                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  January 14, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 03-10695




Bess J Myers,

                                      Plaintiff-Appellant,

versus


Crestone International LLC,

                                      Defendant-Appellee.

                        --------------------
          Appeals from the United States District Court
                for the Northern District of Texas
                      USDC No. 3:01-CV-1736-K
                        --------------------

Before REAVLEY, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     In this direct civil appeal, Bess J. Myers, Appellant,

challenges the district court’s summary judgment for Crestone

International LLC (“Crestone”), Appellee.    For the reasons that

follow, we affirm.

I. Background

     On February 3, 1998, Myers began working as Practice Manager


     *
          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that this opinion should not be published and is not precedent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
in the Human Resources department of consulting company Crestone.

Her job included recruiting, managing a group of consultants,

selling Crestone’s services, and coordinating marketing events.

Crestone largely functions as a “virtual company” where its

employees work from their home computers across the country.     For

this reason, interaction and communication between employees is

basically limited to teleconferences, e-mails, and company

retreats.

     Over the course of her employment, Myers witnessed a number

of incidents she deemed offensive.   For instance, in the fall of

1998, while attending a company mixer, Myers came upon a number

of male employees huddled around a laptop viewing pictures of

naked women.   This was brought to the attention of Human

Resources division head Lee Martini and Vice President of

Operations Sean McCormack.   At another retreat, McCormack and

Company Practice Leader Mark Ranta “mooned” Myers.   She expressed

her displeasure to McCormack, Ranta, Martini and Division Leader

Jeff Sigelbaum.   In general, Myers claims that Martini,

McCormack, Supervisor Jeff Engel, and Supervisor Jon Commanday

mocked her many concerns about Crestone’s culture, referring to

her as “Ms. EEOC” or the “EEO Police.”   Myers also recalls

company officials referring to women in demeaning ways and

charges that they perpetuated a “boys’ club” atmosphere.

     On September 21, 2000, Engel sent Myers “an overtly

critical” e-mail.   He sent her a second e-mail criticizing her

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self-direction and initiative, on September 25, 2000.      On

September 29, 2000, McCormack and Engel called Myers to tell her

she was fired.    They pointed to a lack of initiative as the

primary reason for her dismissal.     Crestone replaced Myers with

two employees, a male and a female.

       On September 4, 2001, Myers filed a complaint against

Crestone in the U.S. District Court for the Northern District of

Texas, Dallas Division.    She contended that Crestone’s actions

toward her violated Title VII of the Civil Rights Act of 1964

(“Title VII”), the Texas Commission on Human Rights Act

(“TCHRA”), and the federal Equal Pay Act (“EPA”).    Following

discovery, the district court granted Crestone’s summary judgment

motion, finding “no genuine issues of material fact and [holding]

that Crestone is entitled to judgment as a matter of law.”

II. Discussion

       We review grants of summary judgment under Rule 56 de novo,

applying the same standards the district court used.     Am. Home

Assurance Co. v. United Space Alliance, LLC, 378 F.3d 482, 486

(5th Cir. 2004).

            A. Prohibited Discrimination Under Title VII

       Myers argues that, by firing her, Crestone violated Title

VII.    The law reads, in relevant part: “It shall be an unlawful

employment practice for an employer . . . to discharge any

individual . . . because of such individual’s . . . sex . . . .”


                                  3
42 U.S.C. § 2000e-2(a)(1).

     Interpreting Title VII, the Supreme Court has set forth a

methodology for determining “the order and allocation of proof in

a private, non-class action challenging employment

discrimination,” when no direct evidence of discrimination is

presented.   McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800

(1973).   In McDonnell Douglas, the Court dictated that the

plaintiff carries the initial burden to set forth a prima facie

case of discrimination.    Id. at 802.   Under this framework, “[a]

plaintiff satisfies this initial burden by showing that (1) he

belongs to a protected group; (2) he was qualified for the

position sought; (3) he suffered an adverse employment action;

and (4) he was replaced by someone outside the protected class.”

Manning v. Chevron Chem. Co., 332 F.3d 874, 881 (5th Cir. 2003).

     The district court determined on summary judgment that Myers

failed to set forth a prima facie case.    We do not concur with

the court’s reasoning.1    But, because summary judgment was proper

nevertheless, we affirm.     See Kerr v. Comm’r of Internal Revenue,

292 F.3d 490, 494 (5th Cir. 2002).

     Two individuals, one male and one female, were hired to

replace Myers.   Despite Myers’s assertion that the sex of her


     1
     The district court found that Myers was not qualified for
her job. The fact that Crestone hired her for this position and
employed her in it for a significant period of time belies such a
summary conclusion.

                                  4
replacement remains a question of material fact, the record is

clear.    We find that Myers was not replaced by someone outside of

her protected class.

