Hoelscher-Kocel v. Nicholson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
F I L E D
No. 07-50061 September 18, 2007
Summary Calendar
Charles R. Fulbruge III
Clerk
CAROLINE HOELSCHER-KOSEL
Plaintiff-Appellant
v.
JAMES NICHOLSON, SECRETARY OF VETERANS AFFAIRS
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-05-CA-021
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Caroline Hoelscher-Kosel appeals the district court’s
grant of summary judgment for the Defendant-Appellant James Nicholson,
Secretary of Veteran Affairs, on her retaliation claim. We AFFIRM.
FACTS
Hoelscher-Kosel is a female Physician’s Assistant employed at the Temple,
Texas VA Hospital. She began working at Temple in September 1995, at which
*
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not be published and is not precedent except under the limited circumstances set forth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.
No. 07-50061
time she was assigned to the Primary Care section. In November 1999, she was
reassigned to the Hospitalist Team. Following a staffing review of the
Hospitalist program that began in 2001, hospital personnel determined that the
number of Physician Extenders on the Hospitalist Team should be reduced from
two to one. Because Hoelscher-Kosel, unlike the other Physician Extender Joe
Bielik, had not been trained to perform bone marrow biopsies, hospital personnel
decided to keep Bielik on the Hospitalist Team and to transfer Hoelscher-Kosel
to the Compensation and Pension (C&P) section to assist in performing C&P
examinations in September 2002. Shortly thereafter, hospital personnel learned
that Hoelscher-Kosel had previously worked with the Chief of C&P, who she
alleged had sexually harassed her. She was then immediately returned to the
Hospitalist Team and Bielik was transferred to C&P. In that position, Bielik
continued to perform bone marrow biopsies on a limited basis for the Hospitalist
Team. After her return to the Hospitalist Team, Hoelscher-Kosel began bone
marrow training but was unable to successfully complete the training because
of a physical limitation. On November 12, 2002, she filed an employment
discrimination complaint with the VA’s Equal Employment Office, alleging
gender discrimination on the basis of the reassignment to C&P and other
conduct by hospital personnel.
In March 2003, the Employee Health and Environmental Medicine
Department received approval for a full-time Physician Extender. The
Hospital’s Acting Chief of Staff, Dr. T. Ulf Westblom, proposed to reassign
Hoelscher-Kosel to Employee Health and Environmental Medicine and to move
Bielik back to the Hospitalist Team. Because this plan involved transferring
Hoelscher-Kosel to a department outside of Medical Services, it required
discussion with the employee union before implementation. On March 26, 2003,
Dr. Westblom met with Hoelscher-Kosel and the union president, Clementine
Ray, to discuss the proposed reassignment. Hoelscher-Kosel and Ray objected
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No. 07-50061
on the basis that Hoelscher-Kosel was more senior than Bielik. Despite their
objections, Dr. Westblom ultimately decided on March 28, 2003 to reassign
Hoelscher-Kosel to Employee Health and Environmental Medicine and to move
Bielik back to the Hospitalist Team. Hoelscher-Kosel’s reassignment did not
result in a loss of grade, pay, or benefits.
On January 18, 2005, Hoelscher-Kosel filed this suit in the United States
District Court for the Western District of Texas against James Nicholson, in his
official capacity as Secretary of the Department of Veteran Affairs(VA), pursuant
to Title VII of the Civil Rights Act of 1964, alleging gender discrimination and
retaliation. On October 23, 2006, the district court granted the VA summary
judgment on all of Hoelscher-Kosel’s claims, finding that she had failed to make
out a prima facie case of retaliation and that she did not show that the VA’s
legitimate, nondiscriminatory reason was a pretext for gender discrimination
and retaliation. Hoelscher-Kosel now appeals the district court’s grant of
summary judgment solely on the retaliation claim.1
ANALYSIS
We review the district court’s grant of summary judgment de novo, using
the same standards applied by the district court. Storebrand Ins. Co. U.K., Ltd.
v. Employers Ins. of Wausau, 139 F.3d 1052, 1055 (5th Cir. 1998).
Under the framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), the plaintiff must first establish a prima facie case for
retaliation, which requires a showing that: (1) she engaged in activity protected
by Title VII; (2) her employer took an adverse employment action against her;
and (3) a causal connection exists between the protected activity and the adverse
employment action. See, e.g., McCoy v. City of Shreveport, 492 F.3d 551, 556-57
1
The VA cross-appeals the district court’s denial of its motion to dismiss Hoelscher-
Kosel’s retaliation claim for failure to exhaust administrative remedies. Because we affirm the
district court’s grant of summary judgment on the retaliation claim for other reasons, we need
not address this argument.
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No. 07-50061
(5th Cir. 2007). Once the employee has established a prima facie case, the
burden then shifts to the employer to articulate a legitimate, nondiscriminatory
or nonretaliatory reason for its employment action. See Gee v. Principi, 289 F.3d
342, 345 (5th Cir. 2002). If the employer meets its burden, the plaintiff then
bears the ultimate burden of proving that the employer’s proffered reason is not
true and instead is a pretext for the real retaliatory purpose. McCoy, 492 F.3d
at 557.
The district court correctly granted summary judgment on Hoelscher-
Kosel’s retaliation claim. Pretermitting the issue of whether Hoelscher-Kosel
made a prima facie showing of retaliation, she has failed to rebut the VA’s
proffered legitimate reason for her reassignment to the Employee Health and
Environmental Medicine Department. Namely, after a staffing review, hospital
personnel decided to reduce the number of Physician Extenders from two to one
on the Hospitalist Team as part of the VA’s plan to move to more full-time
Physicians. Concurrently, hospital personnel determined that there was an
ongoing need for the remaining Physician Extender to be able to perform bone
marrow biopsies for quality of care reasons. Because Bielik was trained to
perform the procedure, whereas Hoelscher-Kosel was not, the VA decided to
move Bielik back to the Hospitalist Team and to reassign Hoelscher-Kosel.
Thus, Hoelscher-Kosel has failed to create a genuine issue of material fact as to
whether the VA’s decision to reassign her to the Employee Health and
Environmental Medicine Department was a pretext for retaliation.
Because this court affirms the district court’s grant of summary judgment
on this basis, it need not address appellant’s argument that the district court
improperly applied the Supreme Court’s decision in Burlington Northern &
Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006) to find that she had not
established a prima facie case of retaliation.
CONCLUSION
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No. 07-50061
For the foregoing reasons, the district court’s grant of summary judgment
on Hoelscher-Kosel’s retaliation claim is AFFIRMED.
5