IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

SYLVIA SALAZAR, §

§

Plaintiff, §

§

VS. § NO. 4:04-CV-811-A

§

RECREATIONAL SPORTS & IMPORTS §

DALLAS, INC., §

§

Defendant. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the motion of defendant,

Recreational Sports & Imports Dallas, Inc., for summary judgment. 

The court, having considered the motion, the response of

plaintiff, Sylvia Salazar, the record, the summary judgment

evidence, and applicable authorities, finds that the motion

should be granted.

I.

Plaintiff's Claims

On October 7, 2004, plaintiff filed her original petition in

the 141st Judicial District Court of Tarrant County, Texas. On

November 3, 2004, defendant filed its notice of removal, bringing

the action before this court.

Plaintiff alleges that she was terminated from employment by

defendant because she was pregnant. Plaintiff additionally

alleges that she was denied the opportunity to receive pay raises

in the eight to nine months prior to her termination because of

 

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Plaintiff's petition does not mention the Equal Pay Act. Nor

does she address the issue of lack of pay raises in her response to

defendant's motion for summary judgment. Rather, plaintiff addresses

only the alleged discrimination in her termination from employment. 

Thus, she has abandoned any claim on the alleged lack of equal

treatment in regard to pay.

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her sex. Plaintiff seeks to recover under Title VII, 42 U.S.C.

§§ 2000(e) to 2000(e)-17.

II.

Grounds of the Motion

Defendant essentially urges three grounds in support of its

motion. First, plaintiff cannot establish a prima facie case of

discrimination based on pay issues or her termination. Second,

even if plaintiff has established a prima facie case, she cannot

overcome defendant's legitimate reason for terminating her or for

failing to provide a performance review prior to her termination. 

And, third, plaintiff's Equal Pay Act claim fails as a matter of

law.1

III.

Applicable Summary Judgment Principles

A party is entitled to summary judgment on all or any part

of a claim as to which there is no genuine issue of material fact

and as to which the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). The moving party has the initial

burden of showing that there is no genuine issue of material

fact. Anderson, 477 U.S. at 256. The movant may discharge this

burden by pointing out the absence of evidence to support one or

 

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more essential elements of the non-moving party's claim "since a

complete failure of proof concerning an essential element of the

nonmoving party's case necessarily renders all other facts

immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25

(1986). Once the moving party has carried its burden under Rule

56(c), the non-moving party must do more than merely show that

there is some metaphysical doubt as to the material facts. 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986). The party opposing the motion may not rest on

mere allegations or denials of pleading, but must set forth

specific facts showing a genuine issue for trial. Anderson, 477

U.S. at 248, 256. To meet this burden, the nonmovant must

"identify specific evidence in the record and articulate the

'precise manner' in which that evidence support[s] [its]

claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). 

An issue is material only if its resolution could affect the

outcome of the action. Anderson, 477 U.S. at 248. Unsupported

allegations, conclusory in nature, are insufficient to defeat a

proper motion for summary judgment. Simmons v. Lyons, 746 F.2d

265, 269 (5th Cir. 1984).

The standard for granting a summary judgment is the same as

the standard for rendering judgment as a matter of law. Celotex

Corp., 477 U.S. at 323. If the record taken as a whole could not

lead a rational trier of fact to find for the non-moving party,

there is no genuine issue for trial. Matsushita, 475 U.S. at

597. See also Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th

 

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Cir. 1969) (en banc) (explaining the standard to be applied in

determining whether the court should enter judgment on motions

for directed verdict or for judgment notwithstanding the

verdict). 

IV.

Undisputed Evidence

The following is an overview of evidence pertinent to the

motion for summary judgment that is undisputed in the summary

judgment record:

Defendant is an electronics distributor. Plaintiff first

started working for defendant as a temporary warehouse employee

in February 2001. She was hired for a permanent warehouse

position in July 2001. At the time, defendant had fulfillment

operations on one side of the warehouse and general warehouse

operations on the other. Plaintiff was hired to work in the

fulfillment section. Plaintiff's employment was at-will. 

Plaintiff's duties on the fulfillment side involved pulling

inventory for smaller orders and boxing the inventory for

customer pickup. Plaintiff typically pulled antennas weighing

about ten pounds each and receivers weighing about six pounds

each. In late 2003, defendant discontinued a major contract and

closed the fulfillment side of its warehouse operation. 

Plaintiff was moved to the general warehouse section, where

duties were more labor-intensive. The general warehouse

employees were required to pull inventory, load and unload

freight trucks, receive inbound shipments, restock the warehouse,

 

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prepare packages for freight carrier pickup, and participate in

cross-training projects to broaden capabilities and exposure. 

The duties included the lifting, pushing, and pulling of items

weighing 25 pounds or more, as well as climbing.

