Vasquez v. El Paso County Community College District ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 20, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 05-50509
Summary Calendar
__________________________
JESUS E. VASQUEZ,
Plaintiff-Appellant,
versus
EL PASO COUNTY COMMUNITY COLLEGE DISTRICT,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(No. 3:02-CV-347)
___________________________________________________
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
*
PER CURIAM:
In this pro se case, Jesus E. Vasquez, an employee at El Paso Community College
District (“College”), has brought claims against his employer for discrimination, retaliation
for his alleged whistleblowing activities, and a violation of the Equal Pay Act (“EPA”).
The district court granted summary judgment to the College on all claims. Finding no
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
error, we affirm the judgment of the district court.
I. FACTS AND PROCEEDINGS
Vasquez became the coordinator of inter-library loans at the College in September
1994. In 1996, Vasquez filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”). He alleged age and sex discrimination and retaliation; he founded
his claims on the basis that his salary had not been increased. The EEOC dismissed his
complaint. In 1998, Vasquez reported alleged overpricing of books to an internal auditor.
However, he did not make complaints to an external authority, and there was no further
investigation. In 2000, Vasquez requested that the College reevaluate his salary; a
recommendation was issued that his pay scale be lowered, but the College president
decided that it should remain the same.
The College eliminated Vasquez’s position on January 31, 2001. The College had
earlier hired an outside consultant to review the College’s library services department.
The consultant determined that, due to technological advances and the generally low
volume of inter-library loans, a full-time employment position was unnecessary to monitor
inter-library loan activities. Accordingly, the College replaced Vasquez’s position with
that of a part-time clerk and transferred Vasquez to another department, with no loss in
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pay. Vasquez continues to hold his new position as an assistant in the Americana
Language Program.
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On February 1, 2001, when Vasquez was transferred to his new position, his annual salary
was $33,312. As of his last contract, due to a pay increase authorized by the Board of
Trustees for all employees, Vasquez’s annual salary was $35,342.83.
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In 2001, Vasquez filed an amended charge with the EEOC; again he alleged age and
sex discrimination and retaliation, as well as a violation of the Equal Pay Act. This time
the claim was based on the elimination of his position as coordinator of inter-library loans.
The EEOC dismissed the complaint, and, after the EEOC issued the Notice of the Right to
Sue, Vasquez brought the instant action. Before the district court, Vasquez asserted claims
under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act
(“ADEA”), and the Texas Whistleblower Act (“TWA”), and the EPA. The district court
granted summary judgment to the College on all claims. Vasquez appeals.
II. STANDARD OF REVIEW
This court reviews the district court’s grant of summary judgment de novo. Hunt
v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 762 (5th Cir. 2001). “Summary judgment
is appropriate when there is no genuine issue as to any material fact and the moving party
is entitled to a judgment as a matter of law.” Id. (internal quotations and citation omitted).
In making this determination, this court reviews the facts in the light most favorable to the
nonmoving party. Tarver v. City of Edna, 410 F.3d 745, 749 (5th Cir. 2005). If the moving
party meets its burden in showing an absence of genuine issue of material fact, then the
nonmoving party must “designate specific facts showing that there is a genuine issue for
trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986)).
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III. DISCUSSION
A. Discrimination Claims
Title VII prohibits an employer from discharging an employee “because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The
AEDA makes the same prohibition based on age. 29 U.S.C. § 623(a)(1). The burden
shifting analysis under Title VII and the AEDA is the same, Bauer v. Albemarle Corp., 169
F.3d 962, 966 (5th Cir. 1999); Meinecke v. H & R Block, 66 F.3d 77, 83 (5th Cir. 1995), and,
therefore, these claims will be addressed together. Under the burden shifting analysis, the
plaintiff must first establish a prima facie case of discrimination. Meinecke, 66 F.3d at 83.
Once established, the prima facie case raises a presumption of discrimination, which the
defendant must then rebut by demonstrating a legitimate, nondiscriminatory reason for
its actions. Id. If the defendant satisfies this burden, then the presumption disappears,
and the plaintiff must show that the defendant’s reasons are a pretext for discrimination.
Id.
