           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 11, 2008
                                     No. 07-10809
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk




ELISABETH S. BROCKIE,

                                                  Plaintiff-Appellant,
v.

AMERIPATH, INC.,

                                                  Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 3:06-CV-185




Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Elisabeth Brockie sued her former employer, AmeriPath, Inc. (“Ameri-
Path”), for alleged sex discrimination under title VII of the Civil Rights Act of



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10809

1964. We affirm the summary judgment for AmeriPath.


                                        I.
      AmeriPath operates laboratories in various hospitals and employed Brock-
ie as a pathologist whose responsibilities included testing patients’ tissue and
blood samples and reporting her diagnoses to the treating physician. On one oc-
casion, Brockie reported a diagnosis of microscopic colitis to Dr. Steven Gadol
after testing a colon specimen from one of his patients. Gadol took issue with
the diagnosis, because he did not believe that Brockie had provided sufficient ex-
planation.
      After Gadol had explained his concern to Brockie, she decided to stand by
her diagnosis. Gadol then spoke to Brockie’s supervisor, Steven Hebert, also a
pathologist, about his concern; Hebert reviewed the sample and agreed with Ga-
dol that Brockie’s diagnosis was not justified.
      On another occasion, Gadol sent biopsies of a lesion found on a patient’s
rectum to AmeriPath’s lab. Brockie reviewed the samples and rendered a diag-
nosis of rectal cancer. Gadol was not surprised by the diagnosis but was again
disappointed with the lack of supporting detail in Brockie’s report and by her
failure to telephone Gadol and confirm his receipt of the report.
      After complaining about the lack of detail, Gadol received an additional re-
port containing more information and restating the diagnosis of rectal cancer.
Gadol explained the diagnosis to the patient, who then consulted with an oncolo-
gist and ultimately had her rectum removed. Gadol later learned from the oncol-
ogist that the lesion was only precancerous and that Brockie had submitted to
Gadol’s office an amended report that changed her diagnosis from rectal cancer
to a precancerous rectal polyp. Though it is likely the patient still would have
required surgery, perhaps even removal of her rectum, the recommended treat-
ment would have been different had the diagnosis initially been precancerous


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rather than cancerous.
      Gadol related this experience to Hebert and again expressed his disap-
pointment at the lack of communication from Brockie, especially with regard to
the change in diagnosis but also regarding the previous case. Gadol said he did
not want Brockie to examine any more specimens from his patients.
      Brockie also reviewed biopsies of breast tissue for Dr. Terre McGlothlin,
who expressed concern to Hebert about Brockie’s lack of communication. In par-
ticular, Brockie found no cancer in a specimen that had been expected to be can-
cerous and failed to telephone McGlothlin with the surprising results. Though
Brockie’s diagnosis was correct, the failure to communicate with McGlothin
caused concern.
      On a separate occasion, McGlothlin received a negative diagnosis from
Brockie, but within forty-eight hours it was changed to positive. Again, Brockie
failed to communicate with McGlothlin regarding the changed diagnosis, and
McGlothlin expressed her displeasure to Hebert.
      During this time, Brockie and her husband were divorcing; the legal pro-
ceedings required Brockie’s attention, often during working hours. She spent
significant time on the telephone and used the AmeriPath fax machine to ad-
dress those personal issues.
      It is uncontested that the above facts are true and that Hebert based his
decision to fire Brockie on these facts. Hebert offers other reasons for firing
Brockie, but their truth is contested, so they do not support summary judgment.
      Although Brockie does not contest the above facts, she asserts that her sex
is Hebert’s true motivation for terminating her employment. She bases that as-
sertion on a statement Hebert made to Virginia Petty, an AmeriPath human re-
sources manager. During a private conversation with Petty, Hebert reportedly
said, in a joking manner, that “Dr. Brockie had the reputation of being a ‘street-
walker’ and that the story at AmeriPath was that Brockie had financed her edu-


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                                  No. 07-10809

cation by being a ‘streetwalker.’”
      The district court concluded that Hebert’s alleged “streetwalker” comment
was a stray remark and did not qualify as direct evidence of discrimination.
Brockie also failed to offer circumstantial evidence of discrimination. Thus, the
court granted AmeriPath’s motion for summary judgment.


