Case 2:15-cv-06077-LFR Document 1 Filed 11/11/15 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SAM MELRATH, 50 Jarrett Avenue Rockledge, PA 19046 v. Plaintiff CIVIL ACTION COMPLAINT CIVIL ACTION NO.: JURY TRIAL DEMANDED GIANT FOOD STORES, LLC, 737 Huntingdon Pike Huntingdon Valley, PA 19006 Defendant. CIVIL ACTION COMPLAINT Plaintiff Sam Melrath (hereinafter Plaintiff ), by and through undersigned counsel, hereby complains as follows against Giant Food Stores, LLC (hereinafter Defendant ). INTRODUCTION 1. Plaintiff initiates this action to redress Defendant s violations of Title VII of the Civil Rights Act of 1964 ( Title VII ) and the Pennsylvania Human Relations Act ( PHRA ). Defendant subjected Plaintiff to discrimination on the basis of his gender, leading to Plaintiff being constructively discharged. At all times relevant, Plaintiff, who was born anatomically a female, identified as a man and dressed and acted in accordance with his gender identity. Defendant was uncomfortable with Plaintiff s gender identity, and repeatedly harassed Plaintiff to conform his actions to those of a stereotypical female. When Defendant attempted to force Plaintiff to wear a uniform designed for female employees, Plaintiff had enough and quit (as would any reasonable employee whose employer required him or her to wear a uniform designed
Case 2:15-cv-06077-LFR Document 1 Filed 11/11/15 Page 2 of 10 for a member of the opposite gender). As a result of Defendant s unlawful actions, Plaintiff has suffered damages as set forth herein. JURISDICTION AND VENUE 2. This Court has original subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331 because the claimed herein arise under laws of the United States, Title VII. This Court has jurisdiction over Plaintiff s state law claim(s) because they are supplemental to Plaintiff s underlying federal claims and arise out of the same transaction or occurrence(s), having the same common nucleus of operative facts pursuant to 28 U.S.C. 1367 (a). 3. This Court may properly maintain personal jurisdictions over Defendant because Defendant s contacts with this state and this judicial district are sufficient for the exercise of jurisdiction over Defendant to comply with traditional notions of fair play and substantial justice. 4. Pursuant to 28 U.S.C. 1391, venue is properly laid in this judicial district because all of the acts and/or omissions giving rise to the claims set forth herein occurred in this judicial district. 5. Plaintiff has exhausted all administrative remedies required as a prerequisite to the filing of the instant Title VII claims by filing the instant action within 90 days of receiving a right-to-sue letter from the EEOC. PARTIES 6. The foregoing paragraphs are incorporated herein as if set forth in full. 7. Plaintiff is an adult individual with an address as set forth in the caption. 8. Defendant is a grocery store that operates in Pennsylvania with an address as set forth in the caption.
Case 2:15-cv-06077-LFR Document 1 Filed 11/11/15 Page 3 of 10 9. At all times relevant herein, Defendant acted by and through its agents, servants, and employees, each of whom acted at all times relevant herein in the course and scope of their employment with Defendant. FACTUAL BACKGROUND 10. The foregoing paragraphs are incorporated herein as if set forth in full. 11. Plaintiff is a transgender man, meaning that Plaintiff was anatomically born a female but that his gender is male. 12. In or around August 2011, Defendant hired Plaintiff to be a bagger. 13. Immediately after hiring Plaintiff, Defendant began pressuring Plaintiff to confirm to his anatomical sex (female) by dressing, acting, and referring to himself, in a feminine manner. 14. For example, although Plaintiff always referred to himself as Sam rather than Samantha, Defendant pressured Plaintiff to change his name tag to Samantha. 15. When Plaintiff refused to change his name tag to Samantha, Defendant verbally disciplined him. 16. Moreover, Defendant maintained no formal policy regarding employee name tags and permitted other employees to use the abbreviated versions of their names including a female employee, who also used Sam on her name tag, instead of Samantha. Unlike Plaintiff, coworker Sam dressed and acted in a stereotypical feminine manner. 17. Prior to in or around September 2013, Plaintiff wore a longer hairstyle, which could be considered feminine. 18. However, in or around September 2013, Plaintiff cut his hair short, adopting a stereotypical masculine hairstyle.
