United States Court of Appeals

for the Fifth Circuit

No. 20-10263

Sarah Lindsley, 

Plaintiff—Appellant,

versus

TRT Holdings, Incorporated; Omni Hotels Management 

Corporation, 

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:17-CV-2942

Before Clement, Ho, and Duncan, Circuit Judges.

James C. Ho, Circuit Judge:

Equality of opportunity is fundamental to who we are, and to who we 

aspire to be, as a nation. Our commitment to this ideal is deeply engrained in 

our Constitution and in numerous federal and state laws. And a core 

component of our promise of equal opportunity, regardless of the 

circumstances of one’s birth, is non-discrimination in pay. Pay disparities 

can of course exist for any number of reasons, including disparities that are 

rational in relation to value added or driven by the pool of labor available. But 

what we do not accept are pay disparities due to the employee’s race or sex. 

United States Court of Appeals

Fifth Circuit

FILED

January 7, 2021

Lyle W. Cayce

Clerk

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2

And that is the problem here: Sarah Lindsley has put forth a prima facie case 

of sex discrimination. It is undisputed that she was paid less than all three 

men who preceded her as food and beverage director of the Omni hotel in 

Corpus Christi, Texas. If there is a good explanation for that disparity, Omni 

is required to put one forth if it wishes to prevail in this litigation. Omni failed 

to do so. Yet the district court granted summary judgment to Omni anyway. 

That was wrong—the lack of a plausible, non-discriminatory explanation for 

the pay disparity may very well mean that Lindsley has a viable claim of sex 

discrimination. We accordingly reverse in part and remand.

I.

Sarah Lindsley started her sixteen-year career with Omni Hotels as a 

server at the Omni Tucson National Resort. (Omni is owned by defendant 

TRT Holdings, Inc. We refer to defendants collectively as “Omni.”). 

Working her way up, Lindsley was first promoted to an hourly supervisor

position within the resort’s food and beverage division in 2007, then to an 

outlet manager position within the same division in 2008, and finally to a 

general manager position at the resort’s steakhouse in 2009. 

For most of her time in Tucson, Lindsley was supervised by David 

Morgan. She alleges that Morgan engaged in inappropriate behavior, 

including running his fingers through her hair and sexually harassing other 

female servers. 

In 2010, Lindsley successfully applied to be the assistant director of 

the food and beverage division at the Omni hotel in Corpus Christi. At first, 

she reported to Daniel Cornelius, Omni Corpus Christi’s food and beverage 

director. When Cornelius resigned, Lindsley took Cornelius’s position. 

Her starting salary as food and beverage director was $70,851. That 

is $11,649 lower than Cornelius’s starting salary. Her starting salary was also 

$6,149 and $4,149 lower than Cornelius’s two male predecessors, Jason 

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Pollard and Robert Walker. For this reason, she lodged a complaint with 

human resources, alleging that she was not only paid less than her male 

predecessors, but also less than many of the male employees she supervised. 

She did not receive a salary increase. To make things worse, while Lindsley 

was in Corpus Christi, Morgan—her former supervisor in Tucson—became 

corporate vice president of food and beverage and allegedly made numerous 

sexually inappropriate remarks to Lindsley and other female employees. 

In 2015, Lindsley was asked to interview for the food and beverage 

director position at the Omni hotel in Houston. She emailed Morgan twice 

to gain his support for the position but received no response. Nonetheless, 

Lindsley explains, the interview “went so well that the Houston Human 

Resources Director discussed salary, relocation, and an offer letter with her.” 

Then Lindsley had a final, ten-minute interview with Barry Sondern, Omni 

Houston’s general manager. 

What happened during that ten-minute interview depends on who you 

ask. Lindsley says Sondern informed her that Morgan said she was not 

qualified for the position. She says Sondern explained that “he ha[d] to go 

with the best candidate” and that he had “two other applicants that had 

higher qualities than [she] did.” But Sondern says that the interview was just 

a formality and that he had already decided to hire her. Sondern also says 

that Morgan expressed support for Lindsley. And after the interview, 

Sondern says he instructed human resources at Omni Houston to move 

forward with hiring Lindsley. 

