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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-20738                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
MARGARET D. THIBODEAUX-WOODY,                                           November 14, 2014
                                                                        Lyle W. Cayce
                                                  Plaintiff - Appellant      Clerk
v.

HOUSTON COMMUNITY COLLEGE,

                                                  Defendant - Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            U.S.D.C. No. 4:11-CV-4081


Before SMITH, BARKSDALE, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:*
       Plaintiff-Appellant Margaret D. Thibodeaux-Woody (“Woody”) appeals a
summary judgment in favor of Defendant-Appellee Houston Community
College (“HCC”). Because we conclude that genuine disputes of material fact
remain with respect to Woody’s Equal Pay Act and related Title VII sex
discrimination claims, we REVERSE the judgment with respect to these
claims. In all other respects, we AFFIRM the judgment.
                                             I.
       Woody, who is female, began working as a part-time, adjunct faculty



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                    No. 13-20738
member for HCC in 1998. In February 2008, Woody applied and interviewed
for one of HCC’s two open program manager positions. Woody interviewed
with Joseph Little, who would be her supervisor were she to receive the job.
Little informed Woody that the position paid $41,615 per year. Woody alleges
that during the conversation, she informed Little she would like to negotiate
for more, but Little told her the stated salary was the maximum amount HCC
was willing to offer and there could be no negotiations for a higher salary. 1
HCC contends that Little was not the appropriate salary negotiator, but Little
did not forward Woody’s request to negotiate to any such authorized person.
In March 2008, Don Washington, HCC’s Director of Employment Services,
called Woody to offer her the position, and, in reliance on Little’s admonition,
she accepted the position later that month without any salary negotiations.
      Around the same time, Washington offered Alan Corder, a male, the
other program manager position at the same salary.                 Corder, however,
counteroffered for $60,000. Though Washington lacked authority to negotiate
Corder’s salary, he forwarded the request to the proper authorities in the
human resources department (“HR”). HR responded to Corder’s counteroffer
with an offer of $52,000, which Corder accepted.
      There is no evidence that Corder was told at any point—during his
interview or at the time of the offer—that he could not negotiate. To the
contrary, Woody presented evidence that HCC had an informal policy that
permitted negotiation. Woody further presented evidence that Little knew or
should have known about the policy before Woody accepted her offer in March
2008, though Little, like Washington, lacked authority to negotiate salaries.



