McGrath v. State of Louisiana, et al

*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this opinion should not be published and is not precedent except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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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-31368
Summary Calendar
_____________________
NANCY MCGRATH,
Plaintiff-Appellant,
versus
STATE OF LOUISIANA, on behalf of the
Department of Health & Hospitals, et al.
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Louisiana, Lafayette-Opelousas
USDC No. 99-CV-878
________________________________________________________________
April 18, 2001
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
The question presented on appeal is whether the district court
erred in granting summary judgment for the defendants in this Title
VII sex discrimination case. We affirm.
I
Nancy McGrath, a registered nurse, was employed by the State

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of Louisiana’s Department of Health and Hospitals from September
1993 to December 1999. McGrath usually worked the “night shift”
(11:30 p.m. to 8:30 a.m.) from Thursday through Sunday in a
psychiatric unit.
The unit’s written policies regarding sexual harassment
prohibit the viewing of sexually-related materials that one’s co-
workers might reasonably find offensive. In April 1998, several of
McGrath’s co-workers began viewing an episode of the Jerry Springer
television show in the nurses’ day room. The topic of the day’s
show was “Wild Sex.” When McGrath requested that her co-workers
change the channel, they complied. But after her shift was over,
McGrath discussed this incident with Glynn Bourque, the Registered
Nurse Supervisor, who said that a syndicated television show was
not the kind of sexually inappropriate material covered by the
unit’s policies. McGrath then complained to Margaret Wiles, the
Director of Nursing at the psychiatric unit. Partially as a result
of McGrath’s complaint, Wiles ordered that the television set in
the day room be turned off from 10:30 p.m. until 6:00 a.m.
McGrath alleges that Bourque became furious when he learned
that McGrath had complained to Wiles about the Jerry Springer
incident. Bourque told McGrath that he would no longer assist her
in drawing blood or administering prescribed medications to
patients. After McGrath complained about this change in their
customary duties, Bourque was required to apologize and undergo

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counseling. He then agreed to share blood-drawing duties with
McGrath. Nevertheless, McGrath filed a discrimination complaint
with the EEOC in August 1998.
In March 1999, McGrath received a performance evaluation.
Although Bourque gave her a “very good” rating, her overall score
dropped from 38 in 1998 to 29 in 1999. In comments attached to the
evaluation, Wiles emphasized that “[t]he drop in [McGrath’s]
performance rating is not an indicator of a drop in her performance
but rather a more effective and appropriate use of the evaluating
tool.” McGrath has not pointed to any adverse effects stemming
from this performance evaluation.
In May 1999, McGrath filed the complaint before us. Because
Glynn Bourque was named as a defendant, McGrath requested that the
hospital change Bourque’s work schedule so that McGrath and Bourque
would not be working at the same time. In July 1999, Wiles sent a
memo to McGrath informing her that she and Bourque would “rotate”
on evening and night shifts. McGrath balked at this proposal,
contending that she had worked the same schedule from 1993 to 1999
and had been “guaranteed” the night shift. McGrath failed to
report for work after July 22, 1999. Her employment was terminated
in December when her accrued sick leave had been exhausted.
In November 2000, the district court entered summary judgment
for the defendants, concluding that the State of Louisiana was
entitled to judgment as a matter of law on McGrath’s Title VII

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1Although both parties have requested oral argument, we have
concluded that this appeal may be decided on the record before us.
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claims of a hostile work environment and unlawful retaliation.
McGrath now appeals.1
II
This court reviews a district court’s grant of summary
judgment de novo, applying the same substantive test set forth in
Federal Rule of Civil Procedure 56. Horton v. City of Houston, 179
F.3d 188, 191 (5th Cir. 1999).
A
We begin with McGrath’s “hostile work environment” claim. To
survive summary judgment, a plaintiff “must create a fact issue on
each of the elements of a hostile work environment claim: (1)
[sexually] discriminatory intimidation, ridicule and insults that
are; (2) sufficiently severe or pervasive that they; (3) alter
the conditions of employment; and (4) create an abusive working
environment.” Walker v. Thompson, 214 F.3d 615, 625-26 (5th Cir.
2000). McGrath has not met this burden.
The evidence of alleged discriminatory conduct is limited to
these facts: (1) several co-workers were watching a Jerry Springer
episode until McGrath asked them to change the channel; (2) Bourque
refused to help McGrath administer medication after McGrath had
complained to Wiles about the Jerry Springer incident and after
Wiles had curtailed the nurses’ television privileges; (3) at about

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this same time, “Bourque was verbal to co-workers in his negative
statements concerning working with [McGrath],” although the
substance of these comments is not clear; (4) although Wiles took
corrective actions regarding Bourque’s behavior, “the time delays
in doing so are unjustifiable”; and (5) when McGrath requested that
she and Bourque not work the same shift, Wiles decided to let
McGrath and Bourque rotate on different shifts. On the record
before us, we fail to see how this conduct can be described as
discriminatory on the basis of sex.
Even if we assume that all of the alleged conduct was
discriminatory, the conduct of which McGrath complains cannot
possibly be considered “severe.” We have pointed out, in the
context of hostile environment cases, that Title VII “was only
meant to bar conduct that is so severe and pervasive that it
destroys a protected class member’s opportunity to succeed in the
workplace.” Shepherd v. Comptroller of Public Accounts of State of
Texas, 168 F.3d 871, 874-75 (5th Cir. 1999). In Shepherd, for
example, the plaintiff complained that a co-worker had made several
sexually suggestive comments, often tried to look down her
clothing, touched and rubbed her arm, and twice invited her to sit
on his lap during office meetings. Shepherd, 168 F.3d at 872. We
held that this conduct, although “boorish and offensive,” was not
sufficiently severe to be actionable under Title VII. Id. at 874-
75. Because McGrath’s claims involve conduct that is even less

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objectionable than that at issue in Shepherd, we must conclude as
a matter of law that the conduct of Bourque and Wiles was not
severe and hence not actionable.
B
We turn now to McGrath’s retaliation claim. Title VII
provides that “[i]t shall be an unlawful employment practice for an
employer to discriminate against any of his employees . . . because
he has made a charge . . . under this subchapter.” 42 U.S.C. §
2000e-3(a). We have held that a retaliation claim has three
elements: (1) the employee engaged in activity protected by Title
VII; (2) the employer took adverse employment action against the
employee; and (3) a causal connection exists between that
protected activity and the adverse employment action. Mattern v.
Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997).
McGrath’s retaliation claim fails because she has not created
a fact issue as to whether she suffered an adverse employment
action. This court has made clear that “Title VII was designed to
address ultimate employment decisions, not to address every
decision made by employers that arguably might have some tangential
effect upon those ultimate decisions.” Dollis v. Rubin, 77 F.3d
777, 781-82 (5th Cir. 1995). We have defined “ultimate employment
decisions” to include such acts as “hiring, granting leave,
discharging, promoting, and compensating.” Mattern, 104 F.3d at
707 (citations omitted). Bourque’s short-lived decision to make

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McGrath administer medications without his assistance and Wiles’s
decision to let McGrath and Bourque rotate shifts clearly do not
constitute adverse employment actions. See Watts v. Kroger Co.,
170 F.3d 505, 510 (5th Cir. 1999). Neither can McGrath’s 1999
performance evaluation be considered an adverse employment
decision. Wiles pointed out that the evaluation did not indicate
a drop in her performance, and McGrath has not alleged any adverse
effect caused by this evaluation report.
III
For the reasons stated above, McGrath did not create a genuine
issue of material fact on either of her Title VII claims. The
summary judgment for the State of Louisiana is therefore
A F F I R M E D .

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