. The employee did not dispute the conduct underlying her attendance, phone-use, customer service, or coupon-related discipline and her pretext arguments also failed.

Specifically, the court noted that the employee’s argument regarding the disciplinary citations focused on a write-up that, although purportedly based on excessive cell phone use and negative customer reviews, she allegedly was told at the time was really based on the belief that she had “‘colluded’ with a customer to leave a negative review about [LDM’s] transphobic DVDs.” The employer denied it, but regardless, the court explained, it found no material factual dispute, because the employer could discipline the employee “for either reason without running afoul of Title VII.”

“A possibly fake, public-facing review critical of the workplace does not invoke Title VII protections for the employee suspected of fabricating it,” the court added.

Others fired for misuse. Moreover, the employer produced evidence that two other workers had been terminated for the same type of coupon misuse. That evidence, the court said, undermined any claim that firing the employee was an unusually harsh response imposed because of her complaints or her transgender status.

Finally, the court considered evidence that the store manager in a deposition stated that the employee “complained about things all the time” and that he had told the HR director at the time he inquired about firing her that “we have had so many issues.” However, the court said it was clear that his remark about complaints referred to the employee’s issues with the DVD titles and her concern that customers were leaving negative reviews because of animus toward her gender identity, “neither of which rises to protected conduct.” Regarding “so many issues,” the court noted that the next sentence clearly referred to the employee’s disciplinary citations and that “alternative speculation” by the employee “does not create a genuine dispute of material fact necessary to withstand summary judgment.”

Concluding that no genuine dispute of material fact existed on either claim, the court granted summary judgment to the employer.

The case is No. 2:24-cv-04160.

Judge: Graham, J.

Attorneys: Paul Filippelli (Spitz, The Employee's Law Firm) for Blair Deshayes. Mackenzie Lynn Rini (Benesch Friedlander Coplan & Aronoff) for LDM Retail Associates, Inc.

Companies: LDM Retail Associates, Inc.

Cases: SexDiscrimination Discrimination Retaliation Discharge EvidenceDiscovery Procedure OhioNews