                                                                                      United States Court of Appeals
                                                                                               Fifth Circuit
                                                                                             F I L E D
                                                      In the                                February 23, 2004
                           United States Court of Appeals                                Charles R. Fulbruge III
                                          for the Fifth Circuit                                  Clerk
                                                _______________

                                                  m 03-20582
                                                _______________



                                         MARY FRANCES PARKER,

                                                                   Plaintiff-Appellant,

                                                     VERSUS

                                METROPOLITAN TRANSIT AUTHORITY,

                                                                   Defendant-Appellee.


                                        _________________________

                                Appeal from the United States District Court
                                    for the Southern District of Texas
                                              m H-01-3175
                                     _________________________




Before KING, Chief Judge, JONES                            Authority (“Metro”) for retaliation under title
  and SMITH, Circuit Judges.                               VII and violations of the Equal Pay Act. We
                                                           review a summary judgment de novo, using the
PER CURIAM:*                                               same standards as did the district court. BP
                                                           Oil Int’l, Ltd. v. Empresa Estatal Petoleos de
   Mary Parker appeals a summary judgment                  Ecuador, 332 F.3d 333 (5th Cir. 2003).
on her claims against the Metropolitan Transit             Finding no error, we affirm.

                                                                                   I.
   *
     Pursuant to 5TH CIR. R. 47.5, the court has deter-        The district court decided first that Parker
mined that this opinion should not be published and is     had not established a prima facie case of re-
not precedent except under the limited circumstances       taliation, because her being placed on a wit-
set forth in 5TH CIR. R. 47.5.4.
ness list and giving a deposition in her co-             that Parker’s claim fails because (1) one of
worker’s state court action for discrimination           these men had actually had a lower starting
did not constitute participation in a proceeding         salary than Parker, but had received merit rais-
under title VII, and was therefore not protect-          es for which Parker was ineligible because of
ed activity. This is an issue of first impression        poor performance, and (2) the other man per-
in this circuit. Because this appeal must be de-         formed a job that was different from Parker’s
cided on other grounds, we do not pass on the            and for which Parker was not qualified. Sum-
correctness of the district court’s decision on          mary judgment on this claim was correct.
that issue.
                                                            AFFIRMED.
   The district court alternately determined
that had Parker established a prima facie case,
she failed to demonstrate a genuine issue of
material fact as to whether Metro’s legitimate,
nondiscriminatory reasons for her discharge
were pretextual. Metro states that Parker’s
employment was terminated because of her
poor performance and failure properly to com-
ply with appropriate policies.

    The record indicates that Parker received
consistently low performance ratings, that her
supervisors believed she was not successfully
adjusting to the public sector after years of pri-
vate employment, that she was put on proba-
tion several times and given performance im-
provement plans with which she did not com-
ply, and that she did not follow particular pol-
icies on several occasions. Parker argues that
her actions on several occasions were reason-
able, but she has failed to provide evidence
that she did not violate the policies or that her
supervisors’ dissatisfaction with her perform-
ance was not the reason Metro terminated her.
The district court was correct in entering sum-
mary judgment on Parker’s retaliation claim.

                      II.
    The district court also entered summary
judgment on Parker’s Equal Pay Act claims.
Parker points to two male employees who she
alleges are paid more than she is for substan-
tially the same job. The district court decided


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