                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                                                  In the                                January 31, 2005
                         United States Court of Appeals                             Charles R. Fulbruge III
                                       for the Fifth Circuit                                Clerk
                                            _______________

                                              m 04-10442
                                            Summary Calendar
                                            _______________



                                          PERRY ANN STITH,

                                                               Plaintiff-Appellant,

                                                 VERSUS

                                  PEROT SYSTEMS CORPORATION,

                                                               Defendant-Appellee


                                  _________________________

                              Appeal from the United States District Court
                                  for the Northern District of Texas
                                         m 3:02-CV-1424-D
                                ______________________________



Before DAVIS, SMITH, and                               missing her employment discrimination suit
  DENNIS, Circuit Judges.                              against her former employer, Perot Systems
                                                       Corporation (“Perot”). For essentially the rea-
JERRY E. SMITH, Circuit Judge:*                        sons given by the district court in its opinion
                                                       entered on March 15, 2004, we affirm.
   Perry Stith appeals a summary judgment dis-


   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
                       I.                               terminated.
   Because the district court’s opinion1 ade-
quately lays out the facts underlying Stith’s               On August 15, 2001, Stith filed a charge of
lawsuit, we only briefly summarize them here.           discrimination based on race, sex, age, and re-
Smith, a black woman who was sixty-seven                taliation with the EEOC, which rejected it as
years old at the times in question, worked for          untimely. She then sued Perot, claiming viola-
Perot’s Healthcare Division as a “Senior Spe-           tions of title VII, 42 U.S.C. § 2000e-5(e), the
cialist-Staffing.” She had been commuting on            Age Discrimination in Employment Act
a weekly basis from her home in Houston to              (“ADEA”), 29 U.S.C. § 619 et seq., and the
Dallas, the location of the leadership of the           Equal Pay Act (“EPA”), 29 U.S.C. § 255, for
Healthcare Division. While in Dallas, she               alleged discrimination based on race, sex, and
would stay in a corporate apartment, and Perot          age and on retaliation under the ADEA and
would reimburse her for travel and other ex-            title VII.
penses.
                                                                                II.
   On August 29, 2000, Stith’s supervisor in-               We review a summary judgment de novo
formed her that as a cost-saving measure Perot          and are bound by the same standards as those
would be relocating her position to Dallas. She         employed by the district court. See Chaplin v.
was given three options: (1) Move to Dallas at          NationsCredit Corp., 307 F.3d 368, 371 (5th
her own expense; (2) continue to commute to             Cir. 2002). Namely, summary judgment is ap-
Dallas, but at her own expense; and (3) secure          propriate only where “‘the pleadings, deposi-
another position in the company. Stith was told         tions, answers to interrogatories, and admis-
she had until September 8 to decide and that            sions on file, together with the affidavits, if
she would continue receiving travel expenses            any,’ when viewed in the light most favorable
until October 1. Her supervisor, Ed Putonti,            to the non-movant, ‘show that there is no gen-
told her that if she did not make arrangements          uine issue as to any material fact.’” TIG Ins.
to select any of the three options, she would be        Co. v. Sedgwick James, 276 F.3d 754, 759
terminated on November 7.                               (5th Cir. 2002) (quoting Anderson v. Liberty
                                                        Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
   Stith sought other alternatives, which Perot         Once the moving party has demonstrated that
rejected. On September 20, she informed Perot           the non-moving party has no evidence such
that she felt she was being discriminated against       that a reasonable jury could support a verdict
and would be consulting counsel. Nevertheless,          in its favor, the non-moving party must put
she took no significant steps to comply with            forth specific facts that demonstrate a genuine
any of the three options. Accordingly, on               factual issue for trial. See Brennan v. Mer-
September 25 she discovered that her position           cedes Benz USA, 388 F.3d 133, 135 (5th Cir.
had been filled by a younger, white woman. On           2004).
November 7, because Stith had not exercised
any of the three options, her employment was                                   III.
                                                            Because Stith’s claims of race, sex, and age
                                                        discrimination were not filed with the EEOC
   1                                                    within the statutorily mandated 300 days from
    Stith v. Perot Sys. Corp., No. 3:02-CV-1424-
D, 2004 WL 690884, at *1-*2 (N.D. Tex. Mar. 12,
                                                        the time of the alleged discrimination, the dis-
2004).                                                  trict court properly dismissed them as time-

