     Case: 15-40011      Document: 00513116568         Page: 1    Date Filed: 07/15/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40011
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 15, 2015
JOANN FIELDS; ROSE TROTTY,                                                 Lyle W. Cayce
                                                                                Clerk
              Plaintiffs - Appellants

v.

STEPHEN F. AUSTIN STATE UNIVERSITY; BOB COKER,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:13-CV-250


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiffs Joann Fields and Rose Trotty appeal the district court’s grant
of summary judgment to defendants Stephen F. Austin State University and
Bob Coker on claims brought under Title VII, the Equal Pay Act, and the Equal
Protection Clause.
       We AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 15-40011   Document: 00513116568    Page: 2   Date Filed: 07/15/2015



                                No. 15-40011
              FACTUAL AND PROCEDURAL BACKGROUND
      The plaintiffs, both African-American females, are employed as shuttle
bus drivers in Stephen F. Austin’s Physical Plant Department (“PPD”). Trotty
has worked for Stephen F. Austin since 1990; Fields was hired in 2006.
Defendant Coker is the manager of Transportation and Special Services for the
PPD. He supervises twenty employees, including the plaintiffs. The plaintiffs
claim they are paid less than certain Stephen F. Austin employees who perform
substantially similar job duties. They also claim Coker created a hostile work
environment due to harassment based on race and sex.
      Trotty and Fields brought suit against the defendants in the United
States District Court for the Eastern District of Texas for wage discrimination
in violation of Title VII and the Equal Pay Act. They also sued Coker in his
individual capacity under 42 U.S.C. § 1983 for violation of their equal
protection rights. The defendants filed a motion for summary judgment on all
claims; the district court granted the motion. The plaintiffs now appeal.
                                DISCUSSION
      A district court’s grant of summary judgment is reviewed de novo.
Berquist v. Washington Mut. Bank, 500 F.3d 344, 348 (5th Cir. 2007). Federal
Rule of Civil Procedure 56(c) “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make
a showing sufficient to establish the existence of an element essential to that
party's case . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All
inferences are drawn in the non-movant’s favor. Berquist, 500 F.3d at 349.
I.    Title VII and Equal Pay Act claims
      The plaintiffs contend they perform substantially the same work as, but
are paid less than, certain male and/or non-African-American employees: two
road bus drivers, three garbage workers, two University Police Department


                                      2
     Case: 15-40011       Document: 00513116568         Page: 3    Date Filed: 07/15/2015



                                      No. 15-40011
shuttle bus drivers, and a supervisor/foreperson.
       To establish a prima facie case of wage discrimination under Title VII,
“a plaintiff must show that he was a member of a protected class and that he
was paid less than a non-member for work requiring substantially the same
responsibility.” Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 522 (5th Cir.
2008). A “plaintiff claiming disparate treatment in pay under Title VII must
show that his circumstances are ‘nearly identical’ to those of a better-paid
employee who is not a member of the protected class.” Id. at 523 (citation
omitted). To establish a prima facie case under the Equal Pay Act, a plaintiff
must show that “(1) her employer is subject to the Act; (2) she performed work
in a position requiring equal skill, effort, and responsibility under similar
working conditions; and (3) she was paid less than an employee of the opposite
sex providing the basis of comparison.” Chance v. Rice Univ., 984 F.2d 151,
153 (5th Cir. 1993).
       The district court held that the plaintiffs failed to present evidence
sufficient to raise a fact issue as to whether their positions were substantially
similar to those of the comparators. 1 We agree.
       The summary judgment evidence provided by the defendants, which was
unrebutted by the plaintiffs, is that Trotty and Fields, as shuttle bus drivers
for the PPD, drive preset on-campus routes from 7:20 a.m. to 5:20 p.m., Monday
through Friday. They do not perform mechanical work, work weekends or
overnight, or supervise employees. The plaintiffs have also driven road buses
and/or garbage trucks at various times during their employment with Stephen
F. Austin.



       1 The district court also found that Trotty failed to establish that she was paid less
than several of the comparators. We do not address this issue as neither plaintiff has
established that their positions were sufficiently similar to those of their comparators.

                                             3
     Case: 15-40011       Document: 00513116568         Page: 4     Date Filed: 07/15/2015



                                       No. 15-40011
       The job duties of the comparators are readily distinguishable. Road bus
drivers transport students off-campus for multi-day, overnight, and weekend
trips, and have mechanical skills.             Garbage workers operate a complex
hydraulic system to lift, dump, and compact garbage, pressure wash the
exterior and interior of their vehicle on a daily basis, start work at 5 a.m., and
work on Saturdays. University Police Department shuttle bus drivers are
tasked with law enforcement duties and regularly work overnight and
weekend shifts. The forepersons supervise employees.
       Accordingly, the plaintiffs’ job duties are not “nearly identical” to those
of their comparators; their positions do not “requir[e] equal skill, effort, and
responsibility under similar working conditions.” Taylor, 554 F.3d at 523;
Chance, 984 F.2d at 153. The comparators’ positions require, among other
things, mechanical skills; out of town, overnight, and weekend work; law
enforcement skills; and the supervision of employees. None of those is a duty
of a PPD shuttle bus driver. 2 Because the plaintiffs “fail[] to make a showing
sufficient to establish the existence of an element essential to [their] case,” the
district court’s grant of summary judgment on plaintiffs’ wage discrimination
claims was proper. See Celotex Corp., 477 U.S. at 322.




