*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this opinion should not be published and is not precedent except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. 

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 
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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
 

1We note that Johnson was, and continues to be, the highest

paid Pro Bono Coordinator.

4

(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
5

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 nondiscriminatory 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 ProBono 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
6

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.