Chavez v. Credit Nation Auto Sales (49 F. Supp. 3d 1163, 2014)

Citations

49 F. Supp. 3d 1163

Full opinion text

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., District Judge.

This matter is before the Court on Magistrate Judge J. Clay Fuller’s Final Report and Recommendation (“R & R”) [76] on Defendant Credit Nation Auto Sales’s Motion for Summary Judgment [48].

I. BACKGROUND

A. Facts

Plaintiff Jennifer Chavez (“Plaintiff’) was formerly employed as an automobile technician at Credit Nation Auto Sales (“Defendant” or “Credit Nation”). Credit Nation sells and repairs automobiles in Austell, Georgia. In June, 2008, Plaintiff started working at Credit Nation. At that time, Plaintiff was known as Louie Chavez and presented as a male. In the summer of 2009, Plaintiff decided to go through a gender transition because Plaintiff “could no longer run from [her] condition, and Plaintiff “did not want to die having lived a lie.” Chavez Dep. at 37. Plaintiff sought help from a mental health expert, attended meetings at a transsexual support group, and decided to inform Defendant of the intention to transition from a male to a female.

On October 28, 2009, Plaintiff met with Phil Weston, Plaintiffs immediate supervisor, and Cindy Weston, the Vice President of Credit Nation. Plaintiff informed them of the intention to transition from a male to a female. According to Plaintiff, Mr. and Mrs. Weston were both “extraordinarily kind” regarding the decision to transition. Jim Torcía, the owner of Credit Nation, testified that Plaintiffs decision to transition “did not move the needle for [him].” Torcía Dep. at 19-20.

After meeting with Mr. and Mrs. Weston, Plaintiff informed Credit Nation’s service facility employees regarding Plaintiffs decision to transition from a male to a female. According to Plaintiff, the service facility employees were supportive of the decision, and “they all said they had no issue” with the transition. Chavez Dep. at 44-45. A week after Plaintiff announced the decision to transition, Plaintiff emailed a reporter from the Atlanta Journal-Constitution describing the circumstances of the decision to inform Plaintiffs employer about Plaintiffs condition and intent to transition. The reporter previously wrote an article about a transsexual woman, who had prevailed in a sex discrimination lawsuit against the transsexual woman’s former employer. Plaintiff stated the following in the email to the reporter:

I asked for a meeting with my supervisor and the vice-president of the company, after very nervously telling my story, I was surprised to find that they both were extraordinarily understanding, kind and compassionate to hear what I was facing. Not only did they assure me I had nothing to worry about in losing my job, but they made sure that I understood that I had their support and offered any help that they could in completing my transition. The vp went back to her office and called the owner [Jim Torcía] to inform him and see if he agreed with their summation. He too was very supportive and was only concerned that I would be able to continue doing my job, and if that was not a concern then I had nothing to worry about as well. He made sure that all employees understood the no harassment policy and that anyone who committed an infraction would be terminated. All managers and employees were informed, and to my surprise and delight, I was met with nothing but kindness from all employees, even the crotchety old southern guys who I thought were set in their ways.

[49-6 at 1-2].

Plaintiff asserts that the supportive environment at Credit Nation ended two weeks after Plaintiff announced the intended transition. On November 12, 2009, Mrs. Weston told Plaintiff to “tone things down” because Plaintiff “visit[ed] the other technicians’ stalls,” and “talk[ed] about surgeries,” including “breast augmentation.” Weston Dep. at 34. Mrs. Weston stated that these conversations made the other technicians feel uncomfortable. Plaintiff initially testified at a deposition that Mrs. Weston did not “specify” whether Plaintiff was told to “tone things down,” at Mr. Torcia’s direction, but Plaintiff assumed that the message came from Mr. Torcía. Chavez Dep. at 47. At a later point in the deposition, Plaintiff claimed that Mrs. Weston “told [Plaintiff] to tone it down because Mr. Torcía didn’t like” Plaintiff discussing the intricacies of the transition with the other technicians. Chavez Dep. at 131.

On November 17, 2009, Plaintiff accused Richard Randall (“Randall”), an automobile technician at Credit Nation, of being dishonest about a car repair. According to a Credit Nation disciplinary report, Plaintiff received a verbal warning from Mrs. Weston because Plaintiff made “derogatory comments” about Randall during an argument Plaintiff had with Randall.

On November 24, 2009, Mr. Torcía met with Plaintiff at the service facility. Plaintiff alleges that, at this meeting, Mr. Tor-cía told “[Plaintiff] his concerns, worries, and apprehensions” regarding the gender transition. Chavez Dep. at 81. According to Plaintiff, Mr. Torcía stated that he was “nervous about [the transition]” and afraid that the transition may “impact his business” because “an applicant for a tech position declined his offer of employment [due to Plaintiffs] transition.” Id. at 82. Plaintiff alleges that Mr. Torcia complained that her “attire was upsetting other personnel,” and advised Plaintiff not to “wear too feminine attire ... coming to work or leaving work.” Id. at 84-85. Mr. Torcía also expressed his discomfort with Plaintiff wearing dresses, skirts and heels in the service department work area because Plaintiffs attire violated Credit Nation’s workplace rules. Technicians at Credit Nation are required to wear work pants, a uniform shirt, and rubber soled shoes that allow technicians to walk on greasy and slippery surfaces. See Weston Dep. at 37-38.

In December 2009, Credit Nation approved two weeks of paid leave for Plaintiff, even though Plaintiff had accrued only a week of vacation time at that point. The extended period was allowed “to accommodate” Plaintiffs sex reassignment surgery. Chavez Dep. at 64-65; Torcía Dep. at 59.

On December 15, 2009, Plaintiff had another argument with Randall. According to Plaintiff, Randall was dissatisfied that “[Plaintiff] was getting special treatment from [Mrs. Weston],” because Plaintiff was “allowed to go to the doctor’s appointment, do electrolysis almost every morning, and take excessive unpaid time to attend these doctor and therapist appointments.” Chavez Dep. at 61. Other technicians at the service facility “were also upset and thought that [Plaintiff] was getting special treatment by being able to take time off from work and not having to make it up.” Weston Dep. at 148. Plaintiff told Randall to “leave [Plaintiff] alone” because Plaintiff had Mrs. Weston’s personal number. Chavez Dep. at 59-60. Mrs. Weston told Plaintiff “that it had been brought to [Mrs. Weston’s] attention that [Plaintiff] had given the other employees the impression that [Mrs. Weston] had given [Plaintiff her] cell phone number which made [Plaintiff] special.” Weston Dep. at 144. Plaintiff received a verbal warning regarding Plaintiffs comment about getting special treatment from Mrs. Weston. Mrs. Weston gave her personal cell phone number to the other technicians to dispel any perception that Plaintiff was getting special treatment. Weston Dep. at 118.

