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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

John Doe1

, 

Plaintiff, 

v. 

State of Arizona, 

Defendant. 

No. CV-18-00384-PHX-GMS

ORDER 

 

 Pending before the Court is the State of Arizona’s Motion for Summary Judgment. 

(Doc. 26). For the following reasons, the Court grants the motion in part and denies the 

motion in part.2

BACKGROUND 

 From 2006 to 2016, Plaintiff John Doe worked as a corrections officer at Arizona 

Department of Corrections (“ADOC”) facilities in Arizona. Mr. Doe is a transgender 

male. He alleges that he was subjected to unabated harassment from his coworkers and 

supervisors that created a hostile work environment, caused him to fear for his physical 

 

1

 John Doe is a pseudonym. 

2

 Plaintiff’s request for oral argument is denied because the parties have thoroughly discussed the law and the evidence, and oral argument will not aid the Court’s decision. See Lake at Las Vegas Investors Group, Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th 

Cir. 1991). 
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safety, and ultimately forced him to resign in 2016. Defendant moves for summary 

judgment on Plaintiff’s hostile work environment and constructive discharge claims. 

The record, viewed in the light most favorable to Plaintiff, shows the following: in 

2006, when he began working at ADOC, Mr. Doe was transitioning from female to male. 

Initially, Mr. Doe worked at the South Unit in Florence, Arizona as a Correctional Officer 

II. After completing his initial training, Mr. Doe informed his supervisors that he was 

transitioning. He acknowledged that this period of time would be “awkward,” but 

requested that his colleagues respect his status, refer to him by male pronouns, or simply 

refer to him as Officer Doe. 

 Mr. Doe worked at the South Unit for about four years. Other correctional officers 

and his supervisors would sometimes call Mr. Doe a “she,” a “he/she,” an “it,” a “d—” and 

a “b—.” His fellow officers would also complain that Mr. Doe should not be using the 

men’s restroom. (Doc 34-3 at 6). Mr. Doe often asked his supervisors if they could instruct 

other members of his team to refrain from calling him by “she” and also refrain from using 

derogatory language towards him. At the same time, Mr. Doe also acknowledges that he 

did not report every incident of alleged harassment to his supervisors, and that some of the 

officers who made comments were reprimanded by their supervisor. When Mr. Doe would 

complain to his supervisors about his coworkers calling him “she,” his supervisors did not 

take corrective action. (Doc. 34-2, Ex. 1 at 18). During one of these conversations, Lt. 

Randolph told Mr. Doe to “stay to himself” because the female correctional officers “feel 

uncomfortable with you.”3

 (Id. at 19). 

This harassment reached an initial climax in 2010, when Mr. Doe’s tires were 

slashed in the parking lot of the prison. Mr. Doe informed Deputy Warden Moody and 

provided him with photos of the incident, but Deputy Warden Moody did not respond to 

his complaint. Mr. Doe then informed Warden Carson McWilliams, head of the Florence 

Complex, of the tire incident as well as other statements that made him fear for his safety. 

 

3

 In his testimony, Plaintiff also recounts several instances where the inmates 

informed him of other officers’ statements. Those statements, however, do not appear to be admissible at trial. As a result, the Court does not consider them here. 
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Warden McWilliams agreed that Officer Doe had reasons to fear for his safety and agreed 

to transfer him to the prison’s administrative unit, also known as the “Complex.” (See Doc. 

27, Ex. D). Although ADOC agreed to transfer Mr. Doe, it did not perform an official 

investigation into who slashed Mr. Doe’s tires. 

At Complex, Mr. Doe’s coworkers continued to make offensive comments. His 

supervisor, Sergeant Wall, repeatedly referred to Mr. Doe as “she,” and told other officers 

that he used to be a female, against Mr. Doe’s wishes. At one point, Sgt. Wall stated, “did 

you know that [Mr. Doe] used to be a female. . . [c]an you believe that s—?” (Doc. 34-3 at 

16). Shortly thereafter, many of Mr. Doe’s coworkers asked him unwelcome questions 

about his gender status. Mr. Doe complained to Sgt. Wall about these statements and 

questions, but Sgt. Wall did not take corrective action. Due to this situation, Mr. Doe 

requested another transfer. 

