## Facts

- Jameka K. Evans worked as a security officer at Georgia Regional Hospital in Savannah, Georgia.
- Evans, proceeding pro se, alleged workplace harassment and adverse actions because she is a lesbian and because she did not conform to stereotypical expectations of how a woman should appear and behave.
- Evans also alleged retaliation after she complained to the hospital’s human resources department.
- The district court dismissed her complaint sua sponte at the in forma pauperis screening stage for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii).
- Evans appealed the dismissal of her Title VII claims for sexual orientation discrimination, sex discrimination based on gender non-conformity, and retaliation.

## Issues

1. Whether allegations of discrimination for failure to conform to gender stereotypes state a plausible sex-discrimination claim under Title VII.
2. Whether Title VII permits a claim based solely on discrimination because of sexual orientation under binding Eleventh Circuit precedent.
3. Whether Evans preserved appellate review of the dismissal of her retaliation claim.

## Decision

- Affirmed the dismissal of the Title VII sexual-orientation discrimination claim because binding circuit precedent held that Title VII does not prohibit discrimination based solely on homosexuality.
- Vacated the dismissal with prejudice of the Title VII gender non-conformity (gender-stereotyping) claim and remanded with instructions to allow Evans to amend.
- Affirmed the dismissal of the retaliation claim because Evans did not adequately brief a challenge to that dismissal on appeal, resulting in waiver.
- Disposition: affirmed in part, vacated in part, and remanded.

## Legal Principles

- Dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) applies the same failure-to-state-a-claim standard used for Rule 12(b)(6).
- Pro se pleadings must be liberally construed, but they must still allege sufficient factual matter to state a plausible claim.
- Title VII’s prohibition of discrimination “because of sex” includes discrimination based on failure to conform to gender stereotypes (a gender non-conformity theory distinct from sexual-orientation discrimination).
- A circuit panel must follow binding circuit precedent unless overruled by the court sitting en banc or by the Supreme Court; under controlling precedent, Title VII did not reach sexual-orientation discrimination in this circuit at the time.
- Appellate issues not meaningfully argued in the opening brief are treated as waived.

## Conclusion

The Eleventh Circuit permitted Evans to pursue a Title VII sex-discrimination theory based on alleged gender stereotyping by vacating the dismissal of that claim and allowing amendment, but it affirmed dismissal of her sexual-orientation claim as foreclosed by binding precedent and affirmed dismissal of retaliation based on appellate waiver.


Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017)