                                                    2
barred. See Mennor v. Fort Hood Nat’l Bank,               on appeal, to argue that her claims are saved
829 F.2d 553, 555 (5th Cir. 1987). Stith was              by the continuing violation doctrine as delin-
informed of Perot’s decision to relocate her po-          eated in Nat’l R.R. Passenger Corp. v. Mor-
sition to Dallas on August 29, 2000, and com-             gan, 536 U.S. 101 (2002). Whatever merit
plained that the decision was discriminatory on           this approach might have, Stith cannot avail
September 20, 2000. Yet, she did not file a               herself of it. As Perot correctly points out,
charge of discrimination with the EEOC until              neither Stith’s complaint nor her filings in
August 15, 2001. These occurrences were 352               opposition to summary judgment make any
and 329 days, respectively, from the date of her          mention of a continuing violation. This ab-
EEOC complaint. Although Stith was termi-                 sence was noted by the district court. Stith,
nated within the 300-day period (i.e., on No-             2004 WL 690884, at *5. We do not consider
vember 7, 2000, or 282 days before her EEOC               evidence or argument that was not presented
filing), the district court correctly rejected that       to the district court. See, e.g., Louque v.
date as a basis for calculation.                          Allstate Ins. Co., 314 F.3d 776, 779 (5th Cir.
                                                          2002).
    “The operative date from which the [300-
day period] begins to run is the date of notice               Stith’s other attempts to escape the 300-
of termination, rather than the final date of em-         day limitations period are equally unpersua-
ployment.” Clark v. Resistoflex Co., 854 F.2d             sive. We have previously recognized an equi-
762, 765 (5th Cir. 1988). “In the Supreme                 table tolling exception to the 300-day limit.
Court’s language in [Delaware State College               See Blumberg v. HCA Mgmt. Co., 848 F.2d
v.] Ricks, the relevant inquiry is when [the em-          642, 644 (5th Cir. 1988). Equitable tolling
ployer] may be considered to have ‘established            applies only where (1) a suit was pending
its official positionSSand made that position             between the same parties in the wrong forum;
apparent’ to [the plaintiff].” Id. (quoting               (2) the plaintiff was unaware of the facts
Ricks, 449 U.S. 250, 262 (1980)).                         giving rise to the claim because of the defen-
Consequently, the district court was entirely             dant’s intentional concealment of them; or
correct to conclude that the 300-day period               (3) the EEOC misled the plaintiff about the
began, at the latest, on September 20, 2000, be-          nature of her rights. Id. Stith claims that the
cause Stith knew on August 29, 2000, of Per-              second possibility applies in her case because
ot’s decision to relocate her position to Dallas.         Perot allegedly concealed the facts that give
                                                          rise to her claim. The district court peoperly
                                                          rejected that argument.
   “If these acts were discriminatory, they were
so immediately.” Stith, 2004 WL 690884, at                   According to Stith, equitable tolling should
*5. Further, “a discharge that is the delayed but         apply because, inter alia, Perot did not take
inevitable consequence of an earlier decision is          action to help her secure another job in the
not a discrete act.” Id. at *8 (citations omit-           company. These actions, if true, however, are
ted). Thus, no discrete discriminatory act took           not attempts to conceal the fact of her alleg-
place within the 300-day period, and Stith’s              edly discriminatory discharge. At the time of
claims are time-barred.                                   Perot’s alleged affirmative acts, Stith was
                                                          already well aware of Perot’s intention to
   Stith tries to avoid this bar in a number of           terminate her if she did not accept one of the
fashions. First, she attempts, for the first time         three options. Accordingly, equitable tolling

