Traffic officer says identity shift led to workplace discrimination
By Margie M. Palmer/GSD Reporter
Toni Witten said her decision to come out as transgendered in late 2009 has put her job as a traffic officer for the San Diego County Regional Airport Authority in jeopardy.
On June 9, 2010, Witten received a “Notice to Suspend,” and was placed on paid administrative leave due to allegations spanning from sexual harassment of coworkers to exhibiting conduct that created a “hostile, abusive, or intimidating work environment for one or more employees.”
Witten, a nine-year veteran on the job who has been praised for her performance, said she finds it odd that it wasn’t until she came out as a woman that complaints against her started rolling in.
“I’ve always been this person,” said Witten, whose coworkers previously knew her as male. “It wasn’t until July of last year, when I went to San Diego Pride, that I decided I needed to start coming out with this. I was tired of being a man at work and living as a woman outside of work. In October I reported to human resources and informed them of my intent to transition.”
Several weeks later, on Nov. 6, the Airport Authority employee formerly known as Anthony Witten reported to work as Toni.
“I thought the day went off pretty smoothly,” she said. “I sat down with the evening shift and explained the changes they would see begin to happen, that my voice, appearance, and mannerisms would start to change, but I was still the same person they’d known for eight-plus years. I told them I’d be more than willing to speak with anyone to address questions or issues they might have.”
On November 9, San Diego 10News received a tip from airport workers that a transgender employee had “pushed their limits of comfort,” expressing their concern about the worker’s ability to use female restrooms and locker rooms. Later that night, the station broadcast the story live from Lindbergh Field, airing footage of Witten walking the curb line.
Witten said she received two death threats on the answering machine at her Tijuana home the following day.
“The only place [my number] was located was on the traffic officer contact list in our office,” she said.
Although the airport proposed putting Witten on paid administrative leave as a means of preserving her safety, they later reconsidered, and temporarily reassigned her to vehicle patrol, she believes, to keep her out of public view.
According to Witten, in December, after she informed an intoxicated air passenger that she needed to wait in line to catch a cab, her supervisor received a complaint.
“Her allegation was that I got in her face and was rude,” Witten said. “But I really didn’t think anything of it. I’ve had complaints by passengers in the past. It just goes with the line of work.”
This time, a letter of warning was issued.
“I was called into a meeting with my boss; Murray Bauer, the director of landside operations, and my union shop steward and was told about this. I asked them why now? They’d never had an issue with my credibility in the past. What changed?”
Although it was never plainly stated, Witten had her suspicions.
“Mr. Bauer at one point said ‘Ok just level with me Anthony. What can we do for you, man. Just tell me what it’s going to take to make you happy here, man.’ I told him, for starters, they could please refer to me as Toni.”
Local transgender activist Autumn Sandeen believes that management’s failure to make an effort to use Toni’s female name and gender-appropriate pronouns sent a very clear message to other employees.
“You would expect them to get the name or pronouns wrong a few times, but a pattern of getting them wrong, not making an effort to get them right or refer to you by your female name, that becomes an issue,” Sandeen said. “And because they’re engaging in that type of behavior, they’re sending a message to the junior people that it’s OK for them to behave that way.”
On Jan. 23, 2010, Witten said she noticed a Cloud 9 Shuttle driver operating a vehicle with a broken tail lamp lens and informed him she’d be issuing a fix-it ticket. The driver, Thomas Henry, took immediate issue and, she said, began to taunt her by using male pronouns, addressing her as “Sir.”
“It wasn’t until I asked him to please refer to me as ‘Officer Witten’ or ‘ma’am’ that he started to get really belligerent,” Witten said. “At this point I informed him that, as ground transport, he needed to adhere to the airport’s non-discrimination code, and if he did it again, I’d write him up for violation of that as well.”
The driver ignored her request, and Witten wrote the second ticket.
That same night, Henry filed an incident report and faxed it to the Airport Authority human resources office.
The report, obtained by Gay San Diego, states, “I informed him that the lens had been broke for over a year and the California Highway Patrol had written it off as corrected, and that I have at least five safety checks, one of which he had been the inspecting officer, this was done prior to his cross dressing. At some point in responding to a statement I said ‘no sir.’ Officer Witten again raised his voice and stated as a shuttle driver with a Port permit I was under the same rules relating to sexual discrimination as any airport employee. He/she made these remarks in a loud voice. I felt threatened and felt that his/her statements were made as a threat. He/she then began writing an equipment violation on my van, I personally feel this was in retaliation for me calling him ‘sir.'”
Witten said Human Resources staff member Marci Fredericksen called her in for a meeting, indicating that she did not believe Henry’s remarks were discriminatory, and to let Witten know that the second ticket would be dismissed.
Frederickesen, though, may have been incorrect in her actions.
A 2006 joint publication by the Transgender Law Center and the National Center for Lesbian Rights entitled “Advancements in State and Federal law regarding transgender employees” opines that concerted, deliberate efforts to not refer to a transgender employee by his or her gender identity are against state law.
According to publication, “An employee who transitions on the job has the right to be addressed by the name and pronoun that corresponds to the employee’s gender identity… . While state law does not likely prohibit other employees from making inadvertent slips or honest mistakes about a person’s name or gender, it does outlaw intentional or persistent refusal to respect a coworker’s or employee’s gender identity. Intentionally addressing a co-worker or employee by the incorrect name or pronoun after having been informed of that person’s gender identity is an actionable form of discrimination.”
A March 2009 report by San Francisco-based Transgender Law Canter found that 70 percent of the transgender community reports some form of workplace harassment or discrimination directly related to gender identity.
Shortly after her meeting with Frederickson, Witten was informed additional complaints had been filed against her by other co-workers, and that she was going to be put on paid administrative leave pending review. She was escorted off the premises.
On Tuesday, June 22, Witten and her union representative attended a Skelly hearing with the Airport Authority to discuss the case. Final resolution is pending further review.
Witten said the Airport Authority has 10 days to respond to issues raised by her union representative, who feels that not all the evidence was turned over.
“The union has indicated they’ll honor any request for an extension, basically saying they should take their time on this issue because they probably have to think long and hard about it,” she said.
Asked to comment on the case, Airport Authority communications officer Katie Jones responded via e-mail, “The Airport Authority does not comment on personnel issues, but please be assured that we will continue to adhere to all applicable laws and will do so within the context of our organizational missions, vision and values.”
Witten said she also has filed a sexual harassment suit under the terms of the California Fair Employment and Housing Act (FEHA), and will likely begin pursuing civil litigation. If she wins her case, she said she would like to stay on with the Airport Authority.
“I think this is honestly the only way the Airport Authority will actually listen and follow the law,” Witten said. “I want to make this easier for the next person who is in my shoes.”