      1 HCC objects to Woody’s affidavit as hearsay. However, the statements asserted in
Woody’s affidavit are admissions of a party opponent and thus are admissible as summary
judgment evidence. FED. R. EVID. 801(d)(2).
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Indeed, Little was included on e-mails regarding Corder’s salary negotiation
but kept quiet about Woody’s request to negotiate.
      Corder and Woody began working in their new positions on April 16,
2008. Approximately one year later, Woody learned that Corder was paid more
than she. She contacted people in HR to discuss the discrepancy in June 2009.
They informed her that Corder had negotiated for more money at the time he
was hired and that there was nothing they could do to ameliorate the disparity.
In 2011, Woody sent a demand letter to HCC. When that produced no results,
Woody filed a charge with the Equal Employment Opportunity Commission
(“EEOC”) in June 2011.
      Woody alleges that Little made several comments after she was
employed as a program manager that indicate a bias against women. For
example, she alleges that Little referred to her as a “princess,” “dingy,” and
“blonde.” On separate occasions, he allegedly told her she reminded him of his
mother and suggested she rely on her husband’s income.
      Throughout the time she worked at HCC, Woody and Corder received
annual standard pay increases.     Woody also received annual performance
evaluations.   Woody received overall ratings of “exemplary,” the highest
category, for the years 2008–2009 and 2009–2010. In the 2010–2011 review,
Woody received a “professional” rating, which is one level below “exemplary.”
Woody also alleged that she was written up in July 2011 for inconsequential
issues.
      Woody received a “right to sue” notice in September 2011, and sued on
November 22, 2011. In her complaint, Woody accused HCC of violating the
Equal Pay Act (“EPA”) and Title VII by paying her less than Corder; she also
accused HCC of retaliation.      HCC asserted Corder’s negotiations as a
legitimate, nondiscriminatory reason for the wage disparity.
      The parties moved for summary judgment, Woody on her EPA claim and
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HCC on all of Woody’s claims. The district court granted summary judgment
in favor of HCC as to each of Woody’s claims. Woody timely appealed.
                                       II.
      We review a summary judgment de novo.            See E.E.O.C. v. Chevron
Phillips Chem. Co., L.P., 570 F.3d 606, 615 (5th Cir. 2009).           Summary
judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a). A disputed fact is material if it “might affect the outcome of the suit
under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “Doubts are to be resolved in favor of the nonmoving party, and any
reasonable inferences are to be drawn in favor of that party.” Evans v. City of
Bishop, 238 F.3d 586, 589 (5th Cir. 2000). “When parties file cross-motions for
summary judgment, we review each party’s motion independently . . . .” Cooley
v. Hous. Auth. of City of Slidell, 747 F.3d 295, 298 (5th Cir. 2014) (citation and
quotation marks omitted).
A. Wage Discrimination
      Woody claims that HCC violated the EPA and Title VII by paying Corder
more than she was paid, despite their similar qualifications. To state a prima
facie case for wage discrimination under the EPA, a plaintiff must show that
the employer pays different wages to men and women, the employees perform
“equal work on jobs the performance of which requires equal skill, effort, and
responsibility,” and the employees perform their jobs “under similar working
conditions.” 29 U.S.C. § 206(d)(1); see also Corning Glass Works v. Brennan,
417 U.S. 188, 195 (1974). Once the employee has carried her burden to show
unequal wages, “the burden shifts to the employer to show that the differential
is justified under one of the [EPA’s] four exceptions,” only the last of which is
relevant here. Corning Glass Works, 417 U.S. at 196. An employer is not liable
under the EPA if it shows that the pay differential is “made pursuant to . . . a
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                                    No. 13-20738
differential based on any other factor other than sex.” § 206(d)(1).
      HCC agrees that Woody has made a prima facie case of wage
discrimination under the EPA. However, HCC argues that the difference in
Woody and Corder’s salaries was due to their different approaches to salary
negotiation, which it contends is a “factor other than sex.” 2
      Woody argues that negotiation is not a proper “factor other than sex”
because men and women’s different success in negotiation may reflect exactly
the sort of inequality Congress intended the EPA to cure. To resolve the matter
before us, we need not—and do not—decide whether negotiation is a proper
“factor other than sex.” The “factor other than sex” defense applies only where
“pay differentials are based on a bona fide use of ‘other factors other than sex.’”
Washington Cnty. v. Gunther, 452 U.S. 161, 170 (1981) (emphasis added). A
practice is not a bona fide “factor other than sex” if it is discriminatorily
applied. Cf. Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1047 (5th Cir. 1973)
(rejecting employer’s argument that a training program was a “factor other
than sex” that justified higher salaries for male employees where no female
employee had ever been included in training program).
      Woody avers that she attempted to negotiate, but Little told her she
could not.    In contrast, Corder’s counteroffer was elevated to the proper
authority. Woody has also shown evidence that suggests Little knew this
information to be false, at least before Woody accepted her offer, but did not
attempt to correct his earlier misstatement regarding the availability of