Case 2:15-cv-06077-LFR Document 1 Filed 11/11/15 Page 4 of 10 19. Shortly after Plaintiff cut his hair short, Defendant s Supervisor, Donna (Last Name Unknown) (hereinafter Supervisor Donna ), pulled him aside and issued me a verbal warning, stating that if Plaintiff cut his hair any shorter, there would be consequences. 20. When Plaintiff asked Supervisor Donna why he was being threatened for having short hair, Supervisor Donna answered that there were normal standards, and that it s just the way we run our business. 21. Multiple female employees of Defendant also had short hairstyles, but since their hair was cut in a more feminine style, they were not harassed by management. 22. Further, Multiple male employees of Defendant had short hairstyles, but since they were anatomically males, they were not harassed by management. 23. On another occasion, Defendant disciplined Plaintiff for having an allegedly inappropriate conversation with a co-worker, Lindsay (Last Name Unknown) (hereinafter Coworker Lindsay ), about their respective boyfriends and girlfriends. 24. During the conversation, Co-worker Lindsay informed Plaintiff that she had just ended a relationship with her boyfriend, and Plaintiff responded that he had just ended his relationship with his girlfriend. 25. While Defendant disciplined Plaintiff for having participated in the conversation, Defendant did discipline Co-worker Lindsay for having participated in the conversation. 26. Similarly, Defendant did not discipline other female or male employees for discussing their relationships with their boyfriends and girlfriends. 27. Accordingly, Defendant did not discipline Plaintiff because he discussed a romantic relationship; Defendant disciplined Plaintiff because Plaintiff s relationship failed to conform to stereotypical female gender expectations.
Case 2:15-cv-06077-LFR Document 1 Filed 11/11/15 Page 5 of 10 28. Moreover, when one of Defendant s Managers issued written discipline to Plaintiff about this, the Manager informed Plaintiff that he had to act normal (i.e. female) when at work. 29. Upon Plaintiff s hiring, Defendant maintained a unisex uniform policy, which required both male and female employees to wear a button-up, collared shirt. 30. However, on or about November 17, 2013, Supervisor Donna informed Plaintiff that Defendant had changed its uniform policy and that male and female employees were now required to wear different, gender-specific uniforms. 31. Supervisor Donna informed Plaintiff that he would be required to wear the uniform identified for female employees. 32. The male uniform remained a button-up, collared shirt; the female uniform was a low-cut t-shirt that exposed cleavage. 33. Plaintiff knew he would feel extremely uncomfortable wearing the uniform required for females, since he identified as a male. 34. Therefore, that same day (on or about November 17, 2013), Plaintiff contacted Supervisor Donna and informed her that he would feel extremely uncomfortable if he was in fact required to wear the uniform for females, and he requested that he be permitted to wear the button-up shirt uniform designated for the male employees (as Plaintiff had been wearing). 35. Supervisor Donna denied Plaintiff s request, stating that Plaintiff was required to wear the female uniform because he was a female. 36. When Plaintiff explained that the uniform made him feel extremely uncomfortable because he did not feel comfortable in girl clothes, Supervisor Donna told him that you get what you get, and you will like it.
Case 2:15-cv-06077-LFR Document 1 Filed 11/11/15 Page 6 of 10 37. When Plaintiff requested to speak to another Manager about the issue, Supervisor Donna denied Plaintiff the opportunity to do so. 38. Thereafter, Plaintiff had no choice but to resign from his employment with Defendant. 39. Due to Defendant s demand that Plaintiff, who identifies as a male, wear an overtly feminine shirt, Defendant constructively discharged Plaintiff. 40. Plaintiff has suffered harm as a result of Defendant s actions. COUNT I Violations of Title VII (Sex Discrimination / Harassment) 41. The foregoing paragraphs are incorporated herein as if set forth in full. 42. Defendant is an employer within the meaning of Title VII. 43. Plaintiff is an employee within the meaning of Title VII. 44. Plaintiff was subjected to severe and pervasive sexual harassment and/or sex discrimination based on Plaintiff s gender identity and/or sexual orientation, which was both offensive and unwelcome. 45. Defendant failed to remedy the sexual harassment and/or sex discrimination to which Plaintiff was subjected even after receiving notice of same. 46. Any reasonable person would have felt that he or she was being subjected to sexual harassment and/or sex discrimination due to Defendant s demands that Plaintiff present himself as a woman even though he identifies as a man. 47. Defendant s actions as set forth above constitute violations of Title VII. 48. Plaintiff has suffered harm as a result of Defendant s actions.
