Sullivan v . NH DOC 03-CV-387-SM 04/29/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Steve Sullivan, Plaintiff

v. Case N o . 03-cv-387-SM Opinion N o .

Phil Stanley, Commissioner, New Hampshire Department of Corrections, Defendant

O R D E R

Steve Sullivan has sued in two counts, asserting that he was

subjected to disparate treatment because of his gender, in

violation of 42 U . S . C . §§ 2000e-2(a)(1) (Count I ) , and that

defendant is liable to him for negligent infliction of emotional

distress (Count I I ) . Before the court is defendant’s motion for

summary judgment. Plaintiff objects. For the reasons given,

defendant’s motion for summary judgment is granted.

Summary Judgment Standard

Summary judgment is appropriate when the record reveals “no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.” FED. R . CIV. P . 56(c). “A ‘genuine’ issue is one that could be resolved in favor

of either party, and a ‘material fact’ is one that has the

potential of affecting the outcome of the case.” Calero-Cerezo

v . U.S. Dep’t of Justice,

(1st Cir. 2004) (citing

Anderson v . Liberty Lobby, Inc.,

4 2 , 248-50 (1986)).

“The role of summary judgment is to pierce the boilerplate of the

pleadings and provide a means for prompt disposition of cases in

which no trial-worthy issue exists.” Quinn v . City of Boston,

8 , 28 (1st Cir. 2003) (citing Suarez v . Pueblo Int’l,

Inc.,

9 , 53 (1st Cir. 2000)).

“Once the movant has served a properly supported motion

asserting entitlement to summary judgment, the burden is on the

nonmoving party to present evidence showing the existence of a

trialworthy issue.” Gulf Coast Bank & Trust C o . v . Reder,

5 , 39 (1st Cir. 2004) (citing Anderson, 477 U.S. at 248;

Garside v . Osco Drug, Inc.,

6 , 48 (1st Cir. 1990)). To

meet that burden the nonmoving party, may not rely on “bare

allegations in [his or her] unsworn pleadings or in a lawyer’s

brief.” Gulf Coast, 355 F.3d at 39 (citing Rogan v . City of

Boston,

4 , 29 (1st Cir. 2001); Maldonado-Denis v .

2 Castillo-Rodriguez,

(1st Cir. 1994)). When

ruling on a party’s motion for summary judgment, the court must

view the facts in the light most favorable to the nonmoving party

and draw all reasonable inferences in that party’s favor. See

Lee-Crespo v . Schering-Plough Del Caribe Inc.,

4 , 37

(1st Cir. 2003) (citing Rivera v . P.R. Aqueduct & Sewers Auth.,

, 185 (1st Cir. 2003)).

Background

Steve Sullivan was hired by the New Hampshire Department of

Corrections (“DOC”) as a corrections officer trainee in May of

1996. He was promoted to his current position as a corrections

officer (“CO”) in November of 1996. (Def.’s Mot. Summ. J., Ex. A

(Currier Aff.) ¶ 5.) In October of 1999, Sullivan was assigned

to a position in the prison kitchen and inmate dining area on the

shift that ran from 4:00 a.m. until 12:00 p.m. (Currier Aff. ¶

13.) Sullivan’s co-workers in the kitchen included CO Randy

Patrick and CO Aileen Jacques. (Currier Aff. ¶ 13.)

3 In April of 2000, CO Jacques had a verbal altercation with

CO Patrick, which resulted in Patrick’s immediate termination,

based upon Jacques’s claim that Patrick had sexually harassed

her. (Currier Aff. ¶ 14.) Patrick successfully challenged his

termination before the New Hampshire Personnel Appeals Board

(“PAB”) which ruled, inter alia, that Patrick had not engaged in

any conduct that violated the state’s sexual harassment policy.

(Currier Aff., Attach. 8.)

The PAB heard CO Patrick’s appeal on July 12 and August 1 6 ,

2000. (Currier Aff., Attach. 8.) CO Sullivan testified on

Patrick’s behalf at the July 12 session. (Currier Aff., Attach.

8.) As he was waiting to testify, in an area outside the hearing

room, Sullivan conversed with CO Dan Turgeon and former CO

Jonathan Topham. (Def.’s Mot. Summ. J., Ex. B (Nihan Aff.)

