                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                                                                F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                  April 20, 2006
                             FOR THE FIFTH CIRCUIT
                                                                             Charles R. Fulbruge III
                              __________________________                             Clerk

                                     No. 05-50509
                                  Summary Calendar
                              __________________________


JESUS E. VASQUEZ,
                                                                        Plaintiff-Appellant,

versus

EL PASO COUNTY COMMUNITY COLLEGE DISTRICT,

                                                                      Defendant-Appellee.

                 ___________________________________________________

                       Appeal from the United States District Court
                            for the Western District of Texas
                                    (No. 3:02-CV-347)
                 ___________________________________________________


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
                *
PER CURIAM:

         In this pro se case, Jesus E. Vasquez, an employee at El Paso Community College

District (“College”), has brought claims against his employer for discrimination, retaliation

for his alleged whistleblowing activities, and a violation of the Equal Pay Act (“EPA”).

The district court granted summary judgment to the College on all claims. Finding no


*
 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
error, we affirm the judgment of the district court.

                               I. FACTS AND PROCEEDINGS

           Vasquez became the coordinator of inter-library loans at the College in September

1994. In 1996, Vasquez filed a complaint with the Equal Employment Opportunity

Commission (“EEOC”). He alleged age and sex discrimination and retaliation; he founded

his claims on the basis that his salary had not been increased. The EEOC dismissed his

complaint. In 1998, Vasquez reported alleged overpricing of books to an internal auditor.

However, he did not make complaints to an external authority, and there was no further

investigation. In 2000, Vasquez requested that the College reevaluate his salary; a

recommendation was issued that his pay scale be lowered, but the College president

decided that it should remain the same.

           The College eliminated Vasquez’s position on January 31, 2001. The College had

earlier hired an outside consultant to review the College’s library services department.

The consultant determined that, due to technological advances and the generally low

volume of inter-library loans, a full-time employment position was unnecessary to monitor

inter-library loan activities. Accordingly, the College replaced Vasquez’s position with

that of a part-time clerk and transferred Vasquez to another department, with no loss in
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pay.       Vasquez continues to hold his new position as an assistant in the Americana

Language Program.

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On February 1, 2001, when Vasquez was transferred to his new position, his annual salary
was $33,312. As of his last contract, due to a pay increase authorized by the Board of
Trustees for all employees, Vasquez’s annual salary was $35,342.83.

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       In 2001, Vasquez filed an amended charge with the EEOC; again he alleged age and

sex discrimination and retaliation, as well as a violation of the Equal Pay Act. This time

the claim was based on the elimination of his position as coordinator of inter-library loans.

The EEOC dismissed the complaint, and, after the EEOC issued the Notice of the Right to

Sue, Vasquez brought the instant action. Before the district court, Vasquez asserted claims

under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act

(“ADEA”), and the Texas Whistleblower Act (“TWA”), and the EPA. The district court

granted summary judgment to the College on all claims. Vasquez appeals.

                               II. STANDARD OF REVIEW

       This court reviews the district court’s grant of summary judgment de novo. Hunt

v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 762 (5th Cir. 2001). “Summary judgment

is appropriate when there is no genuine issue as to any material fact and the moving party

is entitled to a judgment as a matter of law.” Id. (internal quotations and citation omitted).

In making this determination, this court reviews the facts in the light most favorable to the

nonmoving party. Tarver v. City of Edna, 410 F.3d 745, 749 (5th Cir. 2005). If the moving

party meets its burden in showing an absence of genuine issue of material fact, then the

nonmoving party must “designate specific facts showing that there is a genuine issue for

trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986)).




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                                     III. DISCUSSION

A. Discrimination Claims

       Title VII prohibits an employer from discharging an employee “because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The

AEDA makes the same prohibition based on age. 29 U.S.C. § 623(a)(1). The burden

shifting analysis under Title VII and the AEDA is the same, Bauer v. Albemarle Corp., 169

F.3d 962, 966 (5th Cir. 1999); Meinecke v. H & R Block, 66 F.3d 77, 83 (5th Cir. 1995), and,

therefore, these claims will be addressed together. Under the burden shifting analysis, the

plaintiff must first establish a prima facie case of discrimination. Meinecke, 66 F.3d at 83.

Once established, the prima facie case raises a presumption of discrimination, which the

defendant must then rebut by demonstrating a legitimate, nondiscriminatory reason for

its actions. Id. If the defendant satisfies this burden, then the presumption disappears,

and the plaintiff must show that the defendant’s reasons are a pretext for discrimination.

Id.

