United States Court of Appeals
For the First Circuit
No. 01-1995
TARA GORSKI,
Plaintiff, Appellant,
v.
NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and O’Toole,*District Judge.
Michael J. Sheehan for appellant.
Nancy J. Smith, Senior Assistant Attorney General, with whom
Philip T. McLaughlin, Attorney General, was on brief, for
appellee.
May 24, 2002
* Of the District of Massachusetts, sitting by designation.
O’TOOLE, District Judge. At the time of the events
at issue, appellant Tara Gorski was employed by the New
Hampshire Department of Corrections (the “Department”) as a
sergeant assigned to duty in a secure psychiatric unit in the
men’s state prison in Concord. In her one-count amended
complaint, Gorski alleged that the Department had constructively
discharged her in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq.(“Title VII”). Gorski claimed
that she had been “the victim of direct sexual harassment and of
a hostile work environment.” More particularly, Gorski
alleged that she had become pregnant in June 1998, and shortly
afterward had told her supervisors of that fact. Thereafter,
she alleged, both her direct supervisor, identified as “Lt.
Kench,” and her ultimate supervisor, unit director Joseph
Panarello, “made derogatory comments about her pregnancy so as
to give rise to a sexually hostile working environment.” The
amended complaint set forth a series of specific facts in
support of the claim of discrimination.1 The complaint then
1
Paragraph 9 of the amended complaint reads:
Following are specific facts that support plaintiff’s
claims:
a. upon first learning of plaintiff’s pregnancy,
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Mr. Panarello said “oh Tara, why did you have to do
that? Why did you get pregnant, with everything going
on, why do you want another child?”
b. Lt. Kench said, “oh great, we’re going to have
to deal with that now;”
-3-
alleged: “The conduct described above was sufficiently severe
or pervasive to constitute a sexually hostile work environment.
As a result of this hostile environment, plaintiff was forced to
resign in August 1998, a constructive discharge.”2
c. after learning of plaintiff’s pregnancy, when
plaintiff complained about her workload (a significant
complaint that pre-dated plaintiff’s pregnancy by
months), Lt. Kench and others responded with comments
like “she’s just pregnant,” “you’re only complaining
now because you’re pregnant,” and “it’s your
hormones;”
d. during this same time frame, plaintiff
requested a transfer out of the unit. As a reason to
deny that request, Lt. Kench said “maybe you won’t
come back,” referring to the time away from work after
plaintiff’s child was born;
e. Lt. Kench also said, in response to plaintiff’s
request for a transfer, “no one is going to want you
because you are pregnant and you are going to have to
wait until after you are back;”
f. while on stress leave in September 1998 (which
leave DOC approved), Mr. Panarello called plaintiff
and asked if she could come in for one day to show a
co-worker what to do with a project that plaintiff
knew well, knowing it went against plaintiff’s
doctor’s advice to remain out of work; and
g. while on leave on October 27, 1998, Mr.
Panarello went to plaintiff’s house and pressured her
to return to work, asking “why aren’t you at work,
what’s your problem?” contrary to the instructions of
plaintiff’s doctor. Plaintiff told Mr. Panarello that
she had experienced problems with Lt. Kench, that she
raised these problems with Mr. Panarello, and that Mr.
Panarello did nothing.
2
The allegation that Gorski “was forced to resign in August”
appears to be at odds with a preceding allegation that she was
-4-
The Department moved to dismiss the complaint for
failure to comply with Title VII’s administrative filing
requirements and for failure “to state facts which if true would
meet the requirements for a claim of harassment based on gender
under Title VII.” The district court rejected the first ground,
concluding that Gorski had complied timely with the
prerequisites to a Title VII suit. What the district court did
with respect to the second ground--failure to state a viable
claim under Title VII--gives rise to this appeal.
Recognizing that a claim of discrimination supported
by a theory of sexual harassment or hostile work environment
could be made out if a plaintiff were to show “severe or
pervasive conduct such that it constitutes a change in the terms
and conditions of employment,” the district court concluded:
The comments allegedly made by Gorski’s
superiors regarding her pregnancy do not
rise to the level required to be actionable
under Title VII. Sporadic use of abusive
language does not create a hostile work
environment because such conduct is not
“extreme” enough to alter the terms and
conditions of employment. Moreover, the
remarks directed at Gorski were not
physically threatening or humiliating.
While the remarks Panarello and Kench made
were insensitive, inappropriate and arguably
on “stress leave” during September and October. However this
apparent inconsistency might ultimately be resolved, its
resolution is not material to the disposition of the issues
presented by this appeal.