Attach. 1.) Among other things, Sullivan expressed his opinion

that the DOC’s sexual harassment policies were ineffectual and

disproportionately applied against men. (Nihan Aff., Attach. 1.)

Also present in the waiting area was Marilee Nihan, Administrator

of Programs for the DOC. (Nihan Aff., Attach. 1.) Nihan found

the conversation to be “very disrespectful, in most cases untrue,

4 and designed to incite negative feelings in the others.” (Nihan

Aff., Attach. 1.) For that reason, she approached Sullivan and

told him that he ought not state such opinions in public. (Nihan

Aff., Attach. 1.) Sullivan disagreed with Nihan and told her s o .

(Nihan Aff., Attach. 1.) After the incident, Nihan filed a

complaint against Sullivan with Warden Jane Coplan and the New

Hampshire State Prison’s Administrator of Security, Richard

Gerry. (Nihan Aff., Ex. 1.) No action was taken against

Sullivan as a result of his interaction with Nihan.

At some point after CO Patrick’s termination – plaintiff

does not give a date – CO Jacques filed a sexual-harassment

complaint against Sullivan. (Currier Aff. ¶ 16.) That complaint

resulted in no investigation and no formal action against

Sullivan, but Sullivan was advised by Captain Beltrami to

minimize his contact with Jacques. (Currier Aff. ¶ 16.)

Sullivan did s o .

In early June of 2000 – again, plaintiff does not give an

exact date – CO Jacques filed a second complaint against CO

Sullivan, asserting that he had created a hostile work

5 environment. (Currier Aff. ¶ 17.) Like the earlier complaint,

the June 2000 complaint resulted in no investigation and no

formal action against Sullivan. (Currier Aff. ¶ 18.) Sullivan,

concerned that two baseless complaints had been filed against

him, asked Lieutenant Geary what could be done to prevent further

complaints. Geary told Sullivan that there was nothing DOC could

do to stop the complaints, and told Sullivan that he should ask

for a transfer to another area of the prison, to further minimize

his contact with Jacques.

On June 3 , 2000, CO Sullivan was issued a “Statement of

Counseling” by Sgt. Tony Thibeault, the 1st Shift Interior Squad

Leader. (Currier Aff. ¶ 20.) That statement said:

Reason for counseling: (Insubordination) On 6/3/00 at aprox. 1015 you were insubordinate toward this supervisor by arguing with me after being told that you were forced overtime. You repeatedly stated to me that you were not going to be forced overtime even after I advised you that you were on the bottom of the seniority roster and that no one volunteered. This kind of behavior on your part can not and will not be tolerated. Future incidents will result in disciplinary action.

6 (Currier Aff., Attach. 10 (emphasis in the original).) Sullivan

refused to sign the Statement of Counseling. (Currier Aff.

Attach. 10.)

On July 6, 2000, CO Sullivan was granted a lateral transfer

from “3rd Kitchen T/W to 3rd CCU T/W,” as he requested, effective

June 3 0 , 2000. (Currier Aff., Attach. 13.) On November 1 0 ,

2000, he was granted a transfer from “CCU 3rd T/W to INT 3rd

F/S,” effective that same day. (Currier Aff., Attach. 14.)

On December 1 3 , 2000, Corporal Havelock issued a written

order stating, in full: “CO Sullivan is not allowed in kitchen

core or basement unless officer is on official business.”

(Currier Aff., Attach. 9.) At the time that order was issued, CO

Jacques was still assigned to the kitchen.

On January 9, 2001, CO Sullivan was issued “a written

warning for failure to meet the work standard.” (Currier Aff.,

Attach. 11.) Specifically, Sullivan was cited for reporting to a

training class in inappropriate attire, failing to obey an order

7 from a superior officer,1 and failing to interact with co-workers

and management in a cooperative way.2 (Currier Aff., Attach.

11.)

On April 1 9 , 2001, CO Sullivan was granted a transfer from

“INT 3rd F/S to R&D 3rd S/M,” effective May 4 , 2001. (Currier

Aff., Attach. 15.) On October 4 , 2001, he filed an “Official

Lateral Request Form,” seeking a transfer from his third-shift

position in R&D to a first-shift position in the kitchen.

