* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

1 Lehn does not appeal the dismissal of her claims against Dr.

Ralph Pearce.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20554

Summary Calendar

_____________________

DOROTHY LEHN,

Plaintiff-Appellant,

versus

MONTGOMERY COUNTY HOSPITAL DISTRICT; 

HEALTHTRUST INC., doing business as Medical Center Hospital; 

RALPH PEARCE, M.D.,

Defendants,

and

MONTGOMERY COUNTY HOSPITAL DISTRICT

Defendant-Appellee.

________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(CA-H-93-2676)

________________________________________________

January 31, 1996

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Dorothy Lehn appeals the summary judgment granted her former

employer, Montgomery County Hospital District.1 We AFFIRM.

I.

Lehn does not challenge the district court's recitation of the

facts. She worked as a nurse in the Hospital's endoscopy

department, with her duties requiring her to assist doctors,
- 2 -

including Dr. Pearce. Dr. Pearce, who was not employed by the

Hospital, served as director of its endoscopy department and had

staff privileges.

While Lehn was assisting Dr. Pearce on December 19, 1991, the

two argued regarding their attitudes toward one another; Dr. Pearce

referred to Lehn as a "fucking bitch". On January 8, 1992, Lehn

submitted an incident report, complaining about the confrontation,

to a head nurse.

Approximately a month later, a hospital administrator met with

Lehn and inquired about a past tardiness problem. Lehn was

transferred on February 10, from the endoscopy department for

tardiness and "dysfunctional behavior", including conflicts with

physicians. But, on February 11, the administrator informed Lehn

that she would be reinstated, on a probationary basis, to the

endoscopy department effective the following day.

Dr. Pearce and Lehn had a second confrontation on February 12,

1992, with another nurse present, during which Dr. Pearce argued

with Lehn regarding her filing the incident report and again

referred to her as a "bitch". That March 24, Lehn was placed on

suspension and advised that a pretermination hearing would be held

two days later. 

Lehn filed a complaint against the Hospital with the EEOC on

March 25, 1992, in which she asserted that she had been subjected

to verbal harassment on the basis of her sex. Lehn was informed by

the Hospital on April 16, 1992, that no disciplinary action would

be taken against her, but that she would be transferred to the
2 See 42 U.S.C. § 2000e-3(a), which provides:

It shall be an unlawful employment practice

for an employer to discriminate against any of

his employees ... because he has opposed any

practice made an unlawful employment practice

by this subchapter, or because he has made a

charge, testified, assisted, or participated

in any manner in an investigation, proceeding,

or hearing under this subchapter.

3 Lehn's deposition contained the following colloquy:

Q: What about the hospital itself, the

administration, did you ever feel like they

- 3 -

radiology department, where her hours, wages, and benefits would

remain the same. (Lehn asserted in district court that, as a

result of the transfer, overtime was no longer available and call

pay was less frequently available to her.) Lehn resigned

voluntarily in September 1993.

II.

Lehn appeals the summary judgment granted the Hospital. We

review a summary judgment de novo. E.g., Nowlin v. Resolution

Trust Corp., 33 F.3d 498, 501-02 (5th Cir. 1994).

A.

As Lehn concedes, Dr. Pearce was not an employee of the

Hospital, nor was he her Title VII "employer". Therefore, she

presents an "opposition clause" claim, premised on the claimed

unlawful response by the Hospital to her incident report.2

Restated, Lehn voluntarily dismissed her claim that the Hospital

discriminated against her on the basis of her sex and pursued only

the "opposition clause" claim premised on the Hospital's alleged

retaliation against her for filing the report.3
treated you differently because of your sex,

because you were female?

A: The hospital, no, I did not feel that

they treated me differently as an employee

because of my sex, no.

- 4 -

No question of material fact existed with regard to whether

Lehn had, at any time, held a reasonable belief that the conduct

she opposed, as expressed in her incident report (Dr. Pearce's

language), constituted a violation of Title VII by her employer,

the Hospital. Such a belief is necessary to succeed on an

opposition clause claim in this circuit. See Payne v. Wholesale &

Retail Stores, 654 F.2d 1130, 1140 (1981) (requiring plaintiff to

show "that he had a reasonable belief that the employer was engaged

in unlawful employment practices"), cert. denied, 455 U.S. 1000

(1982). Lehn neither believed the Hospital had discriminated

against her based upon her sex, nor did she believe that Dr. Pearce

was her employer.

B.

To the extent that Lehn's brief may be construed as an

assertion that the district court erred by failing to find that the

Hospital violated Title VII by maintaining a hostile work

environment, because no such argument was raised below, we review

only for plain error. We will exercise our discretion to correct

errors not raised below only if the error is clear or obvious and

affects substantial rights, and if the error is of the type that

refusal to correct it would bring disrepute upon the judiciary.

See Highland Ins. Co. v. National Union Fire Ins. Co., 27 F.3d
- 5 -

1027, 1031-32 (5th Cir. 1994) (applying plain error review in civil

case) cert. denied, __ U.S. __, 115 S.Ct. 903 (1995); see also,

United States v. Calverly, 37 F.3d 160, 162-64 (5th Cir. 1994) (en

banc) (if appellant shows clear or obvious error that affects his

substantial rights, appellate court has discretion to correct

errors that seriously affect fairness, integrity, or public

reputation of judicial proceedings), cert. denied __ U.S. __, 115

S.Ct. 1266 (1995). 

At the first step of our plain error analysis, we find no

"clear" or "obvious" error in light of the sporadic nature of the

incidents; hostile work environment claims must be based upon more

severe or pervasive incidents. See Meritor savings Bank, FSB v.

Vinson, 477 U.S. 57, 67 (quoting Rogers v. EEOC, 454 F.2d 234, 238

(5th Cir. 1971) cert. denied, 406 U.S. 957 (1972), for proposition

that mere utterance of epithet which engenders offensive feelings

in employee would not affect conditions of employment to

sufficiently significant degree to violate Title VII). There was

no plain error.

III.

For the foregoing reasons, the judgment is 

AFFIRMED.