Transgender Walmart Worker Allegedly Called ‘It’ Loses Bias Suit

April 2, 2021, 5:39 PM

A former Walmart Inc. employee in North Carolina failed to state viable job bias or other claims through her allegations that she was so harassed because of her transgender status, including being called “it” by an assistant manager, that she had to get treated for mental health problems, a federal judge ruled.

The gender identity-based harassment alleged by Justin Hooten isn’t actionable under Title VII of the 1964 Civil Rights Act, the U.S. District Court for the eastern District of North Carolina said Thursday.

Assistant manager Daniel Whitner avoided Hooten and, “apparently instead of using her preferred pronoun,” called her “it” after she transferred to a Walmart in Raleigh, the court said.

Such behavior isn’t “severe or pervasive enough to support a hostile work environment claim,” Judge Terrence W. Boyle said.

Another manager allegedly rolled her eyes at Hooten and, Hooten “seems to imply,” was also overly critical of her job performance, the judge said. That likewise isn’t severe or pervasive enough under Title VII, Boyle said.

Hooten said the abuse drove her from the workplace, resulting in her constructive discharge. But if it wasn’t bad enough to rise to the level of actionable harassment, it wasn’t so intolerable to leave her no reasonable choice but to quit, the court said.

Her constructive discharge claim also failed because a new store manager she complained to showed his willingness to stop the alleged abuse, including inviting Hooten to submit a written statement, the court said.

That he “wasn’t moving fast enough for plaintiff’s approval” doesn’t describe a deliberate effort to get her to resign, the court said.

Hooten’s retaliation claim failed because it was based solely on her insufficient constructive discharge allegations, Boyle said

She also clearly wasn’t dissuaded by the alleged retaliation as she later contacted both Walmart corporate’s ethics hotline and the Equal Employment Opportunity Commission, the judge said.

Hooten of Charlotte represented herself. FordHarrison LLP represented Walmart.

The case is Hooten v. Walmart Inc., 2021 BL 121552, E.D.N.C., No. 5:20-cv-00697, 4/1/21.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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