(Currier Aff. ¶ 2 6 , Attach. 17.) By memorandum dated October 2 4 ,

2001, Sullivan was informed that his request had been denied.

(Currier Aff., Attach. 18.) That memorandum stated, in pertinent

part:

1 When informed of the policy prohibiting correctional officers from wearing jeans, Sullivan told Lieutenant Fouts that if the policy did exist, he would respond by wearing appropriate attire inside out and backwards. Subsequently, Sullivan refused to step outside the classroom to discuss the matter, as requested by L t . Fouts. (Currier Aff., Attach. 11.) 2 Sullivan’s uncooperative behavior included refusing to leave the class when asked to do so and stating, in response to a question to the class, that his role in an emergency was “to pass the buck.” (Currier Aff., Attach. 11.)

8 I regret that you have not been selected for the recent vacancy in the Kitchen. The reason is as follows:

Letter of Warning issued to you in December, 2000.

Requirement of the 1st Shift Cpl to order you to keep out of the kitchen core due to the hostile working environment you were creating with a 1st shift officer. Of additional concern was your display in a meeting with Sgt Whitten and Sgt Snyder over this order.

Thank you for your interest in this position.

(Currier Aff., Attach. 18.)

Based upon the foregoing, CO Sullivan filed a charge of

employment discrimination based on gender with the New Hampshire

Human Rights Commission, which made a finding of “no probable

cause” on April 1 7 , 2003. On June 1 0 , 2003, the Equal Employment

Opportunity Commission issued Sullivan a “right to sue” letter.

This suit followed.

In Count I , plaintiff asserts that he “was treated

differently than other female employees in that he was subject to

various work actions and disparate treatment than female

9 employees in the implementation of the Defendant’s sexual

harassment policies in violation of Title VII . . . in that he

was subjected to disparate treatment as a result of his gender.”

(Compl. ¶ 57.) In particular, plaintiff identifies the following

instances of alleged disparate treatment:

1. Plaintiff was subjected to adverse work actions based upon the unfounded and, more importantly, the uninvestigated claims of harassment by a female employee;

2. Plaintiff was told by numerous superior[s] that the co-worker would utilize the Defendant’s harassment policies affirmatively and wrongfully against the Defendant [sic] and failed to do anything to correct the co-worker’s actions;

3. Plaintiff was held to a different standard than other female employees in that the unfounded charges by the female employee resulted in restriction on the Plaintiff’s employment status, even after the Defendant knew the charges to be unfounded.

(Compl. ¶ 58.) Count II asserts a claim for negligent infliction

of emotional distress, based upon defendant’s failure to provide

Sullivan with a work environment that was free from disparate

treatment.

10 Discussion

Defendant moves for summary judgment on Count I on grounds

that plaintiff has failed to make out a prima facie case for

gender discrimination and argues that the court should decline to

exercise supplemental jurisdiction over Count I I , or should

dismiss that count for failure to state a claim on which relief

can be granted.

Count I

“Title VII makes it unlawful for an employer ‘to fail or

refuse to hire or 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 . . . sex.’” Reed v . MBNA Mktg.

Sys., Inc.,

7 , 31 (1st Cir. 2003) (quoting 42 U.S.C. §

2000e-2(a)(1)). “The core inquiry in . . . disparate treatment

cases is whether the defendant intentionally discriminated

against the plaintiff because of [his or] her gender.” Rathbun

v . Autozone, Inc.,

2 , 71 (1st Cir. 2004) (citing

Cumpiano v . Banco Santander P.R.,

4 8 , 153 (1st Cir.

1990)). That i s , “in a disparate treatment case, ‘[t]he central

11 focus of the inquiry . . . is always whether the employer is

treating some people less favorably than others because of their

race, color, religion, sex, or national origin.’” Thomas v .

Digital Equip. Corp.,

(1st Cir. 1989)

(quoting Furnco Constr. Corp. v . Waters,

6 7 , 577

(1978)) (internal quotation marks omitted).

Where, as here, there is no direct evidence of

discrimination, plaintiff’s claim must be analyzed under “the

burden-shifting analysis first established by the Supreme Court

in McDonnell Douglas Corp. v . Green,

(1973).” Che

v . Mass. Bay Transp. Auth.,

1 , 38 (1st Cir. 2003)

(citing Feliciano de la Cruz v . El Conquistador Resort & Country

Club,

, 6 (1st Cir. 2000)).