Mrs. Weston observed Plaintiff change into heels and a dress on several occasions at around 5:30 p.m., and then go back into the service facility area. As a consequence, on December 16, 2009, Credit Nation issued a memo to all service personnel, which explained that all technicians were required to be in uniform from 8:00 a.m. until 5:50 p.m., Monday through Friday.

On December 16, 2009, Kirk Nuhibian (“Nuhibian”), the shop foreman, told Plaintiff not to use the unisex bathroom that is reserved for Credit Nation’s customers and office personnel. Technicians at Credit Nation are required to use a different bathroom because the technicians “wear dirty clothes,” and accumulate oil and grease on their shoes. Chavez Dep. at 74; Nuhibian Dep. at 114; Weston Dep. at 52. Plaintiff started to use the unisex bathroom because she was wearing women’s clothes, and the technician’s bathroom “was quite dirty and grimy,” and it was “hard to use ... without ruining clothes.” Chavez Dep. at 73. Plaintiff objected to Nuhibian’s instruction not to use the unisex bathroom because “[it] meant [Plaintiff] was going to be ruining clothes, and [Plaintiff] did not like that.” Id.

Later on December 16, 2009, Mrs. Weston emailed John McManus, an attorney who handled legal matters for Credit Nation, for advice regarding Plaintiffs use of the unisex bathroom. In the email to Mc-Manus, Mrs. Weston stated:

I wanted to give you a run down on what occurred today ... There are two restrooms located at the Service Center, both are unisex bathrooms. One is designated at [sic] Technicians [sic] restroom and the other is customer and office personnel. The technicians are required to have their own restroom due to the oil and grease that accoumilate [sic] on the bottom of their shoes and clothes. There was a meeting discussing this two weeks prior ... Louie returned today and confronted the shop foreman asking why there was restricted access to the customer restroom? He was told by the shop foreman “all technicians have their own restroom, and we have to keep the customer restroom clean for the customers.” Louie asked who is allowed to use it? Shop foreman repsonded [sic] “Customers, Matt, Philip, Ariel, and Jennifer (parts), everyone except technicians due to the grease on shoes.” ... Louie responded “If Jennifer in parts can use it why can’t I use it, that is decrimination [sic], I will speak with Phil about it.” ... Phil came in and Louie approached him and asked why can’t we use the customer restroom? Phil stated, technicians have their own restroom, and remember the meeting we had two weeks ago about the restroom use? Louie shrugged his shoulders and turned and walked away.

[60-8 at 2-3]

McManus responded to Mrs. Weston with the following email:

Cindy: I am concerned that no matter what you do, [Plaintiff] is going to come up with come [sic] complaint ... I believe there needs to be some report written by Phil indicating the issues about the restroom and how that was resolved. Tomorrow will bring more issues and I think this will get to a breaking point before very long. Just have the management focus on work and performance of required duties and the other issues should be written up one at a time.

Id.

On January 8, 2010, Plaintiff arrived at work and clocked in at 7:39 a.m. Plaintiff did not change into Defendant’s required uniform. Plaintiffs deposition testimony was that there was “nothing to do,” because the parts for a vehicle that Plaintiff was supposed to service had not arrived. Chavez Dep. at 77. Because it was a “very cold day,” Plaintiff “decided to sit in [the] back of one of the cars [she] was working on ... to try and get a little bit warm.” Id. at 77-78. Plaintiff went to sleep in the back of the car. At 9:20 a.m., Nuhibian saw Plaintiff sleeping in the car. Nuhibian took a photograph of Plaintiff sleeping, and sent it to Mr. and Mrs. Weston. At his deposition, Nuhibian testified that he photographed Plaintiff because on past occasions, technicians had denied any wrongdoing when Nuhibian had complained that the technicians had violated work rules. Nuhibian Dep. at 48, 55.

At approximately 9:55 a.m., Plaintiff “heard a noise and I looked up and realized that I had nodded off without intending to.” Chavez Dep. at 78. Plaintiff worked through the rest of the day and went home for the weekend. Mrs. Weston informed Mr. Torcia that Plaintiff was sleeping in the car “while on the clock, which is against [Credit Nation’s] policy.” Weston Dep. at 74. Mr. Torcia and Mrs. Weston agreed to fire Plaintiff, and Mr. Torcia instructed Mrs. Weston to terminate Plaintiffs employment. On January 11, 2010, Plaintiff was terminated for sleeping on the job. A separation notice, dated January 11, 2010, explicitly states that Plaintiff was terminated for “[sleeping while on the clock on company time.” [60-16 at 2],

Under Section 717 of Credit Nation’s Employee Handbook, theft of company property results in immediate termination. Mr. Torcia and Mrs. Weston testified that they considered sleeping on the job to constitute theft because an employee is being paid, but is not working. Mrs. Weston also testified that another employee, who did not have previous write-ups in his file, had been terminated for sleeping on the clock. Weston Dep. at 112.

In November 2009 and September 2010, Plaintiff went to the Equal Employment Opportunity Commission’s (“EEOC”) office in Atlanta to file a claim against Credit Nation for sex discrimination under Title VII of the Civil Rights Act. On both occasions, an EEOC investigator told the Plaintiff that she could not file a discrimination claim because transgender persons are not protected from discrimination on the basis of “sex” under Title VII. In April 2012, Plaintiff went to the EEOC’s office after hearing news reports that transgender persons had filed complaints with the EEOC. On this occasion, Plaintiff was allowed to file a complaint for sex discrimination under Title VII.

B. Procedural History

On January 30, 2013, Plaintiff filed this action against Credit Nation, asserting claims of sex-based discrimination under Title I, 42 U.S.C. § 1981(a), and Title VII, 42 U.S.C. § 2000e, of the Civil Rights Act of 1991.

On December 11, 2013, Credit Nation moved for summary judgment. On July 18, 2014, Magistrate Judge Clay Fuller issued his R & R on the summary judgment motion. In the R & R, the Magistrate Judge recommended that (i) Plaintiffs sex discrimination claim be equitably tolled because the EEOC misled Plaintiff about the nature of Plaintiffs rights under Title VII, and (ii) Defendant’s Motion for Summary Judgment be granted because Plaintiff failed to show that Credit Nation’s reason for terminating her employment was a pretext for unlawful discrimination.

