574 F.3d 604

BOWMAN, Circuit Judge,
concurring.
I agree that Winspear raised a standalone hostile-work-environment claim in his complaint and that the District Court should have addressed it in ruling on CDI’s motion for summary judgment. I also agree that remand is required for the District Court to consider the question in the first instance. I write separately to emphasize my view that the remand is more than a legal formality. I read the District Court’s comment in its order that “Winspear may have raised a genuine issue of material fact” (emphasis added) on the question of a hostile work environment as acknowledging the possibility of a legally cognizable claim, not the certainty of one. In fact, I may ultimately agree with the dissent’s legal conclusion in this case. But I believe it is within the province of the District Court to consider in the first instance, with the benefit of the full summary judgment record and using the correct legal analysis, whether Winspear has raised a triable fact question on his hostile-environment claim.

Passage view · GavelSight