Full opinion text
MEMORANDUM AND ORDER NANCY F. ATLAS, District Judge. This employment discrimination case comes before the Court on Defendant Mediterranean Shipping Company (USA), Inc.’s (“MSC’s”) Motion for Summary Judgment [Doc. # 39] (“Motion”). Plaintiffs Ceceil L. Collins-Pearcy (“CollinsPearcy”) and Mark A. Pearcy (“Pearcy”) filed a Response [Doc. # 58], and MSC filed a Reply [Doc. # 71]. The Motion is fully briefed and ripe for determination. Both Plaintiffs raise claims of a racially hostile work environment and discrimination based on race, as well as claims of national-origin discrimination, under Chapter 21 of the Texas Labor Code, § 21.001 et seq., and 42 U.S.C. § 1981 (“ § 1981”). Collins-Pearcy also raises claims of interference and retaliation under the Family and Medical Leave Act of 1993 (“FMLA” or “the Act”), 29 U.S.C. § 2601 et seq., and discrimination based on gender and pregnancy under the Texas Labor Code and § 1981. Finally, both Plaintiffs assert claims of libel and fraud under Texas law. MSC moves for summary judgment on all claims. After carefully considering the parties’ submissions, all pertinent matters of record, and applicable legal authorities, the Court concludes that MSC’s Motion should be granted in all respects. The Court concludes that Collins-Pearcy has failed to raise a genuine issue of material fact that she was an eligible employee under the FMLA. Collins-Pearcy’s disparate impact claim fails because it was not exhausted, and Pearcy’s disparate impact claim fails because he has not raised a genuine issue of material fact that there is a causal link between any specific, facially neutral employment policy and an actionable disparity based on one of his protected classes. Plaintiffs failed to exhaust their race-based hostile environment claims under the Texas Labor Code, and have not raised a fact issue that they were subjected to such an environment under their § 1981 claims. MSC is entitled to summary judgment on Plaintiffs’ disparate treatment claims, based on all of their respective protected classes, because Plaintiffs have not produced evidence sufficient to establish a prima facie case of discrimination for any of those claims. Further, Plaintiffs have not raised a genuine issue of material fact that MSC’s stated reasons for taking any adverse employment actions against them were pretextual or based on a mixed motive. Plaintiffs failed to exhaust their retaliation claims under the Texas Labor Code, and have not established a prima facie case of retaliation under § 1981. Finally, Plaintiffs have failed to produce evidence sufficient to raise a genuine issue of material fact to support their libel and fraud claims. I. FACTUAL BACKGROUND Defendant MSC is a worldwide shipping line engaged in international container transport. MSC hired Plaintiffs Ceceil Collins-Pearcy and Mark Pearcy, a married couple, to work in MSC’s Houston office on June 5, 2006. Plaintiffs are Black Jamaicans who were authorized to work in the United States for one year at the time of their hire. Plaintiffs were authorized for employment under the Optional Practical Training program, which allows certain international students to work in the United States for approximately one year after they have completed their studies. See 8 C.F.R. § 214.2(f)(10)(ii). Each Plaintiff has a Master’s Degree in Business Administration from Nicholls State University. Collins-Pearcy was originally assigned to the Intermodal Department at MSC. She later worked in MSC’s Equipment Department and Freight Cashier Department. Collins-Pearcy’s ultimate supervisor throughout her employment at MSC was Jim Morrison, a Caucasian male, MSC’s Assistant Vice President. Pearcy worked in MSC’s Export Documentation, Import Customer Service, and Far East Import Departments during his employment at MSC. Pearcy had a different supervisor in each department. The ultimate decision-makers at MSC when it came to employment decisions for both Plaintiffs were Claudio Bozzo, MSC’s President, and Paolo Magnani, MSC’s Vice President, both male, Caucasian, Italians. Citing poor attendance and work performance, MSC states that on February 14, 2007, it decided not to sponsor Plaintiffs’ work-visa applications, which, if successful, would have provided Plaintiffs the legal status necessary to continue their employment at MSC. On March 14, 2007, Collins-Pearcy began a maternity leave that ran to May 21, 2007. Plaintiffs’ employment with MSC was terminated on or about June 4, 2007. Plaintiffs subsequently filed the instant employment discrimination suit against MSC. II. SUMMARY JUDGMENT STANDARD Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party’s case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.2002). Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir.2008). For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant’s claim in which there is an “absence of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005). The moving party, however, need not negate the elements of the non-movant’s case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005). The moving party may meet its burden by pointing out “ ‘the absence of evidence supporting the nonmoving party’s case.’ ” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.1992)). If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001) (internal citation omitted). “An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005) (internal citations omitted). In deciding whether a genuine and material fact issue has been created, the court reviews the facts and inferences to be drawn from them in the light most favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.2003). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir.2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The non-movant’s burden is not met by mere reliance on the allegations or denials in the non-movant’s pleadings. See Diamond Offshore Co. v. A & B Builders, Inc., 302 F.3d 531, 545 n. 13 (5th Cir.2002). Likewise, “conclusory allegations” or “unsubstantiated assertions” do not meet the non-movant’s burden. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir.2008). Instead, the nonmoving party must present specific facts which show “the existence of a genuine issue concerning every essential component of its case.” Am. Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, 343 F.3d 401, 405 (5th Cir.2003) (citation and internal quotation marks omitted). In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts. Little, 31 F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). The Court may make no credibility determinations or weigh any evidence, and must disregard all evidence favorable to the moving party that the jury is not required to believe. See Chaney v. Dreyfus Service Corp., 595 F.3d 219, 229 (5th Cir.2010) (citing Reaves Brokerage Co., 336 F.3d at 412-413). The Court is not required to accept the nonmovant’s conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence. Id. (citing Reaves Brokerage, 336 F.3d at 413). Affidavits cannot preclude summary judgment unless they contain competent and otherwise admissible evidence. See Fed. R. Civ. P. 56(e); Love v. Nat’l Med. Enters., 230 F.3d 765, 776 (5th Cir.2000); Hunter-Reed v. City of Houston, 244 F.Supp.2d 733, 745 (S.D.Tex. 2003). A party’s self-serving and unsupported statement in an affidavit will not defeat summary judgment where the evidence in the record is to the contrary. See In re Hinsley, 201 F.3d 638, 643 (5th Cir.2000). Finally, “[w]hen evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court.” Malacara v. Garber, 353 F.3d 393, 405 (5th Cir.2003). “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.” See id. (internal citations and quotations omitted). III. ANALYSIS A. Collins-Pearcy’s FMLA claims MSC argues that Plaintiff CollinsPearcy’s claim under the Family Medical Leave Act fails because she was never an eligible employee under the Act. To meet the definition of an “eligible employee” under the FMLA, an employee must have been employed “for at least 12 months by the employer with respect to whom leave is requested.” 29 U.S.C. § 2611(2)(A). “The determination of whether an employee has worked for the employer for ... at least 12 months must be made as of the date the FMLA leave is to start.” 29 C.F.R. § 825.110(d). MSC hired CollinsPearcy on June 5, 2006. She began her maternity leave on March 14, 2007, less than twelve months after she was hired. Thus, MSC argues, Collins-Pearcy is not an eligible employee under the FMLA, and her FMLA claims fail. Collins-Pearcy does not dispute that she does not meet the eligible-employee criteria, but argues that she can still establish a viable FMLA claim under a “detrimental reliance” principle in the context of an equitable-estoppel theory. Collins-Pearcy cites to Minard v. ITC Deltacom Commc’ns, Inc., 447 F.3d 352, 358-60 (5th Cir.2006), for support. In Minard, the Fifth Circuit reversed the district court’s grant of summary judgment on a FMLA claim. The Fifth Circuit set fourth the elements of equitable estoppel in the FMLA context: an employer who without intent to deceive makes a definite but erroneous representation to his employee that she is an “eligible employee” and entitled to leave under FMLA, and has reason to believe that the employee will rely upon it, may be estopped to assert a defense of non-coverage, if the employee reasonably relies on that representation and takes action thereon to her detriment. Id. at 359. Noting that the employer granted the employee’s request for leave in a memorandum that “specifically stated that she was an eligible employee under the Family and Medical Leave Act and that she had ‘a right under the FMLA for up to 12 weeks of unpaid leave in a 12-month period,’ ” the court concluded that the employer unintentionally made a definite misrepresentation to the employee that she was an “eligible employee” at the time she requested leave, and that the employee reasonably relied upon that misrepresentation. Id. at 354. The court held that there was an issue of fact regarding whether the employee relied on this misrepresentation to her detriment, pointing to conflicting allegations about whether the plaintiff would have had surgery, and thus missed work, regardless of receiving protected leave. Id. Accordingly, the court reversed the grant of summary judgment and remanded the case. Id. Plaintiffs invoke Minard in their Response, arguing that Tina Scaglione, MSC’s Director of Human Resources, allegedly told Collins-Pearcy that she was an eligible employee entitled to leave under the FMLA. Collins-Pearcy, however, cites to no evidence that Scaglione, or any other MSC employee, told her that she was eligible for FMLA leave. CollinsPearcy does not cite her own deposition or affidavit testimony on this point. Further, Collins-Pearcy does not establish that she, in fact, requested such leave. Collins-Pearcy instead refers to several documents that reference the “FMLA” in an attempt to circumstantially show entitlement to equitable estoppel. First, Collins-Pearcy cites MSC’s response to Collins-Pearcy’s Texas Workforce Commission Charge of Discrimination (“MSC’s TWC Response”), in which MSC, through Scaglione, stated that Collins-Pearcy returned from “FMLA Leave” on May 21, 2007. Collins-Pearcy also cites several emails between MSC staffers discussing her leave, several of which refer to “FMLA” forms, in addition to short-term-disability paperwork. Finally, Collins-Pearcy produces a Certification of Health Care Provider Form, completed by her doctor, bearing a legend “(Family and Medical Leave Act of 1993)” and ordering bed rest for the “duration of her pregnancy, [and] six weeks after delivery”; “3/15/07— 5/24/07.” The Court holds that Collins-Pearcy’s evidence is insufficient to establish her reliance on any statement by MSC to her, and thus fails to raise a genuine issue of material fact that MSC should be equitably estopped from asserting her status as an ineligible employee under the FMLA. As noted above, Collins-Pearcy points to no evidence that anyone at MSC actually told her that she was eligible for FMLA leave. See Harvey v. Wal-Mart Louisiana, L.L.C., 665 F.Supp.2d 655 (W.D.La. 2009) (“ ‘[T]he defendant-employer must have actually represented to the plaintiff-employee that her leave was covered and/or that she was protected by the FMLA in order to equitably estop the defendant from arguing in court that the FMLA does not specifically cover the plaintiff-employee and/or her leave.’ ”) (quoting Ford-Evans v. United, Space Alliance LLC, 329 Fed.Appx. 519, 527 (5th Cir.2009)). Indeed, the uncontradicted record reflects that MSC has no record that Collins-Pearcy ever applied for FMLA leave. While Scaglione testified that she signed MSC’s Response to Collins-Pearcy’s TWC Charge, she also testified that she did not prepare it, and the statement that Collins-Pearcy was on FMLA leave, rather than maternity leave, was error. Moreover, MSC’s TWC Response was submitted on September 2007, months after the leave concluded. Accordingly, Collins-Pearcy could not have relied upon it at the time she took her leave. None of the cited emails, which were communications among only MSC human-relations and management employees, and not with Collins-Pearcy, actually authorizes FMLA leave or makes an erroneous representation to Collins-Pearcy’s about her eligibility for such leave. Finally, the Certification of Health Care Provider Form was filled out by Collins-Pearcy’s doctor, not by any MSC representative. Collins-Pearcy does not establish that MSC provided her or her doctor with this form, and therefore the form constitutes no evidence of what MSC was thinking at the time. At best Collins-Pearcy proffers a scintilla of circumstantial evidence that is insufficient to support a jury verdict that MSC made a “definite representation” to her that she was eligible for FMLA leave. See DIRECTV, Inc. v. Robson, 420 F.3d at 536; Minard, 447 F.3d at 359. Even if Collins-Pearcy had established that MSC made a definite representation that she was entitled to FMLA leave, she has failed to show that she