concurring in part and dissenting in part:
I agree fully with the court’s judgment and thorough opinion affirming the District *1144Court’s dismissal of Ms. McKinney's age discrimination claim and her claim of sex discrimination in connection with the Department of Transportation’s provision of legal services to supervisors and employees. As to plaintiff’s allegations of sexual harassment and discrimination, I believe that, under the circumstances of this case, dismissal of the complaint with leave to amend would have been the most appropriate result. With respect, I part company entirely from the court in its treatment of Ms. McKinney’s claim of reprisal.
I
The court states that the defendant presented no evidence to support its motion on the sexual harassment and discrimination claim. However, this conclusion fails, in my judgment, fairly to take into account the essence of the defendant’s motion. In regard to the sex discrimination claim, the defendant was not filing a summary judgment motion at all, but a 12(b)(6) motion. Defendant’s argument was that nowhere in Ms. McKinney’s complaint was it alleged that Mr. Whitfield’s actions were in any way sexually motivated; hence, no claim of sex discrimination would lie. See, e.g., Memorandum in Support of Defendant’s Motion to Dismiss at 2 (“Neither in [a previous complaint], the present complaint, nor her administrative complaint, has plaintiff ever characterized this alleged assault as sexually motivated or oriented.”), 10 (“Plaintiff’s Claims Of ‘Sexual Harasment’ [sic] Fail To State Claims Upon Which Relief Can be Granted.”).
The court observes, quite rightly, that if the trial judge looks beyond the pleadings, a 12(b)(6) motion is to be treated as a motion for summary judgment. Opinion at 1134; see Fed.R.Civ.P. 12(b). But here the District Court did not look beyond the pleadings when it decided the sex discrimination count. The trial court stated:
[P]laintiff has completely failed to allege facts, by affidavit or otherwise, which would create a genuine issue of discrimination based on sex. Plaintiff has nowhere suggested that the incidents complained of took place because she is a woman, or that the officials involved were motivated by improper discriminatory reasons. This aspect of the first administrative complaint fails to state a cause of action.
Mem.Op. at 4 (citation omitted). The only portion of this passage that even arguably indicates that the District Court looked outside the pleadings was the statement that the “plaintiff has completely failed to allege facts, by affidavit or otherwise____” Since the plaintiff did not file any affidavits, the only “otherwise” to which the court referred would seemingly have been in the complaint or other pleadings.
Furthermore, even if we were to treat the District Court’s dismissal as a grant of summary judgment, I am constrained to conclude that this court’s approach misses the mark. On summary judgment, the question is, of course, whether there exists any genuine issue of material fact. If, however, no facts have been alleged that would create a cause of action, then no genuine issue of material fact exists. Thus, it is sufficient for a moving party to claim that such facts have not been alleged and in support of that claim point to the alleged deficiencies in the opponent’s complaint. The court holds that in order to prevail the defendant had to prove that no sexual discrimination occurred, and that the defendant failed to adduce such proof. Opinion at 1139-1140. Since, however, the defendant was claiming only that the plaintiff failed to allege facts that would state a cause of action, all the defendant needed by way of “proof” was to demonstrate in what manner the plaintiff’s complaint was flawed.
Nonetheless, the court reaches the correct result in this respect because the complaint, fairly and generously viewed, should be construed as stating a cause of action for sex discrimination. In her complaint, the plaintiff averred “that she had been sexually harassed by the Defendant,” and “that this conduct constituted sexual discrimination in violation of Title VII.” Complaint at 3-4. Admittedly, these averments *1145are conclusory and vague; for whatever reason, plaintiff did not set forth the facts that she believed would, if proved, establish sexual discrimination. But, as the majority notes, in her Opposition to Motion for Summary Judgment the plaintiff more clearly set out the facts which she believed constituted sex discrimination. Opinion at 1137. Those facts, if proved, would in my view support a cause of action. Bearing in mind the admonition of Fed.R.Civ.P. 8(f) that “[a]ll pleadings shall be so construed as to do substantial justice,” and that plaintiff indicated quite clearly in her opposition to the motion for summary judgment that she did indeed have in mind facts that would support a sex discrimination claim, the vague, inartfully worded complaint should nonetheless have been construed to create a cause of action, consistent with the benign and forgiving spirit of the Federal Rules. At most, the District Court should have dismissed the complaint without prejudice so that plaintiff would have been free to craft and file an amended complaint.
II
On the reprisal claim, the court observes that for an unlawful reprisal to have occurred, a causal connection must exist between the employee’s protected activity and the adverse employment action. Opinion at 1143. The court then holds that inasmuch as defendant’s evidence did not foreclose the possibility that the Deputy Administrator knew of Ms. McKinney’s complaint and transferred her because of that complaint, summary judgment cannot lie. Id. at 1143. But in doing so, the court overlooks the fact that in her opposition to defendant’s motion for summary judgment, plaintiff admitted that the Deputy Administrator did not know of plaintiff’s grievance when he effected her transfer: “[I]t is no defense that FAA’s own mismanagement of its affairs prevented the appropriate office from knowing about Miss McKinney’s complaint. The FA A cannot convert its own mismanagement of a case into a benefit for itself.” Plaintiff’s Opposition to Defendant’s Motion at 6 (citation omitted). From this, it seems clear that plaintiff was arguing that the FAA’s action was unlawful despite the fact that the Deputy Administrator knew nothing about plaintiff’s grievance.
The court never addresses Ms. McKinney’s admission, apparently on the theory that the District Court should have looked in the first instance only at the defendant’s evidence; if that evidence, the theory runs, does not foreclose every material issue of fact, then the trial court would not even look at the plaintiff’s response. Such an approach strikes me, with all respect, as both illogical and inconsistent with sound litigation practice. If the moving party claims that a fact exists, and the opposing party admits in response the existence of the fact, then there is obviously no genuine issue as to that fact. Indeed, in all the cases cited by the court, it appears that the party opposing summary judgment controverted the moving party’s version of the facts. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). For whatever reason, that controversion simply did not occur in the case at hand.
In consequence, no genuine issue of material fact existed as to the required causal connection between plaintiff’s grievance and her subsequent transfer. Once the plaintiff admitted that the Deputy Administrator was blissfully ignorant of plaintiff’s grievance when he ordered her transfer, her reprisal claim came crashing down. As a result, summary judgment for the defendant on this issue was properly granted by the District Court. To that extent, I respectfully dissent from today’s judgment.