Florida Suit

Case 8:14-cv-02421-MSS-AEP Document 1 Filed 09/25/14 Page 1 of 8 PageID 1

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA Tampa Division UNITED STATES EQUAL EMPLOYMENT : : OPPORTUNITY COMMISSION, : : Plaintiff, : : : vs. : : LAKELAND EYE CLINIC, P.A., : : : Defendant. :

Case No.:

PLAINTIFF UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION’S COMPLAINT AND DEMAND FOR JURY TRIAL This is an action under Title VII of the Civil Rights Act of 1964 to correct unlawful employment practices on the basis of sex and to provide appropriate relief to Brandi M. Branson (“Branson”) who was adversely affected by such practices. As alleged with greater particularly below, Defendant Lakeland Eye Clinic, P.A. (“Lakeland” or “Defendant”) terminated Branson, a transgender woman, because of sex. JURISDICTION AND VENUE 1.

Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331,

1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections 706(f)(1) and (f)(3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (f)(3) (“Title VII”) and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.

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2.

The employment practices alleged to be unlawful were committed within the

jurisdiction of the United States District Court for the Middle District of Florida, Tampa Division. PARTIES 3.

Plaintiff United States Equal Employment Opportunity Commission (“EEOC”

or the “Commission”) is the agency of the United States of America charged with the administration, interpretation, and enforcement of Title VII, and is expressly authorized to bring this action by Sections 706(f)(1) and (f)(3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (f)(3). 4.

At all relevant times, Defendant has been a Florida professional corporation

doing business in the State of Florida and has continuously had at least 15 employees. 5.

At all relevant times, Defendant has continuously been an employer engaged

in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h). 6.

At all relevant times, Branson was an employee within the meaning of Section

701 of Title VII, 42 U.S.C. §§ 2000e(f). CONDITIONS PRECEDENT 7.

More than thirty days prior to the institution of this lawsuit, Branson filed a

charge of discrimination with the Commission alleging violations of Title VII by Defendant. 8.

The Commission conducted an investigation of Branson’s charge, and on or

about March 31, 2014, issued a Letter of Determination, finding reasonable cause to believe that Branson was discriminatorily terminated because of sex, in violation of Title VII.

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9.

All conditions precedent to the institution of this lawsuit have been fulfilled. STATEMENT OF FACTS

10.

Lakeland Eye Clinic employs seven physicians who perform refractive,

corneal, and cataract surgery and treat retinal diseases. It is owned by Dr. Kevin Dorsett, an ophthalmologist. 11.

In or about early 2010, Defendant decided to add a hearing division to the eye

clinic. Defendant hired Physicians Hearing Services, Inc. (“PHSI”), a staffing company that specialized in hearing services, to provide candidates for the position of Director of Hearing Services. PHSI recommended Branson for the position based on Branson’s extensive experience in the field of hearing aid sales in Florida. 12.

On or about July 6, 2010, Defendant interviewed and hired Branson as

Director of Hearing Services. At the time of hire, Branson presented as male (e.g., used the male name “Michael,” wore male attire, and otherwise appeared to conform to traditional male gender norms). 13.

Branson provided hearing services to patients who were referred to him by

Defendant’s physicians, and these referrals were Branson’s only source of patients. 14.

Branson performed the duties of his position successfully.

15.

In or about late February 2011, Branson began wearing feminine attire to

work, including make-up and women’s tailored clothing. Branson observed that co-workers snickered, rolled their eyes, and withdrew from social interactions with her in response to her changing appearance.

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16.

In or about April 2011, Defendant requested a meeting with Branson, wherein

Defendant confronted Branson about her changing appearance. Branson then informed Defendant that she was undergoing a gender transition from male to female and that she would be changing her name legally from Michael to Brandi. 17.

Following this meeting, Defendant’s managers and employees made

derogatory comments about Branson’s appearance, and the ostracism by her co-workers intensified. 18.

From about April 2011, until her termination, all but one of Defendant’s

physicians stopped referring patients to Branson for hearing services, thereby depriving her of her client base. 19.

On or about June 10, 2011, Defendant fired Branson, telling her that the

position of Director of Hearing Services was being eliminated. Defendant told Branson that it would not hire an employee to replace her, as it was closing its hearing services division. 20.

At the time of her termination, Branson was successfully performing the

duties of her position. 21.

On or about August 2011, Defendant hired a replacement for Branson and

continued to operate its hearing services division. Branson was replaced by a male employee who conformed to traditional male gender norms. 22.

As a result of the foregoing, Branson suffered damages. STATEMENT OF CLAIMS

23.

Paragraphs 10 through 22 are fully incorporated herein.

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24.

Defendant engaged in unlawful employment practices, in violation of Section

703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1), by terminating Branson because of sex. 25.

Defendant's decision to terminate Branson was motivated by sex-based

considerations. Specifically, Defendant terminated Branson because Branson is transgender, because of Branson's transition from male to female, and/or because Branson did not conform to the Defendant's sex- or gender-based preferences, expectations, or stereotypes. 26.

The effect of the practices complained of in paragraphs 10 through 22 above

has been to deprive Branson of equal employment opportunities and otherwise adversely affect her status as an employee because of her sex. 27.

The unlawful employment practices complained of in paragraphs 10 through

22 above were intentional. 28.

The unlawful employment practices complained of in paragraphs 10 through

22 above were done with malice or with reckless indifference to the federally protected rights of Branson. PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A.

Grant a permanent injunction enjoining Defendant, its officers, agents,

servants, employees, attorneys, and all persons in active concert or participation with them, from engaging in any unlawful practice that discriminates against an employee or applicant because of their sex, including on the basis of gender identity;

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B.