relied upon such a representation to her detriment. The uneontroverted evidence shows that Collins-Pearcy’s doctor required that she be confined to bed rest from mid-March to late May, 2007. Collins-Pearcy has not shown that she relied to her detriment on any representation by MSC about her leave status, because she has not shown, or even argued, that she could have cut her leave short and returned to work in any event. See Minard, 447 F.3d at 359; Durose v. Grand Casino of Mississippi Inc., 251 Fed.Appx. 886, 889 (5th Cir.2007) (emphasizing the importance of the detrimental reliance requirement). Consequently, MSC is entitled to summary judgment on Collins-Pearcy’s FMLA claim. The forgoing also sounds the death knell for Collins-Pearcy’s FMLA retaliation claim. To establish a prima facie case of retaliation under FMLA, the plaintiff must establish that she was protected by the Act. Hunt v. Rapides Healthcare System, L.L.C., 277 F.3d 757, 768 (5th Cir.2001). As noted, Collins-Pearcy has not made this showing. B. Plaintiffs’ Texas Labor Code and § 1981 Discrimination Claims Plaintiffs bring various claims of employment discrimination under both Chapter 21 of the Texas Labor Code and under 42 U.S.C. § 1981. “In enacting [Chapter 21], the [Texas] Legislature intended to correlate state law with federal law in employment discrimination cases.” M.D. Anderson Hosp. and Tumor Institute v. Willrich, 28 S.W.3d 22, 24 (Tex.2000) (citing Tex. Lab.Code § 21.001). “Adhering to legislative intent, Texas courts have looked to federal law in interpreting [Chapter 21’s] provisions.” Id.; see also Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 n. 2 (5th Cir.1999) (“The law governing claims under [Chapter 21] and Title VII is identical.”). Similarly, the summary judgment test for assessing discrimination claims under § 1981 is the same as it is under Title VII. See Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 316 (5th Cir.2004) (citing Pratt v. City of Houston, 247 F.3d 601, 605 n. 1 (5th Cir.2001)). Accordingly, the Court looks to precedent interpreting Title VII when evaluating Plaintiffs’ claims under Chapter 21 of the Texas Labor Code and § 1981. 1. Disparate Impact MSC moves for summary judgment on Plaintiffs’ disparate impact claims. It appears Plaintiffs intend to assert these claims under both § 1981 and the Texas Labor Code. A disparate impact claim is not legally viable under § 1981. Section 1981 requires proof of intentional discrimination. See National Ass’n of Gov’t Employees v. City Pub. Serv. Bd., 40 F.3d 698, 714-15 (5th Cir.1994) (“To prove a cause of action under section 1983 based on a violation of equal protection, Plaintiffs are required, as under section 1981, to demonstrate intentional discrimination; mere disparate impact will not suffice.”); Gray v. Entergy Operation, Inc., 240 F.3d 1074, 2000 WL 1835299, at *4 (5th Cir. Nov. 29, 2000) (unpublished) (stating that if a plaintiff employee was attempting to raise a disparate impact claim by relying on statistics showing a concentration of African-American employees in unskilled positions, she did not state a claim cognizable under § 1981, because § 1981 requires proof of intentional discrimination) (citing General Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982)); see also Scheidecker v. Arvig Enters., Inc., 122 F.Supp.2d 1031, 1043-44 (D.Minn.2000) (an intentionally discriminatory policy does not give rise to a disparate impact claim; a plaintiff “cannot recast a disparate treatment claim to establish a disparate impact claim”) (citing Hunt v. Tektronix, Inc., 952 F.Supp. 998, 1009 (W.D.N.Y.1997)). Accordingly, the Court analyzes the disparate impact claims under the Texas Labor Code only. Disparate impact claims involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Stout v. Baxter Healthcare Corp., 282 F.3d 856, 860 (5th Cir.2002) (citations omitted); City of Austin Police Dept. v. Brown, 96 S.W.3d 588, 594 (Tex.App.-Austin 2002, pet. dism’d). To establish a prima facie case of disparate impact, a plaintiff must both (1) identify the employment practice that has the allegedly disproportionate impact and (2) establish causation by offering statistical evidence to show that the practice in question has resulted in prohibited discrimination. Id. Ordinarily, a prima facie, disparate impact case requires a showing of a substantial “statistical disparity between protected and non-protected workers in regards to employment or promotion.” Id. (citing Munoz v. Orr, 200 F.3d 291, 299-300 (5th Cir.2000)). a. Exhaustion MSC first argues that Plaintiffs’ disparate impact claims under the Texas Labor Code are barred for failure to exhaust. “To bring a suit for unlawful employment practices, a plaintiff must first have filed an administrative complaint with the EEOC or the [Texas Workforce Commission] not later than the 180th day after the date the alleged unlawful employment practice occurred.” University of Texas v. Poindexter, 306 S.W.3d 798, 807 (Tex.App.-Austin 2009, n.p.h.) (citing Tex. Lab. Code § 21.202(a)). “Timely filing of an administrative complaint is a mandatory and jurisdictional prerequisite to filing suit.” Id. (citing Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 493 (Tex.1996)). An employment discrimination plaintiff is not required to “check a certain box or recite a specific incantation to exhaust his or her administrative remedies before the proper agency.” Pacheco v. Mineta, 448 F.3d 783, 792 (5th Cir.2006). “Instead, the plaintiffs administrative charge will be read somewhat broadly, in a fact-specific inquiry into what EEOC investigations it can reasonably be expected to trigger.” Id.; see also Estate of Martineau v. ARCO Chemical Co., 203 F.3d 904, 913 (5th Cir.2000) (Title VII claims are limited to those claims that “could reasonably be expected to grow out of the initial charges of discrimination.”); Poindexter, 306 S.W.3d at 811-13 (holding that employee’s disparate impact claim under the Texas Labor Code was barred because she did not raise it in her EEOC charge) (citing Pacheco, 448 F.3d at 790-92). In Pacheco, the Fifth Circuit upheld the district court’s dismissal of the employee’s disparate impact claim on the grounds that he failed to exhaust the claim in his administrative charge. 