       2 The plaintiffs both state they have performed some of the same job duties as their
comparators. Fields stated in her deposition that her job has taken her out of town six times
in the past two years, but that she has never stayed overnight. She also states she has driven
garbage trucks but does not specify how often. Trotty states she was trained to drive road
buses and has driven them, but does not specify how often. Fields testified in her deposition
that Trotty has driven a charter bus three times to her knowledge, but has never stayed
overnight. We find persuasive an unpublished case in which a panel of this court held that
a plaintiff who “intermittently” performed the same duties as a comparator was not sufficient
to “rebut the[] differences in responsibility made clear from the summary judgment record.”
See Tillman v. S. Wood Preserving of Hattiesburg, Inc., 250 F. App’x 622, 625-26 (5th Cir.
2007). The fact that Fields and Trotty have, at various times, driven a road bus and/or
garbage truck does not suffice to raise a fact issue that their positions are substantially
similar to those of the comparators for purposes of wage discrimination.

                                              4
      Case: 15-40011      Document: 00513116568         Page: 5     Date Filed: 07/15/2015



                                       No. 15-40011
II.    Equal Protection Clause claim
       The plaintiffs bring their hostile work environment claim against Coker
under 42 U.S.C. § 1983. They contend that Coker is liable in his individual
capacity for violating their equal protection rights based on harassment due to
race or sex. 3    The district court granted summary judgment on qualified
immunity grounds, finding that the plaintiffs’ “vague, conclusory statements
regarding Defendant Coker’s behavior” did not show that Coker violated their
constitutional rights.
       “[A] plaintiff seeking to defeat qualified immunity must show: ‘(1) that
the official violated a statutory or constitutional right, and (2) that the right
was clearly established at the time of the challenged conduct.’” Morgan v.
Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (quoting Ashcroft v. al-Kidd, 131
S. Ct. 2074, 2080 (2011)).
       “[S]ection 1983 and Title VII are parallel causes of action.” Cervantez v.
Bexar Cnty. Civil Serv. Comm’n, 99 F.3d 730, 734 (5th Cir. 1996). In order to
succeed on a hostile work environment claim, plaintiffs must prove, among
other things, that they were subjected to unwelcome harassment based on race
or sex that affected a condition of employment. Ramsey v. Henderson, 286 F.3d
264, 268 (5th Cir. 2002); Lauderdale v. Tex. Dep’t of Criminal Justice,
Institutional Div., 512 F.3d 157, 163 (5th Cir. 2007). To affect a condition of



       3 We discover no Fifth Circuit caselaw holding that a Section 1983 claim based on a
violation of equal protection rights (as opposed to a Title VII claim) may be brought for
creation of a hostile work environment due to race. We have held that “sexual harassment
in public employment violate[s] the Equal Protection Clause of the Fourteenth Amendment
and is therefore actionable under § 1983.” Lauderdale v. Tex. Dep’t of Criminal Justice,
Institutional Div., 512 F.3d 157, 166 (5th Cir. 2007) (citation and internal quotation marks
omitted). Other circuits have held that race-based workplace harassment can be violative of
equal protection. See, e.g., Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir. 2009) (discussing
race-based hostile work environment claim under the Equal Protection Clause); Williams v.
Seniff, 342 F.3d 774, 788, 791 (7th Cir. 2003) (same).

                                              5
    Case: 15-40011       Document: 00513116568     Page: 6   Date Filed: 07/15/2015



                                    No. 15-40011
employment, the harassment “must be ‘sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working
environment.’” Ramsey, 286 F.3d at 268 (quoting Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993)).
         The plaintiffs claim that Coker called them “girl” or “gal” four times in
2010 and 2011, and that he assigned them to the custodial department for the
summers but did not assign any males. The plaintiffs concede that “Coker’s
use of the phrases ‘girl’ or ‘gal’ is not sufficient in and of itself to constitute a
claim of hostile work environment,” but contend that it “shed[s] light on his
motivations in sending Plaintiffs to the custodial department during summer
months . . . . ”    They also claim that Coker did not allow them to take their
lunch in the motor pool with their co-workers, and that when they complained
to Coker about the alleged disparity in pay, he told them they should “just
quit.”
         We conclude that, drawing all inferences in the plaintiffs’ favor, Coker’s
conduct is not “sufficiently severe or pervasive to alter the conditions of [the
plaintiffs’] employment and create an abusive working environment.” Id.
(citation and quotation marks omitted). The plaintiffs claim Coker referred to
them as “girl” or “gal” four times, but has not done so since 2011. This is not
sufficiently pervasive to create an abusive working environment. See e.g.,
Lauderdale, 512 F.3d at 163 (finding that “ten to fifteen [harassing phone calls]
a night for almost four months . . . . amounts to pervasive harassment”). The
plaintiffs also did not show that their assignment to the custodial shop during
the summers was sufficiently severe. In fact, Fields stated in her deposition
that if she had a choice between her previous summer assignment and




                                          6
     Case: 15-40011      Document: 00513116568         Page: 7    Date Filed: 07/15/2015



                                      No. 15-40011
custodial, she would choose custodial. 4 The plaintiffs also complain that Coker
did not allow them to take their lunch in the motor pool with their co-workers
and that he told them to “just quit” when they objected to their pay. Even if
such actions were found to “alter the conditions of [the plaintiffs’] employment
and create an abusive working environment,” the plaintiffs do not provide any
evidence, as they must, that either action was connected to their race or sex.
Ramsey, 286 F.3d at 268 (citation and quotation marks omitted); Lauderdale,
512 F.3d at 163.
       Because no constitutional violation is shown, we need not address the
second prong of qualified immunity.
       AFFIRMED.




       4 Fields also stated in her deposition that she did not believe Coker assigned her to
the custodial department because of her race or sex.

                                             7
