IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40011

Summary Calendar

JOANN FIELDS; ROSE TROTTY, 

 Plaintiffs - Appellants

v.

STEPHEN F. AUSTIN STATE UNIVERSITY; BOB COKER, 

 Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:13-CV-250

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Plaintiffs 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. 

 

* Pursuant to 5TH CIR. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 15, 2015

Lyle W. Cayce

Clerk

 Case: 15-40011 Document: 00513116568 Page: 1 Date Filed: 07/15/2015
No. 15-40011

2

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

protection 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, 500 F.3d 344, 348 (5th Cir. 2007). Federal 

Rule of Civil Procedure 56(c) “mandates the entry of summary judgment, after 

adequate time for discovery and upon motion, against a party who fails to make 

a showing sufficient to establish the existence of an element essential to that 

party's case . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All 

inferences are drawn in the non-movant’s favor. Berquist, 500 F.3d at 349.

I. Title VII and Equal Pay Act claims 

The plaintiffs contend they perform substantially the same work as, but 

are paid less than, certain male and/or non-African-American employees: two 

road bus drivers, three garbage workers, two University Police Department 

 Case: 15-40011 Document: 00513116568 Page: 2 Date Filed: 07/15/2015
No. 15-40011

3

shuttle bus drivers, and a supervisor/foreperson.

To establish a prima facie case of wage discrimination under Title VII, 

“a 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., 554 F.3d 510, 522 (5th Cir. 

2008). A “plaintiff claiming disparate treatment in pay under Title VII must 

show that his circumstances are ‘nearly identical’ to those of a better-paid 

employee who is not a member of the protected class.” Id. at 523 (citation

omitted). To establish a prima facie case under the Equal Pay Act, a plaintiff 

must show that “(1) her employer is subject to the Act; (2) she performed work

in a position requiring equal skill, effort, and responsibility under similar 

working conditions; and (3) she was paid less than an employee of the opposite 

sex providing the basis of comparison.” Chance v. Rice Univ., 984 F.2d 151, 

153 (5th Cir. 1993).

The district court held that the plaintiffs failed to present evidence 

sufficient to raise a fact issue as to whether their positions were substantially 

similar to those of the comparators.1 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 preset 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 road buses 

and/or garbage trucks at various times during their employment with Stephen 

F. Austin.

 

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.

 Case: 15-40011 Document: 00513116568 Page: 3 Date Filed: 07/15/2015
No. 15-40011

4

The job duties of the comparators are readily distinguishable. Road bus 

drivers transport students off-campus for multi-day, overnight, and 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 under 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.2 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., 477 U.S. at 322.

 

2 The plaintiffs both state they have performed some of the same job 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., 250 F. App’x 622, 625-26 (5th Cir. 

2007). The fact that Fields and Trotty have, at various times, driven a road bus and/or 

garbage truck does not suffice to raise a fact issue that their positions are substantially 

similar to those of the comparators for purposes of wage discrimination.

 Case: 15-40011 Document: 00513116568 Page: 4 Date Filed: 07/15/2015
No. 15-40011

5

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.3 The district court granted summary judgment on qualified 

immunity grounds, finding that the plaintiffs’ “vague, conclusory statements 

regarding Defendant Coker’s behavior” 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 at the time of the challenged conduct.’” Morgan v. 

Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (quoting Ashcroft v. al-Kidd, 131 

S. Ct. 2074, 2080 (2011)). 

“[S]ection 1983 and Title VII are parallel causes of action.” Cervantez v. 

Bexar Cnty. Civil Serv. Comm’n, 99 F.3d 730, 734 (5th Cir. 1996). In order to 

succeed on a hostile work environment claim, plaintiffs must prove, among 

other things, that they were subjected to unwelcome harassment based on race 

or sex that affected a condition of employment. Ramsey v. Henderson, 286 F.3d 

264, 268 (5th Cir. 2002); Lauderdale v. Tex. Dep’t of Criminal Justice, 

Institutional Div., 512 F.3d 157, 163 (5th Cir. 2007). To affect a condition of 

 

3 We discover no Fifth Circuit caselaw 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. Tex. Dep’t of Criminal Justice, 

Institutional Div., 512 F.3d 157, 166 (5th Cir. 2007) (citation and internal quotation marks 

omitted). Other circuits have held that race-based workplace harassment can be violative of 

equal protection. See, e.g., Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir. 2009) (discussing 

race-based hostile work environment claim under the Equal Protection Clause); Williams v. 

Seniff, 342 F.3d 774, 788, 791 (7th Cir. 2003) (same). 

 Case: 15-40011 Document: 00513116568 Page: 5 Date Filed: 07/15/2015
No. 15-40011

6

employment, the harassment “must be ‘sufficiently severe or pervasive to alter 

the conditions of the victim’s employment and create an abusive working 

environment.’” Ramsey, 286 F.3d at 268 (quoting Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993)).

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 claim 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 abusive 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, 512 F.3d at 163 (finding that “ten to fifteen [harassing phone calls] 

a night for almost four months . . . . amounts to pervasive harassment”). The 

plaintiffs also did not show that their assignment to the custodial shop during 

the summers was sufficiently severe. In fact, Fields stated in her deposition

that if she had a choice between her previous summer assignment and 

 Case: 15-40011 Document: 00513116568 Page: 6 Date Filed: 07/15/2015
No. 15-40011

7

custodial, she would choose custodial.4 The plaintiffs also complain that Coker 

did not allow them to take their lunch in the motor pool with their co-workers 

and that he told them to “just quit” when they objected to their pay. Even if 

such actions were found to “alter the conditions of [the plaintiffs’] employment 

and create an abusive working environment,” the plaintiffs do not provide any

evidence, as they must, that either action was connected to their race or sex. 

Ramsey, 286 F.3d at 268 (citation and quotation marks omitted); Lauderdale,

512 F.3d at 163.

Because no constitutional violation is shown, we need not address the 

second prong of qualified immunity. 

AFFIRMED.

 

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. 

 Case: 15-40011 Document: 00513116568 Page: 7 Date Filed: 07/15/2015