      2 Though HCC presented only its negotiation defense to the district court, HCC now
argues on appeal that HR’s consideration of Corder’s qualifications warranted the higher
salary. The evidence shows that HR discussed Corder’s qualifications without reference to
Woody’s. “[T]he subjective evaluations of the employer cannot stand alone as a basis for
salary discrimination based on sex,” particularly where there is no evidence that the
employer compared the male candidate with the female candidate. Brennan v. Victoria Bank
& Trust Co., 493 F.2d 896, 902 (5th Cir. 1974).
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negotiation. HCC responds that Woody also spoke with Washington and had
an equal opportunity to negotiate.             It also argues that Little’s alleged
statements to the contrary are immaterial because he did not have the
authority to negotiate Woody’s salary.
      Based on our review of each of the cross-motions for summary judgment
on the EPA claim, however, a reasonable factfinder could reject HCC’s defense
on the ground that it discriminatorily applied its negotiation policy. See Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1265 (5th Cir. 1991) (“But
because the moving party has the burden of proof under this scenario, the
nonmoving party may also defeat the motion by showing that the moving
party’s evidence is so sheer that it may not persuade the reasonable fact-finder
to return a verdict in favor of the moving party.”). As there remain genuine
disputes of material fact in this case, the grant of summary judgment to either
party was improper. 3 We therefore conclude that the district court erred in
granting summary judgment in favor of HCC on this claim.
      For the same reason, the district court erred in granting summary
judgment regarding Woody’s Title VII sex discrimination claim to the extent
that decision was also based on HCC’s negotiation defense.                “Under the
[McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)] framework, a plaintiff
must first establish a prima facie case of sex discrimination. The employer
then bears the burden of producing a legitimate, non-discriminatory reason for
its actions. . . . Once the employer offers a legitimate, nondiscriminatory
reason for the plaintiff’s treatment, the presumptions of the McDonnell
Douglas framework dissipate, and the plaintiff bears the ultimate burden of



      3  As there exist genuine disputes of material fact as to whether negotiation was
available to Woody, she is also not entitled to summary judgment in her favor on her EPA
claim.
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persuading the trier of fact that the defendant engaged in intentional
discrimination.” Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 593 (5th
Cir. 2007) (internal citations omitted).             Title VII incorporates the same
affirmative defenses as the EPA, including the “factors other than sex” defense.
See 42 U.S.C. § 2000e-2(h); Gunther, 452 U.S. at 171.
       Having determined that HCC’s negotiation defense precluded Woody’s
EPA claim, the district court ruled that it also precluded her Title VII claim
because “[s]ex discrimination claims under Title VII have the same defenses to
wage disparity claims as the [EPA].” Thibodeaux-Woody v. Houston Comm.
Coll., No. 4:11-cv-4081, slip op. at 3 (S.D. Tex. Nov. 22, 2013). As discussed,
Woody has raised a genuine dispute of material fact as to the validity of HCC’s
defense. If negotiation is not available to persons of both sexes, it cannot be a
legitimate, nondiscriminatory reason for a pay differential. Thus, the district
court also erred in granting summary judgment on this claim to the extent it
was based upon the pay differential. 4
B. Retaliation
       With respect to Woody’s retaliation claim, we agree with the district
court’s decision that Woody fails to present summary judgment evidence
supporting a prima facie case of retaliation. To establish a prima face case of