Afterwards, Lindsley withdrew her name from consideration, 

believing that she would be rejected anyway. Sondern understood this to 

mean that Lindsley was offended by some of his interview questions, 

specifically about her working relationship with her supervisor. As Lindsley 

explained in her withdrawal email: “I will be taking myself out of the 

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consideration, due to concerns shared with my potential future direct report 

that I feel tarnished my reputation and his perception of me.” 

The parties do not dispute that, after receiving Lindsley’s withdrawal, 

Sondern met with Lindsley in Corpus Christi. He apologized to Lindsley for 

offending her, “reassured her that she was the right candidate for the 

Houston position,” and stated that he “wanted to proceed with the offer 

letter process.” Lindsley declined to reconsider her withdrawal, explaining 

that she did “not feel that it [wa]s appropriate for someone to start a job when 

their boss already ha[d] this kind of relationship from the interview.” 

Lindsley testified: “I felt at that point that he was being forced to take me 

and I want to earn my promotions on my own merits.” 

In September 2015, Lindsley filed a charge of discrimination with the 

EEOC. Lindsley alleges that the letter notifying Omni of the charge was left 

open on her desk for her to find. Lindsley also alleges that after Omni 

received the charge, Omni Corpus Christi’s general manager, Steve Keenan, 

took several retaliatory actions: holding meetings with her team without her, 

repeatedly ostracizing her, reducing her team’s review scores, implementing 

a menu promotion without consulting her, and yelling at her in her office. 

In January 2016, Lindsley met with Omni Corpus Christi’s human 

resources director, Susan Gilbert, to discuss the possibility of leave under the 

Family and Medical Leave Act (FMLA) on account of mental health issues 

stemming from “continued workplace discrimination and retaliation.” 

Gilbert provided Lindsley with incorrect information regarding FMLA leave, 

informing her that she was an essential employee and that she would lose her 

position if she took leave. Gilbert later corrected herself, and Lindsley took 

leave in March 2016, returning one month later, in April 2016. 

Lindsley alleges that Omni continued to retaliate against her after she 

returned from leave: she received lowered annual reviews and found that 

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documents on her computer were deleted, which the IT department said 

were not recoverable. She says that she was not able to fulfill her job duties 

without the deleted documents. Lindsley alleges that her successor, by 

contrast, was able to access those documents. Lindsley took FMLA leave 

again in May 2016 and then left Omni in June 2016. She filed this suit in 

October 2017. 

Lindsley brings three types of claims: (1) pay discrimination under 

Title VII of the Civil Rights Act of 1964, the Texas Labor Code, and the Equal 

Pay Act; (2) promotional discrimination under Title VII and the Texas Labor 

Code; and (3) retaliation for filing a charge with the EEOC and for taking 

FMLA leave under the FMLA, Title VII, the Texas Labor Code, and the 

Equal Pay Act. Omni moved for summary judgment on all claims, and the 

district court granted its motion in full. Lindsley v. TRT Holdings, Inc., 2019 

WL 6467256 (N.D. Tex. Dec. 2, 2019). Lindsley timely appealed, 

contending that the district court erred in granting Omni’s motion for 

summary judgment on all claims.

II.

We review a district court’s grant of summary judgment de novo, 

applying the same standards as the district court. Hagen v. Aetna Ins. Co., 

808 F.3d 1022, 1026 (5th Cir. 2015). Summary judgment is appropriate if 

there is “no genuine dispute as to any material fact,” even after giving 

Lindsley the benefit of all reasonable inferences in the record, and Omni is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). See, e.g.,

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986). 

A fact is material if it might affect the outcome of the suit, and a factual 

dispute is genuine if the evidence is such that a reasonable jury could return 

a verdict for Lindsley. See Harville v. City of Houston, 945 F.3d 870, 874 (5th 

Cir. 2019). 

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III.

