Case Information
*1 Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Plаintiffs Joann Fields and Rose Trotty appeal the district court’s grant of summary judgment to defendants Stephen F. Austin State University and Bob Coker on claims brought under Title VII, the Equal Pay Act, and the Equal Protection Clause.
We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND The plaintiffs, both African-American females, are employed as shuttle bus drivers in Stephen F. Austin’s Physical Plant Department (“PPD”). Trotty has worked for Stephen F. Austin since 1990; Fields was hired in 2006. Defendant Coker is the manager of Transportation and Special Services for the PPD. He supervises twenty employees, including the plaintiffs. The plaintiffs claim they are paid less than certain Stephen F. Austin employees who perform substantially similar job duties. They also claim Coker created a hostile work environment due to harassment based on race and sex.
Trotty and Fields brought suit against the defendants in the United States District Court for the Eastern District of Texas for wage discrimination in violation of Title VII and the Equal Pay Act. They also sued Coker in his individual capacity under 42 U.S.C. § 1983 for violation of their equal protectiоn rights. The defendants filed a motion for summary judgment on all claims; the district court granted the motion. The plaintiffs now appeal.
DISCUSSION
A district court’s grant of summary judgment is reviewed
de novo
.
Berquist v. Washington Mut. Bank
,
The plaintiffs contend they perform substantially the same work as, but are paid less than, certain male and/or non-Afriсan-American employees: two road bus drivers, three garbage workers, two University Police Department shuttle bus drivers, and a supervisor/foreperson.
To establish a
prima facie
case of wage discrimination under Title VII,
“а plaintiff must show that he was a member of a protected class and that he
was paid less than a non-member for work requiring substantially the same
responsibility.”
Taylor v. United Parcel Serv.
,
Inc.
The district court held that the plaintiffs failed to present evidence sufficient to raise a fact issue as to whether their pоsitions were substantially similar to those of the comparators. We agree.
The summary judgment evidence provided by the defendants, which was unrebutted by the plaintiffs, is that Trotty and Fields, as shuttle bus drivers for the PPD, drive рreset on-campus routes from 7:20 a.m. to 5:20 p.m., Monday through Friday. They do not perform mechanical work, work weekends or overnight, or supervise employees. The plaintiffs have also driven rоad buses and/or garbage trucks at various times during their employment with Stephen F. Austin.
The job duties of the comparators are readily distinguishable. Road bus drivers transport students off-campus for multi-day, overnight, аnd weekend trips, and have mechanical skills. Garbage workers operate a complex hydraulic system to lift, dump, and compact garbage, pressure wash the exterior and interior of their vehicle on a daily basis, start work at 5 a.m., and work on Saturdays. University Police Department shuttle bus drivers are tasked with law enforcement duties and regularly work overnight and weekend shifts. The forepersons supervise employees.
Accordingly, the plaintiffs’ job duties are not “nearly identical” to those
of their comparators; their positions do not “requir[e] equal skill, effort, and
responsibility undеr similar working conditions.”
Taylor,
554 F.3d at 523;
Chance,
984 F.2d at 153. The comparators’ positions require, among other
things, mechanical skills; out of town, overnight, and weekend work; law
enforcement skills; and the supervision of employees. None of those is a duty
of a PPD shuttle bus driver. Because the plaintiffs “fail[] to make a showing
sufficient to establish the existence of an element essential to [their] case,” the
district court’s grant of summary judgment on plaintiffs’ wage discrimination
claims was proper.
See Celotex Corp.
II. Equal Protection Clause claim
The plaintiffs bring their hostile work environment claim against Coker under 42 U.S.C. § 1983. They contend that Coker is liable in his individual capacity for violating their equal protection rights based on harassment due to race or sex. The district court granted summary judgment on qualified immunity grounds, finding that the plaintiffs’ “vague, conclusory statements regarding Defendant Coker’s bеhavior” did not show that Coker violated their constitutional rights.
“[A] plaintiff seeking to defeat qualified immunity must show: ‘(1) that
the official violated a statutory or constitutional right, and (2) that the right
was clearly established аt the time of the challenged conduct.’”
Morgan v.
Swanson
,
“[S]ection 1983 and Title VII are parallel causes of action.”
Cervantez v.
Bexar Cnty. Civil Serv. Comm’n
,
The plaintiffs claim that Coker called them “girl” or “gal” four times in 2010 and 2011, and that he assigned them to the custodial department for the summers but did not assign any males. The plaintiffs concede that “Coker’s use of the phrases ‘girl’ or ‘gal’ is not sufficient in and of itself to constitute a claim of hostile work environment,” but contend that it “shed[s] light on his motivations in sending Plaintiffs to the custodial department during summer months . . . . ” They also clаim that Coker did not allow them to take their lunch in the motor pool with their co-workers, and that when they complained to Coker about the alleged disparity in pay, he told them they should “just quit.”
We conclude that, drawing all inferences in the plaintiffs’ favor, Coker’s
conduct is not “sufficiently severe or pervasive to alter the conditions of [the
plaintiffs’] employment and create an abusivе working environment.”
Id.
(citation and quotation marks omitted). The plaintiffs claim Coker referred to
them as “girl” or “gal” four times, but has not done so since 2011. This is not
sufficiently pervasive to create an abusive working environment.
See e.g.,
Lauderdale
Because no constitutional violation is shown, we need not address the second prong of qualified immunity.
AFFIRMED.
Notes
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not рrecedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.
[1] The district court also found that Trotty failed to establish that she was paid less than several of the comparators. We do not address this issue as neither plaintiff has established that their positions were sufficiently similar to those of their comparators.
[2] The plaintiffs both state they have performed some of the same jоb duties as their
comparators. Fields stated in her deposition that her job has taken her out of town six times
in the past two years, but that she has never stayed overnight. She also states she has driven
garbage trucks but does not specify how often. Trotty states she was trained to drive road
buses and has driven them, but does not specify how often. Fields testified in her deposition
that Trotty has driven a charter bus three times to her knowledge, but has never stayed
overnight. We find persuasive an unpublished case in which a panel of this court held that
a plaintiff who “intermittently” performed the same duties as a comparator was not sufficient
to “rebut the[] differences in responsibility made clear from the summary judgment record.”
See Tillman v. S. Wood Preserving of Hattiesburg, Inc.
,
[3] We discover no Fifth Circuit casеlaw holding that a Section 1983 claim based on a
violation of equal protection rights (as opposed to a Title VII claim) may be brought for
creation of a hostile work environment due to race. We have held that “sexual harassment
in public employment violate[s] the Equal Protection Clause of the Fourteenth Amendment
and is therefore actionable under § 1983.”
Lauderdale v. Tеx. Dep’t of Criminal Justice,
Institutional Div.
,
[4] Fields also stated in her deposition that she did not believe Coker assigned her to the custodial department because of her race or sex.