Zoe Niesel (’12) wins 39th annual Stanley Moot Court Competition

Zoe Niesel (’12) is the winner of the final round of the 39th annual Stanley Moot Court Competition sponsored by the Wake Forest University School of Law Moot Court Board.

Niesel represented the appellees, First National Bank of North Carolina Inc., versus Austin Walsh (’12), who represented the appellant, Mackenzie Kim.

“This was a very tough competition, and the fact that you’re here says a lot about both of you,” said the Honorable Albert Diaz.

This year’s panel judges also included the Honorable Rhoda Billings, former Chief Justice of the North Carolina Supreme Court and retired Wake Forest law school faculty member, Diaz, Judge of the North Carolina Business Court and Nominee to the U.S. Court of Appeals, Fourth Circuit, and the Honorable Harris Hartz, Judge, the U.S. Court of Appeals, Tenth Circuit.

Competition chairpersons were Ashleigh Wilson (’11) and Adam Setzer (’11).

Alexander Lutz (’12) was named best oralist and the winner of the James C. Berkowitz Award, which was presented by his sister, Ella Berkowitz and his niece. James died in a car accident when he was returning to the law school to argue in the quarterfinals of the 1984 Stanley Competition.

Niesel also received the award for best brief.

The intramural moot court competition is named in honor of the late Judge Edwin M. Stanley, a distinguished Wake Forest alumnus and supporter, who served as a U.S. District Court Judge for the Middle District of North Carolina from 1958-1968.

A description of this year’s problem follows.

Kim v. First National Bank of North Carolina, Inc.

Appellee First National Bank of North Carolina Inc. employed Appellant Mackenzie Kim as an Information Technology Specialist in its Charlotte branch from Aug. 5, 1999, until Nov. 1, 2008. Ms. Kim’s job duties included supervising computer maintenance backups of the North Carolina Server and being “on-call” during these powerdowns. During her tenure at First National, Ms. Kim received positive employee reviews and earned at merit raise every year.

Ms. Kim has been diagnosed with Gender Identity Disorder, a sexual identity disorder. Although Ms. Kim was born a male, she considers herself a “woman on the inside” and she has been living as a woman for more than 10 years. Ms. Kim wears women’s clothing and makeup and uses women’s hormones to grow breasts and reduce body hair. She has undergone three facial reconstructive surgeries in order to appear more feminine, and she takes rigorous voice training classes to lighten the tenor and tone of her voice. Ms. Kim is scheduled for sexual reassignment surgery in January 2011.

Ms. Kim presented herself as a woman when she was interviewed and hired by First National. The application documents that Ms. Kim completed gave no indication of her status as a biological male. First National employees assumed Ms. Kim was a woman, and the fact that she has a male anatomy was unknown by the company until a female employee observed Ms. Kim’s body in the women’s locker room of the bank’s fitness center in September 2008. The female employee notified First National’s Human Resources Department immediately. Several other female employees complained that they were uncomfortable using the women’s locker room with a man. After receiving these complaints, Ms. Kim’s supervisor, Robert Ortega, spoke to her, expressing his disappointment that she “had lied to the company about who [she] was.” No other action was taken at that time.

A couple of weeks later, Mr. Ortega approached Ms. Kim about a system powerdown that she had missed. Because Ms. Kim could not be reached, First National lost an entire day’s worth of business. Ms. Kim claimed that she was aware of the powerdown but thought it was only for the New York server and thus would not affect the Charlotte branch. In her nine years of employment with First National, Ms. Kim had never before missed a scheduled powerdown. Nevertheless, Mr. Ortega fired her on Nov. 1, 2008, stating that he felt he could no longer trust Ms. Kim and admitting that “[i]t certainly did not help her situation that she was a transsexual and hid that fact from her employer.”  

Ms. Kim filed a Complaint in the United States District Court for the Western District of North Carolina, alleging that First National had discriminated against her on the basis of her sex in the violation of Title VII of the Civil Rights act of 1964. First National filed an Answer denying Ms. Kim’s allegations and asserting that Title VII provides no protection for transsexuals. First National eventually filed for a Motion for Summary Judgment, which the trial court granted in July 2010. The sole issue on appeal is whether the trial court correctly determined that as a matter of law, transsexuals are not a protected class under Title VII.