We begin by addressing Lindsley’s pay discrimination claims. Each of 

the statutes invoked in this case—Title VII of the Civil Rights Act of 1964, 

42 U.S.C. § 2000e-2(a)(1), the Texas Labor Code, Tex. Lab. Code

§ 21.051, and the Equal Pay Act, 29 U.S.C. § 206(d)(1)—prohibits

discrimination in employment, including compensation, on the basis of sex. 

The burden shifting framework established in McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973), governs these claims. See id. at 802 (Title VII);

Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (Texas 

law); Siler-Khodr v. Univ. of Tex. Health Sci. Ctr. San Antonio, 261 F.3d 542, 

546 (5th Cir. 2001) (Equal Pay Act). 

Under McDonnell Douglas, the plaintiff has the initial burden to 

establish a prima facie case of pay discrimination. 411 U.S. at 802. The 

standards under each statute for establishing a prima facie case are similar. 

Under the Equal Pay Act, a plaintiff must show that “she performed work in 

a position requiring equal skill, effort and responsibility under similar 

working conditions,” and that she “was paid less than members of the 

opposite sex.” Jones v. Flagship Int’l, 793 F.2d 714, 722–23 (5th Cir. 1986). 

Under both Title VII and the Texas Labor Code, a plaintiff must show that 

she was paid less than members of the opposite sex for “work requiring 

substantially the same responsibility.” Taylor v. United Parcel Serv., Inc., 

554 F.3d 510, 522 (5th Cir. 2008). See also Ysleta Indep. Sch. Dist. v. 

Monarrez, 177 S.W.3d 915, 917–18 (Tex. 2005) (explaining that the Texas 

Labor Code was meant to “correlate state law with federal law in 

employment discrimination cases”) (quoting Canchola, 121 S.W.3d at 739). 

If a plaintiff establishes a prima facie case, then the burden shifts to 

the defendant to put forth a legitimate, non-discriminatory reason for the pay 

disparity. See Taylor, 554 F.3d at 522–23; Siler-Khodr, 261 F.3d at 546. 

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Under Title VII and the Texas Labor Code (but not under the Equal Pay 

Act), if the employer provides such a reason, the burden shifts back to the 

plaintiff to establish that the employer’s stated reason is pretextual. Taylor, 

554 F.3d at 522–23. 

Lindsley points to three categories of pay comparators in support of 

her prima facie case of pay discrimination: (1) Jason Pollard and Robert 

Walker, who held her position before her immediate predecessor; (2) her 

immediate predecessor, Daniel Cornelius; and (3) unnamed male food and 

beverage directors from other Omni hotels.

It is undisputed that Lindsley was paid less than her three immediate 

predecessors as food and beverage director of Omni Corpus Christi. As a 

result, she has established a prima facie case of pay discrimination, and the 

district court erred in concluding otherwise.

First, it is undisputed that Lindsley was paid $4,149 less than Walker

and $6,149 less than Pollard. It is also undisputed that Lindsley held the same 

job title at the same Omni hotel as those men. What’s more, Omni agrees

that Lindsley established a prima facie case of pay discrimination as to 

Cornelius, who held the position directly after Pollard and Walker—and 

there is no evidence that the position has changed since then. This 

establishes a prima facie case of pay discrimination. 

The district court therefore erred in concluding that Lindsley failed to 

establish a prima facie case because she “provide[d] no evidence that her job 

as Food and Beverage Director was in any way similar to Pollard and 

Walker’s jobs, aside from the fact that they shared the same job title.” Far 

from failing to show that her job was “in any way similar,” Lindsley showed 

that she held the same position as Walker and Pollard did, at the same hotel, 

just a few years after they did—and that she was paid lessthan they were. No 

more is needed to establish a prima facie case. Now it is Omni’s turn to put 

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forth a non-discriminatory reason for that pay disparity. Accordingly, we 

reverse and remand to give Omni the opportunity to do so.

Second, Omni agrees that Lindsley established a prima facie case of 

pay discrimination with regard to Daniel Cornelius. In light of the above 

analysis, we think it best for the district court to give a fresh look at whether 

Omni has proffered sufficient non-discriminatory reasons for the pay 

disparity, such that Omni is entitled to summary judgment.