Under the McDonnell Douglas analysis, a plaintiff must establish a prima facie case, which in turn gives rise to an inference of discrimination. See Dichner v . Liberty Travel,

4 , 29-30 (1st Cir. 1998). The employer then must state a legitimate, nondiscriminatory reason for its decision. See Zapata- Matos v . Reckitt & Colman, Inc.,

0 , 44 (1st Cir. 2002). If the employer can state such a reason, the inference of discrimination disappears and the plaintiff is required to show that the employer’s stated reason is a pretext for discrimination. See

at 4 5 .

12 Kosereis v . Rhode Island,

0 7 , 212 (1st Cir. 2003).

Turning to the first step of the McDonnell Douglas analysis,

“[t]he elements of the plaintiff’s prima facie case vary

according to the nature of [his or] her claim.” Rathbun,

1 ; see also Thomas,

(“The prima facie

case required of a plaintiff varies with respect to the

employment action taken”) (citing McDonnell Douglas,

n.13); Oliver v . Digital Equip. Corp.,

(1st

Cir. 1988)).

Here, it is somewhat difficult to determine precisely which

employment actions plaintiff claims constituted gender-based

disparate treatment. The portion of the complaint in which Count

I is set out, quoted above, is vague, at best. In the “fact”

section of his complaint, plaintiff alleges that after the second

complaint was filed against him by CO Jacques, he “found his

otherwise commendable work record with the D.O.C. further

undermined by several ‘write-ups’ by D.O.C. officials for conduct

13 on [his] part . . . that had not warranted a reprimand by D.O.C.

officials or that had been outright condoned by D.O.C.

officials.” (Compl. ¶ 38.) In that same section, plaintiff

identifies, as a further example of disparate treatment, the

December 1 3 , 2000, directive from Cpl. Havelock, barring him from

the kitchen unless he was there on official business, a directive

which, upon plaintiff’s information and belief, has never been

given to any corrections officer other than himself. (Compl. ¶

51.)

However, in his objection to summary judgment, plaintiff

appears to limit his disparate treatment claim to the denial of

his request for a transfer back into the kitchen, “submit[ting]

that the baseless failure to grant a transfer, when the transfer

sought by the Plaintiff was more advantageous (albeit not

monetarily) to the Plaintiff, constitute[d] an adverse employment

action by the Defendant.” (Pl.’s O b j . to Summ. J.) As the

failure to grant plaintiff’s request for a transfer is the only

employment action mentioned in the argument section of

plaintiff’s memorandum of law, the court construes Count I as

14 asserting a claim that defendant’s failure to grant plaintiff a

transfer constituted unlawful gender-based disparate treatment.

The court of appeals for this circuit has not had the

occasion to set out the elements of a prima facie case of

discriminatory failure to transfer. However, the court has

established the requisite elements for claims of discriminatory

failure to promote,3 failure to re-hire,4 disciplinary discharge,

3 See Rathbun,

(“In a failure-to-promote claim, for example, [the] elements are that the plaintiff (i) is a member of a protected class who (ii) was qualified for an open position for which [he or] she applied, but (iii) was rejected (iv) in favor of someone possessing similar qualifications.”) (citing Gu v . Boston Police Dep’t,

(1st Cir. 2002)). 4 See Fernandes v . Costa Bros. Masonry, Inc.,

7 2 , 584 (1st Cir. 1999) (“a plaintiff alleging a failure to rehire establishes his [or her] prima facie case by showing: (i) that he [or she] belongs to a racial minority; (ii) that he [or she] applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his [or her] qualifications, he [or she] was rejected; and (iv) that, after his [or her] rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications”) (citing McDonnell Douglas,

0 2 ) . 5 See Conward v . Cambridge Sch. Comm.,

2 , 19 (1st Cir. 1999) (“the appellant’s prima facie case normally would include a showing that he was a member of a protected class and qualified for the employment he held, that his employer took an adverse employment action against him, and that his position

15 and termination.6 Based upon the prima facie cases established

for those causes of action, it seems appropriate to describe a

prima facie case for discriminatory failure to transfer much like

the one set out in Smith v . Alabama Department of Corrections:

To establish a prima facie case of failure to transfer, [plaintiff] must show that h e : (1) is a member of a protected class, (2) was qualified for the position, (3) suffered an adverse employment action, and (4) someone outside of the protected class was hired into the position.

