                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  August 18, 2006
                         _____________________
                                                            Charles R. Fulbruge III
                             No. 05-11299                           Clerk

                          (Summary Calendar)

                         _____________________

LILLIAN PHILLIPS,

                        Plaintiff - Appellant,

v.

TXU CORP., TXU ENERGY CO. LLC, TXU ENERGY RETAIL CO. LP,

                        Defendants - Appellees.

               ________________________________________

          Appeal from the United States District Court
                for the Northern District of Texas
                         No. 3:03-CV-2736
            ________________________________________

Before SMITH, GARZA, AND PRADO, Circuit Judges.

PER CURIAM:*

     Lillian Phillips appeals from the district court’s order

granting summary judgment in favor of her employer, TXU Energy

Retail Co. (“TXU Retail”),1 on all her claims: sex discrimination

in violation of the Equal Pay Act (“EPA”), 29 U.S.C. § 206(e),

and Title VII, 42 U.S.C. § 2000e-2000e-17, and race

     *
       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this opinion should not be published and is not precedent except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.
     1
       TXU Energy and TXU Retail are wholly-owned subsidiaries of
TXU Corp. Throughout this opinion, “TXU” refers to Defendants
collectively.

                                   1
discrimination and retaliation in violation of Title VII.2     For

the following reasons, we AFFIRM.

I. Background

         On May 21, 2001, Duane Lock, Director of Product Management

at TXU Retail, and Jim Hess, Vice-President of Strategic

Businesses at TXU Retail, hired Lillian Phillips, a black female,

for the position of Product Manager in the Product Management

Group.     Product Management was a sub-group within TXU Retail’s

Strategic Accounts Department.     Throughout her employment with

TXU Retail, Phillips reported to Lock, a black male, who reported

to Hess, a white male.

     During the time of Phillips’s employment, TXU Retail

employed five Product Managers and paid them a salary within the

range of $6,420 to $9,640 per month.     Phillips earned the second

highest salary at $7,916 per month.     Chuck Wyse, a white male,

earned $8,666 per month.     Wyse received a $2,500 signing bonus;

Phillips received a $2,000 signing bonus.     A February 2002 raise

brought Phillips’s monthly salary to $8,235, and Wyse’s to

$8,930.

     In December 2001, TXU Energy formed an ad hoc committee to

address issues of supplier diversity, and Lock assigned Phillips

to represent TXU Retail on the committee.     In April 2002,

Phillips helped present a “Supplier Diversity Plan” to the

     2
       Phillips brought one claim in the district court that is
not subject to this appeal.

                                   2
president of TXU Retail.     In addition to her efforts on the

supplier diversity committee, Phillips volunteered as a member of

TXU Corp.’s Diversity Advisory Council (“DAC”).     The DAC met

quarterly with the Diversity Steering Committee to present ideas

and give feedback regarding improving workplace diversity.

     In January 2002, Phillips received an employee review that

indicated she met expectations.     At the performance review

meeting, according to Phillips, Lock told Phillips that Hess “did

not like aggressive women but especially not aggressive black

women.”

         In March 2002, Cheryl Stevens, Vice-President of Workforce

and Supplier Diversity at TXU Business Services Company,3 invited

the DAC members to a “get-to-know-you” lunch.     Phillips had a

conflicting obligation but appeared briefly at Stevens’s luncheon

to introduce herself and said that she felt like she had “stepped

back in time” when coming to work at TXU.     It is unclear how Lock

learned of Phillips’s statement; but after he did, Lock said to

Phillips that she “needed to be careful making those kinds of

statements in this company.”     Lock denies making such a

statement.

     Stevens and Phillips’s relationship became tense as they

quibbled over the turf of Supplier Diversity.     At one point,

according to Phillips, after she and Stevens had a tense

     3
       Phillips did not report to Stevens, either directly or
indirectly.

                                   3
discussion about Supplier Diversity, Stevens said to her, “You’d

better be more afraid of me than of [Lock] because [Lock] can

leave the company, but I will still be here and you will have to

deal with me.”

     In the summer of 2002, TXU Retail underwent a reduction in

force: It terminated Phillips and 33 other Strategic Accounts

employees, including two white males from Product Management.

Phillips complained of her termination to TXU’s General Counsel

in September 2002.   An investigation by Pat Dixon, Employee

Relations Manager, and Tommy Lee, Human Resources Manager of TXU

Retail, ensued.   They concluded that there was no evidence of

discriminatory or retaliatory conduct with respect to Phillips’s

treatment while at TXU or her termination.    Phillips filed suit

on November 10, 2003.   After discovery, TXU filed and won summary

judgment on all of Phillips’s claims.   Phillips appeals.4

II. Discussion

     We review the grant of a summary judgment motion de novo,

and apply the same standard as the district court.    Rachid v.