Order Defendant to institute and carry out policies, practices, and programs

that provide equal employment opportunities regardless of sex (including gender identity), and which eradicate the effects of its past and present unlawful employment practices; C.

Order Defendant to make Branson whole, providing reinstatement or front pay

in lieu of reinstatement, if not feasible; D.

Order Defendant to make Branson whole, providing appropriate backpay with

prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices; E.

Order Defendant to make Branson whole by providing compensation for past

and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 10 through 22 above in amounts to be determined at trial; F.

Order Defendant to make Branson whole by providing compensation for past

and future nonpecuniary losses resulting from the unlawful practices complained of in paragraphs 10 through 22 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial; G.

Order Defendant to pay Branson punitive damages for its malicious or

recklessly indifferent conduct described in paragraphs 10 through 22 above, in amounts to be determined at trial; H.

Grant such further relief as the Court deems necessary and proper in the

public interest; and I.

Award the Commission its costs of this action.

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JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.

Respectfully submitted, P. DAVID LOPEZ General Counsel JAMES LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M Street, N.E. Washington, DC 20507 ROBERT WEISBERG Regional Attorney Florida Bar # 285676 KIMBERLY A. CRUZ Supervisory Trial Attorney Florida Bar # 153729 s/ Jan Shelly________________ JAN SHELLY TRIAL COUNSEL Senior Trial Attorney Missouri Bar # 42085 SAMANTHA WILLIAMS Trial Attorney Florida Bar # 0107117 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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501 East Polk Street, Suite 1000 Tampa, Florida 33602 Telephone: 813-202-7947 Facsimile: 813-228-2045 Email: [email protected] [email protected]

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Case 8:14-cv-02421-MSS-AEP Document 1-1 Filed 09/25/14 Page 1 of 2 PageID 9

JS 44 (Rev. 12/12)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

U.S. Equal Employment Opportunity Commission

Lakeland Eye Clinic

(b) County of Residence of First Listed Plaintiff

County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES) NOTE:

Polk

(IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

(c) Attorneys (Firm Name, Address, and Telephone Number) Jan Shelly, Esq.; U.S. EEOC, Tampa Field Office, 501 E. Polk Street, Tampa, FL 33602, (813)202-7947

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) ’ 1

U.S. Government Plaintiff

’ 3

Federal Question (U.S. Government Not a Party)

’ 2

U.S. Government Defendant

’ 4

Diversity (Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) PTF Citizen of This State ’ 1

DEF ’ 1

and One Box for Defendant) PTF DEF Incorporated or Principal Place ’ 4 ’ 4 of Business In This State

Citizen of Another State

’ 2

’

2

Incorporated and Principal Place of Business In Another State

’ 5

’ 5

Citizen or Subject of a Foreign Country

’ 3

’

3

Foreign Nation

’ 6

’ 6

IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT ’ ’ ’ ’ ’ ’ ’

’ ’ ’ ’ ’

TORTS

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise

’ ’ ’ ’ ’ ’ ’ ’ ’ ’

’ ’ ’ ’ ’ ’

REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

’ ’ ’ ’ ’ ’ ’

PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers’ Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Medical Malpractice CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education

FORFEITURE/PENALTY

PERSONAL INJURY ’ 365 Personal Injury Product Liability ’ 367 Health Care/ Pharmaceutical Personal Injury Product Liability ’ 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY ’ 370 Other Fraud ’ 371 Truth in Lending ’ 380 Other Personal Property Damage ’ 385 Property Damage Product Liability PRISONER PETITIONS Habeas Corpus: ’ 463 Alien Detainee ’ 510 Motions to Vacate Sentence ’ 530 General ’ 535 Death Penalty Other: ’ 540 Mandamus & Other ’ 550 Civil Rights ’ 555 Prison Condition ’ 560 Civil Detainee Conditions of Confinement

’ 625 Drug Related Seizure of Property 21 USC 881 ’ 690 Other

BANKRUPTCY ’ 422 Appeal 28 USC 158 ’ 423 Withdrawal 28 USC 157 PROPERTY RIGHTS ’ 820 Copyrights ’ 830 Patent ’ 840 Trademark

’ ’ ’ ’ ’ ’

LABOR 710 Fair Labor Standards Act 720 Labor/Management Relations 740 Railway Labor Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Employee Retirement Income Security Act

’ ’ ’ ’ ’

SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))

FEDERAL TAX SUITS ’ 870 Taxes (U.S. Plaintiff or Defendant) ’ 871 IRS—Third Party 26 USC 7609

OTHER STATUTES ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’ ’

’

375 False Claims Act 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/ Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes

IMMIGRATION ’ 462 Naturalization Application ’ 465 Other Immigration Actions

V. ORIGIN (Place an “X” in One Box Only) ’ 1 Original Proceeding

’ 2 Removed from State Court

’ 3

Remanded from Appellate Court

’ 4 Reinstated or Reopened

’ 5 Transferred from Another District (specify)

’ 6 Multidistrict Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Title VII of the Civil Rights Act of 1964, as amended

VI. CAUSE OF ACTION Brief description of cause:

Unlawful employment practices on the basis of sex

’ CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER RULE 23, F.R.Cv.P. COMPLAINT: VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE DATE

CHECK YES only if demanded in complaint: ’ Yes ’ No JURY DEMAND:

DEMAND $

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

s/ Jan Shelly

09/25/2014 FOR OFFICE USE ONLY RECEIPT #

AMOUNT

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Case 8:14-cv-02421-MSS-AEP Document 1-1 Filed 09/25/14 Page 2 of 2 PageID 10

JS 44 Reverse (Rev. 12/12)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I.(a)

(b)

(c)

Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".

II.

Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)

III.

Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.

IV.

Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.

V.

Origin. Place an "X" in one of the six boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.

VI.

Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII.

Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.