* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60532

Summary Calendar

JAMES HILL, D.O.

Plaintiff - Appellant

v.

DEPARTMENT OF VETERANS AFFAIRS, GORDON H MANSFIELD,

ACTING SECRETARY

Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 1:06-CV-243

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Dr. James Hill(“Hill”), formerly employed atthe Veterans Administration

Hospital in Biloxi, Mississippi (the “Hospital”), brought this age discrimination

action against the Secretary of the U.S. Department of Veterans Affairs (the

“Secretary”). Hill appeals the district court’s grant of summary judgment in

United States Court of Appeals

Fifth Circuit

F I L E D

February 12, 2009

Charles R. Fulbruge III

Clerk
No. 08-60532

2

favor of the Secretary on his disparate treatment claim, and the dismissal of his

hostile work environment claim. For the following reasons, we affirm.

I. FACTS AND PROCEEDINGS

Hill was born in 1935. From 1994 to 2004, he was employed by the

Hospital as a licensed osteopath. Every two years, each physician’s privileges

to practice at the Hospital came up for renewal; Hill’s privileges were scheduled

to be renewed in March 2004. However, four months earlier, the Hospital had

launched an extensive peer review program designed to evaluate the quality of

patient care provided by each member of the medical staff. Dr. C. Diane Knight,

Hill’s direct supervisor, informed Hillthatthe peer review program had revealed

certain areas of concern regarding the quality of his patient care, including his

use of potentially harmful medications. Accordingly, she told him that his

privileges would be renewed for ninety days rather than the standard two years,

pending further review of his patient charts.

When the ninety-day renewal of Hill’s privileges expired, he was placed on

involuntary paid leave pending formal review of his performance. In September

2004, Hill received a notice that his privileges were being revoked, giving him

fourteen days to respond to a list of allegations regarding his patient care. He

allegedly requested copies of the relevant clinical records from the Hospital but

did not receive them in time to prepare an adequate response to these

allegations. Eventually, Hill resigned from the Hospital before a final decision

was made regarding his formal discharge. He testified that he expected to be

terminated and chose to resign in order to keep his insurance benefits.

In September 2004, Hillfiled administrative charges of age discrimination

with the Department of Veterans Affairs (the “Department”). After a formal

investigation of the charges, the Department’s Office of Employment

Discrimination Complaint Adjudication issued a Final Agency Decision in

December 2005 that found no discrimination. In March 2006, Hill commenced
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3

this civil action against the Secretary, alleging “disparate treatment” and

“hostile work environment”—both based on age. The district court granted the

Secretary’s motion for summary judgment on Hill’s disparate treatment claim.

It later dismissed Hill’s hostile work environment claim for failure to exhaust

administrative remedies. Hill appeals both holdings.

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment on Hill’s

disparate treatment claim de novo. See Richardson v. Monitronics Int’l, Inc., 434

F.3d 327, 332 (5th Cir. 2005). Summary judgment is appropriate “if the

pleadings,the discovery and disclosure 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). “We consider the

evidence in a light most favorable to [Hill], the non-movant, but [he] must point

to evidence showing that there is a genuine fact issue for trial” to survive

summary judgment. Richardson, 434 F.3d at 332.

We also review de novo the district court’s dismissal of Hill’s hostile work

environment claim. See Ballard v. Wall, 413 F.3d 510, 514 (5th Cir. 2005). “All

of the plaintiff’s allegations must be accepted as true, and the dismissal will be

affirmed only if it appears that no relief could be granted under any set of facts

that could be proven consistent with the allegations.” Id. at 514–515 (internal

quotation marks omitted). 

III. DISCUSSION

A. Hill’s Disparate Treatment Claim

The complaint alleges that Hill was forced to resign by the Hospital

because of his age, in violation of the Age Discrimination in Employment Act

(“ADEA”). See 29 U.S.C. § 623(a)(1) (“It shall be unlawful for an employer . . .

to discharge any individual or otherwise discriminate against any individual

with respectto his compensation,terms, conditions, or privileges of employment,
No. 08-60532

4

because of such individual’s age.”). The district court granted summary

judgment in favor of the Secretary on Hill’s disparate treatment claim, finding

that Hill had produced no evidence of age discrimination. On appeal, Hill argues

that summary judgment was improper because he has presented both direct and

circumstantial evidence of the Hospital’s discriminatory animus. See Berquist

v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (noting that a plaintiff can

demonstrate age discrimination through either direct or circumstantial evidence

of discriminatory animus). 

Hill contends that he submitted direct evidence of discriminatory animus

in the form of remarks by his superiors that he “should just retire” during the

meeting at which he was placed on leave. In its summary judgment order, the

district court noted that it was unable to locate in the record any testimony or

other evidence that Hill was ever told that he “should just retire”—and Hill’s

brief to this court still fails to identify the relevant evidence in the record.