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offensive, these circumstances alone do not
describe a workplace that a reasonable
person would find hostile or abusive.
Having found that the complaint failed to state a
viable claim for discrimination by reason of sexual harassment
or a hostile work environment, the district court went on to
conclude that the complaint did state “a claim of pregnancy
discrimination,” namely, that her supervisors had refused to
grant her a transfer to another unit because she was pregnant.
In effect, the district court parsed what had been pled as a
single count into two distinct claims: one for discrimination by
reason of sexual harassment/hostile work environment and one for
“pregnancy discrimination.” The court understood the
complaint’s allegation that Gorski was told her request for a
transfer would not be granted because she was pregnant as
asserting a claim of disparate treatment because of pregnancy.
Satisfied that the latter claim was adequately asserted within
the amended complaint, the district court entered an order
denying the Department’s motion to dismiss.
We think it is clear, not only from the amended
complaint itself but also from the tenor of the arguments
advanced by Gorski in opposition to the motion to dismiss, that
Gorski conceived of her complaint as presenting a hostile
environment claim, not a claim that a discrete employment
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decision--denial of a transfer--was itself a distinct act of
disparate treatment discrimination. That latter theory is not
explicitly--nor, we think, implicitly--asserted either in the
complaint or in Gorski’s legal argument opposing the motion to
dismiss. In context, the allegations about Kench’s comments
concerning her prospects for a transfer were intended as
examples of harassing conduct to support the broader allegation
that there was a hostile work environment.
Nonetheless, no doubt trying to make the best of the
situation, Gorski accepted the court’s invitation to pursue
the newly suggested theory. The parties proceeded to conduct
discovery on the theory that Gorski had been subjected to
disparate treatment--i.e., the denial of a transfer--because of
her pregnancy. There is nothing in the record or otherwise
called to our attention that suggests that discovery was pursued
by either side on the hostile work environment theory. Rather,
it is clear that both the parties and the district court
considered the court’s dismissive treatment of that theory to be
the equivalent of a formal dismissal of a claim resting on the
theory, even though, as a formal matter, the court had denied
the motion to dismiss without distinguishing between the
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different claims the court had found to lie within the
allegations of the complaint.3
Following discovery, the Department moved for summary
judgment as to a claim based on a denial of a transfer. On the
summary judgment record, it was undisputed that “neither Kench
nor Panarello had authority to transfer Gorski to another unit”
and that “Gorski did not apply for a transfer to another unit.”
Under these circumstances, the district court concluded that
“Gorski’s unsupported speculation about what might have happened
if she had applied for a transfer is insufficient to raise a
material factual dispute,” and it granted the motion. Judgment
in favor of the Department was entered accordingly.
Gorski has appealed both the order limiting her claim
to one for “pregnancy discrimination” and the order granting
summary judgment on that claim. We review both rulings de novo.
See Aldridge v. A. T Cross Corp., 284 F.3d 72, 78 (1 st Cir.
2002) (reviewing motion to dismiss); Rochester Ford Sales, Inc.
v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir. 2002) (reviewing
motion for summary judgment). We hold that the district court
erred in concluding that Gorski had failed adequately to plead
3
For example, in its later order granting summary judgment
on the transfer issue, the district court noted that “Gorski’s
claim of sexual harassment was dismissed on July 19, 2000,”
apparently pursuant to Fed. R. Civ. P. 12(b)(6).
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a claim under Title VII for sex discrimination based on a theory
of hostile work environment. We affirm the district court’s
conclusion that a claim of disparate treatment by Gorski
premised on a denial of a transfer request cannot be sustained
on a factual record which shows that she had never requested a
transfer and that the representative of the Department who
purportedly discouraged her from requesting one lacked the
authority to grant or deny such requests.
Discrimination by Reason of a Hostile Work Environment
Before considering whether Gorski’s complaint
adequately stated a claim upon which relief could be granted, it
is useful to recall some general principles pertaining to a
substantive claim of sex discrimination by reason of the
existence of a hostile work environment.
Title VII prohibits employment discrimination “because
of” an employee’s sex. 42 U.S.C. § 2000e-2(a).4 Discrimination
4
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to [her] compensation,
terms, conditions, or privileges of employment,
because of such individual’s race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would deprive or
tend to deprive any individual of employment opportunities
or otherwise adversely affect [her] status as an employee,
because of such individual’s race, color, religion, sex, or
national origin. 42 U.S.C. § 2000e-2(a).
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“because of” a woman’s pregnancy is discrimination “because of”
her sex. See 42 U.S.C. § 2000e(k) (“The terms ‘because of sex’
or ‘on the basis of sex’ include, but are not limited to,
because of or on the basis of pregnancy . . . .”). See also
Smith v. F.W. Morse & Co., 76 F.3d 413, 420 (1st Cir. 1996).
