UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20554
Summary Calendar
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DOROTHY LEHN,
Plaintiff-Appellant,
versus
MONTGOMERY COUNTY HOSPITAL DISTRICT;
HEALTHTRUST INC., doing business as Medical Center Hospital;
RALPH PEARCE, M.D.,
Defendants,
and
MONTGOMERY COUNTY HOSPITAL DISTRICT
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(CA-H-93-2676)
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January 31, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Dorothy Lehn appeals the summary judgment granted her former
employer, Montgomery County Hospital District.1 We AFFIRM.
I.
Lehn does not challenge the district court's recitation of the
facts. She worked as a nurse in the Hospital's endoscopy
department, with her duties requiring her to assist doctors,
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
1
Lehn does not appeal the dismissal of her claims against Dr.
Ralph Pearce.
including Dr. Pearce. Dr. Pearce, who was not employed by the
Hospital, served as director of its endoscopy department and had
staff privileges.
While Lehn was assisting Dr. Pearce on December 19, 1991, the
two argued regarding their attitudes toward one another; Dr. Pearce
referred to Lehn as a "fucking bitch". On January 8, 1992, Lehn
submitted an incident report, complaining about the confrontation,
to a head nurse.
Approximately a month later, a hospital administrator met with
Lehn and inquired about a past tardiness problem. Lehn was
transferred on February 10, from the endoscopy department for
tardiness and "dysfunctional behavior", including conflicts with
physicians. But, on February 11, the administrator informed Lehn
that she would be reinstated, on a probationary basis, to the
endoscopy department effective the following day.
Dr. Pearce and Lehn had a second confrontation on February 12,
1992, with another nurse present, during which Dr. Pearce argued
with Lehn regarding her filing the incident report and again
referred to her as a "bitch". That March 24, Lehn was placed on
suspension and advised that a pretermination hearing would be held
two days later.
Lehn filed a complaint against the Hospital with the EEOC on
March 25, 1992, in which she asserted that she had been subjected
to verbal harassment on the basis of her sex. Lehn was informed by
the Hospital on April 16, 1992, that no disciplinary action would
be taken against her, but that she would be transferred to the
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radiology department, where her hours, wages, and benefits would
remain the same. (Lehn asserted in district court that, as a
result of the transfer, overtime was no longer available and call
pay was less frequently available to her.) Lehn resigned
voluntarily in September 1993.
II.
Lehn appeals the summary judgment granted the Hospital. We
review a summary judgment de novo. E.g., Nowlin v. Resolution
Trust Corp., 33 F.3d 498, 501-02 (5th Cir. 1994).
A.
As Lehn concedes, Dr. Pearce was not an employee of the
Hospital, nor was he her Title VII "employer". Therefore, she
presents an "opposition clause" claim, premised on the claimed
unlawful response by the Hospital to her incident report.2
Restated, Lehn voluntarily dismissed her claim that the Hospital
discriminated against her on the basis of her sex and pursued only
the "opposition clause" claim premised on the Hospital's alleged
retaliation against her for filing the report.3
2
See 42 U.S.C. § 2000e-3(a), which provides:
It shall be an unlawful employment practice
for an employer to discriminate against any of
his employees ... because he has opposed any
practice made an unlawful employment practice
by this subchapter, or because he has made a
charge, testified, assisted, or participated
in any manner in an investigation, proceeding,
or hearing under this subchapter.
3
Lehn's deposition contained the following colloquy:
Q: What about the hospital itself, the
administration, did you ever feel like they
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No question of material fact existed with regard to whether
Lehn had, at any time, held a reasonable belief that the conduct
she opposed, as expressed in her incident report (Dr. Pearce's
language), constituted a violation of Title VII by her employer,
the Hospital. Such a belief is necessary to succeed on an
opposition clause claim in this circuit. See Payne v. Wholesale &
Retail Stores, 654 F.2d 1130, 1140 (1981) (requiring plaintiff to
show "that he had a reasonable belief that the employer was engaged
in unlawful employment practices"), cert. denied, 455 U.S. 1000
(1982). Lehn neither believed the Hospital had discriminated
against her based upon her sex, nor did she believe that Dr. Pearce
was her employer.
B.
To the extent that Lehn's brief may be construed as an
assertion that the district court erred by failing to find that the
Hospital violated Title VII by maintaining a hostile work
environment, because no such argument was raised below, we review
only for plain error. We will exercise our discretion to correct
errors not raised below only if the error is clear or obvious and
affects substantial rights, and if the error is of the type that
refusal to correct it would bring disrepute upon the judiciary.
See Highland Ins. Co. v. National Union Fire Ins. Co., 27 F.3d
treated you differently because of your sex,
because you were female?
A: The hospital, no, I did not feel that
they treated me differently as an employee
because of my sex, no.
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1027, 1031-32 (5th Cir. 1994) (applying plain error review in civil
case) cert. denied, __ U.S. __, 115 S.Ct. 903 (1995); see also,
United States v. Calverly, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc) (if appellant shows clear or obvious error that affects his
substantial rights, appellate court has discretion to correct
errors that seriously affect fairness, integrity, or public
reputation of judicial proceedings), cert. denied __ U.S. __, 115
S.Ct. 1266 (1995).
At the first step of our plain error analysis, we find no
"clear" or "obvious" error in light of the sporadic nature of the
incidents; hostile work environment claims must be based upon more
severe or pervasive incidents. See Meritor savings Bank, FSB v.
Vinson, 477 U.S. 57, 67 (quoting Rogers v. EEOC, 454 F.2d 234, 238
(5th Cir. 1971) cert. denied, 406 U.S. 957 (1972), for proposition
that mere utterance of epithet which engenders offensive feelings
in employee would not affect conditions of employment to
sufficiently significant degree to violate Title VII). There was
no plain error.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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