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.

(a); see also Flowers v. S. Reg’l

Physician Servs., Inc.,

(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,

(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,

, 322–23,

,

(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.,

(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,

(5th Cir. 1999).

Evans v. City of Bishop,

, 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,

(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,

(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.”

(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,

(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.

(j)(3)(i). This court has enforced the regulatory

distinction. See Bridges,

& n.3; Dutcher v. Ingalls

Shipbuilding,

, 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,

. 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.

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,

(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.,

(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,”

,

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.”

. “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.”

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.’”

.

9

. 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.

at 236–37. In

addition, Flowers, who had received outstanding work performance

assessments, was “written up” twice and placed on ninety-day

probation.

. 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.,

, 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.

15