       Under Title VII, a plaintiff makes a prima facie case for gender discrimination by

proving (1) that he is a member of a protected class, (2) that he was qualified for the

position, (3) that he suffered adverse employment action, and (4) that either he was

replaced by someone not in the protected class, or others similarly situated were treated

more favorably. Okoye v. Univ. of Tex. Houston Health Science Ctr., 245 F.3d 507, 512–13

(5th Cir. 2001). When the employer does not replace the plaintiff, then the fourth element

instead requires the plaintiff to show that others who are not in the protected class remain


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in similar positions. Bauer, 169 F.3d at 966 (citing Vaughn v. Edel, 918 F.2d 517, 521 (5th

Cir. 1990)). Under the AEDA, the first three elements of a plaintiff’s prima facie case are

the same. Id. (citing Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)). For

the fourth element under the AEDA, the plaintiff must show that he was replaced by

someone outside the protected class or someone younger, or was otherwise discharged due

to age. Id.

       We agree with the district court that Vasquez has not made out a prima facie case.

The parties do not dispute the first two elements. However, the third and fourth elements

pose problems for Vasquez. He has not shown that he suffered an adverse employment

action because he was transferred to another department within the College with no loss

of pay. Nor has Vasquez shown that anyone was treated more favorably that he was. The

College produced records which indicate that Vasquez earned the highest salary among

those in the library department categorized as “full-time classified staff.” Vasquez claims

that the head of the library department preferred female employees, but his unsupported

and subjective belief is insufficient to show that females were treated more favorably.

       Even if a prima facie case were established, the College has articulated a

nondiscriminatory reason for its conduct. Vasquez’s position was no longer necessary in

light of technological advances and the low volume of inter-library loans. The College

hired an independent consulting firm to make this determination. Vasquez’s bald

assertion on appeal that the College administrators acted in a “malicious” manner in

terminating his position does not establish that the College’s reason was only a pretext.


                                             5
Because Vasquez did not designate specific facts in support of his claim, summary

judgment was proper on Vasquez’s discrimination claims.

B. Equal Pay Act Claim

       Under the EPA, employers are prohibited from discrimination in the payment of

wages for equal work on the basis of an employee’s gender. 29 U.S.C. § 206(d). To

establish a prima facie case under the EPA, Vasquez must show: “1. [his] employer is

subject to the Act; 2. [he] performed work in a position requiring equal skill, effort, and

responsibility under similar working conditions; and 3. [he] was paid less than the

employee of the opposite sex providing the basis of comparison.” Chance v. Rice Univ.,

984 F.2d 151, 153 (5th Cir. 1993).

       As the College acknowledges, it is difficult to compare Vasquez’s job with others

in the library department because Vasquez’s job was unique.              He alone acted as

coordinator of inter-library loans and was the only employee to ever hold this title.

Vasquez urges that his position is comparable to that of the librarians. However, the

librarian position requires a Masters of Library Science. Vasquez does not have this

degree, so his position is not comparable to that of a librarian, despite his contention to the

contrary. Additionally, as mentioned, the College has shown that Vasquez earned the

highest salary among those in the library department categorized as “full-time classified

staff.” Vasquez has not pointed to any evidence that suggests a female in a similar position

earned a higher wage than he did. Accordingly, Vasquez has not established a prima facie

case under the EPA, and summary judgment was proper.


                                              6
C. Texas Whistleblower Act Claim

       Under the TWA, a “state or local governmental entity may not suspend or terminate

the employment of, or take other adverse personnel action against, a public employee who

in good faith reports a violation of law by the employing governmental entity . . . to an

appropriate law enforcement authority.”          TEX. GOV’T CODE ANN. § 554.002(a). An

employee seeking relief under this statute must bring his claim within ninety days of the

date that the alleged violation occurred. Id. § 554.005.

       Vasquez’s claim under this statute fails for two reasons. First, he did not bring suit

within the ninety day limitations period. Vasquez was transferred in February 2001 and

did not bring suit until August 2001. Second, he did not report what he claims was a

whistleblowing activity—his reporting of the alleged book overpricing—to a law

enforcement authority, as required by statute. Summary judgment was proper on this

claim as well.

D. Alternative Dispute Resolution Claim

       Finally, Vasquez complains that appropriate alternative dispute resolution (“ADR”)

procedures were not used. While the precise nature of his allegation is unclear, the record

shows that, as required by the district court’s scheduling order, a joint report was filed on

the status of ADR discussions in November 2004. The joint report stated that ADR would

be appropriate after dispositive motions were heard. Vasquez signed this report. By

agreement, ADR would occur after summary judgment motions. There was no error.

                                   IV. CONCLUSION


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The order of the district court is AFFIRMED.




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