Nevertheless, even assuming that the evidence exists, this court has previously

held that a suggestion that an employee retire does not constitute direct

evidence of discriminatory animus because there is no “necessary” link between

retirement and age. Martin v. Bayland Inc., 181 F. App’x 422, 423–24 (5th Cir.

2006). 

Alternatively, Hill argues that he has presented sufficient circumstantial

evidence of discriminatory animus to survive summary judgment. An ADEA

plaintiff can establish a prima facie case of age discrimination based on

circumstantial evidence by showing that “(1) he was discharged; (2) he was

qualified for the position; (3) he was within the protected class at the time of

discharge; and (4) he was either i) replaced by someone outside the protected

class, ii) replaced by someone younger, or iii) otherwise discharged because of his

age.” Berquist, 500 F.3d at 349. As to the first element, the Secretary disputes

Hill’s claim that he was “constructively discharged” because he was essentially
No. 08-60532

5

forced to resign in order to preserve his medical insurance coverage. We need

not decide whether this case warrants application of the “constructive discharge”

doctrine however, because Hill has clearly not satisfied the fourth element of his

prima facie case. 

Hill does not allege that he was replaced by someone outside the protected

class or younger than him, nor has he properly shown that he was discharged

because of his age. Hill relies on statements allegedly made to him by two of his

colleagues, who informed him that he was on a “hitlist of older, experienced

physicians that the administration wanted out.” However, we agree with the

district court that these statements are inadmissible hearsay that cannot be

used to oppose summary judgment. Hill has presented no evidence that his two

colleagues were involved in employment decisions concerning him; these

statements therefore do not fall within the party opponent exception under

Federal Rule of Evidence 801(d)(2)(D). See Ramirez v. Gonzales, 225 F. App’x

203, 210 (5th Cir. 2007).

Finally, Hill purports to present other circumstantial evidence of age

discrimination, including the termination of another senior physician after a

similar peer review process. This evidence is not before us, as it was not

presented to the district court in the proceedings below. See, e.g., Forsyth v.

Barr, 19 F.3d 1527, 1537 (5th Cir.1994) (noting that it is not the duty of this

court or the district court to “sift through the record in search of evidence to

support a party’s opposition to summary judgment”). Accordingly, Hill has failed

to establish a prima facie case of age discrimination, and the district court

properly granted summary judgment on his age-based disparate treatment

claim.

B. Hill’s Hostile Work Environment Claim

Hill argues that the district court erred in dismissing his hostile work

environment claim for failure to exhaust administrative remedies. Prior to
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initiating this suit in federal court, Hill had filed an administrative complaint

with the Department, claiming age discrimination with respect to the nonrenewal of his clinical privileges and his placement on involuntary leave. He

later amended this administrative complaint to include a claim for forced

retirement and constructive discharge, but did not add a hostile work

environment claim. 

An ADEA plaintiff who, like Hill, “chooses to pursue an administrative

remedy, . . . must see it through to the end.” Tolbert v. United States, 916 F.2d

245, 249 (5th Cir. 1990) (holding that a former postal employee who files an

administrative complaint against the postal service alleging sexual harassment

must exhaust her administrative remedies before commencing an action in

federal court); see also Herod v. Potter, 255 F. App’x 894, 896 (5th Cir. 2007)

(applying requirement of exhaustion of administrative remedies to federal

employee alleging ADEA claim). Therefore, Hill was required to exhaust his

administrative remedies with respect to all claims before filing a civil action.

When a claim was not formally raised in the administrative proceedings, the

exhaustion requirement may still be satisfied as long as an administrative

investigation of the claim not raised could “reasonably be expected to grow out

of” the charges actually raised. Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir.

2006) (quotation omitted).

We examine a hostile work environment claim under a

“totality-of-the-circumstances test that focuses on the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or

humiliating[;] and whether it unreasonably interferes with an employee’s work

performance.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 347 (5th

Cir. 2007) (quotation and alterations omitted). Hill’s administrative charges

only alleged three specific discriminatory events—the non-renewal of Hill’s

clinical privileges, the decision to place Hill on administrative leave, and his
No. 08-60532

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“constructive discharge.” We agree with the district court that an investigation

concerning the existence of a hostile work environment would not “reasonably

be expected to grow out of” these allegations of discrete acts of discrimination.

See Gates v. Lyondell Petrochemical Co., 227 F. App’x 409, 409 (5th Cir. 2007)

(holding that the plaintiff’s “hostile environment . . . claim[] could not be

expected to grow out of her [administrative] discrimination charge when she

charged only her employer’s discrete acts in terminating and failing to promote

her, and made no mention of a hostile work environment”). Accordingly, the

district court properly dismissed Hill’s hostile work environment claim for

failure to exhaust administrative remedies.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.