Under Title VII, a plaintiff makes a prima facie case for gender discrimination by
proving (1) that he is a member of a protected class, (2) that he was qualified for the
position, (3) that he suffered adverse employment action, and (4) that either he was
replaced by someone not in the protected class, or others similarly situated were treated
more favorably. Okoye v. Univ. of Tex. Houston Health Science Ctr., 245 F.3d 507, 512–13
(5th Cir. 2001). When the employer does not replace the plaintiff, then the fourth element
instead requires the plaintiff to show that others who are not in the protected class remain
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in similar positions. Bauer, 169 F.3d at 966 (citing Vaughn v. Edel, 918 F.2d 517, 521 (5th
Cir. 1990)). Under the AEDA, the first three elements of a plaintiff’s prima facie case are
the same. Id. (citing Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)). For
the fourth element under the AEDA, the plaintiff must show that he was replaced by
someone outside the protected class or someone younger, or was otherwise discharged due
to age. Id.
We agree with the district court that Vasquez has not made out a prima facie case.
The parties do not dispute the first two elements. However, the third and fourth elements
pose problems for Vasquez. He has not shown that he suffered an adverse employment
action because he was transferred to another department within the College with no loss
of pay. Nor has Vasquez shown that anyone was treated more favorably that he was. The
College produced records which indicate that Vasquez earned the highest salary among
those in the library department categorized as “full-time classified staff.” Vasquez claims
that the head of the library department preferred female employees, but his unsupported
and subjective belief is insufficient to show that females were treated more favorably.
Even if a prima facie case were established, the College has articulated a
nondiscriminatory reason for its conduct. Vasquez’s position was no longer necessary in
light of technological advances and the low volume of inter-library loans. The College
hired an independent consulting firm to make this determination. Vasquez’s bald
assertion on appeal that the College administrators acted in a “malicious” manner in
terminating his position does not establish that the College’s reason was only a pretext.
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Because Vasquez did not designate specific facts in support of his claim, summary
judgment was proper on Vasquez’s discrimination claims.
B. Equal Pay Act Claim
Under the EPA, employers are prohibited from discrimination in the payment of
wages for equal work on the basis of an employee’s gender. 29 U.S.C. § 206(d). To
establish a prima facie case under the EPA, Vasquez must show: “1. [his] employer is
subject to the Act; 2. [he] performed work in a position requiring equal skill, effort, and
responsibility under similar working conditions; and 3. [he] was paid less than the
employee of the opposite sex providing the basis of comparison.” Chance v. Rice Univ.,
984 F.2d 151, 153 (5th Cir. 1993).
As the College acknowledges, it is difficult to compare Vasquez’s job with others
in the library department because Vasquez’s job was unique. He alone acted as
coordinator of inter-library loans and was the only employee to ever hold this title.
Vasquez urges that his position is comparable to that of the librarians. However, the
librarian position requires a Masters of Library Science. Vasquez does not have this
degree, so his position is not comparable to that of a librarian, despite his contention to the
contrary. Additionally, as mentioned, the College has shown that Vasquez earned the
highest salary among those in the library department categorized as “full-time classified
staff.” Vasquez has not pointed to any evidence that suggests a female in a similar position
earned a higher wage than he did. Accordingly, Vasquez has not established a prima facie
case under the EPA, and summary judgment was proper.
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C. Texas Whistleblower Act Claim
Under the TWA, a “state or local governmental entity may not suspend or terminate
the employment of, or take other adverse personnel action against, a public employee who
in good faith reports a violation of law by the employing governmental entity . . . to an
appropriate law enforcement authority.” TEX. GOV’T CODE ANN. § 554.002(a). An
employee seeking relief under this statute must bring his claim within ninety days of the
date that the alleged violation occurred. Id. § 554.005.
Vasquez’s claim under this statute fails for two reasons. First, he did not bring suit
within the ninety day limitations period. Vasquez was transferred in February 2001 and
did not bring suit until August 2001. Second, he did not report what he claims was a
whistleblowing activity—his reporting of the alleged book overpricing—to a law
enforcement authority, as required by statute. Summary judgment was proper on this
claim as well.
D. Alternative Dispute Resolution Claim
Finally, Vasquez complains that appropriate alternative dispute resolution (“ADR”)
procedures were not used. While the precise nature of his allegation is unclear, the record
shows that, as required by the district court’s scheduling order, a joint report was filed on
the status of ADR discussions in November 2004. The joint report stated that ADR would
be appropriate after dispositive motions were heard. Vasquez signed this report. By
agreement, ADR would occur after summary judgment motions. There was no error.
IV. CONCLUSION
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The order of the district court is AFFIRMED.
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