     Accordingly, we agree that Myers has not made a prima facie

showing of discrimination under Title VII.

         B. Prohibited Retaliation Under Title VII & TCHRA

     Under Title VII, to establish a prima facie case of

retaliation, absent direct evidence of such, Myers must show: (1)

that her activity was protected by Title VII; (2) that she has

suffered an adverse employment action; and (3) that there existed

a “causal link” between the action and the protected activity.

See Roberson v. Alltel Info. Servs., 373 F.3d 647, 655 (5th Cir.

2004).    Both parties treat Title VII and the TCHRA as identical

statutes for the purpose of this burden-shifting analysis, using

only federal precedents.   Since Texas courts also look to federal

law to guide their application of the TCHRA, we follow their

lead.    See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739

(Tex. 2003).

     The district court concluded that Myers failed to present a

prima facie case because, inter alia, she produced insufficient

evidence of a causal nexus between the adverse employment action

and her protected conduct.   We agree.

     The only evidence of a connection between her firing and her


                                  5
activity that Myers’s offers is the timing: “Her termination

followed approximately three months after her June 2000

complaints of discrimination.”

     We have held that “the combination of suspicious timing with

other significant evidence of pretext[] can be sufficient to

survive summary judgment.”    Shackelford v. Deloitte & Touche,

LLP, 190 F.3d 398, 409 (5th Cir. 1999).    See also Fabela v.

Socorro Indep. Sch. Dist., 329 F.3d 409, 417 n.9 (5th Cir. 2003);

Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992).

However, a reasonable finder of fact could not conclude that

Crestone’s proffered reasons for Myers’s dismissal were

pretextual.    She simply has not produced enough “evidence [to]

create[] a jury issue as to the employer’s discriminatory animus

or the falsity of the employer’s legitimate nondiscriminatory

explanation.”    Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,

897 (5th Cir. 2002).

     Specifically, the incidents Myers’s points to as evidence of

discriminatory animus either do no relate to her employment at

Crestone or did not involve an employee responsible for her

dismissal.    The inappropriate and patently sexist behavior

alleged, although abhorrent, does not meet this Court’s test for

showing “sufficient evidence of discrimination” in a plaintiff’s




                                  6
discharge.2

       Similarly, Myers’s argument that Crestone has been

inconsistent in the reasons provided for her dismissal is

unpersuasive.       There is no evidence that the current grounds for

dismissal differ materially from those originally given.       Rather,

the current explanations lend detail to the original assertion

that Myers “did not have the initiative that they would expect in

a leadership position and [she] wasn’t keeping up with what was

going on.”3

       Since she has not shown pretext, Myers may rely only on the

dismissal’s timing.       Such evidence is clearly insufficient for a

reasonable jury to find a causal connection.

   C. Compensation Discrimination Under Title VII, TCHRA & EPA

       Myers alleges she was discriminatorily paid less than her

male counterparts in violation of Title VII, the TCHRA, and the

EPA.       We agree with the district court’s conclusion that Myers


       2
     We note that Myers did not complain of hostile work
environment or constructive discharge before the district court,
nor are such claims before us on appeal.
       3
      Myers also argues that her file did not contain negative
evaluations until after Crestone decided to fire her on September
18, 2000. But her brief acknowledges that her personnel file
contained “subjective personal evaluations” alleging “poor
performance” prior to September 18, 2000.
     She also objects to Crestone’s failure to offer her
“progressive discipline” prior to dismissal. However, the record
shows that Crestone discontinued the progressive discipline
policy prior to Myers’s dismissal.


                                     7
did not present a prima facie case under Title VII and the TCHRA,

and that, under the EPA, she failed to produce “evidence that

Crestone paid an appropriate male counterpart higher compensation

. . . for equal work on jobs, performed under similar working

conditions, and requiring equal skill, effort, and

responsibility.”    Myers basically concedes that she had

significantly different responsibilities than her appropriate

male comparators.    See 29 U.S.C. § 206(d)(1); Uviedo v. Steves

Sash & Door Co., 738 F.2d 1425, 1431 (5th Cir. 1984).       In fact,

she states that she and her male colleagues had “many common job

duties” but also “some ‘unique responsibilities.’”    In contrast

with her comparators, Myers states that Crestone “whittled down

her areas of responsibility requiring her to focus more on just

one or two areas.”    For example, Myers was required to route “all

sales leads” to another employee.

     Thus, the district court correctly ruled that Myers failed

to put forth evidence establishing a prima facie case of

discriminatory pay in violation of Title VII and the THRCA.4

     For the foregoing reasons, the judgment of the district

court is hereby AFFIRMED.



     4
     Although the district court’s ruling was correct, the
grounds it gave were not. It held that Myers failed to present a
prima facie case under Title VII because she did not show she was
qualified for her job. This is not the test for discriminatory
pay.

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