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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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