IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-31019
PEGGY BERGERON,
Plaintiff-Appellant,
versus
SOUTHWEST LOUISIANA HOSPITAL ASSOCIATION,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Louisiana (97-CV-1837)
August 31, 1999
Before GARWOOD, DUHÉ and BENAVIDES, Circuit Judges.*
GARWOOD, Circuit Judge:
Plaintiff-appellant Peggy Bergeron (Bergeron) appeals the
district court’s grant of summary judgment in favor of defendant-
appellant Southwest Louisiana Hospital Association, d/b/a Lake
Charles Memorial Hospital (the hospital) dismissing her claims of
sexual harassment and retaliatory discharge. We affirm.
Facts and Proceedings Below
* Pursuant to 5TH CIR. R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Bergeron began working as a technician in the hospital’s
emergency room (ER) in 1993. Bergeron also worked in the ER as
an extern while attending nursing school. In January 1995,
Bergeron was hired by the hospital as an ER nurse. Dr. Michael
Lescord (Lescord) was at all times an employee of Emcare, Inc., a
physician organization which supplies doctors to the ER under
contract with the hospital. Lescord commenced working in the ER
in 1993. When the hospital considered hiring Bergeron as an ER
nurse, the hospital’s ER nurse manager Paul Fuselier (Fuselier)
inquired whether Lescord believed Bergeron would be a positive
addition to the ER. Lescord responded affirmatively.
After Bergeron began working as an ER nurse, Lescord began
to ask Bergeron to accompany him on rounds. Although ER doctors
do not always request that nurses join them on rounds, it is not
uncommon for ER doctors to do so. Bergeron alleges that Lescord
requested her assistance on rounds too often, even when other
nurses were available. Bergeron alleges that Lescord became
irritated if she refused to join him due to conflicting
responsibilities. Although Lescord never reprimanded Bergeron
for refusing to accompany him, Bergeron states that Lescord’s
body language—such as sighing, turning around, or slapping a
chart on a desk—indicated that he was unhappy. Nonetheless,
Lescord continued to request Bergeron’s assistance.
Lescord once touched Bergeron’s shoulder. Lescord
approached Bergeron to discuss a patient, holding the patient’s
chart in his left hand. Lescord then placed his right hand on
2 Bergeron’s right shoulder. Lescord did not rub or caress
Bergeron’s shoulder in any way, but only rested his hand there
for about one second before Bergeron pulled away. Lescord backed
away immediately, and did not say anything. Bergeron walked
away, and Lescord did not follow her. Bergeron admits that it is
not uncommon for doctors to approach nurses in this manner when
discussing patients, and that the touching was not in any way
sexual. However, Bergeron felt uncomfortable.
Both Lescord and Bergeron identify a single incident in the
spring of 1995, when Lescord loudly scolded Bergeron in the ER,
as the beginning of a serious conflict between them. A private
doctor sent a patient to the ER. The patient had experienced
chest pains the night before. The doctor telephoned the ER and
spoke to Bergeron. The doctor told Bergeron that he would come
to the hospital to meet the patient, and asked Bergeron to do
some lab work when the patient arrived. Because the patient’s
vital signs were stable, Bergeron did not immediately notify an
ER doctor of the patient’s arrival. When test results revealed
that the patient’s cardiac enzymes were abnormal, Bergeron showed
Lescord the patient’s chart. The patient had been in the ER for
approximately one hour at this point.1 Dr. Lescord was very
angry that he had not been notified earlier about the patient’s
presence in the ER. Lescord threw the chart at the ground and
1 Lescord and the hospital administrators suggest that the patient had in fact been in the ER for two hours at this point. However, on this summary judgment review, we view all facts in the light most favorable to Bergeron.
3 yelled, “Why am I just being notified now?” Lescord immediately
ran into the patient’s room and yelled at Bergeron to get the
patient on oxygen.
As Lescord was leaving his shift that evening, he approached
Bergeron and attempted to explain that his comments should be
interpreted as constructive criticism. Bergeron did not
interpret Lescord’s statement to be an apology, but instead an
assertion that “I’m the doctor, . . . what I say goes.” After
the incident, Lescord spoke to Fuselier and stated that anytime a
patient with chest pains arrived, the nurses should notify a
doctor immediately. The incident was later discussed in an ER
committee meeting, although Bergeron’s name was not specifically
mentioned. Fuselier attributed the error to Bergeron’s
inexperience. However, Bergeron insisted that she did nothing
wrong. Since the private doctor was going to meet the patient at
the hospital, Bergeron believed she was not required to notify an
ER doctor. Also, Bergeron asserted that the policy requiring
patients with chest pains to be seen immediately by doctors did
not apply because the patient had not had chest pains that day.
After this incident, Lescord’s professional relationship
with Bergeron soured. Lescord surmised that his abrupt manner
had offended Bergeron. Lescord stated that Bergeron became very
quiet and sullen, and essentially would not speak to him. After
approximately two weeks, Lescord asked Bergeron to speak with him
in his office. Lescord attempted to discuss constructive
criticism with Bergeron. Bergeron alleges that Lescord stated
4 that he would have to be a lot more sensitive with her. Bergeron
began crying, at which point Lescord allegedly “told [her] that
he had a shoulder for [her] to cry on and he said [he had] a lot
of pull with the administration.”