On August 1, 2014, Plaintiff filed Objections [78] to the R & R, arguing that there are genuine issues of fact regarding whether Credit Nation’s decision to terminate Plaintiff was a pretext for unlawful discrimination. On August 13, 2014, Defendant filed its reply to the Plaintiffs Objections to the R & R [79]. Defendant did not object to the R & R’s findings and recommendations.

II. DISCUSSION

A. Legal Standards

1. Standard of Review for R & Rs

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. V 2011); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir.1982) (per curiam). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). If no party has objected to the report and recommendation, a court conducts only a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983) (per curiam).

2. Summary Judgment Standard

Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir.1999). Once the moving party has met this burden, the non-movant must demonstrate that summary judgment is inappropriate by designating specific facts showing a genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.1999). The non-moving party “need not present evidence in a form necessary for admission at trial; however, he may not merely rest on his pleadings.” Id.

“At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Where the record tells two different stories, one blatantly contradicted by the evidence, the Court is not required to adopt that version of the facts when ruling on summary judgment. Id. “[Credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury....” Graham, 193 F.3d at 1282. “If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. The party opposing summary judgment “‘must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.’ ” Scott, 550 U.S. at 380, 127 S.Ct. 1769 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87,106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A party is entitled to summary judgment if “the facts and inferences point overwhelmingly in favor of the moving party, such that reasonable people could not arrive at a contrary verdict.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.2002) (internal quotations omitted).

B. Analysis

1. Findings of the R & R

i. Equitable Tolling

Plaintiff failed to exhaust her administrative remedies because she did not file a charge of discrimination with the EEOC within 180 days of the last discriminatory act. See Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 (11th Cir.2003). Title VII’s filing requirement is subject to equitable tolling under certain circumstances. Bourne v. School Bd., 508 Fed.Appx. 907, 909 (11th Cir.2013). The limitations period under Title VII may be equitably tolled if the EEOC misleads a complainant regarding the nature of his or her rights. Jones v. Wynne, 266 Fed.Appx. 903, 906 (11th Cir.2008). The Magistrate Judge concluded that the statute of limitations should be equitably tolled in this case because the EEOC misled Plaintiff regarding her rights by informing Plaintiff that transgender persons cannot file claims for sex discrimination under Title VII.

In Price Waterhouse v. Hopkins, the United States Supreme Court held that discrimination on the basis of gender stereotypes is sex-based discrimination under Title VII. 490 U.S. 228, 235, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In other words, Title VII prohibits employers from discriminating against employees for “failing to act and appear according to expectations defined by gender.” Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir.2011). “[T]he very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior ... there is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.” Id. “Discrimination against a transgender individual because of her gender nonconformity is sex discrimination, whether its described as being on the basis of sex or gender.” Id. at 1317.

The Magistrate Judge found that a majority of federal courts recognize that Title VII protects persons from discrimination based on gender non-conformity, and the EEOC misled Plaintiff when it told Plaintiff that she could not bring a claim for gender discrimination under Title VII. The Court finds no plain error in this finding. Because Title VII protects discrimination based on gender stereotypes, Plaintiff can assert a sex discrimination claim because Plaintiff was transitioning from a male to a female, and Plaintiff essentially claims that the failure to conform to male stereotypes caused Plaintiffs termination. The Court finds no plain error in the Magistrate Judge’s recommendation that Plaintiffs sex discrimination claim is required to be equitably tolled. See Smith v. Baldwin Cnty. Comm’n, No. 09-0616-CG-M, 2010 WL 2200713, at *3 (S.D.Ala. Mar. 26, 2010) (applying equitable tolling to a discrimination claim because an EEOC investigator incorrectly told plaintiff that she did not have a valid retaliation claim).

ii. Discrimination Claim—Pretext

Under the McDonnell Douglas framework, a prima facie case of sex discrimination is established if the plaintiff shows that “(1) she is a member of a protected class, (2) she was qualified for the job, (3) she was subjected to an adverse employment action, and (4) her employer treated similarly situated employees outside her class more favorably.” Curtis v. Broward Cnty., 292 Fed.Appx. 882, 883 (11th Cir.2008).

For the purpose of the Court’s review of the R & R, the Court assumes that Plaintiff established a prima facie case of discrimination. Because Defendant offered evidence of a legitimate business reason for Plaintiffs discharge, and in light of Plaintiffs objection, the Court reviews de novo whether Plaintiff has offered evidence that there are disputed issues of fact regarding whether the reason for Plaintiffs termination was a pretext for unlawful discrimination.

Credit Nation articulated a legitimate, nondiscriminatory reason for Plaintiffs termination, and thus the burden shifts to Plaintiff to produce evidence “sufficient to permit a reasonable factfinder to conclude that the reasons given by [Credit Nation] were not the real reasons for the adverse employment decision.” Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir.2000). Plaintiff must demonstrate “such weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Combs v. Plantation Patterns, Meadowcraft, Inc., 106 F.3d 1519, 1528 (11th Cir.1997). If the proffered reason for termination “is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarrelling with the wisdom of that reason.” Chapman, 229 F.3d at 1030.

The Magistrate Judge found that a reasonable juror would not conclude that Plaintiffs failure to conform to gender stereotypes motivated Credit Nation’s decision to terminate her employment, and thus recommended that summary judgment be granted to Defendant. Plaintiff objects to the Magistrate Judge’s finding that there is not any evidence that Credit Nation’s reason for terminating her employment was motivated by unlawful discrimination. Plaintiff contends that she raised five categories of evidence to show that Credit Nation’s decision was a pretext for unlawful discrimination, and argues that the Magistrate Judge improperly discounted the strength of the offered evidence. The Court disagrees.

Plaintiff argues that the circumstances, prior to, and at the time of her termination suggest that she was fired because of her failure to conform to gender stereotypes. To support this claim, Plaintiff argues that Mrs. Weston’s November, 12, 2009, request “to tone it down,” “was not a perfectly reasonable request not to talk about breasts and surgeries, but an attempt to tell Plaintiff that her gender and gender identity were not appreciated [at Credit Nation], that coworkers were uncomfortable with her, and that she should tread carefully lest she find herself in disciplinary trouble or worse.” Pl.’s Objections at 8. Plaintiff now concedes that Mrs. Weston’s admonishment that Plaintiff should refrain from discussing graphic details about Plaintiff’s transition with other employees was “perfectly reasonable.” Id. There is no evidence to support Plaintiff’s contention that Mrs. Weston made any statements that can be construed as a warning that Plaintiff “should tread carefully lest she find herself in disciplinary trouble or worse” because of her protected status. Id. Mrs. Weston testified that she told Plaintiff “to tone things down” because Plaintiff “visit[ed] the other technicians’ stalls” during work hours to “talk about surgeries,” including “breast augmentation.” Weston Dep. at 34. Plaintiff has not presented any evidence to rebut Mrs. Weston’s testimony.

