A trans woman is suing the University of the Pacific for alleged harassment and discrimination. While the acts she described as being perpetrated against her are notable enough, it's the intrusive nature of the defendant's discovery process that is, perhaps, even more unusual. The case is expected to face a motion for summary adjudication hearing December 23, and trial on February 14.
Nicole Shaw, 53, began work at UOP's Arthur A. Dugoni School of Dentistry in San Francisco on October 12, 2020, as a security guard. Almost from the beginning, Shaw alleges, her co-workers began harassing her, openly speculating on her gender, and referring to her as "he/him," "dude," and "man." Shaw did not respond to a request for comment.
The lawsuit was filed in San Francisco Superior Court in June 2021. Shaw's employment with the university ended "on or about" February 8, 2021, according to the filing.
Shaw is being represented by attorney Oleg Albert, a straight ally, with LeClerc and LeClerc, a law firm specializing in employment law, representing employees. The private university, which has its main campus in Stockton, California, declined to comment on the case.
"Pacific does not comment on litigation out of respect for the privacy rights of the parties involved, and to protect the integrity of the legal process," said Mike Klocke, senior director of media relations.
It was the university's use of the discovery process to further harass Shaw that caused the court, on August 22, to issue a motion for a protective order in Shaw's favor, Albert said.
The discovery by the university, said Albert, "fundamentally attacked her identity."
According to a discovery order filed with the court, UOP had demanded access to information about Shaw's genitalia; the dates she first began to identify as female; what hormone treatments and providers she was using, as well as transition medications, both prescribed and over-the-counter. Additionally, defendants demanded information about her transition-related procedures and medical providers; any prosthetics she utilized to present as female; non-surgical treatments to present as female, "such as hair removal, speech therapy, and hormonal therapy"; and the date of her "first use of the 'Tucking Method.'"
Tucking is moving the penis, testicles, or both out of the way, explained a handout from the Oregon Health and Science University in Portland. "This makes the genital area look smoother and flatter. Tucking can reduce any concerns you have about your body, how your clothes fit and how safe you feel in public. People of all genders can tuck," the handout states.
The defendants' efforts, Shaw claimed, were a misuse of the discovery process solely in order to cause "unwanted annoyance, embarrassment, or oppression, or undue burden and expense."
These sorts of questions would never be posed to other litigants, Shaw argued, and were "nothing short of a wildly inappropriate discovery tactic."
Or, as Albert observed to the Bay Area Reporter, "I'm Jewish. Do I have to show I'm circumcised?"
In turn, the defendants countered that Shaw "chose to place her status as a transgender female, gender identity, gender expression and marital status at issue."
The back-and-forth led to the following observation by Superior Court Judge Curtis E.A. Karnow in his protective order: "Defendant apparently claims its employees were confused about Plaintiff's gender and gender identity, but Defendant admitted to the referee that its employees had not seen Plaintiff's genitalia and that Plaintiff had not displayed her genitalia. Defendant's employees cannot have formed any mistaken impression of Plaintiff's gender from her anatomy that they have not seen."
Ultimately, Karnow granted a protective order, stating that the defendants' questions "need not be answered," and that the information they requested is protected by a constitutional right to privacy.
"The interrogatories are a patent abuse of the discovery process," Karnow continued, issuing an order to the defendants to pay $5,160 in sanctions.
The defendants went on to suggest that any transphobic or homophobic comments, or any statements misgendering Shaw, "may have been the result of mistake or misunderstanding."
Other claims made by the defendants were that they were not required to recognize Shaw as being part of a protected class; and that her government-issued identification and birth certificate "are not sufficient proof of transgender nor are a Court-approved change of name and gender."
Lawsuit allegations
Because the school's security detail modeled itself after a paramilitary organization, every employee with a higher rank than Shaw's was her supervisor within the meaning of the California Fair Employment and Housing Act, according to the lawsuit. Shaw's title was "patrol officer" and she identified herself as a woman from the outset of her employment, the lawsuit stated.
Despite that, her fellow employees almost immediately began misgendering her, even though she corrected them numerous times and asked to be referred to as a woman.
"However," the filing stated, "the misgendering persisted."
According to the lawsuit, Shaw spoke with one of her superiors, Sergeant Emilio Fastidio, about the matter, telling him she did not want to be referred to as a man and asking for help. Fastidio did not return a message seeking comment.
"Sergeant Fastidio told Shaw that various employees were saying things about Shaw that are much worse," the filing stated. "Sergeant Fastidio told Shaw that employees were discussing Shaw's 'plumbing,' in a reference to Shaw's genitals. Sergeant Fastidio also told Shaw that co-workers were discussing what to do if Shaw 'wanted to suck their dick(s)'. Shaw explained that these comments were unwelcome and unacceptable. Shaw also reported/complained to Sergeant Fastidio that an employee made a harassing comment in the workplace to the effect of 'gays are the ruin of society.'"
There were other forms of harassment, as well, the suit alleges.
There was no locker room for female employees, forcing Shaw to change in the same space as her male co-workers. Employees, the suit stated, were encouraged to change into their uniforms in the locker room, where they were also to store their university-issued handguns.
On October 26, 2020, the lawsuit states, Shaw complained again to Fastidio, saying that the rotation of her posts were being disregarded. During the COVID pandemic, posts were limited to 45 minutes in high traffic areas of the campus to mitigate exposure to the virus, yet Shaw said she found herself being posted to high-traffic areas for up to four hours at a time.
Further complaints to Fastidio and Director John Feeney over the ensuing days were met with insistences by Feeney that Shaw not get other people involved in her problems. Feeney did not return a message seeking comment.
"In other words," the filing stated, "Director Feeney sought to interfere with Shaw's right to complain/report unlawful conduct."
On October 29, Shaw reached out to human resources, where she complained about yet another co-worker, Corporal Quan [no other name is given] misgendering her, even going so far as to tell Shaw he would just call her Nick. Afterward, Quan approached Shaw, and accused her of being a snitch, according to the lawsuit.
Hostile work environment alleged
Shaw described a hostile work environment, noting that other members of the security detail would use the campus' closed circuit cameras to zero in on random women, making sexual comments about them despite Shaw's objections. This carried over to discussions in Shaw's presence about the sexual desirability of various women around the campus, as well. She said she heard them comment, too, about the physical appearances of another transgender woman visiting the campus, including comments such as "when she sits down [in the waiting room], she should be careful that her balls don't fall out."
Shaw also endured questions about her marriage to another woman, including questions about who was the top and who was the bottom in their sexual activities.
The case itself, noted attorney Albert, while not a precedent-setting one, is important.
It's not precedent setting "in that people who choose to ignore certain things will continue to, and people who are open to recognize this as an example of why some of these things do matter in a fundamental way recognized by the process that exists in our state or country," Albert told the B.A.R.
There is, of course, a broader lesson here, the attorney said.
"Fundamentally, what this boils down to is, don't be a jerk to your fellow human beings," noted Albert.
Help keep the Bay Area Reporter going in these tough times. To support local, independent, LGBTQ journalism, consider becoming a BAR member.