321 F.3d 503 (5th Cir. 2003), 02-60283, Gowesky v. Singing River Hosp. Systems

Docket Nº:02-60283.
Citation:321 F.3d 503
Party Name:Brenda A. GOWESKY, M.D., Plaintiff-Appellant, v. SINGING RIVER HOSPITAL SYSTEMS, d/b/a Ocean Springs Hospital, Defendant-Appellee.
Case Date:February 06, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 503

321 F.3d 503 (5th Cir. 2003)

Brenda A. GOWESKY, M.D., Plaintiff-Appellant,


SINGING RIVER HOSPITAL SYSTEMS, d/b/a Ocean Springs Hospital, Defendant-Appellee.

No. 02-60283.

United States Court of Appeals, Fifth Circuit

February 6, 2003

Page 504

[Copyrighted Material Omitted]

Page 505

Robert H. Tyler (argued), Law Office of Robert H. Tyler, Biloxi, MS, for Plaintiff-Appellant.

Karl R. Steinberger (argued), Kevin Clyde Bradley, Colingo, Williams, Heidelberg, Steinberger & McElhaney, Pascagoula, MS, for Defendant-Appelle.

Page 506

Appeal from the United States District Court for the Southern District of Mississippi.

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. 42 U.S.C. § 12112(a); see also Flowers v. S. Reg'l Physician Servs. Inc., 247 F.3d 229 (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.


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.

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

Page 507

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 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 a 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 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.


We review de novo a district court's grant of summary judgment, applying the same standard as the district court. See Walker v. Thompson, 214 F.3d 615, 624 (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, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the moving party meets the initial burden of showing there is no genuine issue of material fact, the burden shifts to the nonmoving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (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, 174 F.3d 615, 619 (5th Cir. 1999).

Page 508

Evans v. City of Bishop, 238 F.3d 586, 588-89 (5th Cir. 2000)


Gowesky brings two claims to the court. She alleges that she was the victim of disability-based (1) workplace harassment and (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, 42 U.S.C. § 12102(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, 29 C.F.R. § 1630.2(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." 42 U.S.C. § 12102(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 is regarded by the employer as having a substantially limiting impairment.


To continue reading