Hill v. Dept of Vet Affairs

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
February 12, 2009

No. 08-60532 Charles R. Fulbruge III
Summary Calendar Clerk

JAMES HILL, D.O.

Plaintiff - Appellant
v.

DEPARTMENT OF VETERANS AFFAIRS, GORDON H MANSFIELD,
ACTING SECRETARY

Defendant - Appellee

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:06-CV-243

Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Dr. James Hill (“Hill”), formerly employed at the Veterans Administration
Hospital in Biloxi, Mississippi (the “Hospital”), brought this age discrimination
action against the Secretary of the U.S. Department of Veterans Affairs (the
“Secretary”). Hill appeals the district court’s grant of summary judgment in

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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favor of the Secretary on his disparate treatment claim, and the dismissal of his
hostile work environment claim. For the following reasons, we affirm.
I. FACTS AND PROCEEDINGS
Hill was born in 1935. From 1994 to 2004, he was employed by the
Hospital as a licensed osteopath. Every two years, each physician’s privileges
to practice at the Hospital came up for renewal; Hill’s privileges were scheduled
to be renewed in March 2004. However, four months earlier, the Hospital had
launched an extensive peer review program designed to evaluate the quality of
patient care provided by each member of the medical staff. Dr. C. Diane Knight,
Hill’s direct supervisor, informed Hill that the peer review program had revealed
certain areas of concern regarding the quality of his patient care, including his
use of potentially harmful medications. Accordingly, she told him that his
privileges would be renewed for ninety days rather than the standard two years,
pending further review of his patient charts.
When the ninety-day renewal of Hill’s privileges expired, he was placed on
involuntary paid leave pending formal review of his performance. In September
2004, Hill received a notice that his privileges were being revoked, giving him
fourteen days to respond to a list of allegations regarding his patient care. He
allegedly requested copies of the relevant clinical records from the Hospital but
did not receive them in time to prepare an adequate response to these
allegations. Eventually, Hill resigned from the Hospital before a final decision
was made regarding his formal discharge. He testified that he expected to be
terminated and chose to resign in order to keep his insurance benefits.
In September 2004, Hill filed administrative charges of age discrimination
with the Department of Veterans Affairs (the “Department”). After a formal
investigation of the charges, the Department’s Office of Employment
Discrimination Complaint Adjudication issued a Final Agency Decision in
December 2005 that found no discrimination. In March 2006, Hill commenced

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this civil action against the Secretary, alleging “disparate treatment” and
“hostile work environment”—both based on age. The district court granted the
Secretary’s motion for summary judgment on Hill’s disparate treatment claim.
It later dismissed Hill’s hostile work environment claim for failure to exhaust
administrative remedies. Hill appeals both holdings.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment on Hill’s
disparate treatment claim de novo. See Richardson v. Monitronics Int’l, Inc., 434
F.3d 327, 332 (5th Cir. 2005). Summary judgment is appropriate “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). “We consider the
evidence in a light most favorable to [Hill], the non-movant, but [he] must point
to evidence showing that there is a genuine fact issue for trial” to survive
summary judgment. Richardson, 434 F.3d at 332.
We also review de novo the district court’s dismissal of Hill’s hostile work
environment claim. See Ballard v. Wall, 413 F.3d 510, 514 (5th Cir. 2005). “All
of the plaintiff’s allegations must be accepted as true, and the dismissal will be
affirmed only if it appears that no relief could be granted under any set of facts
that could be proven consistent with the allegations.” Id. at 514–515 (internal
quotation marks omitted).
III. DISCUSSION
A. Hill’s Disparate Treatment Claim
The complaint alleges that Hill was forced to resign by the Hospital
because of his age, in violation of the Age Discrimination in Employment Act
(“ADEA”). See 29 U.S.C. § 623(a)(1) (“It shall be unlawful for an employer . . .
to discharge any individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,

