Unpublished Disposition, 907 F.2d 154 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 154 (9th Cir. 1990)

Carrie DRAKE, Plaintiff-Appellant,v.David WERDEGAR, Director, San Francisco Department of PublicHealth, Defendant-Appellee.

No. 89-15342.

United States Court of Appeals, Ninth Circuit.

Submitted June 5, 1990.* Decided July 3, 1990.

Before SNEED, FARRIS and FERNANDEZ, Circuit Judges.


Appellee suggests that since appellant has now left the employment of the city, Title VII relief is no longer available. That is not so. Appellant asked for monetary relief, and that still remains possible in the form of back pay, even if reinstatement is no longer an issue. See Domingo v. New England Fish Co., 727 F.2d 1429, 1438, modified, 742 F.2d 520, 521 (9th Cir. 1984).

We review the grant of summary judgment de novo. West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1525 (9th Cir. 1990). Summary judgment is appropriate in those cases where the non-moving party has failed to show that there is an actual dispute about a material fact because there is sufficient evidence from which a person could reasonably resolve the dispute in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986).


Our careful review of the record satisfies us that the evidence before the court at the summary judgment hearing was insufficient to support Drake's claim to the extent it is based upon the perceived or deemed woman theory. It fails to indicate that the claimed actions of the Department were at all concerned with any perception that Drake was a woman. Drake's own statements during much of the process which led to this litigation tend to demonstrate that the workers at the Department were under no illusions, and that their unpleasant actions, if any, related to interpersonal relationships rather than to sex. In fact, it is undisputed that appellant's own earlier discrimination claims referred to transgender problems.

Appellant never insisted upon being called "he or she." Moreover, the Department indicates that it was unsure of what sex assignment it should use, and appellant appears to consider sexual assignment a bit of an irrelevancy in any event.

Appellant appears to have been offended by the Department's policies and by its attitude towards men and women alike. Appellant appears to have perceived those policies and attitudes as particularly offensive to women, but there is insufficient evidence to raise a genuine issue of material fact as to whether the Department perceived or deemed appellant to be a woman or took any of its actions on the basis of any such perception. We must therefore conclude that Drake failed to bring forward sufficient evidence to support a claim of sexual discrimination.1 



The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3


Of course, appellant is not actually a biological woman and cannot maintain this action as a biological women. Holloway v. Arthur Andersen & Co., 556 F.2d 659, 662-63 (9th Cir. 1977). Moreover, Title VII does not protect employees from discrimination against them because they are transsexuals rather than because they are male or female. Id