On June 16, 2004, plaintiff's doctor placed her on medical

restrictions related to her pregnancy, including no lifting,

pushing, or pulling items weighing 25 pounds or more, and no

climbing of ladders. Each of those activities was a requirement

of her job in the general warehouse.

On July 12, 2004, defendant informed plaintiff that it was

considering letting her go due to her inability to perform her

job functions. Defendant told plaintiff that she could stay

another week or two to give her a chance to find another job. On

July 13, 2004, plaintiff called to say that she would not be

returning to work. Nevertheless, defendant paid plaintiff for an

additional two weeks.

 

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V.

Discussion

To make out a prima facie case under Title VII, plaintiff

must show that she is a member of a protected class, that she was

qualified for her position, that she suffered an adverse

employment action, and that persons outside the protected class

were treated more favorably. St. Mary's Honor Ctr. v. Hicks, 509

U.S. 502, 506 (1993); Texas Dep't of Cmty. Affairs v. Burdine,

450 U.S. 248, 252-53 (1981); Urbano v. Cont'l Airlines, Inc., 138

F.3d 204, 207 (5th Cir. 1998). To meet the last element,

plaintiff must show that she was treated differently from other

employees in "nearly identical" circumstances. Okoye v. Univ. of

Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001);

Williams v. Trader Publ'g Co., 218 F.3d 481, 484 (5th Cir. 2000).

Defendant first contends that plaintiff cannot produce

evidence to support the second element of her prima facie case,

because she was not qualified for her position after being placed

on restrictions by her doctor. In response, plaintiff points

only to the testimony of a co-worker, Greg Jenkins, who

testified, "[s]he did it alright" in response to the question

"[d]id she seem to have any problems doing her job?" Pl.'s App.

at 24.1. Jenkins testified that he never saw anyone criticize

plaintiff for not working hard enough. He further testified that

warehouse employees worked together to get their work

accomplished. Id. at 25.1. Jenkins' testimony, however, is not

sufficient to raise a genuine issue of material fact as to

 

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2Defendant maintains that it released plaintiff, because she

could not perform the duties required by her position in the

general warehouse.

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whether plaintiff could perform the duties assigned to her. 

Jenkins admitted that plaintiff had problems picking up heavy

boxes. Id. And, plaintiff herself testified that she could not

pull heavy pallets, Id. at 16-17, and could not lift cable that

weighed 40 pounds. Id. at 13. In fact, plaintiff specifically

admitted that she could not perform all of her duties. Def.'s

App. at 18. Thus, plaintiff cannot make out a prima facie case

of discrimination.

Defendant additionally urges that plaintiff cannot make out

a prima facie case, because she cannot show that persons outside

the protected class were not similarly treated. Plaintiff does

not address the issue. Plaintiff has not come forward with any

summary judgment evidence regarding the treatment of similarly

situated employees, if there were any. For this additional

reason, her prima facie case fails.

Defendant alternatively argues that, even if plaintiff could

establish a prima facie case, she cannot overcome defendant's

showing of a legitimate, non-discriminatory reason for its

actions.2 See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.

133, 142-43 (2000). In response, plaintiff points to her

deposition testimony that she never told anyone she could not

perform the duties of her job, Pl.'s App. at 13, and Jenkins'

testimony that he never saw anyone criticize plaintiff. Id. at

24. She also refers to a supervisor's email message noting that

 

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plaintiff could not perform the duties of her job and that the

company had no obligation to keep her employed if she could not

perform those duties. Id. at 31. The evidence is simply

insufficient to raise a genuine fact issue that defendant's

proffered reason for terminating plaintiff was false and that

discrimination was the real reason for the decision to terminate

her. St. Mary's Honor Ctr., 509 U.S. at 511. That the email

message mentioned that plaintiff was pregnant and often sick does

not change the fact that plaintiff could not perform the duties

of her job.

Defendant finally argues that plaintiff cannot establish a

claim under the Equal Pay Act, which would require that plaintiff

show that she was subject to the Act, that she performed work in

a position requiring equal skill, effort, and responsibility

under similar working conditions, and that she was paid less than

an employee of the opposite sex providing the basis of the

comparison. Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir.

1993). Plaintiff makes no response to this ground. Nor does she

attempt to show that she was discriminated against in regard to

her pay as a result of her sex. Defendant's summary judgment

evidence establishes that plaintiff was not treated any less

favorably than any other employee in terms of pay.

VI.

Order

For the reasons discussed herein,

 

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The court ORDERS that defendant's motion for summary

judgment be, and is hereby, granted; that plaintiff take nothing

on her claims against defendant; and that such claims be, and are

hereby, dismissed.

SIGNED August 22 , 2005.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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