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Olivarez v. T Mobile

Appellant alleged transgender discrimination under Title VII but did not allege facts sufficient to support an inference of transgender discrimination, i.e., that T-Mobile would have behaved differently toward an employee with a different gender identity.

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Before SMITH, STEWART, and HO, Circuit Judges. JAMES C. HO, Circuit Judge: We withdraw the court’s prior opinion of May 12, 2021 and substitute the following opinion. Title VII of the Civil Rights Act of 1964 prohibits employers from “discriminat[ing]” against any individual with respect to employment “ because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Under Bostock v. Clayton County, 140 S. Ct. 1731 (2020), discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination under Title VII. Accordingly, a plaintiff who alleges transgender discrimination is entitled to the same benefits—but also subject to the same burdens—as any other plaintiff who claims sex discrimination under Title VII. Elijah Olivarez alleges transgender discrimination under Title VII. But Olivarez does not allege facts sufficient to support an inference of transgender discrimination—that is, that T-Mobile would have behaved differently toward an employee with a different gender identity. So we are left with this: An employer discharged a sales employee who happens to be transgender—but who took six months of leave, and then sought further leave for the indefinite future. That is not discrimination—that is ordinary business practice. And Olivarez’s remaining issues on appeal are likewise meritless. We accordingly affirm. I. Olivarez was employed as a retail store associate for T-Mobile from approximately December 21, 2015 to April 27, 2018. During the first half of 2016, a supervisor allegedly made demeaning and inappropriate comments about Olivarez’s transgender status. Second Amended Complaint,

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