Plaintiff next argues that a December 16, 2009, email, from McManus to Mrs. Weston, shows that Credit Nation was “searching” for reasons to terminate her because Plaintiff is a transgender person. In the December 16, 2009, email, Mc-Manus wrote to Mrs. Weston and stated that “tomorrow will bring more issues and I think this will get to a breaking point before very long. Just have the management focus on work and performance of required duties and the other issues should be written up one at a time.” McManus’s cogent legal advice to Credit Nation was given after Plaintiff received two disciplinary warnings. On November 17, 2009, Plaintiff received a verbal warning for directing to Randall work-related “derogatory comments.” On December 15, 2009, Plaintiff received a verbal warning for giving other technicians the impression that Plaintiff was “special” in the eyes of her immediate supervisor because Plaintiff had the supervisor’s cell phone number. In this context, no reasonable juror would read McManus’s email to conclude that Credit Nation was “searching” for reasons to terminate Plaintiff because of Plaintiff’s failure to conform to gender stereotypes.

Plaintiff next argues that Mr. Torcía did not believe that sleeping on the clock was a terminable offense. Plaintiff asserts that Mr. Nuhibian and Mr. Weston allowed Plaintiff to remain asleep in the car for nearly 45 minutes. Plaintiff speculates that if sleeping on the clock were a terminable offense, Mr. Nuhibian and Mr. Weston would not have allowed Plaintiff to continue to sleep. The Magistrate Judge rejected this argument because Plaintiff is required to establish that the ultimate de-cisionmaker did not reasonably believe that sleeping on the job was a serious offense subject to immediate termination. See Wiggins v. Sec’y Dep’t of Army, 520 Fed.Appx. 799, 801 (11th Cir.2013) (‘When considering whether the basis for an employer’s termination was merely pretext, the proper inquiry is whether the decision-maker believed the employee was guilty of misconduct and whether that belief was the reason for the employee’s discharge.”). Plaintiff failed to offer evidence that Mr. Torcía, or any of Plaintiffs supervisors, did not reasonably believe that sleeping on the job is an offense subject to termination.

Mr. Torcía, the owner of Credit Nation, was the ultimate decisionmaker, and he testified unequivocally that sleeping on the job is a terminable offense. There also is no dispute that Credit Nation terminated another employee for sleeping on the job even though that employee had an unblemished disciplinary record. Plaintiff states that the Magistrate Judge overlooked that “there is an inference that [Nuhibian and Weston allowed Plaintiff to continue sleeping] because [they] were part of a silent agreement to find some reason to terminate [Plaintiff].” PL’s Objections at 11. This conclusory and speculative allegation is not supported by specific facts in the record, and it is insufficient to defeat a motion for summary judgment. See Ojeda v. Louisville Ladder, Inc., 410 Fed.Appx. 213, 214 (11th Cir.2010) (holding that con-clusory allegations have no probative value, and a nonmoving party cannot rely on conclusory allegations to avoid summary judgment).

Plaintiff argues that Mr. Nuhibian’s statement to her that “I know for a fact you were run out of [C]redit [N]ation,” shows that Plaintiff was fired because of her failure to conform to gender stereotypes. Mr. Nuhibian testified at his deposition that this statement referred to the fact that he was the one who took Plaintiff’s picture and ultimately got her fired. Nuhibian Dep. at 81-83. Mr. Nuhibian disputed that Credit Nation was looking for ways to terminate Plaintiff. Plaintiff has failed to show that the reason for her termination—sleeping on the job—was a pretext for unlawful discrimination.

Plaintiff next argues that Credit Nation’s decision was a pretext for unlawful discrimination because Defendant failed to abide by its progressive discipline policy. This claim is unconvincing. Credit Nation reserves the right to use progressive discipline at its discretion, and the Employee Handbook explicitly states that Credit Nation has the “right to terminate employment at will, with or without cause or advance notice.” See Vertrees v. Am. Vulkan Corp., 8:10-CV2164-T-24, 2012 WL 95306, at *8 (M.D.Fla. Jan. 12, 2012) (finding no evidence of pretext where a progressive discipline policy was discretionary). Plaintiff has not presented any evidence that Credit Nation applied its disciplinary rules in a discriminatory manner. The uncontested evidence shows that another employee was immediately terminated for sleeping on the job, even though the employee did not have any disciplinary problems. The evidence further shows that Plaintiff previously had received two disciplinary warnings regarding work related conduct showing that progressive discipline was administered, even if not required in this case based on the sleeping episode.

Finally, Plaintiff asserts that the “circumstances suggest a post-hoc fabrication of a zero-tolerance policy” for sleeping on the job, and that Defendant’s rationale for termination changed over time. An employer’s decision to rely on evidence obtained after the decision to terminate an employee has already been taken may be evidence of pretext. Rosenfield v. Wellington Leisure Prod. Inc., 827 F.2d 1493, 1496 (11th Cir.1987). That is not the case here. On January 11, 2010, Plaintiff was terminated for sleeping on the job. A separation notice, dated January 11, 2010, explicitly states that Plaintiff was terminated for “[sleeping while on the clock on company time.” Credit Nation did not rely on any evidence obtained after Plaintiff was terminated. Credit Nation’s reason for terminating Plaintiff has not changed. In its Motion for Summary Judgment, Credit Nation proffered additional reasons to justify Plaintiffs termination, including two disciplinary warnings, violation of six other work rules, and excessive absences. “If an employer offers different reasons for terminating an employee, those reasons must be fundamentally inconsistent in order to constitute evidence of pretext.” Phillips v. Aaron Rents, Inc., 262 Fed.Appx. 202, 210 (11th Cir.2008). Plaintiff was terminated for sleeping on the job, and there is no conflict between that reason for her termination and any other reason that has been offered by the Defendant in this litigation or before the EEOC.