Jack in the Box, Inc., 376 F.3d 305, 308 (5th Cir. 2004); FED. R.

CIV. P. 56.   We resolve any factual inferences in favor of

Phillips, the nonmovant, and ask whether TXU, the movant, is

entitled to judgment as a matter of law.     Id.

     4
       In her complaint, Phillips also alleged TXU discriminated
against her by failing to hire her for several new positions
after her termination. She does not appeal the district court’s
grant of summary judgment to TXU on that claim.

                                 4
      The McDonnell-Douglas burden shifting standard for both

discrimination and retaliation claims in the Fifth Circuit is

well-settled.     See, e.g., Manning v. Chevron Chem. Co., 332 F.3d

874, 881 (5th Cir. 2003); Davis v. Dallas Area Rapid Transit, 383

F.3d 309, 319 (5th Cir. 2004).     First, Phillips must state a

prima facie case of discrimination or retaliation.     Id.   If she

succeeds, the burden shifts to TXU to provide a legitimate,

nondiscriminatory and nonretaliatory reason for paying her

differently from others in the same position and terminating her.

Id.   If TXU satisfies this burden, the burden again shifts to

Phillips to prove that TXU’s proferred reason was pretextual.

Id.   Phillips may also prove that sex or race was a motivating

factor for the pay differential or her termination, even if TXU’s

reason is true.     Rachid v. Jack in the Box, Inc., 376 F.3d 305,

312 (5th Cir. 2004).     “The plaintiff retains the ultimate burden

of persuasion throughout the case.”     Faruki v. Parsons S.I.P.,

Inc., 123 F.3d 315, (citing Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1981)).

A. Sex Discrimination

      Phillips alleges that TXU discriminated against her on the

basis of sex by paying Wyse more than she was paid for the same

position.   She asserts these facts for her sex discrimination

claim under both the EPA and Title VII.

      “Title VII states that it is unlawful ‘to discriminate

against any individual with respect to his compensation . . .

                                   5
because of such individual’s [. . .] sex.’”     Siler-Khodr v. Univ.

of Tex. Health Sci. Ctr. San Antonio, 261 F.3d 542, 545-46 (5th

Cir.), cert. denied 537 U.S. 1087 (2002) (quoting 42 U.S.C. §

200e-2(a)).   “[T]he EPA has a higher threshold [than Title VII],

requiring that an employer not discriminate ‘between employees on

the basis of sex . . . for equal work on jobs the performance of

which requires equal skill, effort, and responsibility, and which

are performed under similar working conditions.    In short, it

demands that equal wages reward equal work.’”     Id. at 546 (citing

29 U.S.C. 206(d)(1); Corning Glass Works v. Brennan, 417 U.S.

188, 195 (1974).    Phillips’s burden to show that TXU’s

legitimate, nondiscriminatory reason is pretextual applies to

both theories.     Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136

(5th Cir. 1983).    The EPA defines the range of legitimate,

nondiscriminatory reasons available to an employer: An employer

may pay different wages under these circumstances based on one of

the four statutory exceptions to the EPA: (1) a seniority system;

(2) a merit system; (3) a system that measures earning by

quantity or quality of production; or (4) a differential based on

any other factor other than sex.       Id.

     TXU does not contest that Phillips established a prima facie

case for sex discrimination under both the EPA or Title VII.

Assuming she did,5 we proceed to TXU’s asserted legitimate,

     5
       The district court did not decide the issue, and TXU does
not contest that Phillips has established a prima facie case with

                                   6
nondiscriminatory reason for its acts: Wyse had an MBA, unlike

Phillips, and had more years of marketing experience than she

did.6       TXU produced a witness from its human resources department

who testified that employees’ salaries, including Wyse’s and

Phillips’s, depended on their education and experience, and that

he placed Wyse in a higher pay range because of Wyse’s education

and experience.       Lock testified he determined what amount to

offer to each Wyse and Phillips based on the salary ranges

established by the human resources department.

        Phillips makes three arguments that TXU’s reason is

pretextual: she claims (1) that TXU did not consider education

and experience in determining salaries; (2) that Lock never

compared her education and experience to Wyse’s; and (3) that

TXU’s nondiscriminatory reason does not actually explain

Phillips’s salary at the time that decision was made.       In support

of her first argument, she points to another Product Manager,

Trey Beasley, who earned less than Phillips despite Beasley’s



regard to her claim for sex discrimination under the EPA. To
establish a prima facie case under Title VII, Phillips must show
that she was (1) a member of a protected class, and (2) she was
paid less than a nonmember for work requiring substantially the
same responsibility. See Plemer at 1136. To establish a prima
facie case under the EPA, Phillips must show that: (1) TXU is
subject to the EPA; (2) she performed work in a position
requiring equal skill, effort, and responsibility under similar
working conditions as an employee of the opposite sex; and (3)
she was paid less than the employee of the opposite sex. See
Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993).
        6
            Phillips does not contest these facts.