Finally, it is undisputed that Lindsley was paid less than other male 

food and beverage directors at other Omni locations. As we shall explain, 

Lindsley may not use these pay comparators from other Omni locations to 

establish a prima facie case under the Equal Pay Act. But she may do so under 

both Title VII and the Texas Labor Code.

Under the Equal Pay Act, a plaintiff must show that the pay violation 

occurred within a single “establishment.” 29 U.S.C. § 206(d)(1). The 

governing regulations explain that the term “establishment” “refers to a 

distinct physical place of business rather than to an entire business or 

‘enterprise’ which may include several separate places of business. 

Accordingly, each physically separate place of business is ordinarily 

considered a separate establishment.” 29 C.F.R. § 1620.9(a). Only in 

“unusual circumstances may . . . two or more distinct physical portions of a 

business enterprise [be] treated as a single establishment.” Id. § 1620.9(b).

See also id. (“For example, a central administrative unit may hire all 

employees, set wages, and assign the location of employment; employees 

may frequently interchange work locations; and daily duties may be virtually 

identical and performed under similar working conditions.”). 

This case does not present the “unusual circumstances” necessary 

under the Equal Pay Act regulations to warrant a departure from the default 

rule that “each physically separate place of business is ordinarily considered 

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a separate establishment.” Id. § 1620.9(a). In Marshall v. Dallas Independent 

School District, 605 F.2d 191 (5th Cir. 1979), the court held that a school 

district was a single establishment because all the schools in the district were 

controlled by a central administrative office that supervised delivery of 

custodial services across all schools and paid all salaries, the custodial job 

classification system was uniform throughout the school district, wages were 

set under a single wage agreement with uniform salary schedules, there was 

no differentiation in pay based upon the building in which the employees 

worked, and employees rotated through different schools. Id. at 194. 

Here, by contrast, the record, viewed in the light most favorable to 

Lindsley, establishes at most that corporate executives at Omni exercised 

some control over hiring and salaries. While this factor is a common 

condition for a multi-location establishment, it is by no means dispositive. If 

it were, “then just about any corporation with a hierarchical management 

structure and a functioning human-resources department would find itself 

defined as a single ‘establishment.’” Renstrom v. Nash Finch Co., 

787 F. Supp. 2d 961, 965 (D. Minn. 2011). 

Generally, each Omni hotel location functions separately. It is 

undisputed that the general manager at each Omni property is the primary 

force behind all new hires, even if corporate must be on board. Unlike the 

school district in Marshall, which hired janitors on a district-wide basis

subject to a wage agreement, Omni hires on a property-by-property basis and 

has no wage agreement. And the job duties of each food and beverage 

director differ by location. Accordingly, we affirm the district court’s grant 

of summary judgment on this issue. 

The same analysis does not apply, however, to her claims under 

Title VII and the Texas Labor Code. Those statutes contain no 

“establishment” requirement. Yet the district court did not address whether 

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Lindsley established a prima facie case under Title VII and the Texas Labor 

Code based on male food and beverage directors at different Omni locations. 

We therefore remand this issue to the district court. 

* * *

We reverse the district court’s grant of summary judgment for 

Lindsley’s pay discrimination claims as it pertains to Walker, Pollard, and 

Cornelius—the three men who previously held the same position as Lindsley 

yet were paid more. We affirm the district court’s grant of summary 

judgment for Lindsley’s Equal Pay Act claim insofar as it relies on other 

unnamed male food and beverage directors from different Omni hotels. We 

remand for a determination of whether Lindsley can establish a prima facie 

case with respect to those comparators under Title VII and the Texas Labor 

Code. 

IV.

Turning to her promotional discrimination claims: Lindsley argues 

that Omni violated Title VII, 42 U.S.C. §§ 2000e et seq., and Tex. Lab. 

