Case 4:17-cv-02188 Document 1 Filed in TXSD on 07/17/17 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION NICOLE C. WITTMER, Plaintiff, vs.
PHILLIPS 66 COMPANY, Defendant.
§ § § § § § § § § § § §
CIVIL ACTION NO. 4:17-cv-2188 JURY DEMANDED
______________________________________________________________________________ PLAINTIFF’S ORIGINAL COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT JUDGE: NOW COMES, Nicole C. Wittmer (hereinafter “Plaintiff” or “Ms. Wittmer”) and files this Plaintiff’s Original Complaint complaining of and about PHILLIPS 66 Company (hereinafter “PHILLIPS 66”), showing to the Court as follows: I. PARTIES 1.
Plaintiff, Nicole C. Wittmer, is an individual citizen residing in the State of Texas.
2.
Defendant, PHILLIPS 66, is foreign for-profit corporation conducting business in the
State of Texas. 3.
Defendant may be served with process through its registered agent, as reflected in the
Texas Secretary of State records, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company, at 211 E. 7th Street, Ste. 620, Austin, Texas 78701, via certified mail, return receipt requested. Plaintiff has requested a waiver of summons from Defendant at
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this time. II. NATURE OF THE ACTION 4.
This is an action against PHILLIPS 66 for violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e-2(a). Specifically, Plaintiff contends that Defendant discriminated against her on the basis of her sex (female) by not confirming to sex stereotypes, when on September 16, 2015, Defendant rescinded Plaintiff’s offer of employment as Reliability Engineer for being a transgender woman. III. JURISDICTION AND VENUE 5.
This Court has jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. § 1331 as this
case presents federal questions pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2(a). 6.
Moreover, venue is proper in this district pursuant to 28 U.S.C. § 1391(b) (2) because a
substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this federal district. IV. PROCEDURAL REQUIREMENTS 7.
On September 15, 2015, Plaintiff filed a charge of sex (female) discrimination with the
U.S. Equal Employment Opportunity Commission (“EEOC”) (Charge No. 450-2015-04155) against Defendant. 8.
On April 19, 2017, the EEOC issued Plaintiff her Notice of Right to Sue. Plaintiff files
this lawsuit within ninety (90) days of receiving her Notice of Right to Sue.
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V. FACTUAL BACKGROUND 9.
Ms. Nicole C. Wittmer is a transsexual woman.
10.
On March 31, 2015, Ms. Wittmer applied for a Reliability Engineer position at
PHILLIPS 66, at their refinery in Borger, Texas. On July 7, 2015, Ms. Wittmer received an email from Marilyn Golf, Human Resources, to schedule a phone interview. On July 10, 2015, Ms. Wittmer interviewed with David Long, Instrument and Controls Engineer. 11.
On August 3, 2015, Ms. Wittmer had an in-person interview at PHILLIPS 66. Ms.
Wittmer met with Karl Sosebee, Maintenance Manager, Ellen Fulton, Human Resources Manager, David Gains, Core Craft Team Leader, Mike Massey, Maintenance Engineer Lead, Lou Cardinale, Area Reliability Engineer, and Mr. Long. During Ms. Wittmer’s interview, she was told by the interview panel that they were lucky to have found someone like her because they needed someone with her skill set. Ms. Wittmer was qualified for the position. 12.
On August 8, 2015, Ms. Wittmer received a call from Anna LaRock, recruiter for
PHILLIPS 66, inquiring into Ms. Wittmer’s salary expectations. On August 10, 2015, Ms. Wittmer received a call from Mr. Long, who offered her the position of Reliability Engineer. On August 14, 2015, Ms. Wittmer received a written offer of employment from PHILLIPS 66 signed by Mr. Long. 13.
The offer of employment stated that Ms. Wittmer’s employment was contingent on
completion of the following four items: (a) her pre-placement requirements-citizenship and work eligibility, (b) a medical assessment, (c) a background check, and (d) a drug test. PHILLIPS 66 gave Ms. Wittmer until August 17, 2017, to accept this offer of employment. 14.
On August 14, 2015, Ms. Wittmer accepted the offer of employment for the position of
Reliability Engineer at PHILLIPS 66. Plaintiff’s Original Complaint & Jury Demand
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15.
On August 17, 2015, Ms. Wittmer received an email from Jennifer Edwards, Human
Resources Associate, with information to log into “HireRight,” a third-party vendor that would conduct a background check on Ms. Wittmer. 16.
On August 18, 2015, Ms. Wittmer received an email from Fritzie Flores with HireRight
requesting the dates she attended Drexel University, where she obtained a BSSE. Ms. Wittmer reported she attended Drexel University from September 1, 1972, to June 1, 1997. On August 18, 2015, Ms. Flores emailed Ms. Wittmer to inform her that Drexel University had reported her dates of attendance from April 4, 1994, to June 14, 1997. Ms. Wittmer replied to Ms. Flores stating that she was correct and that Ms. Wittmer had made a typographical error. 17.
On August 19, 2015, Ms. Flores emailed Ms. Wittmer asking for documentation, such as
a W-2 or 1099 tax form, to verify her past employment with Bechtel. Ms. Wittmer also received an email from Virgilio Antonio Jr., with HireRight, asking for the same documents. 18.
