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Employer prevails on gender, sex orientation bias claim

Virginia Lawyers Weekly//February 17, 2023

Employer prevails on gender, sex orientation bias claim

Virginia Lawyers Weekly//February 17, 2023

Where an employee alleged she was terminated because of her gender and sexual orientation, but there was no evidence of any discriminatory animus by the decisionmaker, and an equal number of men and women were selected during the reorganization, the employer prevailed on the discrimination claim.


Michelle Romano alleges that her former employer, Verisign Inc., discriminated against her, retaliated against her and created a hostile work environment based on her gender and sexual orientation. Verisign has filed a motion for summary judgment.

Adverse employment actions

Given the applicable limitations period, Romano’s claims for discrimination or retaliation must be based on adverse actions alleged to have occurred after Sept. 24, 2020. In addition to her termination, Romano identifies three other allegedly adverse actions after this date: (1) Scott Schnell’s refusal to provide Romano with SMART goals; (2) a false allegation that Romano stormed out of a meeting and (3) her coworkers’ purported failure to send flowers to Romano when a close family member died.

Romano’s own testimony places both the false allegation and the failure to have flowers sent as having occurred in 2019, outside of the relevant time period. In any event, neither allegation constitutes a discrete adverse action that would support a claim for discrimination or retaliation, as there is no evidence that these acts led to any adverse consequences in her employment.

As for the failure to provide goals, there is no evidence in the record that Romano experienced any adverse consequence for not having the goals she contends she should have received. Accordingly, the 2021 termination is the only adverse employment action that could potentially create liability for disparate treatment or retaliation.

Discrimination and retaliation

Turning to the discrimination, none of the evidence that might be considered either direct or indirect evidence of a discriminatory act or motive would allow a reasonable factfinder to attribute the alleged discriminatory animus to the decision maker who selected Romano’s position for termination. Further, an equal number of men and women were selected during the reorganization, and accordingly there is no evidence upon which to infer discrimination based on gender or sexual orientation in connection with the elimination of positions.

Turning to the retaliation claim, the most recent purported protected activity that Romano claims she engaged in appears to have happened in 2019, nearly two years before Romano’s termination. This period of over a year is too long to support an inference of a causal connection based on temporal proximity. And as with her discrimination claims, there is no other evidence from which a causal connection can be inferred to be possessed by the relevant decision maker.

Even assuming that Romano had proffered evidence sufficient to make out a prima facie case of either discrimination or retaliation, she has also failed to proffer evidence sufficient to infer that Verisign’s asserted reason for her termination was a pretext for discrimination or retaliation against her. Verisign is entitled to judgment as a matter of law on the discrimination and retaliation claims.

Hostile work environment

The only alleged acts contributing to a hostile work environment within the limitations period are (1) Romano’s termination; (2) not allowing her stock to vest; (3) not offering her the opportunity to apply to other positions like heterosexual employees and (4) being grouped with the only outwardly gay female during a diversity inquiry. The alleged hostile acts within the limitations period are not sufficiently connected to the alleged hostile acts outside the limitations period so as to constitute part of a continuing pattern that created a hostile work environment that altered Romano’s conditions of employment.

Moreover, the relied upon events outside of the limitations period, even if they occurred as alleged, were not sufficiently “severe” or “pervasive,” either individually or collectively, so as to alter the conditions of Romano’s employment. Nearly all of the relied upon behavior constituted one-time occurrences, or behaviors that only occurred sporadically, over a six-year period and were committed by different employees of different rank within the company.

Romano has also not presented sufficient evidence from which to establish a hostile work environment based on acts within the applicable limitations period. Again, the decision-makers with respect to her termination were not involved in the other hostile acts alleged to have occurred within the actionable time period. And as to other timely relied upon actions, Romano has not offered sufficient evidence that those acts occurred on account of her gender or sexual orientation or that those events were unwelcome conduct.

Defendant’s motion for summary judgment granted.

Romano v. Verisign Inc., Case No. 1:22-cv-00549, Feb. 7, 2023. EDVA at Alexandria (Trenga). VLW 023-3-051. 21 pp.

VLW 023-3-051

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