IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _____________________

No. 01-20473 Summary Calendar _____________________

SANDRA K. FORBES, Plaintiff-Appellant,

versus

CATALYST TECHNOLOGY INC.; CRI INTERNATIONAL INC.; SHELL OIL COMPANY,

Defendants-Appellees.

__________________________________________________________________

Appeals from the United States District Court for the Southern District of Texas, Houston USDC No. H-99-CV-3834 _________________________________________________________________ January 23, 2002 Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.

PER CURIAM:*

In this case, Sandra Forbes, a black Jamaican female, alleges

that her former employers, Catalyst Technology and CRI

International, along with their affiliate Shell Oil, violated 42

U.S.C. § 2000e (Title VII) and

. According to

Forbes, the defendants (1) created a hostile work environment based

on her race and gender, (2) paid her less than white employees who

performed the same tasks, and (3) retaliated against her because

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 she reported discriminatory treatment of another black employee.

The district court adopted the magistrate judge’s recommendation

and granted summary judgment in favor of the defendants on all of

Forbes’s claims. We agree and affirm the district court’s

judgment.

The district court granted summary judgment on Forbes’s

hostile work environment claim because the harrassing conduct that

Forbes identifies was not sufficiently severe or pervasive to give

rise to liability. To support her claim, Forbes points to several

instances of offensive behavior at her workplace: (1) derogatory

comments by co-workers concerning black employees and Jamaicans,

(2) an ambiguous remark about school busing and other assorted

mean-spirited conduct by her supervisor, (3) discriminatory

treatment of a black male employee who failed a drug test, (4)

inappropriate sexual comments by a male co-worker, (5) CRI

International’s refusal to consider her for a position in the

accounting department, and (6) inadequate investigation of Forbes’s

complaints about the above conduct.

To survive summary judgment on her hostile work environment

claim, Forbes must produce evidence of conduct by her employer

“that is so severe and pervasive that it destroys a protected

classmember's opportunity to succeed in the workplace.” Weller v.

Citation Oil & Gas Corp.,

(5th Cir. 1996). The

conduct alleged by Forbes was largely episodic and does not rise to

the level required for liability as a hostile work environment

2 under Title VII. Cf. Indest v. Freeman Decorating, Inc.,

(5th Cir. 1999) (“Incidental, occasional or merely playful

sexual utterances will rarely poison the employee's working

conditions to the extent demanded for liability. Discourtesy or

rudeness, ‘offhand comments and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in

terms and conditions of employment.’” (internal quotation marks and

citation omitted)). As a consequence, the district court did not

err in granting the defendants summary judgment on this claim.

The district court granted summary judgment on Forbes’s claim

of compensation discrimination because Forbes presented

insufficient evidence that Catalyst Technology’s nondiscriminatory

reason for paying her less than her predecessors was a pretext for

discrimination. Catalyst Technology contends that it paid Forbes

less because, unlike her predecessors, Forbes did not have a

college degree. Forbes responds that she has the required

qualifications for her position,1 including the “equivalent” of a

college degree (namely, 106 of the 126 hours required for a degree)

and five years of relevant experience. As a result, she argues

that she was entitled to the same compensation as her predecessors.

Relying on a comment by a Catalyst Technology employee, Forbes

further argues that Catalyst Technology’s proffered explanation

1 The position requires “a four year degree in a related field or equivalent and five plus years personnel experience in catalyst handling or petrochemical/refining/maintenance service industry.”

3 contradicts its “policy” of paying employees according to their

duties and not according to their qualifications.

We agree with the district court that Forbes has not presented

sufficient evidence to create a genuine question of fact concerning

the legitimacy of Catalyst Technology’s nondiscriminatory

explanation for Forbes’s lower salary. Even assuming that Forbes

possessed the minimum qualifications required for the position,

Catalyst Technology could properly choose to pay her less because

she had not yet received a college degree and had less experience

than her predecessors. Furthermore, there is no support in the

record for the proposition that Catalyst Technology has a policy

prohibiting consideration of qualifications in setting salaries.

We also note that the evidence of racial animus discussed above is

insufficient to raise an issue of material fact concerning whether

the proffered explanation is pretexual. In sum, the district court

did not err in granting the defendants summary judgment on Forbes’s

discriminatory compensation claim.

Finally, the district court granted summary judgment on

Forbes’s retaliation claim because Forbes could not prove that she

was the subject of an adverse employment action, which is required

to establish a prima facie case of retaliation under Title VII.

See Evans v. City of Houston,

(5th Cir. 2001)

(outlining elements of prima facie case). Forbes argues that she

received a lower raise and was constructively discharged because

4 she complained about the discriminatory treatment of another black

employee.

Forbes first argues that she suffered an adverse employment

action based on the amount of the raises she received. Six months

after she was hired as a human resources administrator, Catalyst

Technology awarded her a $2000 raise. Six months after that, she

received a $1500 raise. Forbes argues that Catalyst Technology

reduced the amount of the second raise because she complained about

the discriminatory treatment of a black co-worker. Forbes has not

produced any evidence, however, that she would have received a

higher raise absent the alleged retaliation or that she was

otherwise entitled to the higher amount. Indeed, Catalyst

Technology presented evidence that it is unusual for an employee to

receive two raises in one year because salary reviews typically

occur only once per year.

Second, Forbes argues that Catalyst Technology constructively

discharged her by means of the harassment described above. To show

a constructive discharge, Forbes “must offer evidence that the

employer made the employee's working conditions so intolerable that

a reasonable employee would feel compelled to resign.” Barrow v.

New Orleans S.S. Ass'n,

(5th Cir. 1994). The

plaintiff must demonstrate a “greater severity or pervasiveness of

harassment than the minimum required to prove a hostile work

environment claim.” Benningfield v. City of Houston,

(5th Cir. 1998).

5 Relying on the evidence of harassment discussed above, Forbes

argues that she has raised a genuine issue of fact whether Catalyst

Technology’s conduct constitutes a constructive discharge. As we

noted above, however, the harassment described by Forbes is not

sufficiently pervasive or severe to satisfy the requirements for

a hostile work environment claim. Because the standard for

constructive discharge claims is higher than that for hostile work

environment claims, Forbes cannot show that she was constructively

discharged by Catalyst Technology.

We therefore agree with the district court that Forbes’s

retaliation claim fails because she has not suffered an “adverse

employment action.”

Accordingly, we hold that the district court did not err in

granting summary judgment in favor of the defendants on all of

Forbes’s claims, and its judgment is

AFFIRMED.

6