                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-4274
                                     _____________

                                  MARISOL PAGAN,
                                        Appellant

                                            v.

                     ALBERTO R. GONZALEZ, Attorney General
                        and the Department of Justice, Federal
                      Bureau of Prisons; ERIC H. HOLDER, JR.
                                   _____________

                      Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Civil No. 1-07-cv-04556)
                       District Judge: Honorable Joseph E. Irenas
                                     _____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 27, 2011

        Before: McKEE, Chief Judge, SCIRICA and RENDELL, Circuit Judges

                              (Opinion Filed: June 9, 2011)
                                    _____________

                              OPINION OF THE COURT
                                  _____________

RENDELL, Circuit Judge.

      Marisol Pagan appeals from the District Court’s grant of summary judgment in

favor of her employer. Before us, Pagan claims the District Court erred: (1) in denying

her gender stereotyping claim pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000(a)(1); (2) in finding that the failure by her employer to provide training as

a certified personal trainer to the Appellant was not an adverse employment action; and

(3) in failing to find that the Appellees’ actions rose to the level of an adverse

employment action in light of the requirement of termination for cause under the relevant

collective bargaining agreement. Our standard of review of a District Court’s dismissal

pursuant to Rule 56 is plenary. W. v. Jersey City Pub. Sch., 486 F.3d 791, 794 (3d Cir.

2007). After reviewing the Appellant’s arguments, we find no error in the District

Court’s ruling in either the first or second claim, or any basis in the law for the third

challenge. Accordingly, we will affirm the District Court’s grant of the Appellees’

motion for summary judgment.

       First, Pagan argues that the District Court erred in denying her gender stereotyping

claim. In reaching its conclusion, the District Court correctly noted that while Title VII

makes it unlawful for an employer “to discriminate against any individual … because of

such individual’s race, color, religion, sex, or national origin,” and discrimination based

on a failure to conform to gender stereotypes is cognizable, discrimination based on

sexual orientation is not. Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 290-91 (3d

Cir. 2009)(citations omitted); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d

257, 261 (3d Cir. 2001). The District Court concluded that Pagan actually claimed that

she was being discriminated against based on sexual orientation, as opposed to gender

stereotyping. In coming to this conclusion, the District Court relied on the language of

the complaint, as well as, the factual allegations as to offensive comments relating to her



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sexual orientation, and the absence of any evidence to show that the discrimination was

based on Pagan’s acting in a masculine manner. Our review leads to the same result.

       Second, Pagan argues that the Appellees should have provided her the training as a

certified personal trainer, and the failure to do so amounted to an adverse employment

action, the third prong of a prima facie case for discrimination. The District Court

correctly defined an adverse employment action as “a significant change in employment

status, such as hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits.” Durham Life Ins.

Co. v. Evans, 166 F.3d 139, 152-53 (3d Cir. 1999)(citations omitted). Additionally, the

District Court noted, “an adverse employment action may be found where an employee’s

earning potential has been substantially decreased and a significant disruption to her

working conditions results. Id. at 153. The District Court found that the denial of the

training was not an adverse employment action because there was no evidence that the

Appellant’s work suffered or that her advancement or earning potential was affected. We

agree with the District Court’s conclusion.

       Finally, Pagan attempts to argue that because she is a union member, and her

employment subject to the protections of a collective bargaining agreement, her situation

does not fit into the usual mold of an adverse employment action. She urges that because

of the union protections, termination, demotion, or a decrease in pay are actions which

are effectively unavailable, therefore, her manager relied on other means to discriminate.

However true this statement regarding the effect of a collective bargaining agreement

may be, the law requires that an adverse employment action take place for discrimination

                                              3
to be present, and the District Court found that the employer’s alleged actions did not

amount to an adverse employment action. We agree with the District Court’s finding.

       Accordingly, we will affirm the District Court’s grant of the Appellees’ motion for

summary judgment.




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