Gorski v. New Hampshire Dept. of Corrections

• Decision Date: 24 May 2002
• Docket Number: No. 01-1995.,01-1995.
• Citation: 290 F.3d 466
• Parties: Tara GORSKI, Plaintiff, Appellant, v. NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

290 F.3d 466

Tara GORSKI, Plaintiff, Appellant, v. NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS, Defendant, Appellee.

No. 01-1995.

United States Court of Appeals, First Circuit.

Heard December 6, 2001.

Decided May 24, 2002.

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Michael J. Sheehan for appellant.

Nancy J. Smith, Senior Assistant Attorney General, with whom Philip T. McLaughlin, Attorney General, was on brief, for appellee.

Before TORRUELLA, Circuit Judge, STAHL, Senior Circuit Judge, and O'TOOLE,^* District Judge.

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 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

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 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 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 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 (1st 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 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 "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, 106 S.Ct. 2399, 91 L.Ed.2d 49 (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, 114 S.Ct. 367, 126 L.Ed.2d 295 (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' sexual innuendos, see id. at 19, 114 S.Ct. 367, or unwelcome sexual advances or demands for sexual favors, see Meritor, 477 U.S. at 60, 106 S.Ct. 2399. 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, 106 S.Ct. 2399; see also Faragher v. City of Boca Raton, 524 U.S. 775, 790-91, 118 S.Ct. 2275, 141 L.Ed.2d 662 (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...