                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                      June 18, 2007
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk


                                        No. 06-50873
                                      Summary Calendar



       SALOME FIERROS,

                                            Plaintiff-Appellant,

                                             versus

       TEXAS DEPARTMENT OF HEALTH,

                                            Defendant - Appellee.


                    Appeal from the United States District Court for
                      the Western District of Texas, San Antonio
                                    5:03-CV-202
           _________________________________________________________


Before REAVLEY, WIENER, and DEMOSS, Circuit Judges.

PER CURIAM:*

       Plaintiff-Appellant Salome Fierros appeals from the district court's summary

judgment dismissing her Title VII retaliation claim against her employer, the Texas

Department of Health (“TDH”). Reviewing the record de novo and applying the same



       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
standard as the district court, we affirm for the following reasons:

       1.     To establish a prima facie case of retaliation under Title VII, an employee

              must demonstrate that: (1) she engaged in protected activity; (2) an adverse

              employment action occurred; and (3) a causal link exists between the

              protected activity and the adverse employment action Turner v. Baylor

              Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007). Fierros has

              failed to raise a genuine issue of material fact sufficient to meet the third

              element of this showing.

                     Fierros has produced no evidence that her 1997 charge of

              discrimination and the resulting 1999 lawsuit were causally related to her

              receiving extra paid leave in lieu of a recommended merit pay increase in

              June 2001. In addition to the lack of temporal proximity between the

              events, there is no evidence that Fierros was singled out for such a non-

              monetary merit award. All employees paid from the same budget as Fierros

              who were recommended for merit pay increases received leave instead,

              TDH citing a budget shortfall. There is likewise no evidence that Fierros

              was singled out for placement within the deficient budget. Further, Fierros

              received reclassifications with significant pay increases both before and

              after the merit award, each increase substantially more than the merit raise

              she would have received had there been funds in the budget in 2001.

       2.     Additionally, the alleged $300.00 reduction in pay Fierros asserts as a

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            secondary retaliatory act immediately following her December 2001 charge

            of discrimination is belied by the record evidence. In the earnings

            statement summary table first presented in her response to TDH’s motion

            for summary judgment and then reproduced in appellant’s brief, Fierro

            erroneously cites her $2,101 regular pay from her January 2002 earnings

            statement, rather than her total salary (including benefit replacement and

            longevity pay) as cited for previous months. Fierro’s total salary for

            January 2002 was $2,415.01, which is in keeping with the $2,421 from the

            prior month.

     3.     Finally, we agree with the district court that, even if Fierros had met the

            prima facie elements of a retaliation claim, she could not survive the

            remainder of the McDonnell-Douglas burden-shifting analysis. TDH

            produced a legitimate non-discriminatory reason for awarding Fierros paid

            leave rather than a merit raise: a budget shortfall resulting in identical

            treatment of all similarly-situated employees. Fierros offers no evidence

            that TDH’s stated reason for its employment action was a pretext for

            discriminatory animus.

AFFIRMED.




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