The scope of Title VII’s prohibition of discrimination
“because of . . . sex” “is not limited to ‘economic’ or
‘tangible’ discrimination. The phrase ‘terms, conditions, or
privileges of employment’ evinces a congressional intent to
strike at the entire spectrum of disparate treatment of men and
women in employment.” Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 64 (1986) (citations and some internal quotation marks
omitted). Thus, discrimination “because of . . . sex” includes
“requiring people to work in a discriminatorily hostile or
abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993). “When the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment,
Title VII is violated.” Id. (citations and internal quotation
marks omitted).
Sometimes, a workplace becomes a hostile working
environment for a female employee because of other employees’
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sexual innuendos, see id. at 19, or unwelcome sexual advances or
demands for sexual favors, see Meritor, 477 U.S. at 60. Sexual
harassment, whether by means of a co-worker’s demands for sexual
favors as a “quid pro quo” or by the employer’s creation or
tolerance of a hostile and abusive work environment, constitutes
discrimination prohibited by Title VII. See id. at 65; see also
Faragher v. City of Boca Raton, 524 U.S. 775, 790-91 (1998).
We have previously observed that while evidence of
sexually-charged or salacious behavior is often sufficient, it
is not necessary to the proof that a work environment was
sufficiently hostile or abusive to a female employee to amount
to discrimination on the basis of sex. See O’Rourke v. City of
Providence, 235 F.3d 713, 729 (1st Cir. 2001) (noting that “sex-
based harassment that is not overtly sexual is nonetheless
actionable under Title VII”);
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Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 905 (1st Cir.
1988) (stating that male employees’ verbal attacks directed at
female employees that were not sexual in nature but were “anti-
female” could be found to contribute to hostile work
environment); see also Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 80 (1998)(“[H]arassing conduct need not be
motivated by sexual desire to support an inference of
discrimination on the basis of sex.”). As we noted in O’Rourke,
“incidents of nonsexual conduct--such as work sabotage,
exclusion, denial of support, and humiliation--can in context
contribute to a hostile work environment.” 235 F.3d at 730.
Indeed, the theory that a hostile work environment was a species
of employment discrimination prohibited by Title VII was
originally recognized in cases decided by various courts of
appeals involving discrimination on bases other than sex, such
as national origin, race, and religion. See Meritor, 477 U.S.
at 65-66 (citing, among other cases, Rogers v. EEOC, 454 F.2d
234, 239 (5th Cir. 1971) (holding that an Hispanic claimant had
sufficiently alleged a Title VII claim where her employer’s
discriminatory service to its Hispanic clientele created an
offensive work environment) and Firefighters Inst. for Racial
Equality v. City of St. Louis, 549 F.2d 506, 514-15 (8th Cir.
1977) (holding that black firefighters sufficiently alleged a
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hostile work environment where the city allowed on-duty white
firefighters to use the firehouse’s kitchen facilities in a
discriminatory and segregated manner)).
What is essential is proof that the work environment
was so hostile or abusive, because of conduct based on one of
the prohibited factors identified in Title VII, that the terms
or conditions of the plaintiff’s employment were caused to be
altered. For this there is no “mathematically precise test.”
Harris, 510 U.S. at 22. Rather, “whether an environment is
‘hostile’ or ‘abusive’ can be determined only by looking at all
the circumstances,” which may include “the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.” Id. at 23.
The issue presently before us, however, is not what the
plaintiff is required ultimately to prove in order to prevail on
her claim, but rather what she is required to plead in order to
be permitted to develop her case for eventual adjudication on
the merits. In determining that Gorski had not sufficiently
stated a claim for sex discrimination by reason of a hostile
work environment, the district court focused on the specific
instances of harassing comments alleged in the complaint and
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concluded that, assuming the allegations to be true, the
comments did not add up to “conduct [that was] ‘extreme’ enough
to alter the terms and conditions of employment.” This was
error because the district court’s resolution implicitly
measured the complaint against a stricter standard of pleading
than is required. In undertaking to assess how “extreme” the
complained of conduct was, the district court was not
determining whether the complaint adequately had alleged the
elements of a hostile work environment claim, but rather was
performing an evaluative judgment, usually left to the trier of
fact, as to whether the hostility or harassment that was alleged
was sufficiently severe or pervasive enough to warrant relief.
