In Lindsley v. TRT Holdings, Inc., 984 F.3d 460 (5th Cir.  1/7/2021), the Fifth Circuit reversed a grant of summary judgment regarding the plaintiff’s claim that she was paid less than her three male predecessors. Writing for the majority, Judge Ho said it was apparent that she was paid less than the men who previously held the same position. The pay difference was substantial, ranging from $11,000 to $4,000 less than her predecessors. The court noted that the lower court erred in expecting Lindsley to show that her duties were the same as the duties held by predecessors. Judge Ho said it was enough to show she held the same job title at the same hotel and that she was paid less.

Same Job Title

The plaintiff based her case on Title VII, the Texas Labor Code Sec. 21.001, and on the Equal Pay Act. The court added that for purposes of the Equal Pay Act, the lower court may not consider the pay for other persons holding the position of Food and Beverage Director. But, for purposes of Title VII and Sec. 21.001, the lower court may consider the pay of Food and Beverage Directors at other hotels. The Fifth Circuit ordered the lower court to consider the pay disparity on remand and to look specifically at the non-discriminatory reason put forth by Omni Hotels.

Second Bite at the Apple

The court could have simply reversed the district court on this issue. But, instead, it essentially gives Omni Hotels a second bite at the apple by letting them put forth a better non-discriminatory reason – if they can. If the employer dd not put forth a non-discriminatory reason in its initial motion for summary judgment, then I wonder why they are given a second chance to to do so.


Regarding a second issue, whether Lindsley suffered retaliation, the court finds there is no issue of fact and affirms summary judgment. The employee claimed her boss became hostile toward her after she filed her EEOC charge. But, the court excuses the boss’ anger, saying he “said” he was angry about something other than her charge. (Well, okay then, that settles it). The court also noted correctly that being mean in the work place is not in itself an adverse personnel action. (No, but it can and should serve as evidence of intent).

Subjective Belief

HR threatened Lindsley with no job if she left on FMLA leave. The court rejects Lindsley’s claim that in making this threat, HR created a hostile work environment. The court finds this simply represents the employee’s “subjective” belief that this act amounted to discrimination. (Courts often reject the witness’ perception as a “subjective belief,” while accepting the supervisor’s perception). And, it rejects the employee’s contention that a lowered, but still not negative, performance evaluation addressed the time period before Lindsley’s EEOC Charge.

At this point the court is weighing evidence. It decided that a bad, but still satisfactory performance evaluation addressed a time period before the EEOC Charge. Yet, that performance evaluation was issued after the EEOC charge. A jury should decide if that performance evaluation amounted to reprisal. Just as a jury should determine whether the HR threat of Lindsley losing her job amounted to reprisal.

See the decision here.