                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                August 26, 2004
                          FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                              No. 04-30288
                            Summary Calendar



ROSEMARY WOOTEN,

           Plaintiff-Appellant,

                                  versus

ST. FRANCIS MEDICAL CENTER,

           Defendant-Appellee.



           Appeal from the United States District Court
               for the Western District of Louisiana
                      USDC No. 3:02-CV-2521-M


Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.

PER CURIAM:*

     Rosemary    Wooten   filed   an   employment   discrimination     suit

against   St.   Francis   Medical   Center,   seeking   declaratory     and

injunctive relief for alleged violations of Title VI of the Civil

Rights Act1 and the Family and Medical Leave Act.2            During the

course of the proceedings, the district court granted St. Francis’s


     *
      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this opinion should not be published and is not precedent except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.
     1
      42 U.S.C. § 2000e, et seq.
     2
      29 U.S.C. § 2601, et. seq.
motion to compel discovery of Wooten’s medical history.             The court

subsequently dismissed all of her claims on summary judgment.

Wooten appeals both of the district court’s decisions.             We affirm.

                                       I

     Wooten, a black female, worked in the patient access area of

St. Francis Medical Center until she was discharged in May 2002.

Her complaint     focuses   on   two   incidents    that    occurred   at    the

hospital prior to her discharge.            First, as the hospital was

undergoing renovations in April 2002, Wooten was transferred from

an office to a small office that had formerly been used as a

storage closet.     She alleges that she was transferred because a

white co-worker requested her office space.                Second, on May 2,

2002, she complained to her supervisor, Sandra Arnold, that two

security guards had sexually harassed her.                  Despite Wooten’s

request that Arnold keep the matter secret, Arnold investigated

Wooten’s allegations and spoke with the guards and another woman

who was present during part of the alleged harassment.            Arnold also

ordered the security guards not to enter the patient access area

unless motivated by security concerns.         A few days later, the two

guards resigned their employment and turned in their equipment.3

     Wooten’s employment at St. Francis was terminated just over

two weeks later, on May 17.       Wooten filed suit, alleging that her

discharge was motivated by gender and racial discrimination.                 She

     3
      In her    brief,   Wooten   also     states   that    the   guards    were
suspended.

                                       2
also alleged that her move from an office to a storage closet was

discriminatory.    St. Francis denied that her firing was motivated

by her race or gender, asserting instead that her disruptive

behavior and refusal to follow orders motivated her termination.

The district court agreed with St. Francis and dismissed her claims

on summary judgment.

                                    II

     Wooten raises three arguments on appeal.          First, she contends

that the court improperly resolved issues of contested fact in

ruling on St. Francis’s motion for summary judgment.           Second, she

asserts that the court used an improper test to evaluate her claim

of gender-based discrimination.           Finally, she argues that the

district court erred in compelling discovery of her medical history

over the prior fifteen years.

     Wooten’s first argument -- that the district court improperly

resolved   facts   in   St.   Francis’s   favor   --   is   without   merit.

Although she lists a series of facts in her brief that she claims

were disputed by the parties, she fails to explain why these

allegedly disputed facts were material or how they affected the

district court’s decision. The district court dismissed her claims

on summary judgment because she failed to state a prima facie case

that the alleged harassment by her co-workers had created a hostile

work environment.       “To establish an actionable claim of sexual

harassment in the workplace, a plaintiff must demonstrate: (1) That

she belongs to protected class; (2) that she was subject to

                                    3
unwelcome sexual harassment; (3) that the harassment was based on

sex; (4)      that     the     harassment   affected      a   ‘term,    condition     or

privilege of employment’; and (5) that the employer either knew or

should have known of the harassment and failed to take prompt

remedial action.”4           The district court concluded that St. Francis

immediately investigated her claims of harassment and promptly took

remedial action against the offending employees.                   Wooten offers no

argument disputing the court’s conclusion, and indeed appears to

concede in her reply brief that she cannot prevail on a hostile

work environment claim.

      Recognizing that the court did not err in its harassment

analysis, Wooten next argues that the court should have analyzed

her   claim    as    a   disparate     treatment        claim.     She   offers     two

arguments.       First, she asserts that she was treated differently

from the other individuals involved in the harassment incident.

Second, she argues that her work area was relocated to a storage

closet because a white female desired her workspace.                           Neither

argument is persuasive.

      Wooten’s first argument is in actuality a claim that St.

Francis retaliated against her for filing a complaint of sexual

harassment. Title VII provides in pertinent part that “it shall be

an unlawful employment practice for an employer to discriminate

against    any    of     his    employees   .   .   .    because   he    has   made   a

      4
      DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591,
593 (5th Cir. 1995).

                                            4
charge . . . under this subchapter.”5             Wooten, however, failed to

include the retaliation claim in her Complaint, and she stipulated

to the district court that she was not raising a claim for

retaliation under Title VII.            Thus, the retaliation claim is not

properly before us.

     Even were we to consider the issue, Wooten has failed to state

a prima facie case of retaliation.           To state a prima facie case of

retaliation, a plaintiff must show (1) that she engaged in activity

protected    by   title   VII;    (2)    that   the   employer   took   adverse

employment action against the employee; and (3) that a causal

connection exists between that protected activity and the adverse

employment   action.6      In    the    present   case,   Wooten    offered   no

evidence supporting the third prong of this test.                  St. Francis,

moreover, offered substantial evidence that her termination was

motivated by legitimate, non-retaliatory reasons, evidence which

Wooten failed to rebut.          As a result, Wooten’s retaliation claim

must fail.

     Her discrimination claim based on her office move is similarly

unpersuasive.     To prevail on a claim of gender discrimination, a

plaintiff must demonstrate (1) that she is a member of a protected

class, (2) that she was qualified for the position, (3) that she

suffered an adverse employment action, and (4) that she was either

     5
      42 U.S.C. § 2000e-3(a).
     6
      Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.
1992).

                                         5
replaced by someone outside the protected class or treated less

favorably     than   a   person   outside      the    protected     class.7       Even

assuming that the first two prongs of this test are satisfied,

Wooten fails to satisfy either the third or fourth element.                       The

record indicates that Wooten initially worked in a five-by-ten foot

cubicle in a room with four other employees.                 When the hospital was

renovated,    she    was   temporarily        moved   to    an   office,   and    then

subsequently    to    another     small   office      that    was   once   used   for

storage.      Her supervisor, a white female, was moved into the

neighboring office, which was similarly converted from a storage

area.    The office move does not constitute an “adverse employment

action” under our precedent.8         Moreover, Wooten offers nothing to

indicate that the change in her work area was motivated by racial

or   gender    considerations.            Wooten’s         discrimination     claim,

therefore, fails.

     Wooten’s final argument is that the district court erred in

granting St. Francis’s motion to compel discovery of fifteen years

of her medical history.           Given that the district court properly

dismissed her claims on summary judgment and that Wooten never


     7
      Urbano v. Cont'l Airlines, Inc., 138 F.3d 204, 206 (5th Cir.
1998).
     8
      See Green v. Administrators of the Tulane Educational Fund,
284 F.3d 642, 657 (5th Cir. 2002) (“Adverse employment actions
include only ultimate employment decisions such as hiring, granting
leave, discharging, promoting, or compensating.”); Mattern v.
Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997); Dollis v.
Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995).

                                          6
complied with the court’s order compelling production of her

medical records, we find it unnecessary to consider this issue.

     AFFIRMED.




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