There is no evidence of unlawful discrimination in this case. Mr. Torcia’s isolated remarks regarding Plaintiffs transition that were made in a meeting unrelated to the adverse employment action taken against Plaintiff are insufficient to establish discrimination in the absence of “some additional evidence supporting a finding of pretext.” Scott v. Suncoast Beverage Sales, Ltd,., 295 F.3d 1223, 1229 (11th Cir.2002). Plaintiff has failed to present evidence to support that the reason for her termination was a pretext for unlawful discrimination. Plaintiff was terminated for sleeping on the job, and Plaintiff has failed to “meet that reason head on and rebut it, and [Plaintiff] cannot succeed by simply quarrelling with the wisdom of that reason.” Chapman, 229 F.3d at 1030. Based on de novo review of the R & R, the Court determines that Plaintiffs objections to the Final R & R are required to be overruled, and Credit Nation’s Motion for Summary Judgment is granted because, in light of the entire record, no reasonable juror would find that Plaintiffs discharge was a pretext for unlawful discrimination. See Scott, 295 F.3d at 1230 (observing that “evidence relating to the discriminatory comments had to be read in conjunction with the entire record and considered together with the other evidence in the case. Because the alleged comment ... was an isolated comment, unrelated to the decision to fire [the plaintiff], it, alone, is insufficient to establish a material fact on pretext”) (internal citations and quotation marks omitted).

III. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS HEREBY ORDERED that Magistrate Judge J. Clay Fuller’s Final Report and Recommendation [76] is ADOPTED, and the Plaintiffs Objections [78] are

OVERRULED.

IT IS FURTHER ORDERED that the Defendant’s Motion for Summary Judgment [48] is GRANTED.

FINAL REPORT AND RECOMMENDATION

J. CLAY FULLER, United States Magistrate Judge.

This case is before the Court on Credit Nation Auto Sales, Inc.’s Motion for Summary Judgment. (Doc. 48).

PROCEDURAL HISTORY

Plaintiff Jennifer Chavez was formerly employed by Credit Nation Auto Sales, Inc. (“Credit Nation”) as an automobile technician. (Chavez Dep. at 64). On January 30, 2013, she initiated this lawsuit against Credit Nation, alleging that it terminated her because of her sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”) and “Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981(a) [sic].” (Doc. 1). Rather than file an Answer, Credit Nation moved to dismiss Plaintiffs “42 U.S.C. § 1981(a)” claim on the grounds that 42 U.S.C. § 1981(a) only applies to intentional discrimination based on race, and Plaintiffs Title VII sex discrimination claim due to Plaintiffs failure to exhaust administrative remedies by timely filing a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”) within 180 days of her termination (see Doc. 6 at 1-2). In an April 29, 2013 Order and Report and Recommendation (“R & R”), the undersigned recommended that Credit Nation’s motion as to the 42 U.S.C. § 1981(a) claim be denied as moot because Plaintiff submitted an Amended Complaint in which she correctly asserted her claim for damages under Title VII pursuant to 42 U.S.C. § 1981a. (See Doc. 9 at ¶ 1; Doc. 20 at 10). The undersigned further recommended that Credit Nation’s motion with respect to Plaintiffs Title VII claim be denied without prejudice because, even though the Plaintiffs EEOC charge was filed outside the 180-day limitation period, a proper resolution on the issue of equitable tolling required the consideration of materials outside the pleadings and additional factual development. (Doc. 20 at 1). In an August 19, 2013 Order, 966 F.Supp.2d 1335 (N.D.Ga.2013), District Judge William S. Duffey Jr., adopted the undersigned’s recommendations. (Doc. 35). Credit Nation answered the Amended Complaint (Doc. 23), and discovery proceeded.

Credit Nation has now filed a motion for summary judgment and a brief (Doc. 48), with supporting exhibits and a statement of undisputed material facts. (See Docs. 48-2 through 48-26). Plaintiff filed a response to Credit Nation’s motion (Doc. 58), a response to Credit Nation’s statement of undisputed material facts (Doe. 59), a statement of material facts (Doc. 60), and affidavits from Plaintiff and Jillian T. Weiss, Plaintiffs attorney. (Docs. 61 and 62). Credit Nation submitted a reply brief (Doc. 71) and a response to Plaintiffs statement of material facts. (Doc. 68). Also included in the record are two amicus briefs in support of Plaintiff—one submitted by Freedom to Work, Gay and Lesbian Advocates and Defenders, Lambda Legal, National Center for Transgender Equality, PFLAG National, Transgender Law Center, and Transgender Legal Defense & Education Fund and the other filed by the EEOC. (Docs. 63 and 67). With briefing complete, the undersigned turns to the merits.

FACTS

The facts, for summary judgment purposes only, are derived from Credit Nation’s statement of undisputed material facts (Doc. 48-2 hereinafter “Def. SMF”); Plaintiffs statement of material facts (Doc. 60 hereinafter “PL SMF”); Plaintiffs response to Credit Nation’s statement of undisputed material facts (Doc. 59); Credit Nation’s response to Plaintiffs statement of material facts (Doc. 68); Ms. Weiss and Plaintiffs affidavits in opposition to the motion for summary judgment (Docs. 61 and 62); and uncontroverted record evidence.

The undersigned has reviewed the record, including the parties’ filings, to determine whether genuine issues of material fact exist to be tried. Yet the court need not “scour the record” to make that determination. Tomasini v. Mt. Sinai Med. Ctr. of Fla., 315 F.Supp.2d 1252, 1260 n. 11 (S.D.Fla.2004) (internal quotation omitted). The facts are construed in the light most favorable to Plaintiff as the non-movant. See Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1309 (11th Cir.2001).

A. Background

Plaintiff is an “A.S.E. certified” master automobile technician who has worked in the automobile repair industry for nearly 40 years. (Doc. 49-5 at 3; Doc. 49-6 at 1). In June 2008, she accepted a job as an automobile technician with Credit Nation, a business that sells and repairs automobiles. (Doc. 49 at 64 (hereinafter “Chavez Dep.”); Doc. 57 at 11 (hereinafter “Torcía Dep.”)). At that time, Plaintiff was known as Louie Chavez and presented herself as a male; however, she had known for many years that she was a transsexual and wanted to transition from a male to a female. (Chavez Dep. at 37; Doc. 49-8 at 1). In the summer of 2009, Plaintiff decided to go through a gender transition because “[she] could no longer run from [her] condition” and “did not want to die having lived a lie.” (Chavez Dep. at 37). Following steps and guidelines from the World Professional Association for Transgendered Health, Plaintiff started seeing a mental health therapist, attending Southeast Association for Gender Education meetings (a transsexual support group), and preparing to inform Credit Nation about her condition and intentions of transitioning. (Id. at 35, 39, 40-41).

