United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 26, 2007
Charles R. Fulbruge III
Clerk
No. 06-30270
LAURIE WEISS STRONG,
Plaintiff-Appellant,
VERSUS
UNIVERSITY HEALTH CARE SYSTEM, L.L.C., d/b/a TULANE UNIVERSITY
HOSPITAL AND CLINIC,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before REAVLEY, DeMOSS, and BENAVIDES, Circuit Judges.
DeMOSS, Circuit Judge:
INTRODUCTION
Plaintiff-Appellant Laurie Strong challenges the district
court’s grant of summary judgment in favor of University Healthcare
System, L.C. (“UHS”) dismissing her Title VII retaliation claims.
We must decide whether, within the applicable McDonnell Douglas
burden-shifting framework, Strong has shown that UHS would not have
terminated her employment “but for” its alleged retaliatory motive.
FACTUAL BACKGROUND
UHS is a large hospital in Louisiana. Prior to the termination
of her employment, Strong worked for approximately two years as a
nurse coordinator in the “liver department” of UHS’s Abdominal
Transplant Center.
On December 15, 2003, Strong attended a UHS meeting called by
Susan Andrews, one of Strong’s numerous supervisors. At the
meeting, Strong complained that Dr. Douglas Slakey, a surgeon,
discriminated against her because she is a woman. Strong cited
three separate incidents: (1) he called her lazy; (2) he called her
stupid and lazy and screamed at her; and (3) he got angry at her
during a meeting.
In January 2004, Strong asked Andrews about the status of her
complaint against Dr. Slakey. Andrews responded that it was under
consideration and that the details were confidential. Soon after,
Andrews met with Strong and reaffirmed that the matter was being
reviewed and that further details were confidential.
Before and after Strong complained about Dr. Slakey’s work
conduct, however, Strong’s conduct also was called into question.
Between late 2003 and early 2004, numerous patients, co-workers,
supervisors and doctors complained about Strong’s behavior in the
workplace.
Specifically, (1) in October 2003, a staff member reported
that Strong asked her to perform duties that were Strong’s
responsibility to perform; (2) in December 2003, a patient’s
husband reported that Strong was rude and demeaning to his wife;
2
(3) in mid-January 2004, a surgeon reported that, in front of new
employees, Strong inappropriately commented that physicians at UHS
use livers that are “no good” and “high risk”; (4) in late-January
2004, Jeannette Hammond and Louis Larmeu, two more of Strong’s
supervisors, reported that during a meeting initiated to address
other matters, Strong brought up her complaint against Dr. Slakey
and persisted in knowing its status; (5) also in late-January 2004,
Marian O’Rourke, Director of Nursing and seemingly Strong’s most
direct supervisor, reported that Strong’s attitude was combative
when given orders; (6) on January 30, 2004, a patient filed an
official grievance against Strong regarding her treatment of him;
(7) in mid-February 2004, a staff member reported that Strong
refused to see a patient who had been waiting in a room for over an
hour; (8) also in mid-February 2004, a nurse under Strong’s
supervision complained that Strong mistreated him; and (9) in
general, UHS employees observed that Strong continuously showed
supervisors little respect and challenged their authority.
Strong was “talked to” or “counseled” by different supervisors
after a number of the incidents. Although Strong does not explain
exactly what the “talks” or “counselings” entailed, they appear to
have been informal and brief discussions initiated to address the
substance of particular complaints made against Strong. Strong
disagrees with the allegations underlying some of the complaints.
Importantly, however, she does not allege that the complaints were
3
made in retaliation for her complaint against Dr. Slakey.
Strong’s alleged disruptiveness continued even after
supervisors confronted her. On March 3, 2004, O’Rourke implemented
a new policy requiring that lab reports be entered by clerks rather
than nurse coordinators. Strong commented that the new policy was
“silly.” To UHS supervisors, the comment was another example of
Strong’s tendency to challenge authority and exhibit a negative or
hostile attitude in the workplace.
On March 10, 2004, O’Rourke asked Strong to call the operating
room to check on a transplant patient. Strong resisted and had to
be asked multiple times to make the call. Later that day, a doctor
reported to Hammond (again, one of Strong’s supervisors) that
Strong (1) made negative comments about a transplant patient before
the patient had even been seen by a doctor, and (2) improperly
steered patients away from certain doctors.