                                                      3
does not apply.                                             Stith’s equal pay claims under title VII and
                                                         the ADEA similarly must fail. The district
                        IV.                              court correctly concluded that her EEOC
   In addition to her claims of discrimination           charge did not make any claims of unequal pay
discussed above, Stith avers that Perot sub-             based on age or sex. Further, any claim of un-
jected her to a hostile work environment, dis-           equal pay based on race accrued no later than
crimination by virtue of disparate impact, and           August 29, 2000, and therefore was properly
unequal pay in violation of title VII and the            rejected as time-barred. See part. III., supra.
ADEA. With respect to the disparate impact
claim, Stith’s argument borders on the frivo-
lous. Not only was disparate impact never                                      V.
raised in the district court as a theory of recov-           In contrast to causes of action brought
ery, but Stith failed to exhaust her administra-         under Title VII and the ADEA, Equal Pay Act
tive remedy by raising it in her EEOC com-               claims do not require exhaustion of adminis-
plaint.                                                  trative remedies. See County of Washington v.
                                                         Gunther, 452 U.S. 161, 175 n.14 (1981).
    Filing a charge with the EEOC is a condition         Nevertheless, Stith’s EPA claims were prop-
precedent to the filing of a title VII or ADEA           erly dismissed, because she is unable to dem-
suit. A suit that flows from an EEOC com-                onstrate a genuine issue of material fact.
plaint is limited by charges of discrimination
“like or related to” allegations contained in the           As the district court’s opinion cogently
EEOC complaint.           Sanchez v. Standard            enunciates,
Brands, Inc., 431 F.2d 455, 466 (5th Cir.
1970). Because Stith did not include disparate              The EPA prohibits employers from discrim-
impact discrimination in her EEOC complaint                 inating on the basis of sex by paying wages
and has, therefore, failed to exhaust her admin-            to employees of one sex that are less than
istrative remedy, she cannot recover on that                the rate paid employees of the opposite sex
theory.                                                     for equal work on jobs that require equal
                                                            skill, effort, and responsibility and are
    Although a generous reading of Stith’s fil-             performed under similar working condi-
ings in the district court could yield the conclu-          tions. 29 U.S.C. § 206(d)(1) . To establish
sion that she did raise the specter of a hostile            a prima facie case under the EPA, Stith
work environment claim, it likewise fails for               must show “1. [that Perot] is subject to the
lack of exhaustion of administrative remedies.              Act; 2. she performed work in a position
Nowhere in the narrative of her EEOC charge                 requiring equal skill, effort, and responsi-
is anything other than the alleged discrete acts            bility under similar working conditions ;
of discrimination (i.e., the relocation of her              and 3. she was paid less than the employee
position to Dallas) even mentioned. Further-                of the opposite sex providing the basis of
more, any evidence in the record of alleged                 comparison.” Chance v. Rice Univ., 984
abusive comments took place well outside the                F.2d 151, 153 (5th Cir. 1993) (footnote
300-day filing period, so the claim is time-                omitted). Stith must show that any pay
barred even if considered part of the EEOC                  disparity is a result of sex and cannot be
charge.                                                     attributed to any other factor, and she must
                                                            also show that her male comparators hold

                                                     4
   positions that require virtually identical
   skills, effort, and responsibilities. 29 U.S.C.
   § 206(d)(1); Brennan v. City Stores, Inc.,
   479 F.2d 235, 238 (5th Cir. 1973). “If the
   plaintiff meets this burden, the burden of
   proof ‘shifts to the employer to show that
   the differential is justified under one of the
   Act’s four exceptions.’” Plemer v. Par-
   sons-Gilbane, 713 F.2d 1127, 1136 (5th Cir.
   1983).

Stith, 2004 WL 690884, at *7.

    Stith utterly failed to demonstrate that her
proffered comparators were either payed more
or that the males held positions of equal skill,
effort, or responsibility. For example, Stith
points to her own supervisor as one who pur-
portedly holds an equal position. Additionally,
it is not apparent, from her brief, whether Stith
even challenges this conclusion on appeal.
Were her claim not completely devoid of merit,
therefore, it therefore would likely be waived
for lack of adequate briefing. See FED. R. APP.
P. 28(a)(9)(A); United States v. Martinez, 263
F.3d 436, 438 (5th Cir. 2001). The dismissal of
the Equal Pay Act claims is affirmed.

                      VI.
   The district court’s final basis of decision
was that, although Stith’s retaliation claims are
not time-barred, no reasonable jury could have
found retaliation based on the facts reflected in
the record. Again, Stith’s brief does not specif-
ically debate this point, and the argument is,
therefore, waived. See id.

   AFFIRMED.




                                                     5