In October of 2011, Mr. Doe was transferred to the North Unit. (Doc. 27, Ex. E). 

Again, Mr. Doe’s supervisors and coworkers continued to discuss his transgender status, 

against his wishes. During a staff briefing, Mr. Doe’s supervisor, Lieutenant Clark 

suggested that the officers should hesitate before investigating a sexual assault of a 

transgender female in the prison. Years later during his time at North Unit, two other 

correctional officers told Mr. Doe that they had heard other officers discussing Mr. Doe’s 

transgender status with some of the inmates. One of the officers who allegedly told inmates 

about Mr. Doe’s status was his direct supervisor, Lieutenant Clark. Fearing for Mr. Doe’s 

safety, one of these officers immediately filed an information report with ADOC 

documenting her concern. (Doc. 34, Ex. 5). Another officer informed Mr. Doe that his 

supervisor, Lieutenant Clark, had referred to him as a “he/she.” ADOC did not investigate 

the information report filed by the other officer. 

In response, Mr. Doe filed his first charge of discrimination with the Equal 

Employment Opportunity Commission (“EEOC”), alleging that his “employer has 

breached my confidentiality of my being a transgender individual which was resulted in 
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jeopardizing my safety with the work environment.” (Doc 34, Ex. 3). Due to a lack of 

corrective action, Mr. Doe then requested an additional transfer. 

Mr. Doe was then transferred to the Papago Unit in Douglas, Arizona. Mr. Doe 

worked at Papago from July 2015 until he submitted his resignation letter in 2016. While 

at Papago, Mr. Doe’s supervisor, Lieutenant Buldoc, made offensive comments. 

Specifically, he referred to a prominent transgender celebrity as a “nut job,” stated that he 

would like her in his prison because she would be “one sorry b—.” Lieutenant Buldoc also 

made comments about Doritos Rainbow Chips, stating “what the hell this is about paying 

15, 20 bucks for a stupid bag of Doritos,” and “who in their right mind would pay for 

Doritos like that to support the queers.” (Doc. 34-5 at 1). Another supervisor, Sergeant 

Fredrickson, allegedly criticized Mr. Doe’s performance on the job, and scrutinized his 

extended sick leave when he returned to the job. Mr. Doe did not file any complaints with 

ADOC regarding these incidents during his time in Douglas. Citing interference with his 

sick leave, Mr. Doe finally resigned from his position in April of 2016. (Doc. 27-3 at 27). 

DISCUSSION

I. Legal Standard 

The purpose of summary judgment is “to isolate and dispose of factually 

unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary 

judgment is appropriate if the evidence, viewed in the light most favorable to the 

nonmoving party, shows “that there is no genuine issue as to any material fact and that the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Only disputes 

over facts that might affect the outcome of the suit will preclude the entry of summary 

judgment, and the disputed evidence must be “such that a reasonable jury could return a 

verdict for the nonmoving party.” Anderson, 477 U.S. at 248. 

“[A] party seeking summary judgment always bears the initial responsibility of 

informing the district court of the basis for its motion and identifying those portions of [the 

record] which it believes demonstrate the absence of a genuine issue of material fact.” 

Celotex, 477 U.S. at 323. Parties opposing summary judgment are required to “cit[e] to 
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particular parts of materials in the record” establishing a genuine dispute or “show[] that 

the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 

56(c)(1). 

II. Analysis 

 A. Hostile Work Environment 

 Title VII guarantees employees “the right to work in an environment free from 

discriminatory intimidation, ridicule, and insult.” Meritor Sav. Bank FSB v. Vinson, 477 

U.S. 57, 65 (1986).4

 In the context of a hostile work environment claim, courts must 

examine the “cumulative effect” of the individual acts of harassment when determining 

whether the conduct was sufficiently “severe or pervasive.” See Arizona v. GEO Group, 

816 F.3d 1189, 1206–07 (9th Cir. 2017). The Ninth Circuit has explained that “[t]he 

required level of severity or seriousness varies inversely with the pervasiveness or 

frequency of the conduct.” Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1105 (9th Cir. 