On March 11, 2004, during a meeting with Andrews and O’Rourke,
Strong became combative and aggressive after being asked to inform
a supervisor when “dealing with a non-liver patient.” She accused
them of “threatening her.” In response, Andrews and O’Rourke asked
a Human Resources (“HR”) employee to join the meeting. It ended
when Strong asked one supervisor if she “was done.”
Later that day, a staff member reported that Strong
erroneously characterized a patient as an alcohol drinker not
eligible for a liver transplant. Strong got the misinformation from
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a page from a different patient’s file, which mistakenly had been
placed in the wrong file by a clerk. However, UHS partially faulted
Strong for not catching the error, which it determined should have
been noticed after an adequate reading of the entire file.
According to UHS, the incident was the proverbial straw that
broke the camel’s back. Andrews decided to suspend Strong with pay.
Strong then told HR she thought she was being retaliated against.
But when HR asked Strong to expand on her allegation of
retaliation, she refused.
Days later, HR asked Strong to come to a meeting to explain
her allegation of retaliation. Strong came to the meeting, but
provided HR with no evidence of retaliation. HR ultimately
concluded that Strong’s retaliation allegation had no merit.
On March 25, 2004, HR called Strong to another meeting. There,
UHS provided Strong with reasons for her continued suspension: poor
performance and improper work conduct, including redirecting
patients away from certain doctors, presenting patients in a
negative fashion, arguing with superiors, and engaging in behavior
obstructive to various department policies. Strong provided no
evidence at that time suggesting that the real reason was
retaliation.
After further investigation and consideration, UHS fired
Strong on March 31, 2004, citing the numerous incidents outlined
above. The decision was made collectively by her many supervisors.
5
PROCEDURAL HISTORY
On November 24, 2004, Strong filed a complaint against UHS
alleging violations of Title VII and Louisiana law. First, she
alleged gender discrimination based on the incidents with Dr.
Slakey. Second, she alleged retaliation based on her termination a
few months after complaining of discrimination.
UHS moved for summary judgment, asking that the discrimination
claims be dismissed because the three incidents with Dr. Slakey
were too insignificant to be actionable, and that the retaliation
claims be dismissed because Strong failed to present legally
sufficient evidence that UHS’s stated reasons for firing Strong
were pretextual.
The district court agreed with both of UHS’s arguments and
dismissed Strong’s claims. On appeal, Strong does not challenge the
dismissal of her gender discrimination claims. She does, however,
challenge the dismissal of her retaliation claims.1
DISCUSSION
A. Standard of Review
We review a district court’s grant of summary judgment de
1
Strong filed two retaliation claims, one under Title VII and
another under Louisiana’s “whistleblower” statute, LA. REV. STAT.
ANN. § 23:967 (1997). But, as the district court recognized, the
standards governing both claims are materially indistinguishable.
See, e.g., Smith v. AT&T Solutions, Inc., 90 F. App’x 718 (5th Cir.
1994) (unpublished); Imbornone v. Treasure Chest Casino, No. 04-
2150, 2006 WL 1235979, at *3 (E.D. La. May 3, 2006).
6
novo, applying the same legal standard as the district court.
Chacko v. Sabre, Inc., 473 F.3d 604, 609 (5th Cir. 2006). Summary
judgment is proper when there exists no genuine issue of material
fact and the movant is entitled to judgement as a matter of law.
FED. R. CIV. P. 56(c).
B. Legal Analysis
1. Basic Retaliation Law
Because Strong’s retaliation claims are based on a pretext
theory, our analysis is governed by the well-known McDonnell
Douglas test and its burden-shifting framework. Septimus v. Univ.
of Houston, 399 F.3d 601, 608 (5th Cir. 2005). Thus, to start,
Strong must make a prima facie showing that her termination was
retaliatory. Id. at 607. For summary judgment purposes only, UHS
conceded at the district court that Strong made a prima facie
showing.
The burden then shifts to UHS to state a legitimate, non-
discriminatory reason for firing Strong. Id. UHS points to the long
list of occurrences between October 2003 and March 2004, and Strong
does not dispute that such occurrences provide an adequate, legal
reason for termination.
Finally, the burden shifts back to Strong. Id. Her ultimate
burden is to show pretext; that is, to prove by a preponderance
that UHS fired her not for its stated reasons, but in retaliation
for her gender discrimination complaint against Dr. Slakey. See id.
