*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

June 18, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50873

Summary Calendar

SALOME FIERROS,

Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF HEALTH,

Defendant - Appellee.

Appeal from the United States District Court for

the Western District of Texas, San Antonio

5:03-CV-202

_________________________________________________________

Before REAVLEY, WIENER, and DEMOSS, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Salome Fierros appeals from the district court's summary

judgment dismissing her Title VII retaliation claim against her employer, the Texas

Department of Health (“TDH”). Reviewing the record de novo and applying the same
2

standard as the district court, we affirm for the following reasons:

1. To establish a prima facie case of retaliation under Title VII, an employee

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 Turner v. Baylor

Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007). Fierros has

failed to raise a genuine issue of material fact sufficient to meet the third

element of this showing.

Fierros has produced no evidence that her 1997 charge of

discrimination and the resulting 1999 lawsuit were causally related to her

receiving extra paid leave in lieu of a recommended merit pay increase in

June 2001. In addition to the lack of temporal proximity between the

events, there is no evidence that Fierros was singled out for such a nonmonetary merit award. All employees paid from the same budget as Fierros

who were recommended for merit pay increases received leave instead,

TDH citing a budget shortfall. There is likewise no evidence that Fierros

was singled out for placement within the deficient budget. Further, Fierros

received reclassifications with significant pay increases both before and

after the merit award, each increase substantially more than the merit raise

she would have received had there been funds in the budget in 2001. 

2. Additionally, the alleged $300.00 reduction in pay Fierros asserts as a
3

secondary retaliatory act immediately following her December 2001 charge

of discrimination is belied by the record evidence. In the earnings

statement summary table first presented in her response to TDH’s motion

for summary judgment and then reproduced in appellant’s brief, Fierro

erroneously cites her $2,101 regular pay from her January 2002 earnings

statement, rather than her total salary (including benefit replacement and

longevity pay) as cited for previous months. Fierro’s total salary for

January 2002 was $2,415.01, which is in keeping with the $2,421 from the

prior month. 

3. Finally, we agree with the district court that, even if Fierros had met the

prima facie elements of a retaliation claim, she could not survive the

remainder of the McDonnell-Douglas burden-shifting analysis. TDH

produced a legitimate non-discriminatory reason for awarding Fierros paid

leave rather than a merit raise: a budget shortfall resulting in identical

treatment of all similarly-situated employees. Fierros offers no evidence

that TDH’s stated reason for its employment action was a pretext for

discriminatory animus. 

AFFIRMED.