Gorski v . Corrections CV-99-562-JD 07/19/00
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Tara Gorski
v. Civil N o . 99-562-JD
Opinion N o . 2000 DNH 156
New Hampshire Department
of Corrections
O R D E R
Tara Gorski filed suit against her former employer, the New
Hampshire Department of Corrections (“NHDOC”), claiming that she
suffered sexual harassment during her employment. After NHDOC
filed a motion to dismiss, Gorski filed an amended complaint.
The parties agreed that NHDOC’s motion to dismiss would apply to
the amended complaint, and NHDOC filed a supplemental memorandum
in support of its motion. Gorski objects to the motion.
Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) is one of limited inquiry, focusing not on “whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.” Scheuer v .
Rhodes, 416 U.S. 232, 236 (1974). In reviewing the sufficiency
of a complaint, the court accepts “the factual averments
contained in the complaint as true, indulging every reasonable
inference helpful to the plaintiff’s cause.” Garita Hotel Ltd.
Partnership v . Ponce Fed. Bank,
958 F.2d 1 5 , 17 (1st Cir. 1992).
In cases involving an alleged violation of a civil right, the
court requires “plaintiffs to outline facts sufficient to convey
specific instances of unlawful discrimination.” Dartmouth Review
v . Dartmouth College,
889 F.2d 1 3 , 16 (1st Cir. 1989). Applying
this standard, the court will grant a motion to dismiss “‘only if
it clearly appears, according to the facts alleged, that the
plaintiff cannot recover on any viable theory.’” Garita Hotel
Ltd. Partnership, 958 F.2d at 17 (quoting Correa-Martinez v .
Arrillaga-Belendez,
903 F.2d 4 9 , 52 (1st Cir. 1990)).
Background1
Gorski was employed at NHDOC from 1992 until August of 1998.
In mid June of 1998, Gorski became pregnant. She informed her
supervisors of the pregnancy at some point before July 1 , 1998.
Gorski complains of certain comments related to her pregnancy
that were made by her direct supervisor, Lt. Kench, and her
ultimate supervisor, Director Joseph Panarello.
Upon learning of her pregnancy, Panarello said, “Oh Tara,
why did you have to do that? Why did you get pregnant, with
1
Unless otherwise indicated, the facts are taken from
Gorski’s amended complaint.
2
everything going o n , why do you want another child?” and Kench
said, “Oh great, we’re going to have to deal with that now.”
When Gorski subsequently complained about her workload, Kench
responded with comments like, “she’s just pregnant,” “you’re only
complaining now because you’re pregnant,” and “it’s your
hormones.” When Gorski requested an internal transfer, Kench
denied her request, at least in part because he thought no other
unit would accept her, knowing she was pregnant, for fear that
she would not return to work after the birth of her child.
Gorski also complains that after going on leave from work,
Panarello called her in September of 1998 to ask her if she could
come to work, knowing that Gorski was on leave for stress-related
reasons. Then, in October of 1998, Panarello went to Gorski’s
home and pressured her to return to work. Gorski told Panarello
that she had problems with Kench, but Panarello took no action.
She also complained to the human resources office about both
Kench and Panarello, but she claims that NHDOC took no responsive
action.
Gorski resigned in August of 1998.2 She filed a charge with
the New Hampshire Commission for Human Rights (“NHCHR”) on April
2
In her complaint, Gorski alleges both that she was on leave
from her job in September and October of 1998 and that she
resigned in August of 1998. She does not explain this apparent
discrepancy.
3
1 4 , 1999. The Equal Employment Opportunity Commission (“EEOC”)
issued her a right-to-sue notice on November 1 0 , 1999. Gorski
filed her original complaint with this court on December 6, 1999.
Discussion
NHDOC moves to dismiss Gorski’s amended complaint on the
grounds that her lawsuit is untimely and that her allegations
fail to state a claim under Title VII.
I. Timeliness of Filing
Before a plaintiff may bring suit under Title VII in federal
court, she must file a charge with the EEOC or the appropriate
state agency. See 42 U.S.C.A. § 2000e-5 (1994); Bonilla v .
Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999);
Lawton v . State Mut. Life Assurance C o . of Am.,
101 F.3d 218, 221
(1st Cir. 1996). This exhaustion requirement is not
jurisdictional; rather, it functions like a statute of
limitations, and may be excused for equitable reasons. See
Bonilla,
194 F.3d at 278 (citing Zipes v . Trans World Airlines,
Inc.,
455 U.S. 385, 393 (1982)). However, such cases are
exceptional, and in general, a plaintiff’s failure to adhere to
the exhaustion requirement bars her claim from federal court.
See
id.
4
In states where a plaintiff can file a charge with an
authorized state agency, the plaintiff must do so within 300 days
of the alleged discrimination. See 42 U.S.C.A. § 2000e-5(e)(1)
(1994); EEOC v . Commercial Office Prods. Co., 486 U.S. 107, 110
(1988); Provencher v . CVS Pharmacy,
145 F.3d 5 , 13 (1st Cir.
1998). The NHCHR is New Hampshire’s authorized state agency for
this purpose. See Bergstrom v . University of New Hampshire,
959
F. Supp. 5 6 , 59 (D.N.H. 1996). Therefore, the question in this
case is whether Gorski filed her charge with the NHCHR within 300
days of the discriminatory acts she alleged in that charge.3
Gorski filed her charge with the NHCHR on April 1 4 , 1999,
and the 300th day before that falls on or about June 1 8 , 1998.
The comments about which Gorski complains all occurred after she
informed her supervisors at NHDOC about her pregnancy. Taking
the facts alleged in the amended complaint as true, and indulging
all reasonable inferences in Gorski’s favor, NHDOC has not shown
that the comments were made before June 1 8 , 1998. In fact, it
appears that in all likelihood, at least some of the comments
were made after that date. Therefore, NHDOC is not entitled to
dismissal on this ground.
3
The plaintiff did not attach a copy of the NHCHR charge to
her complaint. The court assumes that the conduct alleged in her
complaint is the same conduct she included in her charge to the
NHCHR.
5
II. Sufficiency of Title VII Claim
Under Title V I I , it is unlawful for an employer “to
discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42
U.S.C.A. § 2000e-2(a) (1994). Discrimination on the basis of sex
includes discrimination based on pregnancy. See 42 U.S.C.A. §
2000e(k) (1994). Sexual harassment constitutes unlawful
discrimination on the basis of sex under Title VII. See Meritor
Sav. Bank v . Vinson, 477 U.S. 5 7 , 66 (1986); Provencher, 145 F.3d
at 1 3 . Gorski alleges that she was sexually harassed because she
was subjected to a hostile work environment as a result of her
pregnancy.
A claim of sexual harassment due to a hostile work
environment requires a showing of severe or pervasive conduct
such that it constitutes a change in the terms and conditions of
employment. See Faragher v . City of Boca Raton, 524 U.S. 775,
786 (1998) (citing Meritor, 477 U.S. at 6 7 ) . Sexual harassment
is not measured only in economic terms, and may occur where an
abusive working environment exists. See id. The work
environment must be “both objectively and subjectively offensive,
6
one that a reasonable person would find hostile or abusive, and
one that the victim in fact did perceive to be so.” Faragher,
524 U.S. at 775 (citing Harris v . Forklift Sys., Inc.,
510 U.S.
1 7 , 21-22 (1993)). In deciding whether harassment is actionable
under Title VII, the court must consider the totality of the
circumstances, including 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 787-88 (quoting Harris,
510 U.S. at 2 3 ) ; see also Brown v .
Hot, Sexy & Safer Prods., Inc.,
68 F.3d 525, 540 (1st Cir. 1995)
(applying Title VII analysis to Title IX case).
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.