Bergeron’s relationship with Lescord did not improve after
the meeting. Bergeron enlisted the aid of her fellow nurses to
arrange work assignments so that Bergeron would not have to
interact with Lescord. In the ER, nurses were not assigned to
work for any particular doctor, but instead were assigned to
stations. So, for example, if Bergeron’s shift overlapped with
Lescord’s, Bergeron would request to work in the triage area,
where she did not have to interact with the doctors. Once, while
working in triage, Bergeron briefly walked out of the area to
deliver a patient’s chart. Lescord asked Bergeron to hold a
telephone and wait for the other party to return to a call for
him. Bergeron refused, stating that she had to return to the
triage. Although Lescord did not say anything, Bergeron states
that he slapped his hand down on the desk, indicating anger.
Lescord admits that nurses are not required to assist doctors
while working in triage, but other nurses generally would do so
if asked.
A similar situation occurred one afternoon while Bergeron
and a few other ER employees, among them a technician, were
standing around the nurses’ station. Lescord approached Bergeron
and requested assistance holding a baby during a lumbar puncture.
As this was a task that a technician could perform, Bergeron
5 asked the technician to assist Lescord. Lescord stated that he
would need additional help, and Bergeron replied that she would
have to find someone else. Bergeron explains that she was
required to stay by the ambulance phone because she was the only
nurse in the area and only nurses were allowed to answer the
ambulance phone, although it is not clear whether she articulated
this concern to Lescord. Lescord told Bergeron that she needed
to start setting her priorities. After this incident, Lescord
complained to Fuselier.
Lescord reprimanded Bergeron for failing to acknowledge his
orders. Lescord had asked Bergeron to get a patient an ice pack.
Bergeron did not acknowledge the request. Lescord said, “You
need to acknowledge me when I’m speaking to you.” Bergeron
looked at him, refused to answer, and walked away. Bergeron says
she did not answer because she was afraid of getting in trouble.
According to Lescord, nurses customarily verbally acknowledge
doctors’ orders so that the doctors can know that their orders
have been heard and will be carried out. Bergeron’s refusal to
acknowledge his orders concerned Lescord.
Lescord snapped at Bergeron on an occasion when Bergeron and
two other people were standing around a monitor trying to discern
a rhythm. Bergeron suggested changing leads, and attempted to
change the lead, but Lescord pushed her hand away and snarled, “I
want it in this lead.” On another occasion, Bergeron was in the
process of discharging a patient whom Lescord was not ready to
discharge. Lescord grabbed the patient’s chart out of Bergeron’s
6 hand and threw it down on the counter.
Once, when treating a patient, Bergeron asked another nurse
to find a doctor. The other nurse asked a different doctor to
treat the patient, even though Lescord was actually behind a
divider in the same room. Lescord did not confront Bergeron
about this incident, but later complained to Fuselier that
Bergeron had deliberately found another doctor, despite the fact
that he was readily available and should have treated this
patient. Bergeron denies responsibility because she did not
personally summon the doctor.
After this incident, Lescord told Fuselier that he wished to
speak again with Bergeron in his office. Bergeron recounted that
conversation as follows:
“And he said, ‘What is it, Peggy? Don’t you like me?’ And I said, ‘No, I don’t. I don’t trust you. I don’t feel safe working with you.’ And he said, ‘So you’re not going to come with me in patients’ rooms, take care of patients?’ And I said, ‘That’s not what I’m saying. What I’m saying is I don’t like it but I’ll do it because it’s my job.’ And he said, ‘So you’re saying that you’re not going to work with me?’“
At this point, Bergeron refused to speak further with
Lescord without a third person present. At Bergeron’s request,
Lescord found Fuselier, and the conversation resumed with
Fuselier present. Lescord stated that he was concerned that the
negative atmosphere in the ER was compromising patient care.
Bergeron and Lescord agreed to attempt to act professionally
toward each other. According to Lescord, this conversation took
place perhaps as shortly as a few days before Bergeron complained
of harassment.
7 There were also problems involving Bergeron’s charting
procedures. Lescord expressed concern that Bergeron had once
delayed treating a patient. Bergeron argued that she did not
delay the treatment, but Lescord had taken the chart away from
her so that she could not document the treatment on the chart.
Rebecca Rhodes (Rhodes), the hospital’s Assistant Vice President
of Patient Care Services, recalled having an extended
conversation with Bergeron regarding a delay in reporting an
elevated blood pressure while Rhodes was serving as interim nurse
manager.
According to the hospital, a subsequent error in which
Bergeron performed an unauthorized procedure on a patient played
a central role in the decision to transfer Bergeron. An elderly
male patient entered the ER and Bergeron brought him to the
telemetry. After taking the patient’s blood pressure, Bergeron
sent someone to get a doctor and began an intravenous (IV) fluid
bolus2 on the patient. Within five minutes Lescord arrived and
began talking to the patient. Lescord did not say anything to
Bergeron regarding the IV bolus. However, Lescord later
discussed the incident with Deanna Harless (Harless), who had
replaced Fuselier as nurse manager. Lescord asked that Bergeron
be “written up” for starting the IV without his authorization.
