SAN FRANCISCO (Legal Newsline) - A transgender woman who claimed she was discriminated against by the University of the Pacific can't prove it acted with malice, the university is claiming.
Pacific filed its motion for summary adjudication in Nicole Shaw's lawsuit Oct. 4 in San Francisco Superior Court, arguing Shaw's request for punitive damages is improper.
Among the allegations made by Shaw, once a patrol officer, was that she was called "dude" by co-workers in 2020-21.
"Plaintiffs allegations of wrongful conduct are limited to her co-workers, her peers. She concedes no one else at Pacific engaged in the alleged wrongful conduct," the motion says.
"Plaintiff also admits she did not report the alleged wrongful conduct to anyone after her initial report to Human Resources, except a lead officer who was not a supervisor, and is not a managing agent of Pacific. Actual knowledge or ratification and/or authorization of the alleged conduct is required."
According to the complaint, Shaw began her employment on Oct. 12, 2020, as a married transgender female. Shaw's job title was "Patrol Officer" and upon taking the job, introduced herself as a female. She had secured a name change four years earlier.
Despite this, co-workers and supervisors would refer to Shaw as "dude" and "he/him" and Shaw would correct the co-workers and supervisors to no avail. Shaw met with Sergeant Emilio Fastidio, a “supervisor,” on Oct. 21, 2020, to discuss what was happening.
The discrimination continued, Shaw alleges, only persisting and worsening. On Oct. 29, 2020, Shaw reported to HR the harassment and worsening treatment, and Corporal Quan asked how to refer to her, then replied "I'll just call you Nick," refusing her request to be addressed by female pronouns, the suit says.
From then until Feb. 8, 2021, Shaw was subjected to continued harassment, discrimination and retaliation for multiple reports to HR, the suit says, and was fired on Feb. 8, 2021.
Pacific said it addressed each report of alleged wrongful conduct as they occurred and had one of its officers counsel co-workers on the proper pronouns to be used.
"Because Plaintiff relied only on the lead officer and the lead officer failed to report the conduct to anyone else at Pacific, Pacific lacked actual knowledge of the alleged ongoing wrongful conduct and cannot be held liable for punitive damages," the motion says.
"Moreover, because Pacific took steps to remedy each complaint - whether by completing an inquiry and/or subsequent counseling, Plaintiff's allegations of wrongful conduct were addressed and remedied. Thus, Pacific did not authorize or ratify the alleged wrongful conduct and punitive damages are not warranted."
Pending is Shaw's motion for sanctions against the university that claimed its discovery requests sought to violate the "privacy in her medical records and her body."
The June motion says co-workers asked Shaw whether she was the "top" or "bottom" during sex and made sexual comments about women in the workplace, over her objections.
"Defendant’s position is that by filing her lawsuit, Ms. Shaw opened herself up to all the discovery at issue, because despite being female in the eyes of the law (and this Court), and identifying as a female, discovery about... her genitals, whether she tucks her genitals, medical procedures she had or plans on having, hormone treatments, etc. will somehow help explain Defendant’s employees alleged 'confusion' about Ms. Shaw’s gender," the motion says.