Faragher, 524 U.S. at 788. Moreover, the remarks directed at
Gorski were not physically threatening or humiliating. While the
remarks Panarello and Kench allegedly made were insensitive,
inappropriate and arguably offensive, these circumstances alone
do not describe a workplace that a “‘reasonable person would find
hostile or abusive.’” Oncale v . Sundowner Offshore Servs., Inc.,
7
523 U.S. 7 5 , 81 (1998) (quoting Harris,
510 U.S. at 2 1 ) . As for
interference with her work performance, Gorski states in her
complaint that she was absent from work on stress-related leave
in September and October of 1998, but she does not allege that
her stress was caused by her supervisors’ conduct.4
Furthermore, Panarello’s attempts to get Gorski to return to
work are not sufficiently linked to her gender or her pregnancy
to constitute sexual harassment. See Morrison v . Carleton Woolen
Mills, Inc., 108 F.3d 429, 441 (1st Cir. 1997). Gorski alleges
that Panarello pressured her to return to work, knowing she was
under doctor’s orders not to do s o . However, she does not
explain the underlying reasons for her absence from work or her
stress, and does not connect these conditions to her pregnancy or
to her supervisors’ behavior. Even if she had left work because
of sexual harassment she experienced there, the complaint does
not allege facts sufficient to show that Panarello’s subsequent
behavior was motivated by Gorski’s gender or her pregnancy.5
4
As noted above, Gorski’s claim that she was out on leave in
September and October conflicts with her statement that she
resigned in August. Her complaint does not allege that her work
performance suffered before August.
5
Gorski claims that she suffered tangible employment
actions, making NHDOC strictly liable for sexual harassment.
However, as discussed above, Gorski has not alleged sufficient
facts to state a claim for sexual harassment. Therefore, the
8
See id.; Geier v . Medtronic, Inc., 99 F.3d 238, 242 (7th Cir.
1996).
The only event Gorski alleges that goes beyond verbal
remarks is Kench’s refusal to grant her transfer request on the
basis that no other unit would accept her while she was pregnant.
This allegation would be more accurately classified as a claim of
pregnancy discrimination rather than sexual harassment, both of
which are subsets of discrimination based on sex. It is not
clear from the complaint whether Gorski intended to bring a claim
based on pregnancy discrimination. However, because Gorski
brought suit under Title V I I , and because the court considers
whether the facts in her complaint would permit recovery under
any viable theory, see Garita Hotel Ltd. Partnership, 958 F.2d at
1 7 , the court examines whether Gorski has alleged sufficient
facts to state a claim for pregnancy discrimination under Title
VII.
To state a claim of discrimination based on disparate
treatment, Gorski must establish a prima facie case of
discrimination by showing (1) she was pregnant; (2) her job
performance was satisfactory; (3) her employer took an adverse
court need not address arguments relevant to vicarious liability.
9
employment action against her; and (4) other employees who were
not pregnant were treated differently.6 See Smith v . F.W. Morse
& Co., 76 F.3d 413, 421 (1st Cir. 1996); Geier,
99 F.3d at 243.
Gorski alleges in her complaint that she was pregnant and was
otherwise qualified to hold her job. She also alleges that Kench
denied her request for an internal transfer because she was
pregnant. A refusal to transfer can, in some circumstances,
constitute an adverse employment action. See Randlett v .
Shalala,
118 F.3d 857, 862 (1st Cir. 1997) (holding refusal to
transfer can be adverse employment action in Title VII
retaliation case). While Gorski does not describe the nature of
the transfer she requested, or explain how the transfer would
have altered the terms and conditions of her employment, her
allegations suffice to meet the minimal pleading requirements at
this stage of litigation. Likewise, her allegation that Kench
explicitly gave her pregnancy as a reason for denying the
transfer suffices as an allegation that she was treated
differently from other employees who were not pregnant.
Therefore, Gorski’s allegations as to the denial of her requested
transfer state a claim under Title VII.
6
The elements of a Title VII prima facie case depend on the
facts of each particular case. See McDonnell Douglas Corp. v .
Green, 411 U.S. 792, 802 n.13 (1973).
10
Conclusion
For the foregoing reasons, the defendant’s motion to dismiss
(document n o . 8 ) is denied.
SO ORDERED.
Joseph A . DiClerico, J r .
District Judge
July 1 9 , 2000
cc: Michael J. Sheehan, Esquire
Nancy J. Smith, Esquire
11