Case 2:15-cv-06077-LFR Document 1 Filed 11/11/15 Page 7 of 10 COUNT II Violations of Title VII (Constructive Discharge) 49. The foregoing paragraphs are incorporated herein as if set forth in full. 50. Defendant forced Plaintiff to present himself as a woman, even though he identified as a man. 51. A reasonable person in Plaintiff s shoes and under the circumstances described above would have felt compelled to terminate his or her employment with Defendant. 52. Plaintiff as a result terminated his employment with Defenant. 53. Defendant s actions as set forth constitute violations of Title VII. 54. Plaintiff has suffered harm as a result of Defendant s actions. COUNT III Violations of PHRA (Sex Discrimination/ Harassment) 55. The foregoing paragraphs are incorporated herein as if set forth in full. 56. Defendant is an employer within the meaning of PHRA. 57. Plaintiff is an employee within the meaning of PHRA. 58. Plaintiff was subjected to severe and pervasive sexual harassment and/or sex discrimination which was both offensive and unwelcome. 59. Defendant failed to remedy the sexual harassment and/or sex discrimination to which Plaintiff was subjected even after receiving notice of same. 60. Any reasonable person would have felt that he or she was being subjected to sexual harassment and/or sex discrimination due to Defendant s demands that Plaintiff present himself as a woman even though he identifies as a man. 61. Defendant s actions as set forth above constitute violations of PHRA.
Case 2:15-cv-06077-LFR Document 1 Filed 11/11/15 Page 8 of 10 62. Plaintiff has suffered harm as a result of Defendant s actions. COUNT IV Violations of PHRA (Constructive Discharge) 63. The foregoing paragraphs are incorporated herein as if set forth in full. 64. Defendant forced Plaintiff to present himself as a woman, even though he identified as a man. 65. Accordingly, Plaintiff terminated his employment with Defendant 66. A reasonable person in Plaintiff s shoes and under the circumstances described above would have also felt compelled to terminate his or her employment with Defendant. 67. Defendant s actions as set forth constitute violations of PHRA. 68. Plaintiff has suffered harm as a result of Defendant s actions. WHEREFORE, Plaintiff prays that this Court enter an Order providing that: A. Defendant is to be permanently enjoined from discriminating or harassing against anyone on any basis forbidden by Title VII and PHRA; B. Defendant is to promulgate and adhere to a policy prohibiting sexual harassment, and discrimination; C. Defendant is to compensate Plaintiff, reimburse Plaintiff, and make Plaintiff whole for any and all pay and benefits Plaintiff would have received had it not been for Defendant s illegal actions, including but not limited to back pay, front pay, insurance benefits, and other benefits; D. Plaintiff is to be awarded actual damages, as well as damages for the pain, emotional distress, suffering, and humiliation caused by Defendant s actions;
Case 2:15-cv-06077-LFR Document 1 Filed 11/11/15 Page 9 of 10 E. Plaintiff is to be awarded punitive damages in an amount believed by the Court or trier of fact to be appropriate to punish Defendant for their willful, deliberate, malicious, and outrageous conduct and to deter Defendant and other employers from engaging in such misconduct in the future; F. Plaintiff is to be accorded other equitable and legal relief as the Court deems just, proper, and appropriate; G. Plaintiff is to be awarded the costs and expenses of this action and a reasonable attorney s fees as provided by applicable law; and H. Plaintiff is permitted to have a trial by jury. Respectfully Submitted, /s/ Richard Swartz Richard S. Swartz, Esq. Matthew D. Miller, Esq. Justin L. Swidler, Esq. SWARTZ SWIDLER LLC 1101 Kings Highway North, Suite 402 Cherry Hill, NJ 08034 Phone: (856) 685-7420 Fax: (856) 685-7417 Date: November 11, 2015 1. Defendant is hereby directed to preserve all physical and electronic information pertaining in any way to Plaintiff s employment, to their cause of action and/or prayers for relief, and to any defenses to same, including, but not limited to, electronic data storage, closed circuit
Case 2:15-cv-06077-LFR Document 1 Filed 11/11/15 Page 10 of 10 TV footage, digital images, computer images, cache memory, searchable data, emails, spread sheets, employment files, memos, text messages, any and all online social or work related websites, entries on social networking sites (including, but not limited to, Facebook, Twitter, MySpace, etc.), and any other information and/or data and/or things and/or documents which may be relevant to any claim or defense in this litigation.