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 R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 <single out’ Peggy’s

charts to find <mistakes’ and make <corrections.’” Eleanor

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,

(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,

(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,

(5th Cir. 1986). The second category of sexual harassment claims

arise where harassment based upon sex creates a hostile working

environment. See

. 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 <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.” Shepherd,

(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

.

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,

, 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.,

(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,

. “Title VII does not

prohibit all verbal or physical harassment in the workplace; it

is directed only at <discriminat[ion] ... because of ... sex.’”

Oncale,

(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.,

(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,

(5th Cir. 1998). "’[A] subjective belief of

discrimination, however genuine, [cannot] be the basis of

judicial relief.’"

(alteration in original) (quoting Little

v. Republic Refining Co., Ltd.,

(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,

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,

(“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,

. 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.,

(1993). Whether an environment is sufficiently hostile or

abusive to be actionable is viewed both objectively and

subjectively.

.

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,

, 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,

(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,

(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,

(1981);

McDonnell Douglas Corp. v. Green,

(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,

(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

. See also Burdine,

. The burden of persuasion remains with the plaintiff at all

times. See

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,

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,

. 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,

(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,

(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,

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.”

(citing Jack

v. Texaco Research Ctr.,

(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,

.

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,

. 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,

(“Even if the evidence

is more than a scintilla, ‘Boeing [Co. v. Shipman,

(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.,

(5th

Cir. 1987)); Sherrod v. American Airlines, Inc.,

(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 <such quality and weight that

reasonable and fair minded persons in the exercise of impartial

judgment might reach different conclusions.’") (citations

omitted).

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.

32