THIS ARTICLE WAS FIRST PUBLISHED ON HRLAWS.COM’S TENNESSEE EMPLOYMENT LAW LETTER BY BUTLER SNOW’S David L. Johnson.
In previous issues of this newsletter, we’ve reported on how federal courts across the country are struggling with whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation. In March 2018, the U.S. 6th Circuit Court of Appeals (which oversees federal courts in Tennessee) found that a transgender employee was protected under Title VII’s prohibition on discrimination based on the failure to conform to sex stereotypes. Since then, however, Tennessee federal district courts haven’t interpreted the 6th Circuit’s decision to hold that Title VII also precludes sexual orientation discrimination. Recently, an East Tennessee federal district court concluded that a lesbian magistrate judge couldn’t pursue Title VII claims, and it upheld a jury’s rejection of her claims that she was subjected to unlawful discrimination in violation of the Fourteenth Amendment to the U.S. Constitution.
Elizabeth Gentzler served as a magistrate judge for the Hamilton County Juvenile Court. Magistrate judges work under the supervision of juvenile court judges, who are elected officials. Gentzler’s boss, Juvenile Court Judge Robert Philyaw, transferred her and then refused to reappoint her. Philyaw stated that he felt Gentzler was “haughty” and demonstrated “black-robe fever,” a term used for judges who exhibit an imperious attitude.
Gentzler, a lesbian, filed a lawsuit alleging she was subjected to a hostile work environment and terminated on the basis of her gender and sexual orientation. In addition to filing claims under Title VII and the Tennessee Human Rights Act (THRA), she alleged that Philyaw violated her Fourteenth Amendment right to equal protection under the law.
Before trial, the district court dis missed all of Gentzler’s claims except her Fourteenth Amendment claim and the THRA claim that she was fired on the basis of her gender. At trial, she presented testimony from a former coworker that Philyaw avoided her because of her sexual orientation. She also presented evidence that she capably performed her duties and that lawyers who appeared before her had a favorable perception of her.
Gentzler offered no evidence that she was fired for being a woman, and the district court judge therefore dismissed her gender discrimination claim before the end of the trial. The judge allowed the jury to determine only if Philyaw unlawfully fired Gentzler on the basis of her sexual orientation in violation of the Fourteenth Amendment. After deliberating, the jury determined that she failed to show the judge discriminated against her on the basis of her sexuality. Gentzler asked the court to enter a verdict in her favor or grant a new trial.
The district court denied Gentzler’s request and upheld the jury verdict. The court refused to reconsider its previous ruling that Gentzler couldn’t pursue claims under Title VII. First, the court found that she wasn’t an “employee” under the statute. Because she worked on Philyaw’s personal staff and was a “policy-making employee,” she wasn’t entitled to Title VII protection. Regardless, the court noted that she didn’t “identify any change in controlling law that suggests the Court erred in finding that sexual orientation is not a protected class under Title VII.”
The district court also found that the jury’s decision wasn’t unreasonable. According to the court, Philyaw testified that he felt Gentzler was “over-confident and had a sense of over-importance that did not suit a magistrate judge” and was “passive-aggressive” and “condescending.” It was within the jury’s discretion to determine whether his testimony was credible. Because there was sufficient evidence that allowed the jury to choose to believe his nondiscriminatory explanation, the court entered an order dismissing all of Gentzler’s claims. Gentzler v. Hamilton County, No. 1:15-cv-295, Doc. 131 (E.D. Tenn., Aug. 1, 2018).
This case is unusual because Gentzler was allowed to pursue a sexual orientation discrimination claim even though the court found that Title VII doesn’t allow such claims. Because she alleged wrongdoing by a public official, she was able to pursue Fourteenth Amendment claims under a civil rights statute, which makes the case much different than most private-sector workplace complaints. The court implicitly found that the Fourteenth Amendment prevents a public official from taking adverse employment actions based on sexual orientation.
Gentzler didn’t appeal the court’s decision to the 6th Circuit. Therefore, the court of appeals won’t be able to use it as an opportunity to determine whether Title VII prohibits sexual orientation discrimination. Even if the district court had allowed her to pursue a Title VII claim, it’s doubtful the outcome would have been any different. Because the jury rejected her other claims, it probably would have rejected her Title VII claim. The writing was on the wall. As this case demonstrates, it’s really hard to convince a court to overturn a jury verdict.