Case: 14-50119 Document: 00512740221 Page: 1 Date Filed: 08/20/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 20, 2014
No. 14-50119
Lyle W. Cayce
Summary Calendar Clerk
ALETHA WEAVER,
Plaintiff - Appellant
v.
BASIC ENERGY SERVICES, L.P.; BASIC ENERGY SERVICES,
INCORPORATED,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:13-cv-22
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Aletha Weaver sued her former employer, Basic Energy Services, L.P.,
and its parent corporation Basic Energy Services, Inc. She claimed wrongful
discharge in violation of Title VII of the Civil Rights Act of 1964 and of the
Texas Commission on Human Rights Act (“TCHRA”); sexual harassment in
violation of Title VII and TCHRA; sex discrimination in violation of Title VII
and TCHRA; a violation of the Pregnancy Discrimination Act; and a violation
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50119 Document: 00512740221 Page: 2 Date Filed: 08/20/2014
No. 14-50119
of the Equal Pay Act. The district court granted summary judgment on each
claim. Weaver now appeals. We AFFIRM.
The district court dismissed Weaver’s wrongful discharge claims and
sexual harassment claims for failure to exhaust administrative remedies.
Weaver had not alleged facts to support those claims in her claims submitted
to the Equal Employment Opportunity Commission. 1 See Pacheco v. Mineta,
448 F.3d 783, 788-89 (5th Cir. 2006); Waffle House, Inc. v. Williams, 313 S.W.3d
796, 804 (Tex. 2010). The only exhausted claims were those for sex
discrimination arising out of Basic Energy’s failure to pay Weaver while she
was on maternity leave and its failure to raise her pay. On appeal, Weaver
disputes this finding but again relies on events which the district court found
were never presented administratively. Weaver has not shown that the events
about which she complains, which allege unequal treatment based on the fact
she is a woman, give rise to wrongful discharge claims or sexual harassment
claims. The district court did not err.
The district court next found that Weaver’s sex discrimination claims
and Pregnancy Discrimination Act claim arising out her 2007 maternity leave
were time barred. Weaver failed to file charges related to these claims with
the EEOC within 300 days and the Texas Workforce Commission within 180
days. See 42 U.S.C. § 2000e-5(e)(1). Weaver argues on appeal the district court
erroneously concluded that Basic Energy’s statement that it would “make it
right” gives rise to a question of fact for trial. See Teemac v. Henderson, 298
F.3d 452, 457 (5th Cir. 2002). The district court, however, found no evidence
that Basic Energy’s statement altered Weaver’s actions or understanding of
1 The district court dismissed Weaver’s claims against Basic Energy Services, Inc. —
the parent company — because it correctly determined Weaver failed to contest its argument
that it was not Weaver’s employer and therefore not liable for any of her claims. Weaver does
not appeal this dismissal.
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Case: 14-50119 Document: 00512740221 Page: 3 Date Filed: 08/20/2014
No. 14-50119
her rights; thus, there was no evidence that she was actively misled. See
Ramirez v. City of San Antonio, 312 F.3d 178, 184 n.6 (5th Cir. 2002).
Accordingly, the district court did not err by granting Basic Energy summary
judgment on this issue.
Finally, the district court addressed the merits of Weaver’s Equal Pay
Act claim and sex discrimination claims arising out of her allegations that
Basic Energy favored male employees in the form of unequal pay and bonuses.
It found that Weaver failed to establish her prima facie case because she did
not identify a suitable comparator. Weaver argues that she need not identify
a coworker with identical responsibilities in order to present her claim to the
jury. Though Weaver is correct that identifying a comparator with identical
job responsibilities and title is not required, she must identify someone with
circumstances “nearly identical” to her own, such that the court can evaluate
her claim of unfair treatment. Willis v. Cleo Corp., 749 F.3d 314, 320 (5th Cir.
2014). Here, the male coworker identified by Weaver did not hold the same
position, did not have the same job qualifications, and made less than she did.
Weaver failed to present evidence of sex discrimination. The district court did
not err in dismissing the claims based on unequal pay.
AFFIRMED.
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