                                     7
MBA.    Philips contends TXU could not have considered Wyse’s MBA

in determining his salary because Beasley’s MBA did not secure

him a larger salary than Phillips.    Phillips ignores that

education was but one of the two factors cited by TXU as

variables that explain salary differences.    The differences in

pay between Wyse, Phillips, and Beasley also depend on their

respective experience.

       Regarding Phillips’s second argument, it is uncontested that

Lock did not make a side-by-side comparison of Wyse’s and

Phillips’s education and experience.    Phillips recounts Lock’s

testimony that “[i]f there was a difference [in the salary

offered to Wyse and Phillips], it could have pretty much been

primarily two things, education and experience.”    Phillips makes

much of Lock’s ostensible uncertainty in this testimony.      Her

main contention is that Lock offers this explanation for the

salary difference as a possibility, not an actual fact.    First,

neither the EPA nor Title VII requires employers to make side-by-

side comparisons.    TXU’s identification of a differential basis

other than sex to explain the difference in Wyse’s and Phillips’s

salaries suffices to meet the EPA’s threshold.    Second, Lock’s

testimony does not prove that he did not rely on Wyse’s and

Phillips’s education and experience in determining what salary to

offer each.    Lock explained that he did not remember whether

there was a pay differential.    He also explained the human

resources department’s role in compensation decisions during his

                                  8
deposition:

     Q: Do you remember in relation to Ms. Phillips’ offer
     whether Mr. Wyse’s offer was higher or lower than hers?

     A: At the time I had no idea whether it was higher or lower.
     I was given a scale by HR; and based upon background,
     experience, education, and consensus with HR, an offer was
     made.

Lock relied on the   human resources department to set appropriate

salary ranges for potential employees.   Phillips does not allege

that TXU’s human resources witness discriminated against her when

he set her salary range.   Clearly, when Lock accepted Human

Resource’s recommended salary ranges for each employee, he relied

on Wyse’s and Phillips’s education and experience in determining

their respective salary offers.7

     Phillips fails to establish TXU’s nondiscriminatory reason

as pretextual.   We affirm the district court’s grant of summary

judgment to TXU on her claim for sex discrimination under both

the EPA and Title VII.

B. Race Discrimination and Retaliation under Title VII

     Assuming Phillips established a prima facie case for Title

     7
       In addition to the aforementioned arguments, Phillips
quotes Patrick v. Ridge, 394 F.3d 311 (5th Cir. 2004), and Uviedo
v. Steves Sash & Door Co., 738 F.2d 1425 (5th Cir. 1984), to
argue that TXU did not proffer sufficient evidence to support its
nondiscriminatory reason. Phillips’s reliance is misplaced.
Unlike in Patrick, the testimony of TXU’s witness from its human
resources department supports Lock’s explanation for the pay
differential and squarely places the reason behind the pay
differential at the time Lock made Phillips the salary offer.
Unlike in Uviedo, TXU timely offered evidence to support its
nondiscriminatory reason for paying Phillips a lower salary than
Wyse.

                                   9
VII race discrimination and retaliation,8 we turn to TXU’s

proffered nondiscriminatory reason for Phillips’s termination.

TXU states that it terminated Phillips as part of a reduction-in-

force (“RIF”), termed “Project OPUS.”    Upper level managers

received training and evaluated employees in an assessment

process that examined their job-related competencies.    Lock

scored Phillips lowest among the Product Managers.    Hence, she

was one of three who were terminated.9

     Phillips concedes that terminating an employee in a RIF can

be a legitimate, nondiscriminatory reason for terminating an

employee, but contends that TXU did not offer further evidence in

support of its decision to terminate Phillips instead of other

employees.   On the contrary, TXU offered evidence that Phillips

received the lowest score on the assessment because of Lock’s

perception of her lack of experience in product management and

     8
       A prima facie case of race discrimination requires that
Phillips show that (1) she belonged to a protected group; (2) she
was qualified for her position; (3) she was terminated; and (4)
others who were not members of the protected class remained in
similar positions. See Bauer v. Albemarle Corp., 169 F.3d 962,
966 (5th Cir. 1999).
     Although TXU contests that Phillips demonstrated a prima
facie case of retaliation, for purposes of this review, we assume
that she did. Her prima facie case of retaliation requires
evidence that (1) she engaged in an activity protected by Title
VII; (2) that an adverse employment action occurred; and (3) that
a causal link exists between the protected activity and the
adverse employment action. Roberson v. Alltel Info. Servs., 373
F.3d 647, 655 (5th Cir. 2004).
     9
       One white male volunteered for termination; and the
employee with the next lowest score on the OPUS assessment,
another white male, was terminated with Phillips.