                                        II.
      Summary judgment is appropriate if “the pleadings, the discovery and dis-
closure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(c). An issue is material if a reasonable jury could re-
turn a verdict for the non-moving party. Roberson v. Alltel Info. Servs., 373 F.3d
647, 651 (5th Cir. 2004). “This Court reviews grants of summary judgment de
novo, applying the same standard as the district court, viewing the evidence in
a light most favorable to the non-movant.” Fruge ex rel. Fruge v. Parker Drilling
Co., 337 F.3d 558, 560 (5th Cir. 2003) (citations omitted).
      Under title VII, it is unlawful “for an employer to fail or refuse to hire or
to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Our inquiry un-
der title VII is “‘whether the defendant intentionally discriminated against the
plaintiff.’” Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007) (quoting
Roberson, 373 F.3d at 651). A plaintiff can prove intentional discrimination
through direct or circumstantial evidence. Id.


                                        A.
      Direct evidence is evidence that, if believed, proves the fact in question
without inference or presumption. Jones v. Robinson Prop. Group, 427 F.3d 987,

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                                       No. 07-10809

992 (5th Cir. 2005). To qualify as direct evidence, a comment must be directly
related to sex-based animus; proximate in time to the termination; made by an
individual with authority over the employment decision; and related to the em-
ployment decision. See Krystek v. Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir.
1999) (internal quotation omitted).
       Brockie contends that Hebert’s comment satisfies this test and is direct ev-
idence of animus toward women, such that her firing was intentional discrimina-
tion. We disagree. Although the evidence presented in Petty’s deposition1 sat-
isfies the second and third prongs of the test, Hebert’s statement does not direct-
ly evidence animus toward all women. If his statement evidences any animus
at all, it is limited to streetwalkersSSactual prostitutesSSnot women in general.
To believe otherwise would require drawing the inference that Hebert believes
all women are streetwalkers, a plainly unreasonable inference not owed Brockie,
even at the summary judgment stage. Additionally, drawing that inference
would mean Hebert’s comment was not direct, but circumstantial, evidence.


                                             B.
       In the absence of direct evidence, a plaintiff may use circumstantial evi-
dence to demonstrate discrimination. Alvarado, 492 F.3d at 611. Per Alvarado,
id., we analyze such cases under McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), which establishes a burden-shifting scheme whereby the plaintiff is
first required to present a prima facie case of discrimination. The burden of pro-
duction, not persuasion, then shifts and requires “the employer to articulate a
legitimate, nondiscriminatory reason for its actions.” Alvarado, 492 F.3d at 611.
If the employer meets its burden, the prima facie case dissolves, and the plaintiff
must establish that the employer’s reason was either (1) a pretext for discrimina-

       1
         We consider Petty’s deposition, because we agree with the district court that nothing
in it changes the outcome.

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                                  No. 07-10809

tion or (2) incomplete in that sex was still a factor in the decision. Id.


                                         1.
      To establish a prima facie case, Brockie must present evidence that she
(1) is within a protected class, (2) was qualified for the position, (3) was subject
to an adverse employment action, and (4) was replaced by someone outside the
protected class, or that others, similarly situated yet outside her protected class,
were treated more favorably than she. Bryan v. McKinsey & Co., Inc., 375 F.3d
358, 360 (5th Cir. 2004). It is only contested whether Brockie was qualified for
the position and whether men, similarly situated to her, were treated more fa-
vorably.
      We agree with the district court that Gadol’s complaints to Hebert did not
render Brockie unqualified. We also agree that Brockie has failed to present evi-
dence that similarly situated men were treated more favorably. As the court
noted, Brockie has not established that any of her proffered comparators were
similarly situated. There is no evidence that any of the other pathologists had
more than one misdiagnosis, and it is uncontroverted that Brockie had at least
two. There is also no evidence that any of the other pathologists spent a signifi-
cant amount of their day addressing personal issues using AmeriPath’s re-
sources.
      Finally, Brockie argues that the other pathologists received favorable
treatment in that each had at least one misdiagnosis, some resulting in litiga-
tion, yet they were not terminated. The record contains no evidence of any such
litigation; whether they were meritorious or frivolous suits is unknown. It does
not follow a fortiori that a doctor who has been sued has committed malpractice,
nor does it follow that because Brockie’s misdiagnosis did not result in litigation,
it was not malpractice.
      It is inappropriate for us to assess the relative severity of medical misdiag-

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                                  No. 07-10809

noses and determine whether they should have resulted in termination. Thus,
we decline to conclude that two pathologists who share nothing more in common
than a single misdiagnosis are similarly situated, and we agree with the district
court that there is no evidence that any of the doctors offered as comparators re-
ceived more favorable treatment.
      Brockie did not establish a prima facie case of discrimination under title
VII. The summary judgment is AFFIRMED.




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