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«CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 1 of 63 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Jakob Tiarnan Rumble, Case No. ...»

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(See id. 31.) It is also plausible that Rumble and his mother “believed” that other patients with less urgent medical needs were treated more quickly than Rumble was, because Plaintiff and his mother may have seen patients entering and exiting the emergency room waiting room and approaching the intake desk. (See id. 37.) In addition, Rumble may have had the “impression” that some of the nurses were hostile towards him because of his gender identity, based on a reasonable expectation that nurses would usually not avoid speaking to patients when caring for them. (See id. 57.) Thus, in sum, Plaintiff’s allegations of discriminatory animus are based on more than pure speculation.

Defendant cites the following cases to bolster its claim that Plaintiff failed to plausibly allege that Fairview had discriminatory animus: (1) Bilal v. Northwest Airlines, Inc., 537 N.W.2d 614 (Minn. 1995); (2) Nash v. JBPM, Inc., No. 09-cv-1437 CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 60 of 63 (RHK/RLE), 2010 WL 2346605 (D. Minn. June 9, 2010); (3) Phillips v. Speedway SuperAmerica LLC, No. 09-cv-2447 (RHK/FLN), 2010 WL 4323069 (D. Minn. Oct. 22, 2010); and (4) Willenbring v. City of Breezy Point, No. 08-cv-4760 (MJD/RLE), 2010 WL 3724361 (D. Minn. Sept. 16, 2010). However, each of these cases is distinguishable.

First, the Court notes that all of these cases were decided after a full evidentiary trial was held, or upon a motion for summary judgment, after discovery had taken place. Here, Plaintiff has not yet had the benefit of the discovery process and is left with only the information that was readily available to him while he was a patient at Fairview. Second, these cases are clearly distinguishable insofar as the plaintiffs in these cases failed to substantiate their claims of discriminatory animus with any circumstantial or direct evidence.

For instance, in Bilal, the Minnesota Supreme Court held that the trial court judgment was properly reversed because the plaintiff had “not established a discriminatory motive on the part of [the defendant] or its employees.” See 537 N.W.2d at 619. The plaintiff alleged that one of the defendant’s employees had discriminated against her, because although the plaintiff was Muslim, the employee had told the plaintiff that she should “dress as if she were going to church.” Id. at 617. The Minnesota Supreme Court explained that because the employee “did not even know of which religion, if any, [the plaintiff] was a member,” then the employee could not have “intentionally discriminated against [the plaintiff].” Id. at 619. Here, however, Plaintiff alleges that the Fairview employees either affirmatively knew or were likely aware that Rumble is transgender, and thus could have intentionally discriminated against him.

CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 61 of 63 Nash is similarly distinguishable from Rumble’s case. In Nash, the pro se plaintiff had not even filed a response brief to the defendant’s motion for summary judgment. See 2010 WL 2346605, at *2. Therefore, the court held that there was no basis for a reasonable jury to conclude that the defendant’s actions were taken because of the plaintiff’s protected class status since the plaintiff had “proffered no evidence at all in response to [the defendant’s] Motion.” See id. The Nash Court explained that without any evidence to the contrary, it was forced to conclude that the defendant might act similarly to all customers, regardless of the customer’s race. See id. Here, Rumble sufficiently alleges facts demonstrating that Fairview’s actions were plausibly taken because of Rumble’s protected class status. Moreover, Plaintiff alleges that other patients were likely treated differently and better than he was, because they were not transgender.

While Rumble cannot yet proffer more specific evidence of comparative treatment at this stage in the litigation, after discovery Plaintiff will have the opportunity to present this evidence.

Phillips is also distinguishable from Rumble’s case. In Phillips, the court granted the defendant’s motion for summary judgment on the plaintiff’s MHRA claim because the plaintiff failed to present evidence that permitted the inference that the conduct complained of was motivated by the plaintiff’s race. See 2010 WL 4323069, at *3. The court specifically noted that “[t]here is no dispute that other black customers patronized [the defendant’s] store on the night in question, and they were neither detained nor accused of shoplifting,” the plaintiff “proffered no evidence indicating that the store ha[d] a history of accusing blacks of theft or that [the defendant’s employees] singled out black CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 62 of 63 customers for disparate treatment,” and an employee’s lone comment about race was “insufficient to establish that [the defendant’s employees] acted out of racial animosity.” See id. However, as Rumble argues, “the [Phillips Court] does not state or even imply that if the plaintiff had provided sufficient evidence that he was accused of shoplifting and physically grabbed because of his race, that those actions would not have constituted discrimination.” (See Pl.’s Mem. at 41 (emphasis added) [Doc. No. 25].) Here, Rumble alleges facts that permit the inference that the conduct of Fairview staff was motivated by Plaintiff’s transgender status. Specifically, Plaintiff alleges that based on the totality of the circumstances Fairview staff likely knew, or were affirmatively aware, that Plaintiff was transgender. Thus, Plaintiff plausibly alleges that he received disparate treatment because of his gender identity. The Court does not expect Plaintiff to bolster his MHRA claim with more substantive evidence at this stage in the litigation. Rather, Plaintiff must only allege “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim].” Twombly, 550 U.S. at 556.

Accordingly, Plaintiff meets this burden.

Finally, Plaintiff’s case is also distinguishable from Willenbring. See 2010 WL

3724361. In Willenbring, the court granted the defendant’s motion for summary judgment on the plaintiff’s MHRA claim because the plaintiff provided no evidence suggesting that the defendant’s employee’s conduct was “motivated by [the plaintiff’s] status as a woman.” Id. at *12. Here, as earlier described in great detail, Plaintiff sufficiently alleges facts demonstrating that Fairview’s conduct was motivated by Rumble’s transgender status. Since “[a] record of disparate treatment and unprofessional CASE 0:14-cv-02037-SRN-FLN Document 31 Filed 03/16/15 Page 63 of 63 behavior directed at a plaintiff may constitute evidence of discriminatory intent,” Pierce, 994 F. Supp. 2d at 163, Plaintiff’s Complaint meets the requisite threshold to survive dismissal.


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