Lescord stated that the saline IV was clearly contraindicated for
2 Stedman’s Medical Dictionary defines “intravenous bolus,” in pertinent part, as “a relatively large volume of fluid or dose of a drug or test substance given intravenously and rapidly to hasten or magnify a response.” Stedman’s Medical Dictionary 220 (26th ed., 1995).
8 that patient.
Both Lescord and Sherry Haley (Haley), the hospital’s Vice-
President of Patient Care Services, asserted that nurses should
not perform these procedures without a doctor’s order. Haley
alleged that Bergeron had insisted that it is a nurses’
prerogative to start an IV bolus, and that Bergeron had stated
that she would handle the situation the same way again. Harless
stated that she felt that Bergeron had used bad judgment in this
situation, and it was inappropriate to start the procedure
without a doctor’s order. Harless believed that Bergeron’s
judgment was clouded by the tension between her and Lescord.
Bergeron alleged that Harless had told her that it was acceptable
for a nurse to start a bolus in certain emergency situations.
However, Bergeron stated that Harless had told her to always get
an order first when working with Dr. Lescord. Bergeron said that
she said agreed. The record does not reveal on what date this
incident occurred, although it appears to have been close to the
time that Bergeron was removed from the ER schedule.
Lescord agreed that in most respects Bergeron performed at
the same level as other nurses with her level of experience.
Lescord also acknowledged that errors occur frequently in the
emergency room. The difference, according to Lescord, was that
other nurses accepted criticism and correction, whereas Bergeron
would simply turn her back and walk away if Lescord tried to
correct her. Lescord was concerned to have no ability to discuss
errors with a nurse while caring for critically ill patients.
9 Bergeron, however, felt that Lescord singled her out for harsh
treatment. For example, on the same evening that Bergeron
started the IV, another nurse named Denise made a drug error, and
disclosed the error to Lescord. Although Lescord complained
about the incident, he apparently told Denise that he would
overlook the error. Bergeron later complained to the
administration about this apparent disparate treatment, and
Denise was written up.3
On or about March 21, 1996, Bergeron told Rhodes that she
had received a lot of complaints from Lescord, and that she
feared that her job was in jeopardy. Attempting to find a cause
of the problem, Rhodes hypothesized that perhaps Bergeron’s looks
intimidated Lescord.
On March 27, 1996, Bergeron went to visit an attorney whom
she had selected from the telephone directory. That attorney
happened to be a member of the same law firm as John Bradford
(Bradford), an attorney who represented the hospital. When
Bergeron arrived, the attorney with whom she had an appointment
was not available, and she was taken to Bradford’s office.
Bradford explained that he represented the hospital and could not
represent Bergeron. Undeterred by the conflict of interest,
Bradford offered to listen to Bergeron’s story. Bergeron told
Bradford that she had been receiving complaints and was concerned
3 This story does not necessarily prove that Lescord subjected Bergeron to harsher treatment than other nurses, but is consistent with Lescord’s testimony that Bergeron’s refusal to admit errors and accept criticism constituted a significant part of their interpersonal conflict.
10 about losing her job. Bergeron told Bradford that she thought
she might have an harassment claim. Bradford told Bergeron to
speak to Haley and Rhodes.
The next day, March 28, 1996, Bergeron told Haley that she
believed Lescord was unjustly criticizing her, and she feared
losing her job. Haley told Bergeron that she should not worry
because doctors did not hire or fire nurses, and Bergeron’s job
would be safe as long as she did her job and acted
professionally. Bergeron told Haley that she had spoken to a
lawyer, but that nothing came of it because the lawyer worked for
the hospital. Later that day Bradford called Haley to ask
whether Bergeron had taken his advice and spoken to her.
Bradford told Haley that Bergeron thought she might have a sexual
harassment claim.
After speaking to Bradford, Haley arranged a meeting between
herself, Bergeron, and Rhodes. The meeting took place the
following day, March 29, 1996. Haley and Rhodes told Bergeron
that they had spoken to Bradford, and asked whether Bergeron felt
she was being sexually harassed. Bergeron apparently stated that
she felt it was “like sexual harassment.” Rhodes and Haley
instructed Bergeron to go to human resources and file a formal
complaint immediately.
Bergeron complied, and immediately consulted Betty Mitchell
(Mitchell), the hospital’s Human Resources Director. Mitchell
told Bergeron to submit a written complaint. Mitchell also told
Bergeron to keep a log or journal of incidents involving Lescord,
11 and to turn that in to her as well. Bergeron responded that she
had already been keeping such a log. Mitchell also informed
Bergeron, although perhaps on a later date, that hospital
personnel were reviewing her patient care records. Mitchell
could not, at the time of her deposition, identify the purpose of
this investigation.
On April 2, 1996, Harless told Bergeron that Haley wanted to
see her. When Bergeron arrived at Haley’s office, Haley quietly
escorted Bergeron into a conference room where Bradford awaited
her. Bradford informed Bergeron that they would like her to
transfer out of the ER. Bergeron alleges that Bradford told her
if she did not voluntarily transfer, they were “going to find
something” in order to terminate her. Bergeron also alleges that
Bradford said, “It’s just like a black person getting in trouble
and calling it discrimination and blaming it on them;” and “You
know, if you have a friend and that friend hurts you, you can
overlook it. If that person is not your friend you won’t
overlook it.” Bergeron told Bradford that she did not wish to
transfer. However, Bradford told Bergeron to think it over and
get back to him. Bradford denied threatening Bergeron.