1998). “Offensive comments do not all need to be made directly to an employee for a 

work environment to be considered hostile.” Davis v. Team Elec. Co., 520 F.3d 1080, 1095 

(9th Cir. 2008) (internal citations omitted). 

 To survive at the summary judgment stage, Mr. Doe must show a genuine factual 

dispute as to (1) whether a reasonable person in his position would find the workplace so 

objectively and subjectively hostile toward transgender men as to create an abusive 

working environment, and (2) whether ADOC “failed to take adequate and remedial and 

disciplinary action.” Id. 

 Plaintiff points to sufficient facts to survive summary judgment on this claim. His 

supervisors regularly disregarded his requests to conceal his status for the purpose of 

protecting his safety,5

 and repeatedly engaged in behavior that may be considered 

 

4

 At this stage, the parties do not contest that Title VII’s protections apply to transgendered individuals who are discriminated against on the basis of their gender identity, and therefore harassment against those individuals constitutes “discrimination on 

the basis of sex.” (Doc. 41 at 3). 

5

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harassment by a jury. “In close cases such as this one, where the severity of the frequent 

abuse is questionable, it is more appropriate to leave the assessment to the fact-finder than 

for the court to decide the case on summary judgment.” Davis, 520 F.3d at 1096; see also 

Roberts v. Clark County School District, 215 F. Supp. 3d 1001, 1016–17 (D. Nev. 2016) 

(denying defendant’s request for summary judgment on a Title VII harassment claim, 

where supervisors disclosed plaintiff’s transgender status to his coworkers). 

 A jury could also conclude that the remedial action taken by ADOC was 

insufficient. When determining whether a remedy was sufficient, “Title VII requires more 

than a mere request to refrain from discriminatory conduct.” Dawson v. Entek Intern., 630 

F.3d 928, 941 (9th Cir. 2011); Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991) 

(explaining that a transfer, without reprimanding the alleged harasser, is generally 

insufficient remedy); see also Mockler v. Multnomah County, 140 F.3d 808, 813 (9th Cir. 

1998) (noting that the “failure to interview witnesses is evidence of inadequate remedial 

action”). Specifically, the Ninth Circuit has explained: 

 Nor . . . can the purported offer of transfer be counted as 

sufficient: harassment is to be remedied through actions targeted at the harasser, not the victim. 

 47 F.3d 1522, 1530 (9th Cir. 1995) (internal citations and quotation marks omitted). 

Here, there is no evidence ADOC investigated most of Mr. Doe’s complaints. Mr. Doe 

repeatedly informed his supervisors of the alleged harassment, including that he wished to 

conceal his status. Yet even after one of his supervisors agreed that he had reason to fear 

for his safety, there is no evidence that ADOC opened an investigation into the tire slashing 

incident or took sufficient steps to prevent inmates from finding out about his status after 

 

to him about that status, cannot constitute harassment as a matter of law, even though Mr. Doe asked them to refrain from doing so. (Doc. 41 at 5). Even assuming that this is true, however, it is different in kind than some of the facts here that suggest that at least some 

of his supervisors and co-workers revealed Mr. Doe’s status as transgender to his coworkers and inmates in a way that could contribute to a hostile work environment for 

him. Roberts v. Clark County School District, 215 F. Supp. 3d 1001, 1016–17 (D. Nev. 2016) (denying defendant’s request for summary judgment on a Title VII harassment 

claim, where supervisors disclosed plaintiff’s transgender status to his coworkers). Here, a jury could conclude that in this context, disclosing his gender status to his coworkers 

increased the risk that his status would be disclosed to inmates—thereby causing him to reasonably fear for his safety. 
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his transfer. Nor is there any evidence that ADOC informed Mr. Doe’s supervisors that 

this was a confidential issue to monitor once he was transferred. When Mr. Doe 

complained that other officers—including his supervisor—were informing the inmates of 

his status at North Unit, ADOC failed to undertake an investigation, did not reprimand the 

officers involved, and instead just transferred Mr. Doe once more. 