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2. Burden of Proof
It is well established that Strong ultimately must “prove that
[UHS’s] stated reason for the adverse action was merely a pretext
for the real, retaliatory purpose.” Id. at 608. Surprisingly, the
parties disagree whether Strong must show that she would not have
been fired “but for” UHS’s alleged retaliatory purpose. Strong,
relying on numerous cases discussing the standard applicable to a
plaintiff’s prima facie case, suggests that she need only show a
“causal link” between the alleged retaliation and the adverse
employment action. However, the district court determined, and UHS
agrees, that the but for standard applies.
We think our decision in Septimus leaves no doubt that the but
for standard controls: “The proper standard of proof . . . [for] a
Title VII retaliation claim is that the adverse employment action
. . . would not have occurred ‘but for’ [the] protected conduct.”
Id. (emphasis added) (noting that the Fifth Circuit has
“consistently held” that the but for standard applies and citing
numerous cases supporting that proposition). Therefore, the
district court applied the correct standard.
Applying this standard, the question becomes: Has Strong put
forth legally sufficient summary judgment evidence that she would
not have been fired but for her complaint against Dr. Slakey (or
inversely, that she would not have been fired but for UHS’s alleged
retaliation)? Of course, because Strong cites and relies on the
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prima facie causation standard, she does not actually argue that
she meets the but for standard. Rather, she points to evidence that
she contends shows a “causal link” between the alleged retaliation
and the termination of her employment. Nevertheless, we will
analyze the evidence under the but for standard to determine
whether Strong has met her burden.
3. Evidence of Retaliation
Strong points primarily to two pieces of “evidence”: First,
according to Strong, UHS treated less severely other employees who
acted worse than she did; and second, there was a close temporal
proximity between her complaint against Dr. Slakey and the
termination of her employment.2
a. UHS’s Treatment of Other Employees
Strong’s first contention is that other employees, who Strong
alleges acted worse than she did, were disciplined less severely
2
Strong also argues that the fact the decision to fire her was
made collectively by all of her supervisors suggests retaliation.
We disagree with Strong’s reasoning. Contrary to Strong’s
assertion, the fact that the decision to fire her was made
collectively suggests no retaliation. Uniform agreement to fire her
strengthens UHS’s argument that poor performance and improper
conduct were the reasons she was fired. In addition, collective
decision-making is less susceptible to influence by an individual
with a retaliatory motive.
Strong contends that another fact suggests retaliation: UHS
has “constantly changed” its reasons for firing her. However, our
review of the record has revealed no material change in UHS’s
position. From the start, UHS has cited various examples of poor
performance and improper conduct as its reasons for firing Strong.
Thus, we reject both of these arguments and accord them no
weight in our pretext analysis.
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than her or not at all. This, Strong contends, suggests that
retaliation was UHS’s real motivation for firing her.
Strong points to numerous employees and incidents to support
her contention. The following, according to Strong, are her two
best examples: (1) a doctor who had “a mental illness” and was
“responsible for the deaths of patients” was allowed to voluntarily
resign, and (2) a nurse coordinator who had “a drug problem” and
displayed “erratic” behavior was not disciplined. Strong contends
that she was fired simply for “reading a document which had been
misfiled,” which is less serious than the conduct of the other
employees.
First, we must point out that UHS has never stated that it
fired Strong for reading a single, misfiled document. Rather, the
reading of the misfiled document was the last straw, which led to
her initial, paid suspension. UHS alleges that it decided to fire
her after reviewing that incident along with the other
approximately fourteen cited incidents (generally referred to by
UHS as “poor performance” or “improper conduct”). Regardless, we
are not convinced that any of Strong’s examples, which are
supported solely by her own self-serving affidavit, evidence
retaliation. Simply put, none of the examples involve a similarly
situated employee who received less severe treatment than Strong
did.
Of the two examples above, the first involved a doctor, an
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employee considerably different than a nurse coordinator. We cannot
assume, nor require, that hospitals discipline doctors and nurse
coordinators in an identical fashion. In addition, the doctor
resigned voluntarily, something Strong very clearly was not willing
to do. UHS might very well have fired the doctor had he not
resigned. Thus, we are unable to say that this example evidences
retaliation against Strong.
The second example involves a nurse coordinator, but
dissimilar conduct. First, we know nothing about the alleged “drug
problem” or its severity. Similarly, Strong sheds no light on the
employees alleged “erratic” behavior. In any event, this particular
employee did not have the extensive disciplinary history Strong had
when she was fired. Again, we cannot say that this example suggests
retaliation against Strong.
Strong has not shown that she was treated more harshly than
other employees under similar circumstances. Thus, we turn to
Strong’s only remaining argument.
b. Temporal Proximity
Citing Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir.