It is a familiar principle that a complaint should be
dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a
claim upon which relief can be granted “only if it is clear that
no relief could be granted under any set of facts that could be
proved consistent with the allegations.” Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984). The factual allegations of
the complaint are to be accepted as true, and all reasonable
inferences that might be drawn from them are indulged in favor
of the pleader. See Kiely v. Raytheon Co., 105 F.3d 734, 735
(1st Cir. 1997)(per curiam); Garita Hotel L.P. v. Ponce Fed.
Bank, F.S.B., 958 F.2d 15, 17 (1st Cir. 1992).
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Like most federal civil actions, all that is required
to plead adequately a cause of action under Title VII is “(1) a
short and plain statement of the grounds upon which the court’s
jurisdiction depends . . . , (2) a short and plain statement
of the claim showing that the pleader is entitled to relief,
and (3) a demand for judgment for the relief the pleader seeks.”
Fed. R. Civ. P. 8(a).5
The Supreme Court has recently confirmed that
complaints alleging employment discrimination need only satisfy
“the simple requirements of Rule 8(a).” Swierkiewicz v. Sorema
N.A., – U.S. –, 122 S. Ct. 992, 998 (2002). In assessing
whether a complaint satisfies Rule 8’s requirements, the issue
is not “whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claims.” Id. at 997 (quoting Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)). Although some cases have suggested that a
heightened pleading standard may exist in certain civil rights
cases, see, e.g., Dartmouth Review v. Dartmouth Coll., 889 F.2d
13, 16 (1st Cir. 1989) (suggesting there is a greater need to
5
There are two other provisions of Rule 8 that are pertinent:
“Each averment of a pleading shall be simple, concise, and
direct. No technical forms of pleading or motions are
required.” Fed. R. Civ. P. 8(e)(1); and “All pleadings shall be
so construed as to do substantial justice.” Fed. R. Civ. P.
8(f).
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plead specific factual allegations in a civil rights suit), 6
Swierkiewicz makes clear that “the Federal Rules do not contain
a heightened pleading standard for employment discrimination
suits.” 122 S. Ct. at 999.
Gorski’s complaint adequately pled a cause of action
for employment discrimination by reason of an abusive or
hostile work environment. First, she alleged that her
supervisors “discriminated against [her] on the basis of her
gender (female) and of her pregnancy” by making “derogatory
comments about her pregnancy so as to give rise to a sexually
hostile working environment.” She went on to allege “specific
facts” in support of her claims, consisting of seven separate
examples of what she asserted were hostile or abusive comments.
She then alleged that the conduct previously described “was
sufficiently severe or pervasive to constitute a sexually
hostile work environment.”
The district court apparently assumed that the seven
specific instances of harassing comments pled in the complaint
constituted the sum total of the plaintiff’s evidence of the
hostility or abusiveness of the work environment and then
6
But see Leatherman v. Tarrant County Narcotics Intelligence
and Coordination Unit, 507 U.S. 163, 168 (1993) (holding that
there is no heightened pleading requirement in § 1983 suits
against municipalities).
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proceeded to evaluate those allegations in light of the
applicable legal standard. But the complaint did not allege
that the specific instances of harassment set out were the only
evidence available to support the discrimination claim. Nor was
there any obligation on the pleader to identify in the complaint
all the evidence that would later be offered in support of the
claim pleaded. See Conley v. Gibson, 355 U.S. 41, 47 (1957)
(“[T]he Federal Rules of Civil Procedure do not require a
claimant to set out in detail the facts upon which he bases his
claim.”). The district court’s error lay not in its application
of the appropriate legal standard to a fixed set of facts, but
rather in its belief that there was a fixed set of facts to
which the standard could be applied.
It is not necessary at this point to decide whether the
plaintiff could sustain a hostile work environment claim if the
factual evidence she could marshal at trial were limited to the
facts alleged in the amended complaint. We do observe, however,
that proof of such a claim is highly fact specific. See Harris,
510 U.S. at 23 (“[W]hether an environment is ‘hostile’ or
‘abusive’ can be determined only by looking at all the
circumstances”); see also Conto v. Concord Hosp., Inc., 265 F.3d
79, 81 (1st Cir. 2001) (whether there was a hostile work
environment “necessarily entailed a fact-specific assessment of
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all the attendant circumstances.”). In addition to the
plaintiff’s subjective perception of it, the tenor of the
environment must be such that an objectively reasonable person
would find it hostile or abusive. See Harris, 510 U.S. at 21.
Subject to some policing at the outer bounds, that question is
commonly one of degree-–both as to severity and pervasiveness-
–to be resolved by the trier of fact on the basis of inferences
drawn “from a broad array of circumstantial and often
conflicting evidence.” Lipsett, 864 F.2d at 895 (quoting
Stepanischen v. Merchants Despatch Transp. Corp., 772 F.2d 922,
929 (1st Cir. 1983)).