B. Plaintiff’s Announcement Of The Intent To Transition

Plaintiff “felt pretty good about the reception that [she] would receive” from Credit Nation, so she approached her supervisor, Phil Weston, and told him that she had something important to discuss and that she would like to meet with both him and Cindy Weston, the Vice-President of Credit Nation. (Chavez Dep. at 41-42). On October 28, 2009, Plaintiff met with Mr. and Mrs. Weston and told them about her condition and her plan to transition from a male to a female. (Id. at 43). Mr. and Mrs. Weston were both “extraordinarily kind,” and reassured Plaintiff that she had “nothing to fear” and had “their 100 percent support.” (Id. at 44). As Mrs. Weston saw it, Plaintiffs transition was “her personal preference” and “as long as her job was being performed, what she d[id] in her personal life really [wasn’t] any of [her] business.” (Doc. 64 at 29 (hereinafter ‘Weston Dep.”)). After speaking with Plaintiff, Mrs. Weston called Jim Torcía, the owner of Credit Nation, and informed him about Plaintiffs plan. (Torcía Dep. at 19-20). Mr. Torcía testified that learning about Plaintiffs plan to transition from male to female “[d]idn’t move the needle for [him].” (Id.).

The day after the meeting, Plaintiff, along with Mr. and Mrs. Weston, met with a number of Credit Nation’s service facility employees so that Plaintiff could explain her transition from male to female. (Chavez Dep. at 44-45). All of the service facility employees were incredibly receptive and supportive of Plaintiff; “they all said they had no issues with” her transition. (Id. at 45-46).

A week later, Plaintiff sent an e-mail to a reporter from the Atlanta Journal Constitution detailing the circumstances of her announcement. (Doc. 49-6). The reporter Plaintiff contacted had recently written an article about Vandy Beth Glenn, a transsexual woman who won a discrimination case against her employer in federal court. (Chavez Dep. at 29). According to Plaintiff, the purpose of the email was to provide a “counterpoint to the opinions.of [Vandy Beth Glenn’s] former employer.” (Doc. 49-6 at 1-2). Plaintiff wrote:

(Id.).

C. Events Occurring Between The Announcement And Termination

According to Plaintiff, the warm and receptive environment at Credit Nation ended two weeks after her announcement on November 12, 2009, when Mrs. Weston approached Plaintiff and advised her that she needed to “tone things down.” (Chavez Dep. at 47). Mrs. Weston explained that she made this statement after receiving complaints about Plaintiff “visiting the other technicians’ stalls” and “talking [] about surgeries that she was going to be undergoing,” including breast augmentation, which made some of the other technicians uncomfortable. (Weston Dep. at 34). Plaintiff initially testified that Mrs. Weston did not “specify” whether Mr. Torcía “said something to [Mrs. Weston],” but it is her “supposition” that he did. . (Chavez Dep. at 47). Later at her deposition, however, Plaintiff testified that Mrs. Weston “told [her] to tone it down because Mr. Torcía didn’t like” the discussions she was having with other technicians about her transition. (Id. at 131).

Five days later, Plaintiff had a disagreement with Richard Randall, another technician at Credit Nation. (Id. at 48). The dispute started when Plaintiff advised Randall that he was being dishonest about a car repair, which caused Randall to become upset and yell at Plaintiff. (Id.). According to a Credit Nation discipline report, during the altercation between Plaintiff and Randall, Plaintiff made both written and verbal “derogatory comments”; as a result, she received a verbal disciplinary warning from Mrs. Weston. (Doc. 49-7 at 1). At her deposition, Plaintiff testified that, when she signed the disciplinary report on December 17, 2009, the word “Agree” was written next to the words “Describe Employee Response,” but that she nevertheless wrote her version “of what took place” at the bottom of the disciplinary report. (Chavez Dep. at 52-53). She further stated that she did not remember what the written or verbal comments were and did not know whether this incident with Randall had anything to do with her gender transition. (Chavez Dep. at 50).

On November 24, 2009, Mr. Torcia came to the service facility and called Plaintiff into a meeting, at which time he told “[Plaintiff] his concerns, worries], and apprehension[s]” with her gender transition. (Id. at 81). He stated that he was “nervous about it” and afraid that it may “impact his business”—he noted that “an applicant for a tech position had declined his offer of employment because of [Plaintiffs] transition.” (Id. at 82). He also said that Plaintiff’s “attire was upsetting the other personnel” at Credit Nation, and therefore, Plaintiff “should not wear too feminine attire ... coming to work or leaving work,” even after her transition. (Id. at 84-85). Mr. Torcía further expressed his concern with Plaintiff wearing dresses, skirts, and heels in the service department work area in violation of Credit Nation’s uniform attire rules, which require shoes with a rubber bottom on them (to help service department employees walk on greasy and slippery floors) and work pants and a uniform shirt. (Weston Dep. at 37-39).

In early December 2009, with the first round of gender transition surgeries approaching, Plaintiff and Credit Nation entered into a memorandum of understanding regarding Plaintiffs “voluntary leave of absence for the purpose of obtaining elective medical procedures.” (Doc. 49-13 at 2; Chavez Dep. at 75). Credit Nation granted Plaintiff voluntary leave beginning December 18, 2009 and ending December 27, 2009 (Plaintiff was expected to return to work on December 28, 2009). (Doc. 49-13 at 2-3). Under Credit Nation’s leave policy, an employee receives one week’s paid vacation after completing one year of service and two weeks of paid vacation after completing two years of service. (Chavez Dep. at 64). At that point, Plaintiff had accrued one week’s paid vacation time (she had worked at Credit Nation for only a year and a half), so she originally scheduled to be “off for one week of recovery time after her surgery.” (Id. at 64). But Mrs. Weston, on her own initiative, spoke with Mr. Torcía, and the two of them agreed to provide Plaintiff with an additional week of paid vacation time, even though she was not entitled to such under Credit Nation’s leave policy, because they wanted to “be accommodating to the procedures.” (Id. at 64-65; Torcía Dep. at 59).

On December 15, 2009, Plaintiff had a second altercation with Randall. This time, Randall confronted Plaintiff because he felt like “[Plaintiff] was getting special treatment from [Mrs. Weston]”—in particular, she was “allowed to go to the doctor’s appointments”; “do[] electrolysis almost every morning”; and “take[ ] excessive unpaid time to attend these doctor and therapist appointments and such.” (Chavez Dep. at 61). Like Randall, other technicians were also “upset and thought that [Plaintiff] was getting special treatment by being able to take time off from work and not having to make it up.” (Weston Dep. at 148). In response to Randall’s statements, Plaintiff said something to the effect that she “had [Mrs. Weston’s] personal number” and therefore no one could mess with her. (Chavez Dep. at 59-60; Doc. 56-9).