1992), Strong argues that the three and a half month time span
between her complaint and termination is solid evidence of
retaliation. As Strong notes, in Shirley we affirmed a district
court’s finding that the plaintiff, who had alleged retaliation,
proved but for causation. 970 F.2d at 43. The plaintiff was fired
11
fourteen months after filing an EEOC complaint and just two months
after it was dismissed. Id. at 42-43. Strong’s conclusion is that
“summary judgment is simply inappropriate in retaliation cases
where the adverse employment decision follows closely on the heels
of the plaintiff’s complaint of discrimination.”
Our precedent lends no support whatsoever to Strong’s
position. In fact, we have stated just the opposite. In Rosenson v.
Alltel Information Services, after noting that the defendant stated
legitimate, nondiscriminatory reasons for firing the plaintiff, we
held that “[w]ithout more than timing allegations . . . summary
judgment in favor of [the defendant] was proper.” 373 F.3d 647, 656
(5th Cir. 2004).
In addition, Strong has grossly mischaracterized our holding
in Shirley. The plaintiff in Shirley proved causation not by
relying solely on temporal proximity, but by also showing that she
had no disciplinary history during her nine years of employment and
quickly was fired for incidents for which no evidence existed. See
Shirley, 970 F.2d at 43. And, importantly, her boss made
disparaging comments about her EEOC complaint and “harassed [her]
to death about it” before firing her. Id.
The circumstances surrounding Strong’s termination were very
different and are considerably less compelling legally: Strong was
not harassed at all about her gender discrimination complaint;
Strong had worked for UHS for two years, not nine; Strong’s
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disciplinary record was not completely clean prior to her
complaint; and Strong’s poor performance and improper conduct were
not unsubstantiated when she was fired. To the contrary, reports of
Strong’s disruptiveness came from every direction at UHS:
subordinates, equals, supervisors, and patients.
Thus, Strong is left with no evidence of retaliation save
temporal proximity. Again, temporal proximity alone is insufficient
to prove but for causation. See id. (noting that temporal proximity
is just “one of the elements in the entire calculation”).
To prevent future litigants from relying on temporal proximity
alone to establish but for causation, we once again attempt to
clarify the issue. In Clark County School District v. Breeden, the
Supreme Court noted that “cases that accept mere temporal proximity
. . . as sufficient evidence of causality to establish a prima
facie case uniformly hold that the temporal proximity must be ‘very
close.’” 532 U.S. 268, 273 (2001) (emphasis added). Breeden makes
clear that (1) to be persuasive evidence, temporal proximity must
be very close, and importantly (2) temporal proximity alone, when
very close, can in some instances establish a prima facie case of
retaliation. See id. But we affirmatively reject the notion that
temporal proximity standing alone can be sufficient proof of but
for causation. Such a rule would unnecessarily tie the hands of
employers.
Employers are sometimes forced to remove employees who are
13
performing poorly, engaging in improper work conduct, or severely
disrupting the workplace. This is especially true for hospitals
providing serious medical care to patients. Precedent does not
prevent a hospital from removing such an employee simply because
the employee engaged in a protected work activity months prior.
Accordingly, because UHS stated legitimate reasons for firing
Strong, and because Strong has not put forth sufficient evidence
that those reasons were pretextual, Strong’s retaliation claims
must fail.
Before concluding, however, we must briefly mention that after
the district court granted summary judgment, the United States
Supreme Court decided Burlington Northern & Santa Fe Railway Co. v.
White, __ U.S. __, 126 S. Ct. 2405 (2006). Burlington redefined an
“adverse employment action” to include actions by an employer that
“well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington, 126 S. Ct. at
2415 (internal quotation marks omitted).
On appeal, pointing to Burlington’s new definition, Strong
argues that she suffered an adverse employment action each time she
was “talked to” or “counseled” by her supervisors following various
complaints made against her. Anticipating Burlington, Strong
preserved the issue at the district court. But we need not address
whether these brief discussions qualify as adverse employment
actions. Similar to her allegation that her termination was
14
retaliatory, Strong cites no evidence other than temporal proximity
to suggest that the discussions were retaliatory. Thus, Strong
cannot prove but for causation, and Burlington does not effect our
review of the district court’s decision.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of UHS dismissing Strong’s
retaliation claims.
AFFIRMED.
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Strong v. Univ Hlthcare Sys
Combined Opinion