United States Court of Appeals

Fifth Circuit



## FILED

February 23, 2004

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 03-20582

_______________



### M ARY 

### F RANCES 

### P ARKER



### ,

Plaintiff-Appellant,

VERSUS



### M ETROPOLITAN 

### T RANSIT 

### A UTHORITY



### ,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas



### m H-01-3175

_________________________

Before K

ING , Chief Judge, J ONES

and S MITH , Circuit Judges.

P ER C URIAM : *

Mary Parker appeals a summary judgment

on her claims against the Metropolitan Transit Authority (“Metro”) for retaliation under title

VII and vio lations of the Equal Pay Act. We

review a summary judgment de novo

, using the

same standards as did the district court. BP

Oil Int’l, Ltd. v. Empresa Estatal Petoleos de

Ecuador

, 332 F.3d 333 (5th Cir. 2003).

Finding no error, we affirm.

I.

The district court decided first that Parker

had no t est ablished a p rima facie case of retaliation, because h er being placed on a wit- * Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is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 5 TH C IR

. R. 47.5.4.2

ness list and giving a depositi on in her coworker’s state court action for discrimination

did not constitute participation in a proceeding

under title VII, and was therefore not protected activity. This is an issue of first impression

in this circuit. Because this appeal must be decided on other grounds, we do not pass on the

correctness of the district court’s decision on

that issue.

The dis t rict court alternately determined

that had Parker established a prima facie case,

she failed to demonstrate a genuine issue of

material fact as to whether Metro’s legitimate,

nondiscrimi n atory reasons for her discharge

were pretextual. Metro states that Parker’s

employment was terminated becau se of her

poor performance and failure properly to comply with appropriate policies.

The record indicates th at Parker received

consistently low performance ratings, that her

supervisors believed she was not successfully

adjusting to the public sector after years of private employment, that she was put on probation sever al times and given performance improvement plans with which she did not comply, and that she did not follow particular policies on several occasions. Parker argues that

her actions on several occasions were reasonable, but she has failed to provide evidence

that she did not violate the policies or that her

supervisors’ dissatisfaction with her performance was not the reason Metro terminated her.

The district court was correct in entering summary judgment on Parker’s retaliation claim.

II.

The district court also entered summary

judgment on Parker’s Equal Pay Act claims.

Parker points to two male employees who she

alleges are paid more than she is for substant ially the same job. The district court decided that Parker’s claim fails because (1) one of

these men had actually had a lower s tarti ng

salary than Parker, but had received merit raises for which Parker was ineli gible because of

poor performance, and (2) the other man performed a job that was different from Parker’s

and for which Parker was not qualified. Summary judgment on this claim was correct.

AFFIRMED.