Bradford claimed to simply have told Bergeron that if she filed a
complaint, the hospital would have to investigate, and that the
hospital could not guarantee her a job. Bradford admitted
offering to transfer Bergeron if she could not get along with
Lescord. No one other than Bergeron and Bradford attended the
meeting, and neither made a memorandum of the meeting’s events.
12 Also on April 2, Bergeron submitted a written complaint to
Mitchell. The complaint stated that approximately one year
earlier, Lescord began showing “an exceptional amount of
attention” to Bergeron by requesting her assistance when other
nurses were available. The complaint also alleges that Lescord
“invad[ed her] personal space by putting his arm around [her]
when discussing patient cases.” The complaint continues:
“Situations such ass [sic] this seemed to increase, making me more uncomfortable each time. At this time, Dr. Lescord began complaining to my head nurse that I ‘was not doing my job.’ My head nurse spoke with me on several occasions about these complaints and was unable to find any faults with my job performance. . . . Soon, he began to outwardly criticize my performance in front of patients and the nursing staff. . . .
My complaint is that I feel that I have worked long enough under these conditions and it is past the point of harassment.”
At one point in time, Bergeron and Mitchell discussed what
positions might be available for Bergeron outside the ER.
Mitchell offered Bergeron a position in ICU, or in a second unit
outside the hospital. Also, the head nurse in the cath lab
contacted Bergeron and informed her of an available position
there. Bergeron interviewed at the cath lab, but felt that the
job was inadequate because it would have paid less than her
evening shift in the ER. Bergeron rejected the ICU position
because, as she explained: “[Mitchell] told me that it could be
available if I wanted it, like they were almost providing the
position for me. And I wanted to be in a place where I was
needed and not supplied to.” Bergeron did not remember whether
the pay for the ICU position would have been different from the
13 pay for her position in the ER.
In May 1996, the hospital collected statements from other ER
workers, who were asked to comment on their observations of
Bergeron’s relationship with Lescord. Greenman observed that
“[i]t appeared that Dr. Lescord seemed to
charts to find
Stickney, RN, reported that “Dr. Lescord turns into a demon
around Peggy Bergeron. He is demanding, accusatory, insulting,
totally bizarre & uncalled for, and he does it in front of the
rest of the staff.” Jimmy Mayeux reported that the staff had
always viewed Bergeron’s relationship with Lescord as “strained”
and “friction filled.” He had noticed that Lescord spoke to
Bergeron in a tone of voice indicating that it took great effort
for Lescord to speak to Bergeron. However, Mayeux had not
observed anything that he would interpret or construe as
harassment. Harless reported that she had observed Bergeron
crying on multiple occasions.
In June 1996, Mitchell repeatedly asked Bergeron to turn in
the log or journal that they had discussed during their March 29,
1996, meeting. Bergeron refused to deliver the log because she
felt it contained too much personal information. Instead,
Bergeron gave Mitchell a list of witnesses. Bergeron told
Mitchell that she wished the entire matter would “blow over.”
On August 13, 1996, Bergeron received a letter from Sherry
Haley stating:
“The Human Resources Director, Betty Mitchell, has requested that you formalize your complaint in
14 reference to Dr. Michael Lescord on more than one occasion. You have refused her request and have told her that you would like this matter dropped. Our investigation reveals there was no sexual harassment and it is the hospital’s position that this matter is officially over.”4
On August 26, Bergeron received a letter from Haley and
Rhodes, stating in part, “I have received information that your
performance in the Emergency Center does not conform to good
nursing practices. Your supervisor has recommended that you be
removed from your work assignment.” The letter continued to
inform Bergeron that she had been removed from the ER schedule,
and suggested that Bergeron contact Mitchell “for a transfer to a
different department within the hospital.”
Bergeron argues that being removed from the ER schedule
amounted to a constructive termination. When the hospital
removed an employee from the schedule, it meant that the employee
would not be assigned to work. After an employee was off the
schedule for thirty days, that employee was officially
terminated. The hospital has not challenged Bergeron’s assertion
that the removal was a constructive termination. On August 28,
1996, Bergeron tendered her resignation.
Bergeron filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC). On June 12, 1997, the
EEOC issued Bergeron a Notice of Right to Sue. Bergeron sued the
hospital under Title VII of the Civil Rights Act of 1964, as
4 Bergeron adamantly denied having stated that she wanted the investigation dropped. Whether or not this is what Bergeron meant when she told Mitchell that she wished the matter would “blow over” is not material.
15 amended, 42 U.S.C. § 2000e, et seq. Bergeron alleged that she
had been sexually harassed by Lescord and that she had been
subject to unlawful retaliation as a result of her complaint
against Lescord. The district court granted the hospital’s
motion for summary judgment as to both claims, and dismissed
Bergeron’s complaint.
Discussion
“We review a district court’s grant of summary judgment de
novo, applying the same standard as the district court.”
Shepherd v. Comptroller of Public Accounts of the State of Texas,
168 F.3d 871, 873 (5th Cir. 1999) (citation omitted). Summary
judgment is proper only where, viewing all evidence in favor of
the nonmoving party, the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 106 S.Ct. 2548 (1986).
