The Fifth Circuit’s recent opinion in Olivarez v. T-Mobile USA, Incorporated; Broadspire Services, Incorporated, No. 20-20463 (May 14, 2021) is interesting for two reasons.

    First, it provides a useful analysis regarding whether, in disparate treatment cases under Title VII or the ADA, a plaintiff must establish all elements of a prima facie case under McDonnell Douglas to survive a Rule 12(b)(6) dismissal.

    In Olivarez, the Court, citing to Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), said no, but its analysis belies this conclusion.  Under Swierkiewicz, as interpreted by the Fifth Circuit, to avoid a 12(b)(6) dismissal, there are two ultimate elements a plaintiff must plead to support disparate treatment claims: (1) an adverse employment action; (2) taken against a plaintiff because of his or her protected status.  

    To determine whether the employer took action against the plaintiff because of his protected status (transgender), the Court also cited Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 470 (5th Cir. 2016), wherein it previously determined that although a plaintiff does not have to submit evidence to establish a prima facie case of discrimination under McDonnell Douglas at the 12(b)(6) dismissal stage, the plaintiff must “plead sufficient facts on all of the ultimate elements of a disparate treatment claim to make his case plausible.”   

    That certainly sounds contradictory.

    Finding that the plaintiff failed to plead any facts indicating less favorable treatment than others similarly situated outside the protected class. the Fifth Circuit affirmed the dismissal.

    Second, the case is interesting because it includes a provocative sound bite with no analysis.  More specifically, on the second page of the opinion, the Court notes, “An employer discharged a sales employee who happens to be transgender—but who took six months of leave, and then sought further leave for the indefinite future. That is not discrimination—that is ordinary business practice.”  

    Yet, the Court’s opinion does not include an analysis of the length of leave issue or explain what it meant by the phrase, “ordinary business practice.”  

    In short, the opinion may be useful to defendants seeking an early dismissal.  A copy of the opinion is here: