Revised February 25, 2003
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________
No. 02-60283 _______________________
BRENDA A. GOWESKY, M.D.,
Plaintiff-Appellant, versus
SINGING RIVER HOSPITAL SYSTEM, d/b/a OCEAN SPRINGS HOSPITAL,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Mississippi _________________________________________________________________
February 6, 2003
Before GARWOOD, JONES, and STEWART, Circuit Judges.
EDITH H. JONES, Circuit Judge:
This is an appeal from the district court’s grant of
summary judgment to defendant Singing River Hospital Systems
(“Singing River”) on plaintiff Brenda A. Gowesky’s (“Gowesky”) ADA
claims for disability-based workplace harassment and employment
discrimination. 42 U.S.C. § 12112(a); see also Flowers v. S. Reg’l
Physician Servs., Inc., 247 F.3d 229 (5th Cir. 2001). Gowesky has
not created a material fact issue concerning whether she was
“regarded as disabled” by her employer after undergoing successful treatment for hepatitis C infection; nor has she surmounted the
evidentiary burden concerning disability-based harassment or an
adverse employment decision. We affirm the summary judgment.
I. FACTS
On February 26, 1997, while attending a patient in the
emergency room of Ocean Springs Hospital (owned by Singing River),
Gowesky was accidentally exposed to the hepatitis C. virus. On
March 20, she informed Dwight Rimes, Administrator of the Ocean
Springs Hospital, that she had tested positive. She ceased active
work at the hospital several days later (March 26), but maintained
staff privileges and continued to attend monthly staff meetings.
This practice persisted for the next two years, even as she
underwent chemotherapeutic treatment for her infection.
On February 8, 1999, following one of these meetings,
Gowesky informed Rimes that the virus had gone into remission and
that she wanted to return to work at the end of May, following her
upcoming carpal tunnel surgeries. Gowesky testified in deposition
that
Mr. Rimes told me that he wasn’t sure that I could work in the Emergency Department with this hepatitis C, that he was going to the hospital attorneys to find out if I could work and he said I would have to do some refresher courses, that I would have to get clearance from physicians, and he wanted clearance from Dr. Schiff because the local physician wasn’t [acceptable]. I had to make sure that I wasn’t having any more problems with my hands, I’d have to have weekly blood draws.
2 Gowesky further asserts that Rimes “[s]aid to me not only that he
didn’t think that I could work in the Emergency Room with hepatitis
C, that he wouldn’t go to a dentist with hepatitis C and he would
not let me suture his child.”
At this time, she also spoke with Dr. John Weldon,
Director of Emergency Medicine at Ocean Springs Hospital and her
immediate supervisor, who, she alleges, threatened her and told her
that, if she returned to work, she would have to guarantee that
there would be no problems, that she would be able to do the work,
and that she would not be infectious. He further questioned Gowesky
on whether she knew of any other emergency room physicians with
hepatitis C.
At a staff meeting on March 22, Weldon gave Gowesky a
copy of the emergency room staffing schedule for the months of
June, July, and August; she was slated to return to work on June 1.
Between this meeting and her scheduled return date,
Gowesky underwent her two surgeries (March 23 and April 19) and
reaffirmed her commitment to resume her duties. In a letter dated
March 26, Gowesky told Rimes that she would indeed attend a
refresher class and provide a letter from her physician confirming
her ability to resume work.
In the meantime, Singing River had been engaged in
corporate restructuring. One feature of the plan involved the
transfer of emergency room staffing responsibilities from Singing
3 River Hospital Systems to the Emergency Room Group, Ltd. (“ERG”).
September 1 was the anticipated transfer date. On or about May 31,
Singing River gave each of the emergency room physicians in its
employ at Ocean Springs a formal 60-day termination notice. As with
other emergency room physicians, Gowesky received this release from
Singing River and a promise of future employment from ERG.
Gowesky’s receipt of this notice appears to have marked
a low point in her relationship with Rimes and Weldon. In February,
she was surprised by their imposition of conditions upon her return
and offended by their comments; over the following four months she
claims to have engaged in numerous other conversations in which
they made other offensive remarks; and in May she thought they
fired her. Upset by this apparent indignity, she telephoned Rimes
to tell him that she objected to her dismissal. (Her suspicion was,
however, unfounded.) She did not report to work on June 1. A letter
from her attorney followed on July 29, in which he stated that
Gowesky would not return to work, as re-scheduled, on August 1.
Contrary to Singing River’s expectations, the corporate
restructuring was still in limbo when the emergency room staffing
contracts expired at the end of August. For the entire month of
September, Ocean Springs Hospital’s emergency room physicians
worked without contract. At the start of October, however, when it
appeared that the transition was not imminent, Ocean Springs
Hospital offered all of its emergency room physicians interim
4 contracts. Upon consummation of the corporate transition in
February 2000, these physicians received permanent contracts from
ERG. Gowesky did not enter into either contract.
Gowesky filed her complaint against Singing River on June
9, 2000, alleging gender- and disability-based discrimination. The
district court granted Singing River’s motion for summary judgment
on March 14, 2002. Gowesky now appeals only the district court’s
disposal of her ADA claims.
II. STANDARD OF REVIEW
We review de novo a district court’s grant of summary judgment, applying the same standard as the district court. See Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000). Summary judgment is appropriate “if 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). “If the moving party meets the initial burden of showing there is no genuine issue of material fact, the burden shifts to the non- moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.” Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000) (internal quotations and citation omitted). Doubts are to be resolved in favor of the nonmoving party, and any reasonable inferences are to be drawn in favor of that party. See Burch v. City of Nacogdoches, 174 F.3d 615, 619 (5th Cir. 1999).
Evans v. City of Bishop, 238 F.3d 586, 588–89 (5th Cir. 2000)
III. DISCUSSION
Gowesky brings two claims to the court. She alleges that
she was the victim of disability-based (1) workplace harassment and
5 (2) employment discrimination. A common element to both claims is
that the plaintiff be “disabled.” Before addressing her claims
individually, this court will consider this threshold requirement
to both.
A. Gowesky Was Not “Regarded as Disabled”
Gowesky does not assert that, as a result of her
hepatitis C infection, she was disabled, in a conventional sense,
under the ADA. As defined by the Act, a “disability” is a “physical
or mental impairment that substantially limits one or more . . .
major life activities.” Americans with Disabilities Act of 1990, 42
U.S.C. § 12102(2)(A). The ability to engage in gainful employment
is one such activity. See Regulations to Implement the Equal
Employment Provisions of the Americans with Disabilities Act, 29
C.F.R. § 1630.2(i).
The ADA’s definition of “disability” does, however,
permit suits by plaintiffs who, though not actually disabled per
§ 12102(2)(A), are nonetheless “regarded as having such an
impairment.” 42 U.S.C. § 12102(2)(C). This court, citing the
applicable regulations, has set out the manner in which one might
establish such a claim:
One is regarded as having a substantially limiting impairment if the individual (1) has an impairment which is not substantially limiting but which the employer perceives as constituting a substantially limiting impairment; (2) has an impairment which is substantially limiting only because of the attitudes of others toward such an impairment; or (3) has no impairment at all but
6 is regarded by the employer as having a substantially limiting impairment.
Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996).
Gowesky alleges that, though not disabled under
subsection (A), she was “regarded as disabled” by her supervisors
under subsection (C). This is evidenced, she argues, by their
questions and remarks regarding her ability to return to work in
the emergency room.
With her assertion this court cannot agree. At most, the
comments cited by Gowesky question her fitness to practice
emergency room medicine, a professional calling in which routine
exposure to blood and bodily fluids might allow the hepatitis C
virus to spread. The supervisors’ remarks, no matter how
uninformed, do not suggest Gowesky was otherwise unable to work as
a doctor in a less-exposed or -exposing environment. The EEOC
regulations make plain that an inability to perform one particular
job, as opposed to a broad range of jobs, does not constitute an
impairment that substantially limits one’s ability to work. 29
C.F.R. § 1630.2(j)(3)(i). This court has enforced the regulatory
distinction. See Bridges, 92 F.3d at 332 & n.3; Dutcher v. Ingalls
Shipbuilding, 53 F.3d 723, 726–28 (5th Cir. 1995).
Equally detrimental to her claim is the hospital’s point
that Gowesky could not have been regarded as disabled by the
supervisors because they kept reassigning her to the emergency room
schedule. It was Gowesky who repeatedly declined to return to work.
7 She cannot succeed on the “regarded as disabled” element of either
claim when her employer never limited her job duties or hindered
her return to the full range of duties.
On the basis of this conclusion alone, this court
concludes that Gowesky’s two claims must fail. For the purposes of
a complete analysis, however, we will consider other elements of
her two claims, assuming for the sake of argument that Gowesky
could have been “regarded as disabled” by Weldon and Rimes.
B. Disability-Based Harassment Claim
In 2001, this court recognized a cause of action for
disability-based workplace harassment under the ADA, modeling it
after a similar claim under Title VII. Flowers, 247 F.3d 229. To
succeed on this claim, a plaintiff must demonstrate
1) that she belongs to a protected group; (2) that she was subjected to unwelcome harassment; (3) that the harassment complained of was based on her disability or disabilities; (4) that the harassment complained of affected a term, condition, or privilege of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt, remedial action.
Id. at 235–36.
The legal standard for workplace harassment in this
circuit is, as Gowesky acknowledges, high. For workplace abuse to
rise to the level of an actionable offense the “disability-based
harassment must be sufficiently pervasive or severe to alter the
conditions of employment and create an abusive working
environment.” Flowers, 247 F.3d at 236 (citations omitted).
8 In support of her claim that she suffered disability-
based harassment, Gowesky cites, but does not discuss, two cases in
which this court considered such claims. The first of these is
McConathy v. Dr. Pepper/Seven-Up Corp., 131 F.3d 558, 564 (5th Cir.
1998). In this case we considered whether an employer’s boorish
comments toward an employee regarding the slow pace of the
employee’s recovery from her temporomandibular joint disease,1 his
reassignment of work away from her, and his insensitivity toward
her need for surgery and time to recuperate would constitute
“sufficiently pervasive disability-based harassment,” id. at 563,
if such an action existed. This court declined to hold that the ADA
authorizes a discrimination-based workplace harassment claim, but
concluded that, even if the ADA did authorize such an action, the
employer’s behavior “would not be sufficient as a matter of law to
state a claim of hostile environment harassment.” Id. at 564. “It
is a simple fact that in the workplace, some workers will not get
along with one another, and this Court will not elevate a few harsh
words or ‘cold shouldering’ to the level of actionable offense.”
Id.
The second case, decided last year, presents an employer
who radically changed the conditions of its employee’s working
conditions when it discovered that she had contracted HIV. Flowers,
1 “McConathy states that when she approached [her employer] regarding the additional surgery, he became angry, and told her that she ‘better get well this time,’ and that he would ‘no longer tolerate her health problems.’” Id. at 560.
9 247 F.3d 229. The employee’s immediate supervisor — who had been
close friends with her — ceased socializing with the employee,
intercepted her telephone calls, and eavesdropped on her
conversations. The company’s president “became very distant” even
though “they used to get along very well”: He “refused to shake
Flowers’s hand and would go to great pains to circumvent her office
to get to other parts” of the workplace. Id. at 236–37. In
addition, Flowers, who had received outstanding work performance
assessments, was “written up” twice and placed on ninety-day
probation. Id. at 237. When the first probationary period expired,
another one was imposed at a meeting in which the president uttered
vulgar sexual accusations. Finally, Flowers was fired. This court
concluded, first, that the ADA did indeed authorize disability-
based workplace harassment claims and, second, that Flowers’s
treatment at the hands of her employer satisfied the standard for
such.
In contrast to these two cases, Gowesky alleges that she
spoke with Rimes after a staff meeting on February 8, 1999 and
informed him that she was planning to return to work in May, upon
recovery from her second carpal tunnel surgery. In response, Rimes
expressed doubt regarding the legality of staffing the emergency
room with a hepatitis-C-infected physician. He imposed as return-
to-work conditions that she (a) present a full medical release from
her physicians, (b) take a refresher course in emergency medicine,
10 and (c) submit to weekly blood samples.2 He expressed his
unwillingness to be treated by a dentist infected with hepatitis C
or to allow Gowesky to suture his child. Gowesky also spoke at this
time with Dr. Weldon, who allegedly imposed several conditions upon
her: She must perform her work as before; she would not present the
risk of infection to others; and she must inform patients and
hospital staff about her successful treatment for the virus.3 These
are the only specific remarks to which Gowesky refers.4
It is not difficult to conclude on this slender evidence
that no actionable disability-based harassment occurred. The
conditions that Rimes and Weldon placed on Gowesky were, given the
nature of Gowesky’s work, eminently reasonable. Taken as a whole,
the conditions amount to three requirements: that she not present
the risk of infection to employees and patients, that she be able
to reassure employees and patients of her continuing non-infectious
status, and that she be fully capable of resuming her duties.
2 This requirement was subsequently withdrawn. Gowesky agreed to the first two conditions. 3 The hospital disputes that these statements were made, but we assume to the contrary for purposes of summary judgment. 4 Nevertheless, she asserts, without quotation or paraphrase of their exact comments, that these two men continued to engage in harassing and offensive conduct over the next four months. Gowesky did stipulate at oral argument that later comments, though offensive, did not match Mr. Rimes’s statements on February 8, 1999. “Mr. Rimes only made his most offensive comments early on, when Dr. Gowesky came to him and said ‘I’m ready to go back to work.’” Their comments “caused Gowesky to question her own self-image and resulted in her seeking and receiving extensive psychological and psychiatric counseling.” It is impossible to evaluate whether and to what extent any later statements by these men could have amounted to actionable harassment without any hint as to what they said.
11 Moreover, even if these conditions were “unreasonable,” it is
unclear that an “unreasonable” return-to-work condition could raise
a genuine material fact issue concerning “harassment.” Gowesky has
failed to present any authority, and we have located none, for the
proposition that an unreasonable condition alone constitutes
“harassment” under the ADA or its model, Title VII.
Nor do the alleged hurtful comments meet the high
standard set by Flowers. We are not inclined to extend this
judicially created harassment action to behavior that occurred when
Gowesky was not actually working at Ocean Springs. Both of the
cases that Gowesky cites address the question of harassment in the
workplace. This is because a harassment claim, to be cognizable,
must affect a person’s working environment. With the exception of
the comments regarding suturing and dentistry allegedly uttered on
February 8, 1999 and anything that might have been said (no details
are alleged) at the staff meeting of March 22, all of the
transactions between Gowesky and her supervisors occurred via
telephone or in writing. She never returned to work during this
period. Moreover, standing on their own, the quoted supervisors’
comments simply do not reach the level of severity or pervasiveness
that is required to create a fact issue on a hostile work
environment claim. The comments are not nearly insensitive as those
in McConathy, much less in Flowers.
12 The district court did not err in concluding, on summary
judgment, that Gowesky had failed to establish her prima facie case
of disability-based workplace harassment.
C. ADA Employment Discrimination Claim
This being a case brought under the Americans With Disabilities Act where only circumstantial evidence is offered to show the alleged unlawful discrimination, we apply the McDonnell Douglas, Title VII burden-shifting analysis. Under this framework, a plaintiff must first make a prima facie showing of discrimination by establishing that: (1) He is disabled or is regarded as disabled; (2) he is qualified for the job; (3) he was subjected to an adverse employment action on account of his disability; and (4) he was replaced by or treated less favorably than non-disabled employees. Once the plaintiff makes his prima facie showing, the burden then shifts to the defendant-employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. Once the employer articulates such a reason, the burden then shifts back upon the plaintiff to establish by a preponderance of the evidence that the articulated reason was merely a pretext for unlawful discrimination.
McInnis v. Alamo Community College Dist., 207 F.3d 276, 279–80 (5th
Cir. 2000) (citations and footnotes omitted).
Considering here only the third element of her prima
facie case, we conclude that the district court properly granted
summary judgment to defendant Singing River on this claim. Because
Gowesky failed — critically — to demonstrate that she suffered a
disability-based adverse employment action, it is unnecessary to
discuss the other elements. Gowesky alleges that Singing River
failed to offer her an interim contract for the period between the
expiration of her contract on August 28 and the transfer of the
13 emergency room staffing to ERG. This deed did not constitute an
adverse employment action. Singing River demonstrated to the
district court that its decision not to extend Gowesky an interim
contract on October 1, 1999 was a product, not of any alleged
discrimination, but, rather, of her repeated failures to return to
work. On at least two occasions, Weldon placed Gowesky on the
emergency room work schedule (with start dates, respectively, of
June 1 and then August 1), only to receive last-minute telephone
calls (May 31) or attorney-drafted correspondence (July 29)
indicating that she would not, in fact, abide by her previous
commitments. In light of the fact — uncontroverted by Gowesky —
that all emergency room employees at work on October 1 received
interim contracts, her assertions of discrimination wither away.
Singing River asserted, without dispute by Gowesky, that if she had
ever again appeared for work, she, too, would have received a
contract.
IV. CONCLUSION
This court does not doubt that Dr. Gowesky has suffered
greatly since her accidental infection in February 1997. The
discomforts occasioned by chemotherapy, surgery, and several years
of involuntary unemployment could only have been aggravated by her
supervisors’ apparent lack of eagerness to take advantage of her
likely considerable talents. This must be especially grating in
light of the selfless manner in which her infection occurred.
14 Gowesky must recognize, nonetheless, that not all
suffering — no matter how great, no matter how unmerited — gives
rise to a compensable legal action. To obtain the right to present
his case to a jury, a plaintiff must, at minimum, adduce evidence
upon which a rational jury could, as a matter of law, find in his
favor. As much as this court admires Gowesky’s work and pities her
suffering, she has, alas, failed to present such evidence.
Accordingly, this court affirms the district court’s grant of
summary judgment to defendant Singing River.
AFFIRMED.