(M.D. Ala. 2001) (holding that prison

employee denied a lateral transfer suffered no adverse employment

action when sought-after position involved no increase in rank,

remained open for (or was filled by) a person whose qualifications were similar to his”) (citing S t . Mary’s Honor Ctr. v . Hicks,

0 2 , 506 (1993); Smith v . F.W. Morse & Co.,

(1st Cir. 1996)). 6 See Feliciano de la Cruz,

(“In employment termination cases, a plaintiff establishes a prima facie case by showing that: (1) the plaintiff is within a protected class; (2) she [or he] was qualified for, and performing her [or his] job at a level that met the employer’s legitimate expectations; (3) she [or he] was nevertheless dismissed; and (4) after her [or his] departure, the employer sought someone of roughly equivalent qualifications to perform substantially the same work.”) (citing Mulero-Rodriguez v . Ponte, Inc.,

7 0 , 673 (1st Cir. 1996); Lipsett v . Univ. of P.R.,

8 1 , 899 (1st Cir. 1988)).

16 pay, benefits, etc.) (citing Hinson v . Clinch County, Bd. of

Educ.,

2 1 , 828 (11th Cir. 2000)); see also Parker v .

Del. Dep’t of Pub. Safety,

6 7 , 476 (D. Del. 1998)

(explaining, in Title VII action based upon denial of transfer,

“[o]ne of the ways for a plaintiff to establish a prima facie

case of disparate treatment is to prove she belongs to a

protected class, applied for and was qualified for an employment

position, was denied the position, and someone outside of the

protected class was awarded the position”) (citation omitted).

Defendant argues that he is entitled to summary judgment

because plaintiff has failed to establish two separate elements

of his prima facie case: (1) an adverse employment action; and

(2) preferential treatment of a similarly situated female.

Plaintiff counters that failure to grant him the transfer he

requested qualifies as an adverse employment action and that “the

failure to transfer the Plaintiff (who is male) back to the

kitchen based upon the unsubstantiated allegations by C.O.

Jacques (who is female), having never instituted an investigation

on the same, is the exact type of discriminatory action[]

17 consistently take[n] by the D.O.C. regarding sexual harassment

claims filed by female C.O.’s against male C.O.’s.”

Whether denial of a request for a transfer constitutes an

adverse employment action is an interesting legal question. In

Randlett v . Shalala,

(1st Cir. 1997), which involved

a Title VII retaliation claim, the court of appeals held that an

employer’s refusal to grant a hardship transfer qualified as an

adverse employment action,

at 8 6 2 , but did so at least in

part on the basis of evidence not present in this case, i.e.,

that for plaintiff Randlett’s employer, “a permanent transfer for

hardship reasons [was] a common enough practice and so arguably a

‘privilege’ of employment,”

Here, the record is entirely

silent on DOC policies and practices regarding lateral transfers.

Moving beyond the First Circuit, courts have used two

different frames of reference for analyzing denial of transfer

claims. One approach, which analogizes the denial of a transfer

request with a decision not to hire, is illustrated by the

following discussion in Parker:

18 Although some transfers may not be considered adverse, see, e.g., Williams v . Bristol-Myers Squibb Co.,

7 0 , 274 (7th Cir. 1996) (holding that purely lateral transfer imposed upon a plaintiff cannot rise to an adverse employment action to satisfy a disparate treatment or retaliation based claim), the denial of a sought after transfer is an adverse action. Bruno [v. W.B. Saunders C o . ] , 882 F.2d [760,] 762 [(3d Cir. 1989)]. This is unsurprising, since Title VII protects against discrimination in hiring, and applying for a job in another division is similar to applying for the same position from outside of the company. Further, the denial of a transfer could be characterized as the denial of an employment opportunity depending on the nature of the . . . position and the associated job opportunities.

(footnotes omitted). According to the

Parker view, denial of a transfer request must necessarily be an

adverse employment action because failure to transfer is a form

of failure to hire, and failure to hire is an adverse employment

action.

The other approach begins with the rule that many transfers

do not qualify as adverse employment actions:

While it logically may make sense to say that a denial of a transfer is an ‘adverse’ action because it is not what the employee wished, such an action is no more ‘adverse,’ logically speaking, than a purely lateral transfer made against an employee’s will, which the

19 Eleventh Circuit has stated in [Doe v.] DeKalb County [Sch. Dist.,

(11th Cir. 1998)] does not necessarily rise to the level of an adverse employment action.

Smith,

. Stated another way:

Logic suggests that, if making a “purely lateral transfer” cannot constitute “adverse employment action,” see Ledergerber [v. Stangler], 122 F.3d [1142,] 1144-45 [(8th Cir. 1997)], then failure to make a “purely lateral transfer” also would not constitute “adverse employment action.”

Hennick v . Schwans Sales Enters., Inc.,

3 8 , 954

(N.D. Iowa 2001) (emphasis in the original). Under the view

articulated in Smith and Hennick, if it is not an adverse

employment action for an employer to alter an employee’s work

situation by transferring him against his will, then it is surely

not an adverse employment action for an employer to leave an

employee’s work situation unchanged by denying a request for a

lateral transfer.

The Smith-Hennick view appears to be more widely held than

the Parker position:

A “clear trend of authority” holds that a “‘transfer that does not involve a demotion in form or substance [

20 ] cannot rise to the level of a materially adverse employment action.’” Brown [v. Brody], 199 F.3d [446,] 456-57 [(D.C. Cir. 1999)] (quoting Ledergerber v . Stangler,

(8th Cir. 1997), Williams v . Bristol-Myers Squibb Co.,

7 0 , 274 (7th Cir. 1996)). “[A]bsent any decrease in compensation, job title, level of responsibility, or opportunity for promotion, reassignment to a new position commensurate with one’s salary level does not constitute an adverse employment action.” Boone [v. Goldin], 178 F.3d [253,] 256-57 [(4th Cir. 1999)]; accord Watts v . Kroger Co.,

(5th Cir. 1999). This rule regarding transfers applies with equal force to the denial of transfer requests. See LePique v . Hove,

(8th Cir. 2000) (finding “no reason to suppose” that a failure to transfer should be “treated any differently” than an actual transfer).

Wagstaff v . City of Durham,

(M.D.N.C.

2002); see also Nonnenmann v . City of New York,

(S.D.N.Y. 2001), overruled on other grounds by Konits v .

Valley Stream Cent. High Sch. Dist.,

(2d Cir. 2005)

(“I have found no case in which denial of a request for a purely

lateral transfer was found to constitute an adverse employment

action.”). “Most cases addressing whether a lateral transfer (or

denial thereof) constitutes an adverse employment action for

purposes of a Title VII discrimination claim have concluded that

it does not.” Craven v . Tex. Dep’t of Crim. Justice,

5 7 , 766 (N.D. Tex. 2001) (collecting cases). Moreover,

“[w]hen courts have held a lateral transfer to be an ‘adverse

21 employment action,’ the position sought or lost has been

objectively better in some respect.”

(citing Lulac Council

4433 & 4436 v . City of Galveston,

1 4 , 518-19 (S.D.

Tex. 1997)).

Here, plaintiff has produced no evidence that a transfer to

the position he sought in the kitchen represented a promotion in

form or substance, or entailed any increase in “compensation, job

title, level of responsibility, or opportunity for promotion.”

Wagstaff,

(quoting Boone, 178 F.3d at 256-

57). In other words, he has produced no evidence tending to show

that the position he wanted to transfer to was objectively better

than the position he wanted to transfer from. Thus, the denial

of plaintiff’s transfer request was not an adverse employment

action for purposes of his Title VII disparate impact claim. See

Wagstaff,

(denial of lateral transfer to

police unit that “would have enabled [plaintiff] to attend

college and spend time with his family in more regular intervals”

was not adverse employment action); Nonnenmann,

(denial of transfer from one police precinct to another,

reducing officer’s daily commute from 120 miles to 93 miles, was

22 not adverse employment action); Craven,

(denial of correctional officer’s request for transfer from third

shift to first shift was not adverse employment action); Smith,

(denial of correctional officer’s request

for transfer was not adverse employment action when defendant

produced uncontroverted evidence that plaintiff’s “rank, pay, and

benefits would remain the same”).

Plaintiff disagrees, arguing that he did suffer an adverse

employment action because “the job in the kitchen was very

appealing to [him] because the hours of employment (4:00 a.m. to

12:00 p.m.) gave [him] the ability to spend time with [his]

children in the afternoon after their return from school”

(Sullivan Aff. ¶ 4 ) and because he “enjoyed the position

immensely when [he] had previously worked there because there was

a generally more relaxed atmosphere in the kitchen and an overall

more enjoyable atmosphere . . .” (Sullivan Aff. ¶ 5 ) .

However, it is well established that “[w]hether an

employment action is ‘adverse’ – and therefore actionable under

Title VII – is gauged by an objective standard.” Marrero v . Goya

23 of P.R., Inc.,

, 23 (1st Cir. 2002) (citing Blackie v .

Maine,

(1st Cir. 1996)); see also Smith,

(“In making an evaluation of whether an action

is an adverse employment action, courts are to apply an

objective, not a subjective, test.”) (citing Dekalb County,

). “If a transfer is truly lateral and involves

no significant changes in an employee’s conditions of employment,

the fact that the employee views the transfer either positively

or negatively does not of itself render the denial or receipt of

the transfer adverse employment action.” Sanchez v . Denver Pub.

Sch.,

2 7 , 532 n.6 (10th Cir. 1998) (citing Dekalb

County,

, 1449-50 (11th Cir. 1998) (collecting

cases)); see also Brown,

(“Mere idiosyncracies of

personal preference are not sufficient to state an injury.”)

(citing DiIenno v . Goodwill Indus.,

(3d Cir.

1998); Dekalb County,

; Smart v . Ball State

Univ.,

3 7 , 441 (7th Cir. 1996)); Craven,

(“That Craven expressed a preference for the day shift is

insufficient to conclude that denial of her transfer request was

an adverse action.”); Smith,

(“An

employment action must affect a term or condition of employment

24 and is not adverse merely because the employee dislikes it or

disagrees with it.”) (citing Perryman v . West,

(M.D. Ala. 1996)). In sum, plaintiff’s preference for a

position on the first shift is insufficient to create a triable

issue of fact regarding the existence of an adverse employment

action.

Because defendant’s denial of plaintiff’s request for a

transfer does not qualify as an adverse employment action,

plaintiff has not established a prima facie case of disparate

treatment, and defendant is entitled to judgment as a matter of

law on Count I .

In addition, plaintiff has failed completely to establish

the fourth element of his prima facie case, namely that the

position he sought via transfer was left open or went to someone

outside the protected class, i.e., a female. See Smith,

; Parker,

. Nowhere in his

complaint, and nowhere in the summary judgment record, does

plaintiff indicate who – if anyone at all – was selected to fill

the vacancy he applied for on the first shift. If the position

25 was left vacant or the person selected was a woman then plaintiff

could satisfy the fourth element of a prima facie case, but, if

that vacancy was filled by another male, plaintiff can hardly

claim that defendant disadvantaged him by impermissibly using

gender as a criterion for filling the position.7 See Parker,

(“defendant’s denial of plaintiff’s requested

transfer to the Special Investigations Forecast Unit and

defendant’s rejection of plaintiff’s application for the DARE

program combined with the subsequent selection of male troopers

for the same positions state a claim of disparate treatment under

Title VII”) (emphasis added). Absent a factual allegation

regarding what happened to the position plaintiff applied for

(or, at this point, evidence on that point), plaintiff has failed

to state a Title VII disparate treatment claim. Thus, on this

alternative basis, defendant is also entitled to judgment as a

matter of law.

Plaintiff’s failure to allege or produce evidence regarding

defendant’s ultimate disposition of the first-shift kitchen

7 Plaintiff could, seemingly, claim that he was disadvantaged by defendant’s selection of a male CO with whom CO Jacques had not had previous run-ins, but that would not support gender-based disparate treatment claim.

26 position illustrates a broader problem with plaintiff’s claim.

The essence of his claim appears to be that:

this course of conduct [as identified in the previous paragraphs] was discriminatory in nature based upon [his] gender, in that allegations made by female employees against male employees are treated with such deference as to factual allegations that the same constitutes a violation of applicable state and federal statutes.

(Compl. ¶ 53.) In his objection to summary judgment plaintiff

states:

the failure to transfer the Plaintiff (who is male) back to the kitchen based upon the unsubstantiated allegations by C.O. Jacques (who is female), having never instituted an investigation on the same, is the exact type of discriminatory action[] consistently take[n] by the D.O.C. regarding sexual harassment claims filed by female C.O.’s against male C.O.’s. It is this discrimination in general, and the impact of this discrimination on the Plaintiff as set forth

As earlier stated, the Plaintiff alleges that he and other male employees were treated in a significantly different manner with regard to allegations of sexual harassment by female employees due to their gender.

As stated in Plaintiff’s earlier Objection to Defendant’s Motion to Dismiss, [this] claim is somewhat novel, but equally simple: that male employees in general, and this male employee in particular, are

27 treated differently by the Defendant based upon their gender when it comes to the implementation of the Defendant’s sexual harassment policies: specifically that male employees (and, again, [this] male employee specifically) are presumed to be “guilty” of sexual harassment when complaints are made and suffer negative employment consequences as a result.

(Pl.’s O b j . to Summ. J. at 8-9.) Plaintiff is not claiming that

men accused of sexual harassment were treated differently

(presumably worse) than woman accused of sexual harassment, or

that women making claims of sexual harassment were treated

differently (presumably better) than men making claims of sexual

harassment, but rather, that women making sexual harassment

claims are treated well while the men they accuse are treated

poorly.

Similar claims have been litigated, albeit rarely. In Haley

v . Virginia Commonwealth University,

(E.D. V a .

1996), a Title IX sex discrimination case decided under Title VII

principles, see

at 5 7 8 , the plaintiff complained that

VCU unfairly railroaded him through the procedures it uses to prosecute claims of sexual harassment, and that it did so pursuant to a discriminatory policy whereby the school presumes that allegations of sexual harassment are valid, particularly where the alleged harasser is male and the victim is female.

28

. Discussing the plaintiff’s prima facie case, the

court stated that his “initial burden [was] one of showing that

female students accused of similar conduct were treated more

favorably.”

. Ultimately, the court dismissed the

plaintiff’s Title IX claim,

at 5 8 1 , because “[a]ll of his

evidence pertain[ed] to his own proceedings, and there [were] no

comparisons to accounts of other accused students, nor are there

even naked allegations that similarly situated women [were] or

even men would [have been] treated differently,”

.

Similar reasoning is found in Oakstone v . Postmaster

General,

(D. M e . 2004). The plaintiff in

Oakstone asserted that “the Postal Service, uncritically

accept[ed] demonstrably false allegations of physical abuse, [and

took] sides in favor of a female non-supervisory co-employee

against him by reassigning, harassing, and demoting him,”

, and he claimed that those actions constituted retaliation

and/or gender-based harassment rather than disparate treatment,

. The court in Oakstone denied defendant’s motion for

summary judgment on plaintiff’s harassment claims, but that

29 decision is of little help to plaintiff here because he has not

asserted a sexual harassment claim, but only a disparate

treatment claim. While sexual harassment rather than disparate

treatment might have proven a more viable theory of recovery on

the facts of this case (but not necessarily a successful o n e ) ,

defendant should not be denied judgment, to which it is entitled,

based upon a theory plaintiff does not advance.

Because plaintiff has not established either an adverse

employment action or preferential treatment of similarly situated

female COs, defendant is entitled to judgment as a matter of law

on Count I .

Count II

Count II is a state law claim for negligent infliction of

emotional distress, based upon defendant’s alleged breach of its

duty to “provide [plaintiff] with a work environment that was

free from disparage treatment, and non-discriminatory workplace

policies.” (Compl. ¶ 72.) Under the rule stated in Camelio v .

American Federation,

(1st Cir. 1998), the court

30 declines to exercise jurisdiction over plaintiff’s state law

claim, which is dismissed without prejudice.

Conclusion

For the reasons given, defendant’s motion for summary

judgment (document n o . 17) is granted. The clerk of the court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

Steven J. McAuliffe Chief Judge

April 2 9 , 2005

cc: Jennifer R. R. Jones, Esq. Mary E . Maloney, Esq.

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