When the allegations of the complaint are read
favorably to Gorski, with the understanding that notice pleading
does not require recitation of detailed evidence in support of
the claim, it is clear that Gorski satisfactorily alleged the
elements of a cause of action for discrimination under Title VII
in conformity with the pleading requirements of the Federal
Rules of Civil Procedure. Her hostile work environment claim
should not have been dismissed.
Summary Judgment as to a Denial of Transfer Claim
The second ruling appealed from--the grant of summary
judgment against Gorski as to a claim that the Department had
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discriminated against her by effectively denying her a transfer
to a different unit--is easily affirmed.
To prove that a particular adverse employment action
taken with respect to her amounted to discrimination because of
her pregnancy, Gorski would have to show that (1) she was
pregnant at the relevant time, (2) her job performance was
satisfactory, but (3) her employer took some adverse employment
action against her while (4) treating non-pregnant employees
differently. See F.W. Morse & Co., 76 F.3d at 421. See also
Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 70 (1st Cir. 1984);
Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979).
Gorski plainly satisfied the first two elements: she
was pregnant, and her job performance was satisfactory. For
present purposes we will also assume that she satisfied the
fourth element by offering evidence that some employee requests
for transfers were honored, although the evidence on this point
was somewhat general. However, Gorksi failed to point to
admissible evidence sufficient to permit a rational trier of
fact to conclude that she had satisfied the third element-–that
the Department took an adverse employment action against her.
While there is no doubt that in an appropriate case the
denial of a request for a transfer may be sufficiently harmful
to amount to an adverse employment action, see Randlett v.
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Shalala, 118 F.3d 857, 862 (1st Cir. 1997), there was no actual
denial by the Department of such a request by Gorksi. It is
undisputed that Gorski never actually applied for a transfer, so
there was not even an occasion for a denial. She attempts to
make up for the absence of an actual denial of a request by
proposing that there was a constructive denial. She asserts
that her submission of a formal request for a transfer would
have been a “futile gesture” in light of what Panarello and
Kench had said to her. See Int’l Bhd. of Teamsters v. United
States, 431 U.S. 324, 366 (1977).
The summary judgment record includes the Department’s
policies and procedures pertaining to lateral transfers.
Generally, the Department retained the management prerogative to
assign corrections officers to particular duties as it deemed
appropriate. If a position became vacant, an employee could
request either a lateral transfer or promotion to that vacancy.
The manager in the unit where the vacancy occurred would decide
which employee among multiple applicants would be selected to
fill the vacancy, and consistent with provisions of an
applicable collective bargaining agreement, the decision would
ordinarily be made on the basis of seniority. The applicant’s
current supervisor did not have the authority to grant transfers
to other assignments.
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Gorski’s assertion that her request for a lateral
transfer would have been futile lacks support in the record.
Her theory is that the opposition of Panarello and Kench to the
transfer doomed any request she might make. The record,
however, shows that Panarello and Kench had at best a tangential
involvement in the process.7 While it is possible to imagine a
set of events in which an employee’s current supervisor might,
outside the prescribed process, poison the mind of the actual
decision maker against an employee so as to procure the denial
of a transfer request, imagined events cannot be the basis for
a favorable verdict. In opposing a motion for summary judgment,
a plaintiff must proffer admissible evidence that could be
accepted by a rational trier of fact as sufficient to establish
the necessary
7
So far as appears from the record, the only involvement for
a current supervisor in an employee’s application for a transfer
to a vacant position was the requirement that the supervisor
sign the form used by an employee to request a lateral transfer.
There does not appear to be any provision making the current
supervisor’s approval a necessary prerequisite to the granting
of a transfer.
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proposition. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). On this issue, Gorski failed to do so, and the district
court properly ruled that she could not prevail on a “disparate
treatment” claim.8
Conclusion
For the foregoing reasons, the judgment of the district
court is vacated. The order dismissing the claim of sex
discrimination by reason of a hostile work environment is
reversed. The order granting summary judgment in favor of the
Department on a claim of sex discrimination by reason of denial
of a transfer is affirmed. The case is remanded for further
proceedings consistent with this opinion.
8
In fairness to Gorski, as noted above, the denial of
transfer theory was not her original theory of her claim, and it
seems she pursued it only after the district court had closed
the door to her pursuit of her hostile environment claim. While
the comments of her supervisors regarding her wish to be
transferred do not by themselves support a claim of
discrimination, those comments may be relevant to the question
whether and to what degree the work environment was hostile
and/or abusive.
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