 B. Constructive Discharge 

Generally, constructive discharge occurs where “the working conditions deteriorate, 

as a result of discrimination, to the point that they become sufficiently extraordinary and 

egregious to overcome the normal motivation of a competent, diligent, and reasonable 

employee to remain on the job to earn a livelihood and to serve his or her employer.” 

Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000). To demonstrate 

constructive discharge, Mr. Doe must point to facts from which a jury could infer 

“conditions so intolerable that a reasonable person would leave the job.” Id. Notably, it 

is generally more difficult to prevail on a constructive discharge claim than it is a hostile 

work environment claim. Id. (explaining that if a plaintiff fails to point to facts that could 

establish a hostile work environment, he necessarily fails to meet the higher standard of 

constructive discharge). 

When evaluating a claim of constructive discharge, a court evaluates the conditions 

of employment around the time of resignation. Steiner v. Showboat Operating Co., 25 F.3d 

1459, 1466 (9th Cir. 1994). Courts put “the bar high for a claim of constructive discharge 

because federal antidiscrimination policies are better served when the employee and 

employer attack discrimination within their existing employment relationship, rather than 

when the employee walks away and then later litigates whether his employment situation 

was intolerable.” Poland v. Chertoff, 494 F.3d 1174, 1184-85 (9th Cir. 2007). 

Plaintiff points to the conduct of two coworkers in his attempt to demonstrate 

constructive discharge. First, he alleges that Sergeant Fredrickson scrutinized his job 

performance unfairly and made inappropriate comments regarding his extended sick leave. 

But Doe has failed to point to facts from which a jury could conclude that these acts were 
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discriminatory, or that they created the kind of intolerable environment necessary for 

constructive discharge. Steiner, 25 F.3d at 1466. 

Second, he points to two offensive comments made by Lieutenant Buldoc during 

his time in Douglas. These comments were made in approximately September 2015 or 

earlier—more than six months before Mr. Doe’s ultimate resignation in April 2016. (Doc. 

34-1 at 1). Lieutenant Buldoc alleges that he was unaware of Mr. Doe’s transgender status 

at the time that he made these comments—he simply knew Mr. Doe as a male colleague. 

And Mr. Doe did not want any of his other coworkers to be aware of his protected status. 

Mr. Doe does not provide any evidence, other than speculation, to support his assertion 

that Lieutenant Buldoc was aware of his protected status. This is fatal to his constructive 

discharge claim. See Woodman v. WWOR-TV, Inc., 411 F.3d 69, 87 (2d Cir. 2005) 

(explaining that, to defeat summary judgment, plaintiff was obliged to offer evidence 

indicating that persons involved in the discrimination had knowledge of her protected 

characteristics); Hayes v. Sotera Defense Solutions, 2015 WL 6758294 at *3 (E.D. Va. 

2015) (explaining that “there can be no discrimination without knowledge of the protected 

characteristic”); Brundage v. Hahn, 57 Cal. App. 4th 228, 236 (1997) (holding that 

summary judgment was appropriate where the employer's staff did not know of a plaintiff's 

protected characteristic). Absent evidence that Lieutenant Buldoc was aware of Mr. Doe’s 

protected characteristic the Court cannot find that there are facts from which a jury could 

conclude that there was discrimination that resulted in a constructive discharge. 

CONCLUSION

 Plaintiff John Doe has pointed to facts from which a jury could find in his favor on 

the hostile work environment claim. However, he has failed to point to facts from which 

a jury could conclude he was constructively discharged. The Court will therefore grant 

Defendant’s motion in part and deny it in part. 

/ / / 

/ / / 

/ / / 
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IT IS THEREFORE ORDERED that Defendant’s Motion for Summary 

Judgment (Doc. 26) is GRANTED IN PART AND DENIED IN PART AS FOLLOWS: 

Summary judgment is granted as to the constructive discharge claim. Summary judgment 

is denied as to the hostile work environment claim. 

 Dated this 8th day of July, 2019.