I. Sexual Harassment
Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e-2(a)(1), makes it “an unlawful employment practice
for an employer . . . to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42 U.S.C. §
2000e-2(a)(1). Sexual harassment claims generally fall into two
categories. Quid pro quo sexual harassment arises where an
16 employer demands sexual consideration in exchange for job
benefits. See Jones v. Flagship International, 793 F.2d 714, 721
(5th Cir. 1986). The second category of sexual harassment claims
arise where harassment based upon sex creates a hostile working
environment. See id. at 719-720. Bergeron’s claim proceeds
under the latter hostile work environment theory of sexual
harassment.
In order to establish a hostile environment claim, a
plaintiff must prove five elements: “(1) that the employee
belongs to a protected class; (2) that the employee was subject
to unwelcome sexual harassment; (3) that the harassment was based
on sex; (4) that the harassment affected a
privilege’ of employment; and (5) that the employer knew or
should have known of the harassment and failed to take prompt
remedial action.” Shepherd, 168 F.3d at 873 (citing Jones,
supra). Bergeron has not provided any evidence that she was
subject to harassment based on sex.
Lescord never made any sexual advances nor sexually
suggestive comments toward Bergeron. Lescord touched Bergeron
only once, for only approximately one second, and immediately
removed his hand when Bergeron backed away. Bergeron admits that
it was not uncommon for doctors to touch nurses in this manner
when discussing patients, and that the touching was nonsexual.
Moreover, we have previously noted that touching a person’s
shoulder is not the sort of conduct which generally leads to
finding a sexually abusive working environment. See Shepherd,
17 168 F.3d at 875.
Lescord allegedly told Bergeron, as she began crying, that
he had a shoulder for her to cry on, and that he had a lot of
pull with the administration. Bergeron has offered little
context for these statements and no coherent theory as to what
the statements meant. With some imagination, these statements
might be construed as a sexual overture or threat. However,
Bergeron’s “subjective interpretation of [Lescord’s] comments is
insufficient to raise a fact issue as to sexual harassment.” See
Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 555 (5th
Cir. 1997) (citation omitted). Without more, these cryptic
statements are simply too opaque to cast an air of sexual
harassment over an otherwise gender-neutral conflict.
A hostile work environment may be based not only on conduct
of a sexual nature in terms of sexual invitation or innuendo, but
also on hostility or discrimination toward one sex generally.
See Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998,
1002 (1998) ("The critical issue, Title VII's text indicates, is
whether members of one sex are exposed to disadvantageous terms
or conditions of employment to which members of the other sex are
not exposed.") (quotation omitted). Still, a sexual harassment
claim requires proof that the plaintiff’s sex was a but-for cause
of the harassment. Jones, 793 F.2d at 719. “Title VII does not
prohibit all verbal or physical harassment in the workplace; it
is directed only at
Oncale, 118 S.Ct. at 1002 (alteration in original).
18 Even accepting as true that Lescord turned into a “demon,”
unjustly criticized Bergeron, and behaved in a manner which was
bizarre, insulting, and uncalled for, the record contains
absolutely no evidence from which a reasonable jury could infer
that Lescord’s behavior was motivated by Bergeron’s sex. Lescord
never derided Bergeron based on her sex. There is likewise no
evidence suggesting that Lescord conflicted with any of the
several other female nurses in the ER, and in fact Bergeron
complained that Lescord once treated Debbie, another presumably
female nurse, too favorably. We also note that Lescord in fact
recommended that the hospital hire Bergeron in 1994—a fact which
tends to weigh against a finding of animus towards women. Cf.
Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir.
1996)(approving “same actor” inference that same actor’s
involvement in both employee’s hiring and termination raises
inference against discriminatory motive.). Bergeron offers only
speculation that Lescord’s behavior was based on Bergeron’s sex.
Bergeron’s subjective belief that Lescord harassed her because
she is a woman is worth little. See Nichols v. Lewis Grocer, 138
F.3d 563, 570 (5th Cir. 1998). "’[A] subjective belief of
discrimination, however genuine, [cannot] be the basis of
judicial relief.’" Id. (alteration in original) (quoting Little
v. Republic Refining Co., Ltd., 924 F.2d 93, 96 (5th Cir.1991)).
Rhodes also suggested that perhaps Bergeron’s looks intimidated
Lescord. However, Rhodes’ speculation about Lescord’s motivation
is worth no more than Bergeron’s. See Little, 924 F.2d at 96
19 (“[T]he evidentiary power of [a third party’s] belief [as to
employer’s motivation] is subject to the same criticisms as [the
plaintiff’s] belief. [citation]. It should not matter that the
belief belongs to a party other than the plaintiff.”) (citation
omitted).
Bergeron asks us to infer that Lescord’s behavior was
motivated by Bergeron’s sex by the mere fact that he was a man
and she was a woman. A mere difference in the sex of an alleged
sexual harasser and sexual harassee is insufficient, by itself,
to raise an inference of sexual harassment. Our rejection of
this principle is implicit in the well-established rule, supra,
that a plaintiff’s subjective belief of discrimination—even where
the alleged discriminator is outside the plaintiff’s protected
class—is insufficient to defeat summary judgment. The principle
Bergeron proposes would defeat summary judgment in the vast
majority of sexual harassment claims, irrespective of whether a
plaintiff offers any proof whatsoever of sexual harassment. We
cannot adopt a rule of law which presumes that all unpleasant
workplace interactions between a man and a woman constitute
sexual harassment. See Oncale, 118 S.Ct. at 1002 (“We have never
held that workplace harassment, even harassment between men and
women, is automatically discrimination because of sex merely
because the words used have sexual connotations.”). Bergeron has
failed to show any genuine dispute of material fact based on
actual, nonspeculative record evidence that Lescord harassed
Bergeron because of her sex. See 42 U.S.C. § 2000e-2(a)(1).
20 Finally, in order to create an actionable hostile working
environment, harassment must be “sufficiently pervasive so as to
alter the conditions of employment and create an abusive working
environment.” See Jones, 793 F.2d at 719-20. Whether an
environment is abusive or hostile is determined by considering
all 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.” Harris v. Forklift Systems, Inc., 114 S.Ct. 367,
371 (1993). Whether an environment is sufficiently hostile or
abusive to be actionable is viewed both objectively and
subjectively. Id. at 370.
The district court found that if Bergeron had established
that Lescord’s conduct was sexual harassment, this element would
be satisfied. However, it may be questioned whether a doctor’s
expressing anger when a nurse declines assistance, and publicly
scolding her errors on a handful of occasions over the course of
a year and a half could, from an objective view, constitute
behavior so severe and pervasive as to create an abusive working
environment. See Southard, 114 F.3d at 555 (finding isolated
comments and unreasonable typing assignments insufficient to
support hostile environment claim.). The Supreme Court has
warned against transforming Title VII into a “general civility
code,” Oncale, 118 S.Ct. at 1002, and we find this admonition
particularly compelling in a fast-paced, often stressful
21 emergency room setting. Nonetheless, as we find no evidence
that Lescord’s behavior was motivated by Bergeron’s sex, we need
not resolve this issue today. Because Bergeron failed to provide
sufficient evidence to satisfy an essential element of her claim,
summary judgment was properly granted. See Celotex, 106 S.Ct. at
2552 (holding Rule 56(c) mandates summary judgment where party
fails to provide evidence sufficient to establish essential
element of claim for which that party would bear the burden of
proof at trial).
II. Unlawful Retaliation
Bergeron alleges that the hospital removed her from the ER
schedule in retaliation for her filing an harassment complaint.
To establish a prima facie case for unlawful retaliation under
Title VII, a plaintiff must show: “(1) that she engaged in
activity protected by Title VII, (2) that an adverse employment
action occurred, and (3) that a causal link existed between the
protected activity and the adverse employment action.” Long v.
Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996) (citation
omitted); 42 U.S.C. § 2000e-3(a).
Title VII unlawful retaliation cases follow the McDonnel
Douglass/Burdine burden shifting framework. See Texas Dept of
Community Affairs v. Burdine, 101 S.Ct. 1089, 1093-1095 (1981);
McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817, 1824-25 (1973).
Once the plaintiff establishes a prima facie case of retaliation,
the burden of production shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the employment action.
22 See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992 (5th Cir.
1996). If the defendant introduces evidence supporting a valid,
nondiscriminatory reason for the employment decision, the
presumption of retaliation raised by the plaintiff’s prima facie
case disappears. The burden then shifts back to the plaintiff to
prove that the employer’s proffered reason is actually a pretext
for retaliation. See id. at 993. See also Burdine, 101 S.Ct. at
1093. The burden of persuasion remains with the plaintiff at all
times. See Burdine, supra.
The hospital has not challenged either that Bergeron engaged
in a protected activity under Title VII5 or that Bergeron’s
removal from the ER schedule constituted an adverse employment
action. The only remaining element is causation. To establish
prima facie evidence of causation, a plaintiff must show only
that retaliation was a motivating factor behind the employment
decision, and need not at this point show that it was the but-for
or sole cause of the employment decision. See Long, 88 F.3d at
305 n.4.
Bergeron alleged that on April 2, 1996, Bradford threatened
that the hospital would find means to terminate Bergeron’s
5 A plaintiff engages in protected activity if she “oppose[s] any practice made an unlawful employment practice” by Title VII, 42 U.S.C. § 2000e-3(a). Under this section, a plaintiff must demonstrate that she had a reasonable belief that the employment practice she opposed was unlawful. See id.; Long, 88 F.3d at 304. The district court found that Bergeron could not have reasonably believed that she had been sexually harassed. Because we conclude that Bergeron has failed to raise a jury issue on the ultimate issue of whether the hospital retaliated against her, we do not reach this issue.
23 employment if Bergeron did not voluntarily leave the ER. If
believed, these threats may provide evidence of retaliation.
Furthermore, Bergeron was removed from the ER schedule less than
two weeks after the hospital concluded the investigation into
Bergeron’s allegations of harassment. A short time span between
an harassment complaint and an adverse employment action may
raise an inference of retaliation. See Swanson v. General
Services Administration, 110 F.3d 1180, 1188 (5th Cir. 1997)
(citation omitted). We therefore find that Bergeron did
establish a prima facie case of retaliation.