On August 19, 2015, Ms. Wittmer emailed Mr. Antonio documents reflecting her dates of
employment with Bechtel. Mr. Antonio replied confirming receipt of the documents and stated that the information regarding Ms. Wittmer’s attendance dates at Drexel University “[was] taken care of.” 19.
On August 20, 2015, Ms. Wittmer received an email from Eduard Ramirez from
HireRight stating that they could not accept the documents she had submitted regarding her dates of employment at Bechtel, and that they needed paystubs, a W-2, or a 1099 tax form. Ms. Wittmer submitted her W-2 tax form from Bechtel. 20.
On August 25, 2015, Ms. Wittmer received an Adjudications Results Summary from
HireRight, which was also sent to PHILLIPS 66. The Adjudications Results Summary showed that Ms. Wittmer had transitioned from male to female by identifying her previous male name.
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The Adjudications Results Summary concluded that Ms. Wittmer had met the company’s standards for all eight (8) areas, including meeting her employment and education background check. 21.
On September 2, 2015, Ms. Fulton called Ms. Wittmer and claimed that Ms. Wittmer had
lied during her interview regarding her dates of employment at Agrium, Ms. Wittmer’s last employer. Agrium reported Ms. Wittmer’s last date of employment as August 1, 2015, and not August 3, 2015, as Ms. Wittmer had identified. Ms. Wittmer explained to Ms. Fulton that Agrium’s Human Resources had undergone a re-organization and that they had not synched their records with their headquarters in Canada to reflect her last date of employment with Agrium as August 3, 2015. 22.
On September 8, 2015, Ms. Wittmer received an email from Esther Acheampong,
Clinical Nurse for PHILLIPS 66, indicating that she was medically approved for job placement at PHILLIPS 66. 23.
On September 10, 2015, Ms. Wittmer emailed Ms. Fulton and copied Ms. Edwards,
stating, “Ladies, I became aware that you all found out that I am a transsexual woman. No one ever comes out and says that is why they do not want you. But to make up a false reason is not Christian. Not only does you[r] diversity policy disallow discrimination, there are also several federal laws that prohibit discriminating against me also.” 24.
On September 11, 2015, Ms. Edwards emailed Ms. Wittmer to bring her 1-9
documentation to work on September 14, 2015. Ms. Fulton then emailed Ms. Wittmer to disregard Ms. Edward’s email and to not report to work. 25.
On September 16, 2015, Ms. Wittmer received a letter from Ms. Fulton stating, “Based
upon discrepancies in employment information provided during the interview and the data that
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was verified during the pre-employment process, we now find it necessary to inform you that the offer of employment is hereby rescinded.” VI. DISPARATE TREATMENT SEX DISCRIMINATION PURSUANT TO TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, 42 U.S.C. § 2000e-2(a) 26.
Plaintiff incorporates by reference all of the foregoing allegations in each of the
paragraphs above as if fully set forth herein. 27.
Defendant, PHILLIPS 66, intentionally engaged in unlawful employment practices
involving Plaintiff because of her sex (female) by not conforming to sex stereotypes when on September 16, 2015, Defendant rescinded Plaintiff’s offer of employment as Reliability Engineer for being a transgender woman. 28.
Defendant, PHILLIPS 66, discriminated against Plaintiff in connection with the
compensation, terms, conditions and privileges of employment, or limited, segregated, or classified Plaintiff in a manner that would deprive or tend to deprive her of any employment opportunity or adversely affect her status because of Plaintiff's sex (female) in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a). VII. JURY DEMAND 29.
Plaintiff demands a jury trial on all issues alleged in this matter. Plaintiff has submitted
the appropriate jury fee with her Original Complaint. VIII. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant be cited to appear and answer herein, and that on final trial, the Court award a judgment against Defendant for the following:
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a.
All damages to which Plaintiff may be entitled pursuant to this Original Complaint, or an amendment thereto, including but not limited to back pay, reinstatement, upgrading, and compensation for benefits not received;
b.
Past physical pain and mental suffering;
c.
Present physical pain and mental suffering;
d.
Future physical pain and mental suffering;
e.
Punitive damages in an amount above the minimum jurisdictional limits of the Court;
f.
Reasonable attorneys’ fees as allowed by law, with conditional awards in the event of appeal;
g.
Pre-judgment interest at the highest rate permitted by law;
h.
Post-judgment interest from the judgment until paid at the highest rate permitted by law;
i.
Costs of Court;
j.
Injunctive relief; and
k.
Such other and further relief, at law or in equity, to which Plaintiff may be entitled, whether by this Original Complaint or by proper amendment thereto.
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Respectfully submitted,
_________________________ Alfonso Kennard, Jr. Texas Bar No. 24036888 S.D. ID 713316 2603 Augusta Dr., Suite 1450 Houston, Texas 77057 T: (713) 742-0900 F: (713) 742-0951
[email protected] ATTORNEY-IN-CHARGE FOR PLAINTIFF
OF COUNSEL FOR PLAINTIFF:
/s/ José E. Galvan Jose E. Galvan Texas Bar No. 24083039 S.D. ID 2200705 2603 Augusta Dr., Suite 1450 Houston, Texas 77057 T: (713) 742-0900 F: (713) 742-0951
[email protected]
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