                                10
financial acumen.

     Phillips does not contest that she received the lowest score

but argues that TXU’s reason is pretextual.      She maintains that

her score is inaccurate and that TXU has given inconsistent

reasons for her termination.   Phillips argues her score was

inaccurate because it was based on an inaccurate assessment, the

January 2002 performance reviews.      She alleges that the January

performance reviews were biased.      Even if we were persuaded by

Phillips’s arguments, TXU denies that the January performance

reviews were used in the decision-making process for the RIF, and

Phillips offers no evidence in support of her contention.

     Next, Phillips argues that TXU gave conflicting reasons for

her termination.    While each reason on its face may differ from

some others, Phillips ignores their relevancy to one another.

For example, she quotes Lock: “[The] two reasons why [Phillips]

was let go . . . [are] lack of experience with product

developmental [sic] management and lack of experience [with]

financial acumen.”   She recounts TXU’s summary judgment motion:

“Phillips was selected to be terminated in the [RIF] based on her

low assessment scores, her limited knowledge of the Energy

Sentinel suite of products, and lack of financial skills.”

Phillips also cites to Dixon and Lee’s report to demonstrate what

she deems is another conflicting explanation: “[Phillips’s

termination] was due in large part to [her] lack of success in

completing two product development initiatives.”      Phillips argues

                                 11
that these ostensibly different reasons demonstrate their

falsity, relying on Thornbrough v. Columbus & Greenville R.R.

Co., 760 F.2d 633 to support this assertion.

     Unlike in Thornbrough, reversal and remand is not warranted

in the instant case because Phillips did not refute any of the

quoted reasons; she thus fails to raise a genuine issue of

material fact with regard to pretext.     See id. at 646.

Furthermore, the record demonstrates that Lock’s and TXU’s

reasons support one another: Lock admitted that he used the

assessment he prepared in deciding who he would terminate, and he

attributed Phillips’s low score on the assessment to her lack of

experience with product development management and lack of

financial experience.   TXU’s summary judgment motion mentioned

both the assessment and Phillips’s lack of financial experience.

Even if Dixon’s and Lee’s roles were relevant to Phillips’s

termination, the reason they cite in their report is not

necessarily inconsistent with the others.

     Phillips next contends that even if TXU’s reason is true,

TXU was motivated by her race in terminating her.    She recounts

the tension between her and Stevens in the wake of Phillips’s

comment that she felt like she “stepped back in time.”      She

reminds the court of Lock’s admonition that she “be careful

making those kinds of statements in this company,” as well as his

earlier statement that Hess “did not like black women but

especially not aggressive black women.”    Phillips contends that

                                12
Lock is a “cat’s paw” for Hess, and that Lock terminated Phillips

to please his boss.

     A remark is considered probative of discrimination if it

demonstrates discriminatory animus and was made by a person

primarily responsible for the adverse employment action or by a

person with influence or leverage over the formal decisionmaker.

Laxton v. Gap, Inc., 333 F.3d 572, 583 (5th Cir. 2003); See

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir.

2002).

     Lock’s remark about Hess suggests that Hess held the

discriminatory animus, not the speaker.   As it was Lock who was

responsible for Phillips’s termination, not Hess, Lock’s remark

about Hess’s alleged dislike is not probative of discrimination.

Phillips fails to produce any evidence to support her contention

that Lock was acting at Hess’s behest when he terminated

Phillips.10   Lock’s “better be careful” remark, assuming arguendo

that it evidences discriminatory animus, stands alone as the only

evidence of pretext.   It does not raise a genuine issue of

material fact that TXU discriminated against Phillips.     See

Palasota v. Haggar Clothing, Inc., 342 F.3d 569, 577 (5th Cir.

2003) (“After Reeves . . . so long as remarks are not the only

evidence of pretext, they are probative of discriminatory



     10
       Phillips’s “cat’s paw” argument consists of conclusory
allegations. The facts in this case do not raise the suspicion
generated in Russell v. McKinney Hospital Venture, 235 F.3d 219
(5th Cir. 2000), on which Phillips relies.
                                13
intent.”).

     Phillips also points to Stevens’s remark, “[y]ou’d better be

more afraid of me than of [Lock]” as evidence of retaliation.

Phillips does not offer any evidence that Stevens had influence

or leverage over the formal decisionmaker, Lock.

     III. Conclusion

     We AFFIRM the district court’s grant of summary judgment.




                               14