According to a December 16, 2009 statement, and Mrs. Weston’s deposition testimony, Mrs. Weston and Plaintiff spoke about the incident with Randall the day after it occurred—Mrs. Weston told Plaintiff “that it had been brought to [her] attention that [Plaintiff] had given the other employees the impression that [Mrs. Weston] had given [Plaintiff her] cell phone number which made [Plaintiff] special.” (Doc. 49-10; Weston Dep. at 144). Mrs. Weston testified that she gave Plaintiff a verbal warning for the incident, (Doc. 49-7; Weston Dep. at 22), and also “personally gave [her] business card,” which had Mrs. Weston’s personal cell phone number on it, “to everybody in the shop so that they would all have [her] phone number” and would not think “that [she] was[ ] treating anyone any differently.” (Weston Dep. at 118). Plaintiff denies receiving a verbal warning or a disciplinary write-up for this incident but admits making the statement to Randall. (Chavez Dep. at 54, 59-60).

Also on December 16, 2009, Credit Nation issued a memo to all service personnel “explaining to them once again” that they are supposed to be “in uniform and at their work stations to begin working” at 8:00 a.m. Monday through Friday and 9:00 a.m on Saturday, and that all “technicians will work until 5:50 pm [on Monday through Friday] at which time they may start cleaning up and changing in order to leave by 6:00 pm.” (Id. at 46; Doc. 64-8). This memo was issued for all the technicians but, according to Mrs. Weston, at that point “[Plaintiff] was the only one who wasn’t following the rules”—Mrs. Weston testified that she personally saw Plaintiff “a couple of times” changing into heels and a dress at around 5:80 p.m. and then going back into the service facility area. (Weston Dep. at 37-38).

On December 30, 2009, two days after Plaintiff returned from leave, Plaintiff was told by Kirk Nuhibian, the shop foreman, that she could not use Credit Nation’s unisex bathroom. (Chavez Dep. at 73; Doc. 49-14). There are two bathrooms at Credit Nation—a technician’s bathroom and a unisex bathroom used by customers and Credit Nation office personnel, including a female employee from the parts department. (Chavez Dep. at 73-74; Doc. 56 at 113 (hereinafter “Nuhibian Dep.”); Weston Dep. at 53 (explaining that customer bathroom was “a unisex restroom”)). Technicians are required to use the technician’s bathroom because it has “special soap in there” that helps remove grease off of the technician’s hands, and because the technicians wear “dirty clothes” and accumulate oil and grease on their shoes. (Chavez Dep. at 74; Nuhibi-an Dep. at 114; Weston Dep. at 52). According to Plaintiff, the technician’s bathroom “was quite dirty and grimy” and “it was hard to use ... without ruining clothes” (at that point, Plaintiffs “clothing was female coming to and leaving work”) so she “had been using [the unisex] customer bathroom that was a lot cleaner.” (Chavez Dep. at 73). Mr. Nuhibian, however, instructed Plaintiff that she could not use the unisex customer bathroom—this upset Plaintiff “because [it] meant [she] was going to be ruining clothes, and [she] didn’t like that.” (Id.).

Later on that day, Mrs. Weston e-mailed John McManus, an attorney who handled legal matters for Credit Nation, for advice on the situation concerning the bathroom because she did not “know how to handle [it].” (Weston Dep. at 49-50). She wrote:

I wanted to give you a run down on what occurred today ... There are two restrooms located at the Service Center, both are unisex bathrooms. One is designated at [sic] Technicians [sic] restroom and the other is customer and office personnel. The technicians are required to have their own restroom due to the oil and grease that accoumilate [sic] on the bottom of their shoes and clothes. There was a meeting discussing this two weeks prior ... [Plaintiff] returned today and confronted the shop foreman asking why there was restricted access to the customer restroom? [She] was told by the shop foreman “all technicians have their own restroom, and we have to keep the customer restroom clean for the customers”. [Plaintiff] asked who is allowed to use it? Shop foreman repsonded [sic] “Customers, Matt, Philip, Ariel, and Jennifer (parts), everyone except technicians due to the grease on shoes.” ... [Plaintiff] responded “If Jennifer in parts can use it why can’t I use it, that is decrimination [sic], I will speak with Phil about it.” ... Phil came in and [Plaintiff] approached him and asked why can’t we use the customer restroom? Phil stated, technicians have their own restroom, and remember the meeting we had two weeks ago about the restroom use? [Plaintiff] shrugged [her] shoulders and turned and walked away.

(Doc. 60-8 at 2-3) (formatting altered). She further explained to Mr. McManus that Plaintiff hit her head while removing a transmission from a vehicle and that she and Mr. Weston “filled out an incident report and state[d] that [Plaintiff] denied medical attention.” (Id.). Mr. McManus responded with the following email:

Cindy: I am concerned that no matter what you do, [Plaintiff] is going to come up with come [sic] complaint. I think you are correct in writing the medical report up, and I believe there needs to be some report written by Phil indicating the issues about the restroom and how that was resolved. Tomorrow will bring more issues and I think this will get to a breaking point before very long. Just have the management focus on work and performance of required duties and the other issues should be written up one at a time.

(Id.).

D. Plaintiff’s Termination

On Friday January 8, 2010, it was “very, very cold ... and the roads were icy.” (Chavez Dep. at 77). Under these circumstances i.e., snow or similar inclement weather, if a Credit Nation employee can “make it into work then [they] ma[ke] it in”; “otherwise, [they] ma[ke] it as soon as [they can].” (Weston Dep. at 89). If a Credit Nation employee cannot make it in to work at all because of the weather, they are not penalized; they just receive no pay for that day. (Id. at 89). In any event, Plaintiff arrived at work early on January 8, 2010, and clocked in around 7:39 a.m.; she did not, however, change into her required uniform. (Chavez Dep. at 77; Chavez Decl. at ¶ 86). The vehicles Plaintiff was supposed to be working on did not have parts—“[the cars] had been inspected and diagnosed and parts were ordered, but the parts had not yet arrived”—so Plaintiff “had nothing to do.” (Chavez Dep. at 77). After waiting around for an hour and a half, Plaintiff “decided to sit in back of one of the cars [she] was working on ... to try and get a little bit warm.” (Id. at 78). Although she did not intend to, Plaintiff fell asleep in the back of the car. (Id.).