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because of such individual’s age.”). The district court granted summary
judgment in favor of the Secretary on Hill’s disparate treatment claim, finding
that Hill had produced no evidence of age discrimination. On appeal, Hill argues
that summary judgment was improper because he has presented both direct and
circumstantial evidence of the Hospital’s discriminatory animus. See Berquist
v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (noting that a plaintiff can
demonstrate age discrimination through either direct or circumstantial evidence
of discriminatory animus).
Hill contends that he submitted direct evidence of discriminatory animus
in the form of remarks by his superiors that he “should just retire” during the
meeting at which he was placed on leave. In its summary judgment order, the
district court noted that it was unable to locate in the record any testimony or
other evidence that Hill was ever told that he “should just retire”—and Hill’s
brief to this court still fails to identify the relevant evidence in the record.
Nevertheless, even assuming that the evidence exists, this court has previously
held that a suggestion that an employee retire does not constitute direct
evidence of discriminatory animus because there is no “necessary” link between
retirement and age. Martin v. Bayland Inc., 181 F. App’x 422, 423–24 (5th Cir.
2006).
Alternatively, Hill argues that he has presented sufficient circumstantial
evidence of discriminatory animus to survive summary judgment. An ADEA
plaintiff can establish a prima facie case of age discrimination based on
circumstantial evidence by showing that “(1) he was discharged; (2) he was
qualified for the position; (3) he was within the protected class at the time of
discharge; and (4) he was either i) replaced by someone outside the protected
class, ii) replaced by someone younger, or iii) otherwise discharged because of his
age.” Berquist, 500 F.3d at 349. As to the first element, the Secretary disputes
Hill’s claim that he was “constructively discharged” because he was essentially

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forced to resign in order to preserve his medical insurance coverage. We need
not decide whether this case warrants application of the “constructive discharge”
doctrine however, because Hill has clearly not satisfied the fourth element of his
prima facie case.
Hill does not allege that he was replaced by someone outside the protected
class or younger than him, nor has he properly shown that he was discharged
because of his age. Hill relies on statements allegedly made to him by two of his
colleagues, who informed him that he was on a “hitlist of older, experienced
physicians that the administration wanted out.” However, we agree with the
district court that these statements are inadmissible hearsay that cannot be
used to oppose summary judgment. Hill has presented no evidence that his two
colleagues were involved in employment decisions concerning him; these
statements therefore do not fall within the party opponent exception under
Federal Rule of Evidence 801(d)(2)(D). See Ramirez v. Gonzales, 225 F. App’x
203, 210 (5th Cir. 2007).
Finally, Hill purports to present other circumstantial evidence of age
discrimination, including the termination of another senior physician after a
similar peer review process. This evidence is not before us, as it was not
presented to the district court in the proceedings below. See, e.g., Forsyth v.
Barr, 19 F.3d 1527, 1537 (5th Cir.1994) (noting that it is not the duty of this
court or the district court to “sift through the record in search of evidence to
support a party’s opposition to summary judgment”). Accordingly, Hill has failed
to establish a prima facie case of age discrimination, and the district court
properly granted summary judgment on his age-based disparate treatment
claim.
B. Hill’s Hostile Work Environment Claim
Hill argues that the district court erred in dismissing his hostile work
environment claim for failure to exhaust administrative remedies. Prior to

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initiating this suit in federal court, Hill had filed an administrative complaint
with the Department, claiming age discrimination with respect to the non-
renewal of his clinical privileges and his placement on involuntary leave. He
later amended this administrative complaint to include a claim for forced
retirement and constructive discharge, but did not add a hostile work
environment claim.
An ADEA plaintiff who, like Hill, “chooses to pursue an administrative
remedy, . . . must see it through to the end.” Tolbert v. United States, 916 F.2d
245, 249 (5th Cir. 1990) (holding that a former postal employee who files an
administrative complaint against the postal service alleging sexual harassment
must exhaust her administrative remedies before commencing an action in
federal court); see also Herod v. Potter, 255 F. App’x 894, 896 (5th Cir. 2007)
(applying requirement of exhaustion of administrative remedies to federal
employee alleging ADEA claim). Therefore, Hill was required to exhaust his
administrative remedies with respect to all claims before filing a civil action.
When a claim was not formally raised in the administrative proceedings, the
exhaustion requirement may still be satisfied as long as an administrative
investigation of the claim not raised could “reasonably be expected to grow out
of” the charges actually raised. Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir.
2006) (quotation omitted).
We examine a hostile work environment claim under a
“totality-of-the-circumstances test that focuses on the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating[;] and whether it unreasonably interferes with an employee’s work
performance.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 347 (5th
Cir. 2007) (quotation and alterations omitted). Hill’s administrative charges
only alleged three specific discriminatory events—the non-renewal of Hill’s
clinical privileges, the decision to place Hill on administrative leave, and his

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“constructive discharge.” We agree with the district court that an investigation
concerning the existence of a hostile work environment would not “reasonably
be expected to grow out of” these allegations of discrete acts of discrimination.
See Gates v. Lyondell Petrochemical Co., 227 F. App’x 409, 409 (5th Cir. 2007)
(holding that the plaintiff’s “hostile environment . . . claim[] could not be
expected to grow out of her [administrative] discrimination charge when she
charged only her employer’s discrete acts in terminating and failing to promote
her, and made no mention of a hostile work environment”). Accordingly, the
district court properly dismissed Hill’s hostile work environment claim for
failure to exhaust administrative remedies.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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