448 F.3d at 792. The Pacheco court held that an investigation of a disparate impact claim could not have reasonably been expected to flow out of the administrative charge because: “(1) [the charge] facially alleged disparate treatment; (2) it identified no neutral employment policy; and (3) it complained of past incidents of disparate treatment only.” Id. at792. In the case at bar, Plaintiffs filed several documents with the EEOC and Texas Workforce Commission raising various claims of discrimination. The Court evaluates Plaintiffs’ respective filings in turn. Collins-Pearcy’s Administrative Filings. — Collins-Pearcy relies on three documents she claims she filed with administrative agencies. First, she produces her original charge of discrimination, which was received by the EEOC on July 19, 2007. There, Collins-Pearcy alleged: I. On May 21, 2007, upon my return from maternity FMLA leave, I was reassigned to the Freight Cashier Department. I had previously worked as Equipment/Logistics Coordinator. Respondent is a shipping company. II. On June 4, 2007, my employment was terminated. Respondent’s Vice President at its Houston Office, Darlene Ruiz, told me that my work authorization was expiring and that the company would not be sponsoring me for an H-l Visa. When I asked why, she said that she did not know. However, Respondent has sponsored Italian employees such as Ricardo Rinaldine [sic], Equipment/Logistics Coordinator, white male, for H-l visas. In June, 2007, I was passed over for promotion to Supervisor by a less qualified Italian employee, Francisco Cosenza, white male. I was also paid less than Italian employees for doing the same job. III. I believe that I have been discriminated against because of my race, black, national origin, Jamaican, and sex, female, in violation of Ti-tie VII of the Civil Rights Act of 1964, as amended. None of the allegations in Collins-Pearcy’s original charge of discrimination could be interpreted as identifying a specific, facially neutral employment policy as required to exhaust a claim of disparate impact discrimination. See Pacheco, 448 F.3d at 792; see and compare McClain v. Lufkin Industries, Inc., 519 F.3d 264, 275 (5th Cir.2008). Rather, Collins-Pearcy alleges acts of intentional discrimination based on her various protected classes. Next, Collins-Pearcy points to a letter entitled “Addendum to Charge.” This document is dated November 26, 2007, but is unsigned. This document does not bear any “received” stamp of the EEOC. Collins-Pearcy admitted at her deposition that she was not “100 percent sure” that she sent it to the EEOC. As CollinsPearcy has not presented persuasive evidence that this Addendum was sent to or received by the EEOC, she may not rely on it for administrative claim-exhaustion purposes. Collins-Pearcy next points to her “Amendment to Charge,” which bears a “received” stamp of the EEOC. As noted, to properly exhaust a claim under the Texas Labor Code, a plaintiff must file a charge of discrimination within 180 days of the alleged unlawful act. Poindexter, 306 S.W.3d at 807. Collins-Pearcy’s Amendment is dated January 15, 2008, more than 180 days after she ceased working at MSC, and thus any new claims it raises are untimely for exhaustion purposes, as explained below. The “relation back” doctrine under Texas law provides that, an “amendment to a complaint alleging additional facts that constitute unlawful employment practices relating to or arising from the subject matter of the original complaint relates back to the date the complaint was first received by the commission.” Id. at 809 (citing Tex. Lab.Code § 21.201(f)). However, Texas appellate authority clarifies that, “[generally, amendments that raise a new legal theory do not ‘relate back’ to an original charge of discrimination.” Id. (quoting Manning v. Chevron Chem. Co., 332 F.3d 874, 878 (5th Cir.2003) (internal quotes omitted; collecting cases)). The Poindexter court held that an employee’s amendment raising a retaliation claim did not relate back to her original charge of discrimination which only raised allegations of disparate treatment based on race. Id.-, see Manning, 332 F.3d at 878 (the purpose of the relation-back requirement is to ensure that employers are afforded timely notice of challenged practices). Similarly, in the case at bar, Collins-Pearcy’s original charge of discrimination alleged only intentional disparate treatment discrimination, not disparate impact discrimination based upon a facially neutral employment policy, a materially different claim. See Pacheco, 448 F.3d at 787 (disparate impact and disparate treatment are “two largely separate theories of discrimination”) (citing Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). Accordingly, Collins-Pearey’s allegation in her Amendment that MSC did not post the availability of openings does not relate back to her original charge, and the new theory was asserted too late. Because Collins-Pearcy failed to make any timely filed allegations of disparate impact discrimination in her administrative filings, the Court lacks subject matter jurisdiction over Collins-Pearcy’s Texas Labor Code disparate impact claim. See Poindexter, 306 S.W.3d at 807. Pearcy’s Administrative Filings. — Mark Pearcy filed his charge of discrimination on July 30, 2007. His charge reads in its entirety: I. On March 15, 2007, Respondent’s Vice President Darlene Ruiz told me that I was no longer being considered for work visa sponsorship. Respondent is a shipping company. I worked as a Traffic Customer Service. II. However, Ruiz and Anrea Borattini, Office Manager, had told me previously on March 6, 2007 that Respondent would sponsor my work visa. Respondent sponsored far more Italian employees for work visas, and promoted them far more than other employees. Available positions were not advertised. On or around June 4, 2007, I was terminated. III. I believe that I have been discriminated against because of my race, black, and national origin, Jamaican, in violation of Title VII of the Civil Rights Act of 1964, as amended. Notably, Pearcy specifically alleged in his original charge, in the context of an allegation about Italian employees being promoted more than other employees, that MSC did not advertise available positions. Pearcy also filed a “Summary of Charges,” received by the EEOC on November 30, 2007, in which he repeats the “no-posting” allegation. He added that there was a lack of written job performance criteria at MSC, and that employees are instead subjectively evaluated or “gauged.” Read in its entirety, the gravamen of Pearcy’s administrative complaint as amended is that MSC intentionally preferred for promotion employees of Italian descent, who MSC intentionally gives preferential treatment over minority employees as part of a “culture” of “nepotism.” This claim primarily sounds in disparate treatment based on Pearcy’s race and national origin, as a Black, non-Italian. Nevertheless, under the principles enunciated in Pacheco that an administrative complaint should be construed “somewhat broadly” to reach issues within the scope of the investigation which can reasonably be expected to grow out of the charge of discrimination, the Court concludes Pearcy has exhausted disparate impact claims based on MSC’s alleged policies of not posting job openings and subjectively gauging employee performance to decide who to promote. See Pacheco, 448 F.3d at 792; see also McClain, 519 F.3d at 275 (allegation of a discriminatory, but neutral, company policy of subjective promotion decisions was sufficient to exhaust .a disparate impact claim). b. Pearcy: Merits Analysis of Disparate Impact Theory Pearcy fails to meet his summary judgment burden to establish a prima facie case of disparate impact discrimination. As noted, to establish a prima facie case of disparate impact, a plaintiff must both (1) identify the facially neutral employment practice that has the allegedly disproportionate impact and (2) establish causation by offering statistical evidence to show that the practice in question has resulted in prohibited discrimination. Stout, 282 F.3d at 860. Ordinarily, a prima facie disparate impact case requires a showing of a substantial “statistical disparity between protected and non-protected workers in regards to employment or promotion.” Id. (citing Munoz v. Orr, 200 F.3d 291, 299-300 (5th Cir.2000)). Plaintiffs argue in their Summary Judgment Response that the specific neutral policies that form the basis of the disparate impact claim are “MSC’s hiring, salary, promotions and terms and conditions of employment policies and practices at MSC.” This argument is nothing more than a general attack on management at MSC. “It is a matter of settled law that a disparate impact ... action is not the proper mechanism from which to attack the cumulative effects of an employer’s practices.” Munoz, 200 F.3d at 304 (citing, e.g., Pouncy v. Prudential Ins. Co. of Am., 668 F.2d 795, 800 (5th Cir.1982) (“Although some courts have used the disparate impact model of proof to challenge multiple employment practices simultaneously, this is an incorrect use of the model.” (internal citation omitted))). The only evidence to which Plaintiffs point in an effort to identify a neutral employment policy is Scaglione’s deposition testimony that MSC generally did not post notice or publicize supervisory job openings as they became available. The Court assumes for summary judgment purposes that the absence of any posting of job openings, in certain circumstances, could satisfy the requirement of a neutral policy for a disparate impact claim. This theory, however, is unavailing in this case. Pearcy points to no evidence that he was affected or injured in any way by such a policy. He has no evidence that he applied for a specific promotion, or that he would have done so had he known of its availability. Indeed, Plaintiffs do not even argue that Pearcy sought a promotion at any point during the course of his one-year employment with MSC. Without some connection between the identified policy and Pearcy, Pearcy has no standing to assert his disparate impact claim. See Bacon v. Honda of Am. Mfg., 370 F.3d 565, 576-77 (6th Cir.2004) (“an individual plaintiff arguing a disparate impact theory must show that the challenged policy directly disadvantaged him in some fashion”) (citing Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (under basic principles of standing, a plaintiff must have suffered some real or threatened injury); Robinson v. Polaroid Corp., 732 F.2d 1010, 1016-17 (1st Cir.1984); Coe v. Yellow Freight Sys., Inc., 646 F.2d 444, 451 (10th Cir.1981); Carpenter v. Bd. of Regents of Univ. of Wis. Sys., 728 F.2d 911, 915 (7th Cir.1984)); see also McClain, 519 F.3d 264, 275 n. 2 (5th Cir.2008) (expressing doubt that two plaintiffs would have had standing to assert, on behalf of a class, a disparate impact claim based on an employer’s policy of assigning new employees to a certain undesirable division when the two plaintiffs were not so assigned); Gomes, 964 F.2d at 1335. Pearcy’s “no-posting” disparate impact claim fails for a second reason. Pearcy has not shown evidence of causation, the other prong of a prima facie case on a disparate impact claim. A disparate impact plaintiff must not only isolate specific practices as responsible for disparities, but also must “conduct a systemic analysis of those employment practices in order to establish their case.” Munoz, 200 F.3d at 299-300 (citing Black Fire Fighters Ass’n of Dallas, 905 F.2d 63, 63 (5th Cir.1990)). Here, Plaintiffs merely cite generally to MSC’s EEO reports for the years 2006 through 2008, which show a low percentage of Blacks in management positions at MSC. Plaintiffs have not pro-dueed any statistical evidence tying this disparity to MSC’s failure to post supervisory job openings in particular, let alone to any other specific policy. Plaintiffs present no evidence addressing possible non-discriminatory reasons that could explain a low percentage of Blacks in supervisory positions. See Munoz, 200 F.3d at 301 (excluding an expert’s opinion on statistical disparities in a disparate impact case because, inter alia, the expert admitted that he failed “to consider other variables such as education and experience as explanations for any observed discrepancy between promotion rates and to not performing a regression analysis”); U.S. v. Valencia, 600 F.3d 389, 425 (5th Cir.2010) (“Evidence of mere correlation, even a strong correlation, is often spurious and misleading when masqueraded as causal evidence, because it does not adequately account for other contributory variables.”). “It is completely unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance.” Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 992, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). Pearcy simply has not presented evidence to create a genuine fact issue that the “no posting” policy at MSC, per se, caused a disparate impact on a protected class of which Pearcy was a member. For the forgoing reasons, MSC is entitled to summary judgment on Plaintiffs’ disparate impact claims. 2. Hostile Work Environment MSC next moves for summary judgment on Plaintiffs’ claims of a racially hostile work environment under the Texas Labor Code and § 1981. To prevail on their hostile work environment claim, Plaintiffs must prove that (1) they belonged to a protected group; (2) they were subjected to unwelcome harassment; (3) such harassment was based on race; and (4) the harassment complained of affected a term, condition, or privilege of employment. See Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.2002); Baker v. FedEx Ground Package Sys. Inc., 278 Fed.Appx. 322, 328 (5th Cir.2008). “We determine whether a hostile work environment exists using a totality-of-the-circumstances test that focuses on the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating ... and whether it unreasonably interferes with an employee’s work performance.” Baker, 278 Fed.Appx. at 328 (quoting Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 347 (5th Cir.2007)) (ellipsis in Baker). A plaintiff “must subjectively perceive the harassment as sufficiently severe or pervasive, and this subjective perception must be objectively reasonable.” Id. at 328-29 (quoting Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir.2003)). “When the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotation marks and citations omitted); Ramsey, 286 F.3d at 268. a. Exhaustion MSC first argues that Plaintiffs failed to exhaust their hostile work environment claims under the Texas Labor Code in their administrative complaints. The Court agrees. As set forth supra, in an exhaustion inquiry, the plaintiffs administrative charge is read in a “fact-specific inquiry into what EEOC investigations it can reasonably be expected to trigger.” Pacheco, 448 F.3d at 792; see also Poindexter, 306 S.W.3d at 807 (“When filing suit, a plaintiff may raise only the specific issue made in the employee’s administrative complaint and any kind of discrimination like or related to the charge’s allegations.” (internal quotations omitted)). As discussed, the essence of both Collins-Pearcy’s and Pearcy’s administrative charges is that MSC engaged in unlawful discrimination by, inter alia, denying Plaintiffs opportunities for advancement, refusing to sponsor their work visas, and ultimately terminating their employment. Noticeably absent from their administrative charges, however, is any meaningful express assertion of a hostile work environment or allegations of severe or pervasive harassment that would rise to the level of affecting a term condition, or privilege of employment. See Ramsey, 286 F.3d at 268. Plaintiffs’ allegations of discrete acts of discrimination were unlikely, in of themselves, to trigger an administrative investigation of the day-today working conditions of Black employees at MSC. Cf. Estate of Martineau v. ARCO Chem. Co., 203 F.3d 904, 913 (5th Cir.2000) (employee did not establish a continuing violation for a hostile work environment claim based on his termination because his termination related to disparate treatment, not harassing conduct); Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 325 (Tex.App.-Texarkana 2008) (employee did not preserve a hostile work environment claim when his only timely allegation of discrimination was based on his termination, because “[germination is not itself harassing conduct.”); see also Hill v. Dep’t of Veterans Affairs, — FedAppx. -, -, 2009 WL 348767, at *4 (5th Cir.2009) (finding that a plaintiff who alleged in his administrative charge “three specific discriminatory events — the non-renewal of [his] clinical privileges, the decision to place [him] on administrative leave, and his ‘constructive discharge,’ ” had not exhausted a hostile work environment claim). Collins-Pearcy’s charge contained nothing of a hostile work environment ilk. Similarly, Pearcy did not allege severe or pervasive harassment in his administrative filings. Pearcy did allege, in his Summary of Charges, that at MSC there is “an atmosphere of subservience, sending a message that one has to ‘do their time’ and hope along the way they are ‘liked.’ ” Read in context, Pearcy here was referring to MSC’s no-posting policy for supervisory job openings and MSC’s alleged preference for people of Italian descent. This allegation is insufficient to meet the exhaustion requirement for actionable harassment. See Poindexter, 306 S.W.3d at 807. Both Plaintiffs accordingly have failed to exhaust their hostile work environment claims under the Texas Labor Code, and MSC is therefore entitled to summary judgment on those claims. b. Hostile Work Environment: Merits Analysis MSC is also entitled to summary judgment on Plaintiffs’ hostile work environment claims asserted under § 1981, which claims do not require administrative exhaustion. See Walker v. Thompson, 214 F.3d 615, 625 (5th Cir.2000). Although it is undisputed that Plaintiffs are members of a protected class, they have failed to raise a genuine issue of material fact that they were subjected to severe and pervasive unwelcome harassment, based on race, that affected a term, condition, or privilege of employment. See Ramsey, 286 F.3d at 268. Specifically, in this lawsuit, the conduct of which Plaintiffs complain is: (1) MSC decided not to sponsor Plaintiffs work visas after representing that Plaintiffs would be sponsored; (2) Pearcy was disciplined twice for the same infraction, which he claims was leaving work to take his wife to the doctor; (3) Pearcy was transferred between departments at MSC three times in one year; (4) Collins-Pearcy was transferred to a less desirable position after she returned from maternity leave; (5) the Pearcys did not receive promotions while other less qualified employees of Italian descent did; (6) Collins-Pearcy was relegated to a clerical position after complaining about the lack of promotions for Black employees; (7) MSC did not publicize available job openings until the positions were filled with “Italian and European” candidates; (8) qualified Black candidates were not promoted at MSC; and (9) MSC’s ultimate decision-makers were Italian males. As an initial matter, the majority of Plaintiffs’ accusations, even if taken as true, are not of a character or kind of conduct encompassed by actionable harassment. See Felton v. Polles, 315 F.3d 470, 485 (5th Cir.2002), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (“Actionable harassment must involve facially discriminatory, intimidation, ridicule, and insults.”) (citing Walker v. Thompson, 214 F.3d 615, 625 (5th Cir.2000)); see also Harris, 510 U.S. at 17, 21, 114 S.Ct. 367. Plaintiffs focus primarily on discrete acts and employment decisions that give rise to disparate treatment claims. See Estate of Martineau, 203 F.3d at 913; Bartosh, 259 S.W.3d at 325; Buchanan v. Exxon Mobil Corp., 2006 WL 492605, at *4 (S.D.Tex. Mar. 1, 2006) (holding that a demotion and alleged disparities in pay are “more appropriately characterized as ultimate employment decisions and discrete acts, and as such are more suited for a traditional discrimination or disparate treatment claim” than a hostile work environment claim) (citing Felton, 315 F.3d at 485). Further, each Plaintiff testified that he and she could not recall anyone at MSC making a racist comment towards them during their employment. The Court nevertheless, for the sake of completeness, addresses Plaintiffs’ arguments seriatim. First, Plaintiffs cite Pearcy’s testimony that MSC originally informed Plaintiffs that their work-visa applications would be sponsored, but ultimately MSC did not do so. Pearcy also added that this decision was made despite the fact that he received a positive performance review from his supervisor. However, the decision not to sponsor Plaintiffs’ work visas was — at most — a single instance of an alleged discrete act of discrimination, and not severe or pervasive harassment. Further, Plaintiffs have provided no evidence, as opposed to speculation or personal belief that the decision not to sponsor their visas was based on their race. Plaintiffs attempt to rely on MSC’s support of the visa application of an Italian employee, Riccardo Rinaldini, but as discussed in detail below, Plaintiffs have provided no evidence that Rinaldini was similarly situated to Plaintiffs in any respect. Plaintiffs also argue that it was harassment that all three Black employees with master’s degrees and work experience, specifically, themselves and Max Essockomba, were not sponsored by MSC for work visas. In fact, Plaintiffs present no admissible (non-speculative, non-hearsay) evidence that Essockomba had a masters degree, that he sought an extension of his visa, or that he was otherwise similarly situated to Plaintiffs. Plaintiffs’ only other evidence in this regard is Pearcy’s conclusory, unsupported assertion that “Italians were supported” for visas. This evidence does not establish a fact