Code §§ 21.001 et seq., by declining to promote her because of her sex. We 

utilize the same McDonnell Douglas burden shifting framework for these 

claims, too. See McDonnell Douglas, 411 U.S. at 802; Alamo Heights Indep. 

Sch. Dist. v. Clark, 544 S.W.3d 755, 764 n.5 (Tex. 2018). To establish a prima 

facie case, the plaintiff must show “(1) that [she] is a member of the protected 

class; (2) that [s]he sought and was qualified for the position; (3) that [s]he 

was rejected for the position; and (4) that the employer continued to seek or 

promote[ ] applicants with the plaintiff’s qualifications.” Davis v. Dall. Area 

Rapid Transit, 383 F.3d 309, 317 (5th Cir. 2004). The district court stopped 

here, granting Omni’s motion for summary judgment because Lindsley could 

not “show that she was ever rejected for the Omni Houston Food and 

Beverage Director position.” It reasoned that, because Lindsley withdrew 

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her name from consideration and understood that she would have been given 

the offer if she reconsidered, Lindsley was not rejected. 

We agree. The record is undisputed that Lindsley understood she 

would get the job if she reconsidered. She testified in her deposition that she 

did “not feel that it is appropriate for someone to start a job when their boss 

already has this kind of relationship from the interview.” She said: “I felt at 

that point that he was being forced to take me and I want to earn my 

promotions on my own merits.” Lindsley disputes what occurred during her 

final, ten-minute interview with Sondern. But that dispute is immaterial

because it does not change the fact that Sondern later traveled to Corpus

Christi and essentially offered Lindsley the job. Lindsley was thus not 

rejected by Omni—she rejected the opportunity. Accordingly, we affirm 

summary judgment for Omni on her promotional discrimination claims. 

V.

Lindsley’s retaliation claims fare no better. She alleged that Omni 

retaliated against her, first, for filing an EEOC charge, in violation of the 

Equal Pay Act, 29 U.S.C. § 215(a)(3), Title VII, 42 U.S.C. § 2000e-3(a), and 

the Texas Labor Code, Tex. Labor Code § 21.001 et seq., and second, for 

requesting and eventually taking FMLA leave, in violation of the FMLA, 

29 U.S.C. § 2615(a).

We analyze retaliation claims under Title VII, the Texas Labor Code, 

and the FMLA pursuant to the McDonnell Douglas burden-shifting 

framework, and we are offered no reason why we should not do the same 

under the Equal Pay Act. See Wheat v. Fla. Par. Juv. Just. Comm’n, 811 F.3d 

702, 705 (5th Cir. 2016) (“Retaliation claims under both Title VII and the 

FMLA . . . are analyzed under the McDonnell Douglas burden-shifting 

framework.”); Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165, 170 

(5th Cir. 2014) (“The substantive law governing Title VII and [Texas Labor 

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Code] retaliation claims is identical.”). To establish a prima facie case of 

retaliation, a plaintiff 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.” 

Gorman, 753 F.3d at 170 (quoting Royal v. CCC & R Tres Arboles, L.L.C., 

736 F.3d 396, 400 (5th Cir. 2013)). “Adverse employment action” is a 

materially adverse action 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) (quoting Rochon v. Gonzales, 

438 F.3d 1211, 1219 (D.C. Cir. 2006)). If the plaintiff establishes a prima facie 

case, then the burden shifts to the defendant to demonstrate a legitimate, 

non-retaliatory reason for the employment action. See Gorman, 753 F.3d at 

171.

The district court concluded that Lindsley failed to establish a prima 

facie case of retaliation because she could not demonstrate an adverse 

employment action. We agree. 

Lindsley argues that “material parts of [her] job duties were removed 

from her.” But the only example she provides is when Omni Corpus 

Christi’s general manager, Steve Keenan, emailed Lindsley’s team giving 

them a deadline for a menu promotion without allowing Lindsley to speak to 

her team directly. This one instance does not amount to a material change in 

job duties—much less one likely to dissuade a reasonable worker from 

making a charge of discrimination—under governing precedent. As the 

Supreme Court has made clear, “petty slights, minor annoyances, and simple 

lack of good manners will not create such deterrence.” Burlington, 548 U.S. 

at 68.

