*Pursuantto 5TH CIR. R. 47.5,the court has determined thatthis opinion should

not be published and is not precedent except under the limited circumstances setforth

in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 18, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50061

Summary Calendar

CAROLINE HOELSCHER-KOSEL

Plaintiff-Appellant

v.

JAMES NICHOLSON, SECRETARY OF VETERANS AFFAIRS

Defendant-Appellee

Appeal from the United States District Court 

for the Western District of Texas

USDC No. W-05-CA-021

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Caroline Hoelscher-Kosel appeals the district court’s

grant of summary judgment for the Defendant-Appellant James Nicholson,

Secretary of Veteran Affairs, on her retaliation claim. We AFFIRM. 

FACTS

Hoelscher-Kosel is a female Physician’s Assistant employed at the Temple,

Texas VA Hospital. She began working at Temple in September 1995, at which
No. 07-50061

2

time she was assigned to the Primary Care section. In November 1999, she was

reassigned to the Hospitalist Team. Following a staffing review of the

Hospitalist program that began in 2001, hospital personnel determined that the

number of Physician Extenders on the Hospitalist Team should be reduced from

two to one. Because Hoelscher-Kosel, unlike the other Physician Extender Joe

Bielik, had not been trained to perform bone marrow biopsies, hospital personnel

decided to keep Bielik on the Hospitalist Team and to transfer Hoelscher-Kosel

to the Compensation and Pension (C&P) section to assist in performing C&P

examinations in September 2002. Shortly thereafter, hospital personnel learned

that Hoelscher-Kosel had previously worked with the Chief of C&P, who she

alleged had sexually harassed her. She was then immediately returned to the

Hospitalist Team and Bielik was transferred to C&P. In that position, Bielik

continued to perform bone marrow biopsies on a limited basis for the Hospitalist

Team. After her return to the Hospitalist Team, Hoelscher-Kosel began bone

marrow training but was unable to successfully complete the training because

of a physical limitation. On November 12, 2002, she filed an employment

discrimination complaint with the VA’s Equal Employment Office, alleging

gender discrimination on the basis of the reassignment to C&P and other

conduct by hospital personnel. 

In March 2003, the Employee Health and Environmental Medicine

Department received approval for a full-time Physician Extender. The

Hospital’s Acting Chief of Staff, Dr. T. Ulf Westblom, proposed to reassign

Hoelscher-Kosel to Employee Health and Environmental Medicine and to move

Bielik back to the Hospitalist Team. Because this plan involved transferring

Hoelscher-Kosel to a department outside of Medical Services, it required

discussion with the employee union before implementation. On March 26, 2003,

Dr. Westblom met with Hoelscher-Kosel and the union president, Clementine

Ray, to discuss the proposed reassignment. Hoelscher-Kosel and Ray objected
No. 07-50061

1 The VA cross-appeals the district court’s denial of its motion to dismiss HoelscherKosel’s retaliation claim for failure to exhaust administrative remedies. Because we affirm the

district court’s grant of summary judgment on the retaliation claim for other reasons, we need

not address this argument. 

3

on the basis that Hoelscher-Kosel was more senior than Bielik. Despite their

objections, Dr. Westblom ultimately decided on March 28, 2003 to reassign

Hoelscher-Kosel to Employee Health and Environmental Medicine and to move

Bielik back to the Hospitalist Team. Hoelscher-Kosel’s reassignment did not

result in a loss of grade, pay, or benefits. 

On January 18, 2005, Hoelscher-Kosel filed this suit in the United States

District Court for the Western District of Texas against James Nicholson, in his

official capacity as Secretary ofthe Department of Veteran Affairs(VA), pursuant

to Title VII of the Civil Rights Act of 1964, alleging gender discrimination and

retaliation. On October 23, 2006, the district court granted the VA summary

judgment on all of Hoelscher-Kosel’s claims, finding that she had failed to make

out a prima facie case of retaliation and that she did not show that the VA’s

legitimate, nondiscriminatory reason was a pretext for gender discrimination

and retaliation. Hoelscher-Kosel now appeals the district court’s grant of

summary judgment solely on the retaliation claim.1

ANALYSIS

We review the district court’s grant of summary judgment de novo, using

the same standards applied by the district court. Storebrand Ins. Co. U.K., Ltd.

v. Employers Ins. of Wausau, 139 F.3d 1052, 1055 (5th Cir. 1998). 

Under the framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), the plaintiff must first establish a prima facie case for

retaliation, which requires a showing that: (1) she engaged in activity protected

by Title VII; (2) her employer took an adverse employment action against her;

and (3) a causal connection exists between the protected activity and the adverse

employment action. See, e.g., McCoy v. City of Shreveport, 492 F.3d 551, 556-57
No. 07-50061

4

(5th Cir. 2007). Once the employee has established a prima facie case, the

burden then shifts to the employer to articulate a legitimate, nondiscriminatory

or nonretaliatory reason for its employment action. See Gee v. Principi, 289 F.3d

342, 345 (5th Cir. 2002). If the employer meets its burden, the plaintiff then

bears the ultimate burden of proving that the employer’s proffered reason is not

true and instead is a pretext for the real retaliatory purpose. McCoy, 492 F.3d

at 557. 

The district court correctly granted summary judgment on HoelscherKosel’s retaliation claim. Pretermitting the issue of whether Hoelscher-Kosel

made a prima facie showing of retaliation, she has failed to rebut the VA’s

proffered legitimate reason for her reassignment to the Employee Health and

Environmental Medicine Department. Namely, after a staffing review, hospital

personnel decided to reduce the number of Physician Extenders from two to one

on the Hospitalist Team as part of the VA’s plan to move to more full-time

Physicians. Concurrently, hospital personnel determined that there was an

ongoing need for the remaining Physician Extender to be able to perform bone

marrow biopsies for quality of care reasons. Because Bielik was trained to

perform the procedure, whereas Hoelscher-Kosel was not, the VA decided to

move Bielik back to the Hospitalist Team and to reassign Hoelscher-Kosel.

Thus, Hoelscher-Kosel has failed to create a genuine issue of material fact as to

whether the VA’s decision to reassign her to the Employee Health and

Environmental Medicine Department was a pretext for retaliation. 

Because this court affirms the district court’s grant of summary judgment

on this basis, it need not address appellant’s argument that the district court

improperly applied the Supreme Court’s decision in Burlington Northern &

Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006) to find that she had not

established a prima facie case of retaliation. 

CONCLUSION
No. 07-50061

5

For the foregoing reasons, the district court’s grant of summary judgment

on Hoelscher-Kosel’s retaliation claim is AFFIRMED.