issue. In further effort to raise a fact issue that there was a hostile work environment towards Blacks, Plaintiffs also assert that MSC showed favoritism to Italian employees by allegedly making false statements in connection with the Italians’ work visa applications. Plaintiffs’ lone evidence for this inflammatory allegation is that on MSC’s application for Rinaldini’s visa, he is listed as having obtained a master’s degree. However, MSC has produced uncontradicted evidence that Rinaldini in fact received a degree from an Italian university in “Economía Delle Amministrazioni Pubbliche E Delle Instituzioni Internazionali,” and Plaintiffs present no evidence to the contrary. Plaintiffs also baldly accuse MSC of paying “under the table” money to unspecified Italian employees who lacked the proper work authorizations. Plaintiffs provide no specifics; this conclusory statement is inadmissible as hearsay and/or speculation lacking any indicia of reliability. Plaintiffs thus have failed to raise a genuine issue of material fact that their visa sponsorships were denied based on race and that this alleged conduct contributed to a racially hostile work environment. Plaintiffs also assert as harassment based on his race that Pearcy allegedly was disciplined twice for the same incident. Plaintiffs argue that MSC utilizes a progressive discipline policy in which the first step is to verbally warn an employee, and the second step is to issue an initial written notice. They contend, on the basis of Pearcy’s own perceptions of MSC’s policies and conduct, that MSC violated this policy by verbally warning him and also issuing him an initial warning notice when he left work one day to take Ceceil to the doctor. Pearcy testified that, before leaving, he informed his team leader, who was serving in a supervisory capacity, and explains that he could not inform his supervisor because the supervisor was absent from work that day. Plaintiffs, however, have not produced any evidence that MSC maintains a formal or any other progressive discipline policy as Plaintiffs contend. Plaintiffs also do not substantiate that it was appropriate under MSC policies for Pearcy to inform only his team leader before leaving work. Plaintiffs compare Pearcy’s situation to that of an Italian employee, Rinaldini, whom Plaintiffs contend was allowed to suddenly leave work to tend to a family emergency in Italy and allegedly did not inform management. Plaintiffs speculate without proof that Rinaldini faced no discipline. In fact, the uncontroverted documentary record and testimony of Ruiz, a person with knowledge of the situation, reveal that Rinaldini was put on leave, never returned from Italy, and was terminated from employment effective November 1, 2007. There is no evidence that Rinaldini escaped discipline, or that he left work without informing management in the first place, as Pearcy speculates. Moreover, as discussed in detail below, Plaintiffs cite no competent evidence that Rinaldini was similarly situated to Pearcy. Plaintiffs arguments here thus are mere speculation and not admissible evidence. Plaintiffs next point to Pearcy being transferred into three different departments in the span of one year as evidence of harassment based on his race. Pearcy testified that MSC was transferring him without explanation and that “it’s difficult getting promotions within the company if you can’t remain with a department for a long period of time.” He stated that he complained to his manager about being transferred, but was told that it was Ruiz’s decision, but when he complained to Ruiz, she referred him back to his managers, like he was “going in a little circle.” Pearcy did admit, however, that MSC eventually provided him an explanation, specifically that the transfers were part of a training process. If this conduct by MSC could conceivably constitute evidence of a hostile work environment, the events nonetheless are not probative. Indeed, Ruiz testified without contradiction that MSC frequently cross-trained employees. Scaglione testified that “[w]e transfer employees all the time.” Pearcy’s speculative testimony is insufficient to support his harassment claim. Plaintiffs next complain that, upon her return from “FMLA” leave, Collins-Pearcy was transferred to an allegedly less desirable Freight Cashier position where she lost access to a telephone, and where Plaintiffs contend there were no opportunities for career advancement. In the same vein, Plaintiffs argue that CollinsPearcy was relegated to clerical positions after complaining about a lack of promotions for Blacks. As an initial matter, Collins-Pearcy has produced no evidence that there were any open positions in her old department at the time or after she returned from maternity leave. Moreover, MSC has produced Ruiz’s uncontroverted testimony that all departments at MSC offer equal chances for career advancement, and that the Freight Cashier position is more essential to MSC’s success than Collins-Pearcy’s pre-transfer department, Equipment Logistics. There also is no evidence that a telephone was necessary for the data entry/freight cashier position. Collins-Pearcy has not shown this transfer, a loss of a phone to do her work, or her assignment to what she considered to be “clerical” positions, was evidence of harassment or due to her race. Plaintiffs’ contentions in support of their hostile work environment claims regarding a lack of promotions for Plaintiffs and other Black employees, and the “no-posting” policy, are discussed in detail elsewhere in this Memorandum. Moreover, neither those nor the final ground on which Plaintiffs rely, the fact that MSC’s ultimate decision-makers were Italian males, are accusations of actionable harassment involving “facially discriminatory, intimidation, ridicule, and insults.” See Felton, 315 F.3d at 485. In sum, Plaintiffs have failed to raise a genuine issue of material fact that they were subject to actionable workplace harassment based on their race. They have not demonstrated any conduct was repeated, severe or pervasive as required for hostile work environment claims. See Felton, 315 F.3d at 485. Nor is there any proof that the allegedly offending conduct by MSC affected a term, condition, or privilege of employment or created an abusive work environment. See Harris, 510 U.S. at 21, 114 S.Ct. 367; Ramsey, 286 F.3d at 268. Accordingly, Defendant is entitled to summary judgment on Plaintiffs’ hostile work environment claims. 3. Disparate Treatment Both Plaintiffs bring claims of disparate treatment discrimination based on race and national origin under both the Texas Labor Code and § 1981. Collins-Pearcy also alleges under the same statutes that she was discriminated against based on her gender and pregnancy. MSC moves for summary judgment on all of Plaintiffs’ disparate treatment claims. Unlawful discrimination under both the Texas Labor Code and § 1981 may be established through either direct or circumstantial evidence. Laxton v. Gap, Inc., 383 F.3d 572, 578 (5th Cir.2003); Russo v. Smith Int’l, Inc., 93 S.W.3d 428, 434 (Tex.App.