LEANNA A. MUIR,
APPLIED INTEGRATED TECHNOLOGIES, INC
DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for review in this employment discrimination case are two motions. First, Plaintiff Leanna A. Muir filed a motion to strike the affidavit of Vicki Redman. (ECF No. 16). Second, Defendant Applied Integrated Technologies, Inc. ("AIT") filed a motion to dismiss or, in the alternative, for summary judgment. (ECF No. 12). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, both motions will be denied.
Unless otherwise noted, the facts outlined here are construed in the light most favorable to Plaintiff, the nonmoving party.
This case centers around Defendant's termination of Plaintiff's employment. Plaintiff, AIT's employee from December 2009 to September 1, 2011, is transgender. Plaintiff's sex was classified as male at birth and Plaintiff was socialized as a traditional male. Until spring of 2011, Plaintiff presented as a traditional male. Over time, however, Plaintiff determined that the male designation did not conform to her gender identity. In or around February 2011, Plaintiff was diagnosed with gender identity disorder, a conflict between one's birthassigned sex and one's gender identity. In February 2011, Plaintiff began medical treatment for gender reassignment and has been under the care of medical and mental health professionals consistent with the accepted standards of care for persons with gender identity disorder. In or around spring of 2011, Plaintiff began to present and live as a female. She began cross-gender hormone therapy on June 23, 2011 but discontinued therapy on January 15, 2013 because of a lack of full-time employment. Plaintiff legally changed her name from Jesse Muir to Leanna Muir on January 19, 2012. (ECF No. 1 ¶¶ 10, 12, 14-15, 17, 23-27).
Relevant for this case, Plaintiff was employed by two companies: USIS National Security Division ("USIS") and Defendant, both federal contractors. She was hired by USIS in June 2009 as a Construction Surveillance Technician and was hired by Defendant in December 2009 as a part-time Access Control Manager. As a requirement for both positions, Plaintiff had to hold and maintain a security clearance. ( Id. ¶¶ 31-32). When hired by Defendant, Plaintiff was given the company's employee handbook which states that
If the Government withdraws an employee's security clearance, AIT may find it necessary to terminate an employee involuntarily. If this occurs, AIT reserves the right to decide to reassign the employee to work that does not require access to sensitive information. In the event that no such assignment is available, AIT has no other choice than to terminate the employee.
(ECF No. 12-4, at 2). Plaintiff signed a form acknowledging receipt of the employee handbook on November 9, 2009. (ECF No. 12-2). Plaintiff came to Defendant's employ holding a Top Secret Clearance, with access to Sensitive Compartmented Information ("TS/SCI"), which the Defense Intelligence Agency ("DIA") granted in approximately February 2007. ( Id. ¶ 29). When she was hired by USIS and Defendant, Plaintiff was presenting as a male. ( Id. ¶ 33).
Plaintiff was employed with Defendant at the National Center for Medical Intelligence ("NCMI") at Fort Detrick, Maryland. In early March 2011, during the early stages of her gender transition process, Plaintiff reported to work at Fort Detrick in her company uniform with painted fingernails. An employee at Fort Detrick complained; this led to Defendant calling Plaintiff for a meeting with several AIT managers on March 16, 2011. At that meeting, Plaintiff informed Defendant of her treatment and her interest in transitioning from male to female. Plaintiff told her management that the transition would have no impact on her ability to perform her job. ( Id. ¶¶ 32, 35-37). Defendant suspended Plaintiff and, according to Plaintiff, told her that the customer needed time to "cool down." ( Id. ¶ 38).
Defendant conveys a different version of this interaction. As part of its motion for summary judgment, Defendant filed an affidavit of Vicki Redman, Defendant's Human Resources Manager. According to Ms. Redman, Timothy Wolfe, Security Manager for the DIA at Fort Detrick, informed Defendant that in order to maintain her TS/SCI security clearance - a requirement to work at Fort Detrick - Plaintiff must provide a letter from a mental health care practitioner attesting to Plaintiff's fitness to work, and a personal statement from Plaintiff explaining the thought process that led Plaintiff to become transgender. Mr. Wolfe is an employee of DIA, not Defendant. (ECF No. 12-3 ¶ 7). At the March 16, 2011 meeting, Defendant informed Plaintiff of DIA's demands and gave her sixty (60) days to comply. Plaintiff was informed that "pursuant to DIA policy/directive, she could not report to work until the documentation was provided, and that, if the documentation was not provided within this timeframe, the DIA may terminate its subcontract with AIT." ( Id. ¶ 8).
The Department of Navy Central Adjudication Facility ("DONCAF") was responsible for adjudicating Plaintiff's security clearance. In April of 2011, Plaintiff met with Krystal Williams, a DONCAF security clearance investigator and informed her that she had been diagnosed with gender identity disorder. (ECF No. 17-2 ¶ 2, affidavit of Plaintiff). No further details about the substances of that meeting are provided. On May 9, 2011, Plaintiff sent a letter to DONCAF describing her diagnosis and her intent to transition from male to female. (ECF No. 17-3). On the same day, Plaintiff's therapist sent a letter to DONCAF confirming Plaintiff's diagnosis and the therapy she was undergoing. (ECF No. 17-4). In her affidavit, Ms. Redman - who works for the contractor that employs Plaintiff - makes no mention of these letters. Plaintiff has never received any information from DONCAF that the status of her security clearance has been changed in any way. ( Id. ¶ 43).
Plaintiff provides a printout from DONCAF's systems concerning Plaintiff. The message provides:
DONCAF previously responded to an RRU with the following response: "We received your request to recertify the subject's security eligibility determination. However in order to comply with your request please have subject provide a written [statement] regarding his being by a psychologist (circumstances surrounding why, how long, etc.). Also, please include any available documentation from the psychologist himself." To date we have yet to receive a response. Please respond within the next 30 days, [no later than] 14 July 2011.
(ECF No. 17-7) ("DONCAF Status Report"). The date of this message is not stated explicitly, but given the deadline provided, it appears to have been generated on June 14, 2011.
On or around July 1, 2011, Tim Donnelly, Defendant's Director of Security, requested a letter from Plaintiff's therapist regarding her gender identity disorder, treatment, and ability to work. ( Id. ¶ 45). Plaintiff's therapist responded in a letter dated July 18, 2011, addressed to Mr. Ellsworth Lew of AIT, describing Plaintiff's disorder, the prescribed treatment, and assertingthat the treatment would not affect Plaintiff's job performance. (ECF No. 17-6). On or around July 26, 2011, Defendant came back to Plaintiff, seeking a personal statement from Plaintiff describing why and for how long she has been transgender. ( Id. ¶ 46). Plaintiff refused to do so, feeling it was intrusive and unnecessary given that DONCAF, and not Defendant, controlled Plaintiff's security clearance. ( Id. ¶ 60). Defendant makes no mention of any request by Mr. Donnelly for information for AIT purposes; instead, Defendant maintains that it requested this information from Plaintiff based on orders from DIA. According to Defendant, failure to receive the demanded personal statement resulted in DIA terminating the subcontract with AIT for Plaintiff's position. Ms. Redman maintains that AIT had no role in this decision. (ECF No. 12-3 ¶ 11). Ms. Redman acknowledges that Plaintiff did not have any performance issues and therefore attempted to find her another job for which she was qualified, but no such position existed currently. ( Id. ¶ 12). On September 6, 2011, Defendant informed Plaintiff that her employment was terminated effective September 1, 2011. ( Id. ¶¶ 48, 63). The termination notice stated the reason as follows: "[Armed Forces Medical Intelligence Center] informed AIT that documentation requested from you on July 25, 2011, determining ...