       4  Unlike an EPA claim, a wage discrimination claim under Title VII requires a
showing of discriminatory motive. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324,
335–36 & n.15 (1977). We view Little’s alleged statements to Woody (such as calling her
“dingy,” “princess,” and “blonde”) as evidence in support of her claim of discriminatory motive.
To the extent that Woody asserts a claim for sex discrimination based on a hostile work
environment, however, we conclude these statements are not “sufficiently severe or pervasive
to alter the conditions of [Woody’s] employment and create an abusive working environment.”
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (citation and internal quotation
marks omitted). Thus, we affirm the summary judgment of Woody’s Title VII claim to the
extent it is based on a hostile work environment. See Hernandez v. Velasquez, 522 F.3d 556,
560 (5th Cir. 2008) (“Even if this court disagrees with the reasons given by the district court,
it may affirm a grant of summary judgment on any grounds supported by the record and
presented to the court below.”).
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retaliation under either Title VII or the EPA, Woody must show: (1) she
participated in an activity protected by Title VII; (2) her employer took an
adverse employment action against her; and (3) a causal connection exists
between the protected activity and the adverse employment action. Banks v.
E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003). In the
context of a retaliation claim, an adverse employment action is an action that
is “materially adverse” that “might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation and internal quotation marks
omitted). If Woody makes this showing, the burden shifts to the employer to
articulate a legitimate, nonretaliatory reason for the adverse employment
action. Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002).
      Woody claims that after she informed HCC of her concerns regarding the
salary disparity, a protected activity, they retaliated against her in three ways:
(1) her salary was not adjusted to the same level as Corder’s salary; (2) her
evaluations went from “exemplary” to “professional,” one level lower; and (3)
she was reprimanded in July 2011 for allegedly inconsequential issues. None
of these actions supports a prima face case for retaliation.
      Woody first argues that HCC retaliated against her by continuing to pay
her a lower salary than Corder after she complained about the disparity. The
denial of a pay increase can be an adverse employment action. Fierros v. Texas
Dep’t of Health, 274 F.3d 187, 194 (5th Cir. 2001), overruled on other grounds
by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). However, Woody does not
present evidence that supports a “but for” “causal link” between her complaint
and HCC’s denial of the pay increase. Banks, 320 F.3d at 575; see Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (requiring “but for”
causation for retaliation cases under Title VII).
      The “professional” rating in her 2010–2011 performance review and the
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July 2011 written reprimands also do not support Woody’s claim. Though an
employment action need not be an “ultimate employment decision” to be
considered adverse, it must be something that would “have dissuaded a
reasonable worker from making or supporting a charge of discrimination,”
White, 548 U.S. at 67–68 (citation and internal quotation marks omitted).
Woody has not established that either action is an adverse employment action,
as she must to establish a prima facie case. Woody did not allege that a
“professional” rating, rather than an “exemplary” rating, would have a
negative effect on her position or salary. A less than optimal performance
review, without more, is not something that would have discouraged Woody
from asserting a charge of discrimination. See Baloch v. Kempthorne, 550 F.3d
1191, 1199 (D.C. Cir. 2008) (“[P]erformance reviews typically constitute
adverse actions only when attached to financial harms.”). 5
       Similarly, Woody fails to proffer evidence showing that the “write-up” in
July 2011 is an adverse employment action. While a reprimand can serve as
the basis for a retaliation claim under certain circumstances, see Willis v. Cleco
Corp., 749 F.3d 314, 318 (5th Cir. 2014) (finding that a reprimand supported a
retaliation claim where the supervisor previously stated he would find a way
to fire plaintiff), we have held that a written reprimand, without evidence of
consequences, does not constitute an adverse employment action.                        See
Hernandez v. Johnson, 514 F. App’x 492, 499 (5th Cir. 2013); DeHart v. Baker



       5  Even if the performance review constituted an adverse employment action, Woody
fails to show causation. Woody spoke with HR regarding her pay in June 2009. However, in
the performance review for 2009–2010, which followed her conversation with HR, she
received an overall “exemplary” rating. Moreover, she did not file her complaint with the
EEOC until after the deadline of completion for the 2010–2011 evaluation. Thus, Woody does
not establish that her complaints regarding her salary two years earlier caused the lesser,
but still good, 2010–2011 performance review. See Clark Cnty. Sch. Dist. v. Breeden, 532
U.S. 268, 273–74 (2001) (noting that a three-month or four-month period may be close enough
to establish a causal nexus but holding that a twenty-month period was not).
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Hughes Oilfield Operations, Inc., 214 F. App’x 437, 442 (5th Cir. 2007). 6 Woody
has failed to meet the necessary threshold.
                                           III.
      Accordingly, we REVERSE the judgment as to Woody’s EPA and Title
VII claims based upon the pay differential and AFFIRM the judgment in all
other respects. We REMAND the case for further proceedings consistent with
this opinion.




       6Although Hernandez and DeHart are not “controlling precedent,” they “may be [cited
as] persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing
5TH CIR. R. 47.5.4).
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