At around 9:20 a.m that morning, Mr. Nuhibian observed Plaintiff sleeping in the back seat of a customer’s car located in one of her work stalls. (Nuhibian Dep. at 42). He decided to take a picture of Plaintiff sleeping and send it to his supervisor, Phil Weston; he also called and e-mailed Mr. Weston to make sure he received the photo. (Id. at 47, 105). Mr. Nuhibian testified that he took a picture of Plaintiff because of his “[p]ast experience” with Credit Nation technicians: on previous occasions, Mr Nuhibian would say that a technician violated a rule, but the technician would just deny any wrongdoing, which “ma[de Mr. Nuhibian] look bad”— by taking a picture, he could actually provide evidence to “back up what [he] saw.” (Id. at 48, 55).

After Mr. Weston received Mr. Nuhibi-an’s photo, he sent it to Mrs. Weston and also asked Mr. Nuhibian if Plaintiff was still asleep in the car. (Id. at 56; Weston Dep. at 59). Mr. Nuhibian walked back over to the car around 9:35 a.m. and saw that Plaintiff was sleeping; when he returned to the car ten minutes later, Plaintiff was still asleep. (Nuhibian Dep. at 57). At approximately 9:55 a.m., Plaintiff “heard a noise and [she] looked up and realized that [she] had nodded off without intending to.” (Chavez Dep. at 78). The noise Plaintiff heard was “a parts delivery person” bringing in the parts she needed to repair the vehicles she was working on, so Plaintiff went and changed into her uniform and began performing repairs. (Id. at 78-79). She worked through the day Friday without further incident and then went home for the weekend. (Id. at 105).

At some point before Plaintiff’s termination, Mr. and Mrs. Weston met to discuss the photograph of Plaintiff sleeping in a customer’s car. (Weston Dep. at 60). The substance of the conversation between Mr. and Mrs. Weston was “[t]hat [Plaintiff] was sleeping in the back of a customer’s car in the service department while on the clock, which is against [Credit Nation] policy.” (Id. at 60). Soon thereafter, Mrs. Weston contacted Mr. Torcía, and the two of them discussed the situation. (Id. at 74; Torcía Dep. at 28). They ultimately agreed that Plaintiff should be fired, and Mr. Torcía instructed Mrs. Weston to terminate Plaintiff. (Id. at 74; Torcía Dep. at 28).

Plaintiff returned to work on Monday January 11th and “[w]orked all day long until approximately 4:00 p.m.” when “[she] was called into the office upstairs by Phil Weston.” (Chavez Dep. at 105). In the office, Plaintiff met with Mr. and Mrs. Weston and Credit Nation’s General Manager, Steve Duda, and Human Resources Director, Kelly Bourgeois. (Id. at 106; Weston Dep. at 14). Mrs. Weston explained to Plaintiff that “[she] had been observed sleeping, that [sleeping on the job on company time] was against company policy, and [that she] was being terminated for it.” (Chavez Dep. at 106). In response, Plaintiff stated “I know exactly what this is ... if you are going to fire me, fire me.” (Id.). A January 11, 2011 separation notice, a copy of which was delivered to Plaintiff at the termination meeting, explicitly states that Plaintiff was terminated for “[sleeping while on the clock on company time.” (Doc. 60-16 at 2; Weston Dep. at 65).

Under section 701 of Credit Nation’s employee handbook, entitled “Employee Conduct and Work Rules,” Credit Nation lays out twenty-six infractions “that may result in disciplinary action, up to and including termination of employment.” (Doc. 49-36 at 15). One such infraction is “[t]heft or inappropriate removal or possession of property.” (Id.). Under section 717 of the handbook, theft of company property is listed as an action that “may result in immediate discharge.” (Id. at 21). To determine whether an individual should be terminated under these provisions, Credit Nation looks at the “severity” of the infraction. (Weston Dep. at 103). Mrs. Weston and Mr. Torcía both testified that they believe sleeping on the clock constitutes theft because an employee is being paid but not working, (see Weston Dep. at 102; Torcía Dep. at 30-31), and that Plaintiffs infraction was a severe violation. (Weston Dep. at 103, 105; Torcía Dep. at 83). Mrs. Weston further testified that another Credit Nation employee, who did not have any previous write-ups in his file, had similarly been terminated for sleeping on the clock. (Weston Dep. at 112).

E. Plaintiff’s EEOC Charge

The day after her termination, Plaintiff, without counsel, went to the Atlanta District office of the EEOC and brought her separation notice, a pay stub from Credit Nation, a portion of the Credit Nation employee handbook, and notes she took of the November 24, 2009 meeting with Mrs. Weston and Mr. Torcía. (Chavez Decl. at ¶ 107). After completing a questionnaire, Plaintiff met with an EEOC investigator and handed her the documentation she had brought and told her Credit Nation had discriminated against her because of her sex i.e., because she “transition[ed] from a male to a female.” (Chavez Dep. at 149; Doc. 49-34). After talking with Plaintiff for about 20 to 30 minutes, the EEOC investigator went to speak to her supervisors about Plaintiff’s case. (Chavez Dep. at 149-150). When she returned, the EEOC investigator informed Plaintiff “[she] was not protected from discrimination on the basis of sex because [she is] transgender,” (Chavez Decl. at ¶ 116), and “[she] would not be permitted to file a complaint.” (Doc. 49-34). Plaintiff left the office without having filed a formal complaint.

In September 2010, Plaintiff, “[a]fter hearing news reports about transgender individuals filing complaints with the EEOC,” again went to the Atlanta District EEOC office to try to file a charge of discrimination. (Chavez Decl. at ¶ 119). As had occurred on her previous visit, Plaintiff spoke to an EEOC investigator, handed him her documentation—her separation notice, a pay stub from Credit Nation, a portion of the Credit Nation employee handbook, and notes she took of the November 24, 2009 meeting with Mrs. Weston and Mr. Torcía—told him Credit Nation discriminated against her because of her sex, and asked the agency to take action against Credit Nation. (Id. at ¶ 120-121). The EEOC investigator filled out an intake questionnaire and took notes, but he ultimately concluded that “[Plaintiff] was not protected from discrimination on the basis of sex because [she is] transgender” and told her she could not file a charge of discrimination. (Id. at ¶¶ 122-124).

In April 2012, “[a]fter hearing further news reports about transgender individuals filing complaints with the EEOC,”