-Houston [14 Dist.] 2002, pet. denied). Because Plaintiffs have not provided sufficient direct evidence of disparate treatment, their claims are analyzed using the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir.2001); Russo, 93 S.W.3d at 434 (“Texas courts invoke McDonnell Douglas in employment discrimination cases brought under state law.”). Under this test, a plaintiff must initially establish a prima facie case of race discrimination, which raises a presumption of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see also Rutherford v. Harris Co., 197 F.3d 173, 179-80 (5th Cir.1999). If successful, the burden then shifts to the defendant-employer to articulate a legitimate, nondiscriminatory reason for its actions. Okoye, 245 F.3d at 512. The burden on the defendant at this stage “ ‘is one of production, not persuasion ... [and] can involve no credibility assessment.’ ” Rios v. Rossotti, 252 F.3d 375, 379 (5th Cir.2001) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). If the defendant sustains its burden, “the presumption of discrimination dissipates.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir.2001) (citing Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir.2000)). The burden then “shifts back to the plaintiff to establish: (1) that the employer’s proffered reason is not true[,] but is instead a pretext for discrimination; or (2) that the employer’s reason, while true, is not the only reason for its conduct, and another ‘motivating factor’ is the plaintiffs protected characteristic.” Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir.2007) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir.2004)). “The plaintiff bears the ultimate burden of persuading the trier of fact ... that the employer intentionally discriminated against [him] because of [his] protected status.” Wallace, 271 F.3d at 220 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511-12, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Plaintiffs contend that MSC engaged in unlawful discrimination by paying CollinsPearcy less than similarly situated employees outside her protected classes, denying promotions to both Plaintiffs, electing not to sponsor both Plaintiffs’ work visa applications, and terminating both Plaintiffs’ employment. The Court addresses each alleged discriminatory employment action in turn. MSC here argues that Plaintiffs cannot establish a prima facie ease of disparate treatment on any of their theories of intentional discrimination. a. Collins-Pearcy’s Disparate Pay Claim To establish a prima facie case of discrimination with respect to compensation, Collins-Pearcy must show that she was paid less than an employee outside one of her protected classes for work requiring “substantially the same responsibility.” Johnson v. TCB Const. Co., Inc., 334 FedAppx. 666, 670 (5th Cir.2009) (citing Pittman v. Hattiesburg Mun. Separate Sch. Dist., 644 F.2d 1071, 1074 (5th Cir. Unit A 1981)). She must show that “the workers to whom [she] compares [herself] were performing ‘substantially the same job.’ ” Id. (citing Uviedo v. Steves Sash & Door Co., 738 F.2d 1425, 1431 (5th Cir.1984)). Collins-Pearcy has produced no evidence of any other employee’s salary at MSC, other than her deposition testimony that she heard in “discussions with [her] colleagues” that “the white males have been — were compensated at higher rates.” Collins-Pearcy’s testimony that she heard about disparate pay for white males in discussions with her colleagues is inadmissible hearsay. See Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.1987) (a district court may not properly consider hearsay in affidavits or depositions). Moreover, her comments are conclusory allegations and unsubstantiated assertions that do not meet the non-movant’s summary judgment burden to create a genuine issue of material fact. See, e.g., Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir.2008). Because Collins-Pearcy has not presented admissible evidence raising a genuine fact question that she was paid less than employees outside her protected class, she fails to meet her summary judgment burden on the prima facie case of disparate pay discrimination, and MSC is entitled to summary judgment on this claim. To the extent that Pearcy also raises a claim for disparate pay discrimination, it fails for the same reasons. Plaintiffs have not cited to evidence of the salary of any MSC employee, much less a similarly situated employee outside any of Pearcy’s protected classes. b. Plaintiffs’ Failure to Promote Claims Prima Facie Case. — To establish a prima facie case of discriminatory failure to promote, a plaintiff must show that “(1) he belongs to a protected class; (2) he applied for and was qualified for a position for which applicants were being sought; (3) he was rejected; and (4) a person outside of his protected class was hired for the position.” Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 412 (5th Cir.2007) (citing Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 680-81 (5th Cir.2001)). As an initial matter, Plaintiffs do not offer evidence that they applied for any specific position. Instead, they rely on evidence that MSC did not post available management positions, and argue that Plaintiffs were passed over for promotions that were given to less qualified employees who are not members of their protected classes. Plaintiffs, however, point to no admissible evidence that in fact there were any management level openings during their employment at MSC. Plaintiffs’ sheer speculation that openings existed is insufficient. Nor do Plaintiffs cite to any probative evidence that any employee (within or outside Plaintiffs’ protected classes) was promoted during this time. Plaintiffs have thus failed to establish a prima facie case of a failure to promote claim, and MSC is entitled to summary judgment on each Plaintiffs such claim. Defendant’s Articulated Legitimate Reason for Not Promoting Plaintiffs. — Assuming arguendo that Plaintiffs could establish a prima facie case of discrimination based on MSC’s failure to promote them, MSC would still be entitled to summary judgment on Plaintiffs’ failure-to-promote theory because Plaintiffs have failed to show that MSC’s stated reason for this action was pretextual or based on a mixed motive. MSC’s stated reason for not promoting Plaintiffs, and for all of its employment decisions regarding Plaintiffs, is that Plaintiffs’ “attendance and work performance were substandard.” MSC has produced evidence that Collins-Pearcy missed 27.5 days of work in the first eight months on the job prior to commencing her maternity leave. MSC has also produced evidence that in September 2006, Collins-Pearcy “mistakenly released a container that she should not have released, resulting in MSC incurring penalties and fines totaling approximately $395,000.” MSC also points to an email, dated February 9, 2007, authored by Collins-Pearcy’s supervisor, Morrison, in which he expressed dissatisfaction with her job performance. Ruiz stated that MSC had “simi