IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-40389
Summary Calendar
_____________________
SHARON P JOHNSON,
Plaintiff-Appellant,
v.
EAST TEXAS LEGAL SERVICE INCORPORATED,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(5:93 CV 117)
_________________________________________________________________
July 23, 1996
Before KING, HIGGINBOTHAM, and STEWART, Circuit Judges.
PER CURIAM:*
Sharon P. Johnson appeals the district court’s granting of
summary judgment in favor of East Texas Legal Services (“ETLS”)
on her claim of race discrimination. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Johnson brought this Title VII action against ETLS, alleging
discrimination on the basis of her race. She claims that she was
paid inequitable wages and denied training because she is
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
African-American.
When Johnson was promoted from her position as Assistant to
the Managing Attorney to her present position as Pro Bono
Coordinator, her salary was increased from $22,525 to $23,375 --
an increase of $1,350. Four years later, when Debbie Salter, a
Caucasian woman, was promoted from Legal Secretary to Pro Bono
Coordinator, her salary was increased from $18,700 to $23,900 --
a much larger salary increase ($5,200) than Johnson had received.
Later, Johnson and a Caucasian woman requested permission to
attend a Pro Bono Conference in Missouri. Both were denied
approval to attend this conference. In addition, Johnson was not
selected to attend a computer training session for case-handling
staff. All case-handlers, Caucasian and African-American, were
selected to attend this training session. Johnson was not a
case-handler. Johnson claims that she was denied training
requests on several other occasions, but none is documented in
the record.
Because Johnson offered no evidence that the explanations
offered by ETLS were either untrue as a matter of fact or a mere
pretext for illegal discrimination, the trial court determined
that ETLS’s treatment of Johnson was not racially motivated.
Concluding that there were no questions of fact to be presented
to a jury, the court granted ETLS’s motion for summary judgment.
Johnson timely appealed.
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II. DISCUSSION
This court reviews the granting of summary judgment by the
trial court de novo and uses the same standards as the trial
court in determining whether summary judgment was appropriate. A
party is entitled to summary judgment if it can demonstrate that
there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the burden of establishing that there
are no genuine issues of material fact. Lockart v. Kobe Steel
Ltd. Const. Machinery Div., 989 F.2d 864, 868 (5th Cir. 1993).
If the movant satisfies its initial burden of demonstrating the
absence of a material fact issue, the non-movant must identify
specific evidence in the summary judgment record demonstrating
that there is a material fact issue concerning the essential
elements of its case for which it wil bear the burden of proof at
trial. Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). In
determining whether there is an issue of material fact, we review
the evidence bearing on the issues, viewing the facts and
inferences drawn therefrom in the light most favorable to the
non-moving party. Lemelle v. Universal Mfg. Corp., 18 F.3d 1268,
1272 (5th Cir. 1994). However, a party opposing a summary
judgment motion may not rest upon mere allegations contained in
his pleadings, but must set forth and support by summary judgment
evidence specific facts showing the existence of a genuine issue
for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57
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(1986).
In the absence of direct evidence of discrimination, a
plaintiff can establish a prima facie case of disparate treatment
in terms and conditions of employment by showing (1) that she is
a member of a protected class, (2) that she suffered adverse
treatment in the terms and conditions of her employment, and (3)
that similarly situated employees outside the protected class
were treated differently. Cf. Mayberry v. Vought Aircraft Co.,
55 F.3d 1086, 1090 (5th Cir. 1995)(“In work-rule violation cases,
a Title VII plaintiff may establish a prima facie case by showing
‘either that he did not violate the rule or that, if he did,
white employees who engaged in similar acts were not punished
similarly.’”). Once a prima facie case has been established, the
burden shifts to the defendant to proffer a legitimate,
nondiscriminatory reason for its employment decision. Mayberry,
55 F.3d at 1089. If that is done, the burden then shifts back to
the plaintiff to demonstrate that the defendant’s proffered
reasons were a pretext for discrimination. Id.
In this case, ETLS concedes that Johnson was given a smaller
raise than Salter and “denied” training. However, ETLS explained
that Salter was promoted from a lower position than was Johnson
and that, according to the salary schedule and policy manual, a
larger promotion requires a larger raise in pay.1 ETLS
demonstrated that the pay raises were not arbitrarily determined
1
We note that Johnson was, and continues to be, the highest
paid Pro Bono Coordinator.
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at the discretion of the Executive Director, but computed with
the formula required by the collective bargaining agreement
between ETLS and the Union. ETLS also presented non-
discriminatory reasons for its training decisions. Johnson was
not included in the computer training session for case-handlers
because she is not a case-handler. She was not sent to the Pro-
Bono Conference because ETLS chose not to send any employees to
the conference. Thus ETLS has met its burden to articulate
legitimate, non-discriminatory reasons for its actions.
Johnson offered no evidence that the explanations offered by
ETLS were either untrue as a matter of fact or mere pretext for
illegal discrimination. Johnson’s affidavit does no more than
reiterate the allegations in her complaint. Her attachments are
equally conclusory. Johnson’s statement that ETLS was “taking
care of” the Caucasian employee is a conclusory assertion that,
without more, carries no legal weight. Conclusory statements in
an affidavit do not provide facts that will counter summary
judgment evidence, and testimony based on conjecture alone is
insufficient to raise an issue to defeat summary judgment.
Lechuga v. Southern Pacific Transp. Co., 949 F.2d 790, 798 (5th
Cir. 1992). Among Johnson’s attachments was a deposition by
Darrell Thomas, a member of the ETLS Board. At most, Thomas’s
deposition suggests that Johnson was not given a raise that she
deserved; it does not support an inference that any unfairness
was due to racial discrimination.
Additionally, Johnson suggests that because ETLS never
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denied her charges of discrimination prior to filing its answer
to her complaint, its silence should be automatically considered
an adoption of her assertions. However, failure to contest an
assertion is evidence of acquiescence only if it is natural under
the circumstances to object. Southern Stone Co., Inc. v. Singer,
665 F.2d 698, 703 (5th Cir. 1982). The circumstances in this
case do not give rise to the inference that the Defendants
conceded discrimination.
Accordingly, we find that Johnson failed to show specific
facts demonstrating that there is a genuine issue of material
fact for trial. Therefore, we conclude that the trial court did
not err in granting summary judgment in favor of ETLS.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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