Lindsley also says that, after she filed her charge, Keenan “became 

increasingly hostile,” including on one occasion “screaming at her, 

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slamming her office door, and banging his fists on her desk.” But Lindsley’s 

own statements establish that Keenen yelled at her not because of her EEOC 

charge, but in response to her “concerns with the ambassador meeting and 

[Keenan] having conversations with [her] team, and then giving them 

directions with out [sic] [her] present.” And we have previously observed 

that “criticism, such as [a supervisor’s] oral threats or abusive remarks, does 

not rise to the level of an adverse employment action.” Breaux v. City of 

Garland, 205 F.3d 150, 158 (5th Cir. 2000).

The district court also held that Lindsley failed to establish adverse 

employment action in response to her requesting and taking FMLA leave. 

We agree with this conclusion, too. 

According to Lindsley, when she requested information regarding 

FMLA leave, Susan Gilbert, the head of human resources for Omni Corpus 

Christi, “threatened [her] and intentionally misinformed [her] that if she 

took FMLA leave, she would not have a job when she returned, [and] she 

would have to forfeit all of the paid time off she accrued.” But Lindsley does 

not dispute that Gilbert quickly corrected her mistake. As the district court 

concluded: “Lindsley provides no evidence, aside from her subjective belief, 

that Gilbert was threatening her or creating a hostile work environment.” 

And “[w]e have consistently held that an employee’s subjective belief of 

discrimination, however genuine, cannot be the basis of judicial relief.” 

EEOC v. La. Off. of Cmty. Servs., 47 F.3d 1438, 1448 (5th Cir. 1995).

When Lindsley returned, she alleges Keenan gave her a “drastically 

lowered” performance evaluation, “told [her] directly that [she] was no 

longer wanted,” and that “[she] was causing issues.” But the performance 

review Lindsley received was for her performance in 2015—before her 2016 

leave under the FMLA. And the evaluation said that she “met expectations” 

despite the fact “2015 was an extremely difficult year for the overall hotel.” 

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See generally Dupont-Lauren v. Schneider (USA), Inc., 994 F. Supp. 802, 824 

(S.D. Tex. 1998) (collecting Fourth, Seventh, and Tenth Circuit cases 

holding that “satisfactory but diminished evaluations do not constitute 

adverse employment actions giving rise to actionable retaliation claims.”).

Lindsley also alleges that, when she returned, all of her computer files 

were gone, and the IT department told her that they were unrecoverable. 

After she left Omni, by contrast, her successor was able to recover some of 

those files by speaking with Gilbert. But Lindsley puts forth no evidence that 

the deletion of the computer files was in any way motivated by retaliation. 

Finally, Lindsley argues that she was constructively discharged. To 

establish constructive discharge, she must “offer evidence that the employer 

made the employee’s working conditions so intolerable that a reasonable 

employee would feel compelled to resign.” Barrow v. New Orleans S.S. Ass’n, 

10 F.3d 292, 297 (5th Cir. 1994). The evidence Lindsley presents in support 

of her constructive discharge argument does not differ from the evidence she 

presents in support of her claim of an adverse employment action. Nor does 

our legal conclusion. Just as the evidence is insufficient to establish that a 

reasonable employee would be dissuaded from filing an EEOC complaint, it 

is likewise insufficient to show that a reasonable employee would feel 

“compelled to resign.” Id.

Accordingly, we affirm the district court’s grant of summary 

judgment for Omni as to Lindsley’s retaliation claims. 

* * *

It is undisputed that Lindsley was paid less than the three previous 

men who held her exact same position. That is enough to establish a prima 

facie case of pay discrimination. So we disagree with the district court’s grant 

of summary judgment for that reason. But we agree with the district court 

that Lindsley’s evidence is insufficient to create a prima facie case as to her 

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promotional discrimination and retaliation claims. Accordingly, we reverse 

in part and affirm in part.

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