However, Bergeron has not provided sufficient evidence for a
jury to conclude that the hospital’s articulated reasons for her
transfer were pretext, and that retaliation was the but-for cause
of her transfer. The hospital claimed to have transferred
Bergeron because her work failed to conform to good nursing
practices, specifically, because Bergeron performed an
unauthorized procedure and refused to acknowledge such as error.
The hospital also asserted that Bergeron’s conflict with Lescord
was jeopardizing patient care, and hospital personnel believed
Bergeron might perform better in a different environment.
Bergeron admitted starting the IV fluid bolus without
authorization, and insisted that nurses may, in certain
circumstances, perform those procedures without authorization.6
6 Bergeron stated that she had agreed to obtain permission before performing the procedure when working with Lescord, but her testimony is silent as to whether she refused to do so when working with other doctors. On appeal, Bergeron does not dispute the hospital’s assertion that she refused to change her nursing
24 Bergeron also admitted that she refused to work or speak with
Lescord, that these problems had occurred over the course of more
than a year, and that she frequently had broken down and cried at
work due to Lescord’s treatment of her. Thus, the hospital’s
articulated reasons for transferring Bergeron are objectively
reasonable and have not been seriously disputed. Cf. Elliott v.
Group Medical & Surgical Service, 714 F.2d 556, 567 (5th Cir.
1983) (“where, as here, the reasons articulated are rational
ones, the objective truth of which is not seriously disputed, the
burden of establishing them as pretextual is a heavey one
indeed”).
Nonetheless, Bergeron argues that these articulated reasons
for her transfer were merely a pretext for retaliation. To prove
retaliation, a plaintiff must show that but for the retaliation,
she would not have suffered the adverse employment action. See
practices with respect to this procedure.
“Q. Am I correct in understanding that [Harless] . . . felt that that should not have been done, namely the starting of the IV and bolus without first getting the doctor’s orders? A. I remember what she told me. She told me, ‘Peggy, in an emergency room setting in a practical situation here, it is acceptable.’ Q. What’s acceptable? A. Starting and IV and giving a bolus. If you don’t do that on some patients before a doctor even gets there, a patient may die. Q. You felt this patient was in extremis? A. Not going to die. I didn’t know at the time. We had no lab work. We didn’t know what was going on. His blood pressure was low. Dee said since it’s Dr. Lescord, always get an order the next time. Q. Did you agree with her or disagree? A. I told her okay. It wasn’t an agreement or a disagreement. I just said I would do it.”
25 Long, 88 F.3d at 305 n.4. “In other words, even if a plaintiff's
protected conduct is a substantial element in a defendant's
decision to terminate an employee, no liability for unlawful
retaliation arises if the employee would have been terminated
even in the absence of the protected conduct.” Id. (citing Jack
v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir. 1984)).
The plaintiff must offer actual evidence of a retaliatory motive
and not merely supply an alternate theory for the employment
decision. “The trier of fact may not simply choose to disbelieve
the employer’s explanation in the absence of any evidence showing
why it should do so.” Swanson, 110 F.3d at 1195.
Bergeron argues that the short time span between the
conclusion of the hospital’s investigation and her removal from
the ER shows evidence of pretext. However, while a close
temporal connection may provide an inference of causation in a
plaintiff’s prima facie case, it does not constitute actual
evidence of pretext. See Swanson, 110 F.3d at 1188. Moreover,
this is not a case where an unrelated employee problem
suspiciously arises after that employee files a grievance. Here,
Bergeron was asked to transfer because hospital personnel
determined that her conflict with Lescord, which her complaint
brought to particular prominence, was obstructing her judgment
and performance. In this sense, the temporal connection between
the investigation, during which the hospital uncovered the full
details of the conflict, and the transfer is completely
consistent with the hospital’s proffered reasons for the
26 transfer.
Similarly, Bergeron points out that nursing administrators
conducted an investigation into Bergeron’s patient care records,
separate from the sexual harassment investigation. It is unclear
whether this investigation began before or after Bergeron
complained of sexual harassment. In either case, such an
investigation would be necessary in order to properly investigate
whether or not Lescord had been unjustly criticizing Bergeron’s
nursing practices. The investigation would also be a reasonable
and lawful consequence of Bergeron’s pointing out to hospital
administrators that she had received an unusual number of
complaints.
In the letter informing Bergeron that she had been removed
from the ER schedule, Haley and Rhodes stated that they had
received information that Bergeron’s nursing performance did not
conform to good nursing practices. Bergeron attempted to
manufacture a factual dispute by pointing out that in the
depositions Haley and Rhodes claimed to have received this
information from Harless, whereas Harless had answered “no” when
asked whether she had told Haley and Rhodes that Bergeron’s
performance failed to conform to good nursing practices.
Had Harless’ response occurred in a vacuum, it might indeed
have contradicted Haley’s and Rhodes’ testimony. However, in her
very next deposition response, Harless discussed speaking with
Haley and Rhodes about the IV, which Harless deemed to represent
poor judgment and inappropriate nursing practices. When asked
27 the same question again, later in her deposition, Harless
answered that she had informed Becky Rhodes of the IV bolus
incident. Harless also stated that she believed that the stress
from Bergeron’s conflict with Lescord had affected Bergeron’s
performance. Harless’ denial of using the exact phrase relayed
in the letter fails to create a genuine factual dispute.
Bergeron’s only evidence of pretext comes from her
deposition testimony concerning her April 2, 1996, meeting with
Bradford. On that date, Haley escorted Bergeron into a
conference room where Bradford awaited her. Bergeron described
the conversation at that meeting as follows:
“[Bradford] said, ‘We want you to transfer.’ And I explained that I had wanted to work in the ER for a very long time. And he said, ‘If you don’t voluntarily transfer, we’re going to find something to terminate you. We can do that.’ And I said okay. And he said, ‘It’s just like a black person getting in trouble and calling it discrimination blaming it on them.’ And he said, ‘You know, if you have a friend and that friend hurts you, you can overlook it, If that person is not your friend, you won’t overlook it.’”
This conversation occurred only days after Bergeron sought
to consult an attorney about her concerns and complained to
hospital administrators. These alleged statements by the
hospital’s outside lawyer indicate that hospital personnel were
concerned by Bergeron’s complaints. These statements may also
suggest that Bradford believed Bergeron had falsely claimed
sexual harassment merely because she had been having problems at
work, even though the hospital had not begun to formally
investigate Bergeron’s allegations at this point. If believed by
a jury, these statements may provide some evidence of pretext.
28 In other circumstances, these alleged statements may have
been enough evidence of pretext to create a jury question on the
issue of retaliation. However, such an inference based on this
evidence is so greatly overwhelmed by contrary evidence in the
record before us, that no reasonable jury could find that the
hospital would not have transferred Bergeron but for a motive or
desire to retaliate against her because she made a complaint, as
distinguished from because of, among other things, what was
learned from or brought to the fore by the complaint and related
investigation. See Rhodes, 75 F.3d at 993 (“Even if the evidence
is more than a scintilla, ‘Boeing [Co. v. Shipman, 411 F.2d 365
(5th Cir. 1969) (en banc),] assumes that some evidence may exist
to support a position which is yet so overwhelmed by contrary
proof as to yield to a directed verdict.’") (quoting Neely v.
Delta Brick and Tile Co., Inc., 817 F.2d 1224, 1226 (5th
Cir.1987)); Sherrod v. American Airlines, Inc., 132 F.3d 1112,
1122 (5th Cir. 1998) (“The plaintiff must reveal a conflict in
substantial evidence on the ultimate issue of retaliation in
order to withstand a motion for summary judgment. [citation]
Evidence is substantial if it is of
reasonable and fair minded persons in the exercise of impartial
judgment might reach different conclusions.’") (citations
Even assuming, arguendo, that retaliation was a motivating
factor in the decision to remove Bergeron from the ER, Bergeron
cannot show that the hospital would not have fired her but for
29 that retaliatory motive. Bergeron openly admitted that she
disliked Lescord, disliked working with Lescord, refused to
acknowledge Lescord’s orders, and regularly asked other nurses to
rearrange their work assignments solely to help Bergeron evade
Lescord. Bergeron frequently broke down in tears at work.
Bergeron did not dispute that her problem with Lescord had lasted
over a year and showed no signs of improvement. Had the hospital
actually terminated Bergeron’s employment, a jury might have
greater cause to question the action or the legitimacy of the
hospital’s asserted reasons. But the hospital did not terminate
Bergeron. Instead, the hospital proposed a reasonable solution,
narrowly tailored to resolve a serious and ongoing problem.
On these facts, Bergeron cannot show that the hospital would
not have transferred her but for a retaliatory motive on account
of her complaint. Perhaps the best indication of this reality
comes from Bergeron herself: her own fears about losing her job
had prompted Bergeron to file a complaint in the first place.
Not surprisingly, Bergeron has failed to credibly show that she
would not have been removed from the ER but for retaliation for
complaining of harassment. Because Bergeron has not presented
sufficient evidence from which a reasonable jury could conclude
that retaliation for her complaint was a but-for cause of her
transfer, we affirm the district court’s grant of summary
judgment for the hospital.
Conclusion
Not all workplace harassment between a man and a woman is
30 sexual harassment. Bergeron offered no evidence other than sheer
speculation that Lescord’s treatment toward her was based on sex,
and we will not presume such motivation by the mere fact that
Lescord is a man and Bergeron is a woman. The district court
properly granted summary judgment to the hospital on the issue of
sexual harassment. Furthermore, while Bergeron may have
presented some evidence from which it could be inferred that a
retaliatory motive played some slight part in the transfer
decision, we conclude that she cannot overcome the evidence
clearly showing that the hospital transferred her essentially for
other reasons and would have done so for such reasons regardless
of any retaliatory motive. The hospital was entitled to summary
judgment on Bergeron’s retaliation claim as well.
AFFIRMED
31 FORTUNATO P. BENAVIDES, Circuit Judge, specially concurring:
I concur in the judgment and agree with Judge Garwood's
factual and legal analysis of Bergeron's sexual harassment claim.
With regard to Bergeron's Title VII retaliation claim, I would
affirm solely for the reason give by the district court. Under
the facts presented to the district court as fully set out in
Judge Garwood's thorough opinion, I would find that Bergeron
could not have reasonably believed that she had been sexually
harassed.