Source: Montana Law Week

SEX DISCRIMINATION: No reasonable cause to believe unlawful discrimination in termination of transgender server.

Nash Walden was hired by Silver Star Steak Co., Helena, in 4/13 as a server. In early 8/14 he requested a 4-week leave from GM Jeff Hiel to complete his transition from female to male (look into legal & medical issues and return to work as Nash rather than Natt, short for Natalie, by which most co-workers referred to him). Hiel stated that Walden could return to work if a position was available, but no guarantees. Walden said he is aware of other instances in which Silver Star granted extended leaves for non-transgender employees. On 8/30/14 Walden had an emergency and needed to take the day off. He followed protocol in alerting Silver Star at least 2 hours before his shift. The manager on duty said he needed to find someone to cover his shift or he would have to work. Walden said he texted other employees to ask if they could cover and continued to advise Silver Star of his progress. He was unable to find a replacement and arrived to work about 12 minutes late. The manager on duty told him to clock out and go home. Later that day he was told to attend a meeting 3 days later. At that meeting, Hiel terminated him. Walden said one of the reasons given is that he ruined the manager’s morning on 8/30 because he called multiple times to discuss his leave request. Silver Star cited this as insubordination, he said, although he is aware of other instances in which non-transgenders were allowed to miss shifts for personal reasons. He alleges that Silver Star discriminated against him because of his sex.

According to Silver Star, Walden was terminated for well-documented performance problems and his transgender status had “no impact” on it. He had been given a written warning in early 4/14 over poor work, conduct with guests, and policy & procedure violations. It requires an employee to find a replacement at least 2 hours prior to a shift, which Walden did not do. It said the software it provides for employees to view their shifts and make arrangements for coverage shows his first attempt to find coverage at 9:43 a.m. for the shift scheduled to start at 10:30 a.m. A reprimand was written that day by food & beverage director Joey Balbas. Silver Star said Walden was suspended for attendance, attitude toward his supervisor, tardiness, and a policy/procedure violation over the incident, and was terminated for insubordination, disrespect, disorderly conduct, and repeated profanity.

Walden established a prima facie case of employment discrimination. He is a transgender and falls under the protected class of sex-gender stereotypes based on recent case law and EEOC guidelines. He had been employed since 4/13. He said Silver Star denied extended leave provided others and terminated him in circumstances where others were not terminated. He asserts that he believes others were treated better in requests for extended leave, and highlighted what he perceived to be a harsh denial when Hiel told him to “not make a big deal” of his transition from female to male.

I find no reasonable cause to believe unlawful discrimination occurred. Walden was unable to show that he was treated differently from others because of his transgender status. Hiel, bar manager Eric Anderson, and Balbas described that its policy is to lay off employees who request extended leave and hire them back on their return. While this may appear unusual, Balbas described it in some detail, noting “bookkeeping” concerns, and Hiel and Anderson described what they believed to be practical aspects. Walden’s behavior at the meeting was unprofessional and provided basis for termination. Walden acknowledged that he was “extremely upset” given the circumstances and timing. Silver Star said he came in with a chip on his shoulder. Hiel commented that his behavior was unlike any he had ever seen in an employment setting. Walden acknowledged repeated use of the “F-bomb.” Balbas fired 5 others in 2014 over behavior and performance, and recently fired an employee over violations of call-off procedures. None of the terminated employees was known by Silver Star to be outside the stereotypical gender status.

The Shea Law Office represented the purchasers of a home at a foreclosure sale in a case of first impressions under Montana law.

A  Trustee was appointed to run the foreclosure sale and send notices under Montana’s foreclosure statute before the sale to all individuals and entities that had filed liens on the home.  At the foreclosure sale, the purchasers were the winning bidders for the home.   They paid $737,000 for the home.  Under the foreclosure statute, the winning bidder must make the payment in cash.

Shortly after the sale the purchasers discovered that the Trustee did not notify a number of lienholders of the upcoming sale.   Given that these lienholders did not receive notice of the sale, they did not have a chance to make a bid on the home at the sale.  Also, because they did not receive notice of the sale, under the foreclosure statute their liens remained on the home after the sale.

The purchasers then asked the Trustee, and the Title Company that performed the title search of the home for the Trustee, to take care of the liens. However, the Trustee and the Title Company did not accept responsibility for the liens that remained on the home.   The total amount of the liens on the home was more than double the purchase price. This rendered the purchasers’ new $737,000 home virtually worthless because the purchasers were unable to sell the home, or take out a mortgage on the home (and recapture some of the cash used to buy the home) while the liens remained on the home.   The purchasers were retired and their savings were used to buy the home. The purchasers suffered substantial damages as a result of the Trustee’s and Title Company’s refusal to address the purchasers’ ordeal.

The purchasers then filed a lawsuit against the Trustee and Title Company requesting the Court to order them to take care of the liens, and to compensate them for their attorneys’ fees, costs, and emotional distress damages.  The Trustee asserted he did not have a duty to notify the lienholders of the sale and that the purchasers were obligated to deal with the remaining liens themselves.   The Title Company argued that it owed no duty to the purchasers when it conducted its search for liens on the home.  The Court held that the Trustee did have a duty to notify the lienholders and the purchasers had a right to rely on the Trustee doing this.  The Court also determined that the Title Company owed a legal duty to the purchasers to properly conduct the search for liens on the home.

Following this, the Trustee and the Title Company made payments to the lienholders, and the liens were taken off the purchasers’ home.  The purchasers then settled their damage claims against the Trustee and Title Company on a confidential basis.