-
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1810
SUSAN R. BYRD,
Plaintiff, Appellant,
v.
JOHN T. RONAYNE, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge] ___________________
____________________
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and Cyr, Circuit Judge. _____________
____________________
Norman Jackman, with whom Martha M. Wishart and Jackman & Roth ______________ __________________ _______________
were on brief for appellant.
David A. Bunis, with whom Dwyer & Collora was on brief for _______________ ________________
appellees.
____________________
August 9, 1995
____________________
CYR, Circuit Judge. Plaintiff Susan R. Byrd, a former CYR, Circuit Judge. _____________
associate in the defendant law firm of Harrison & Maguire, P.C.
("H & M"), sued H & M and various individual partners and associ-
ates for alleged sexual discrimination, unequal pay, and retalia-
tory discharge. The district court granted summary judgment for
defendants on all claims, and Byrd appealed. As summary judgment
was proper, we affirm.
I I
BACKGROUND1 BACKGROUND __________
Byrd joined H & M as an associate on June 5, 1989, one
month after graduation from Boston University Law School with an
LL.M. in banking law. Prior to attending Boston University, Byrd
had been a vice-president and general counsel for Commercial
National Bank, Kansas City, Kansas. Previously, she had been
employed for six months as an associate counsel by an Oklahoma
City bank; a trial attorney with the Federal Deposit Insurance
Corporation for one year; and a self-employed private practitio-
ner in Wichita Falls, Texas, for two years following her gradua-
tion from Oklahoma City University Law School. Before entering
law school, Byrd had earned an M.B.A. from Central State Univer-
sity.
Prior to joining H & M, Byrd inquired whether the firm
had a "set partnership track" for associates. Defendant John
____________________
1All evidence in genuine dispute is related in a light
favorable to Byrd, the party resisting summary judgment. See ___
Velez-Gomez v. SMA Life Assur. Co., 8 F.3d 873, 874-75 (1st Cir. ___________ ____________________
1993).
2
Ronayne, president of H & M, advised her that there was no set
track to partnership but that Byrd likely would be considered for
partnership within two to three years provided she met the
performance standards. Another partner, defendant Alex MacDona-
ld, told her that she "would be the first female partner in the
law firm."
When Byrd began with H & M, she was its highest paid
associate, at $62,500 and benefits. During her two-year tenure
she was responsible for generating almost $100,000 in fees from
several new clients she developed while with the firm. At the
outset, her areas of practice with H & M were concentrated
principally in commercial loan workouts and federal banking
regulation. By the fall of 1989 her responsibilities included
all H & M bankruptcy cases as well.2 A major client during this
period was Boston Five Cents Savings Bank, FSB ("Boston Five"),
which looked to Byrd for both its bankruptcy law and bank regula-
tion services.
During the latter part of 1989, John Battaglia, a
Boston Five vice-president, advised defendant Matthew Kameron, a
member of the H & M management committee, that Byrd had prepared
a legal memorandum which did not address the question put to her
and that Battaglia's department had "lost confidence" and tended
to "work around" Byrd rather than rely on her advice. Kameron
____________________
2Although Byrd came to H & M with what she describes as
"considerable experience" in bankruptcy law, the record indicates
only that during her four years with Commercial National Bank she
handled some bankruptcy matters. See infra note 10. ___ _____
3
discussed Battaglia's concerns with Byrd, then communicated the
complaint to Ronayne. Ronayne and Kameron subsequently spoke
with Byrd about her performance and her problematic relationship
with Boston Five. Nevertheless, in January 1990 she received a
$1,500 bonus and a highly complimentary performance evaluation
praising her professional competence, writing skills, and atti-
tude.
During early 1990, Susan Monahan, vice-president for
asset management at Boston Five, told Ronayne that she and others
in her department were dissatisfied with Byrd's work and doubted
that she had the bankruptcy law knowledge she claimed. According
to Monahan, Byrd frequently gave legal advice "off the cuff"
which later proved incorrect. Monahan reported that Byrd had
delayed filing judicial pleadings she had been instructed to
file, and that on at least one occasion she had represented
having filed a motion for relief from stay which had never been
filed. Finally, Monahan informed Ronayne that Boston Five did
not have confidence in Byrd's advice or work product. Ronayne
relayed these complaints to Byrd and encouraged her to improve
her relationship with Monahan and Boston Five. Shortly thereaf-
ter, Byrd wrote Monahan and suggested a meeting "to resolve any
difficulties and improve upon our working relationship."
Monahan again complained to Ronayne in August 1990,
stating that she would transfer Boston Five's bankruptcy law work
to another firm unless H & M reassigned it to someone other than
4
Byrd.3 At around the same time, Wayne Ferguson, vice-president
for lending at Boston Five, complained to Ronayne that Byrd was
slow to respond to inquiries and her court cases were taking far
too long.4
Byrd nonetheless received a $3,000 bonus in the fall of
1990, notwithstanding "mixed" evaluations from Ronayne and
Kameron. Ronayne wrote: "You seem to have gotten a good grip on
the bank regulatory work over the past year and to have developed
your bankruptcy skills." He continued: "In general, you seem to
have done a good job on client relations although there have
obviously been some issues with the Boston Five relationship."
Ronayne candidly noted as well that supervision of Byrd might
entail a "problem" for the firm since her areas of concentration
were "not something with which the other lawyers in the firm have
more than a general knowledge."5
____________________
3The record would permit an inference that Monahan was
"demanding" and complained about other H & M attorneys as well,
which resulted in a male associate, Clive Martin, being relieved
of responsibility for matters involving Monahan's department.
See also infra pp. 13-15. ___ ____ _____
4Although Byrd contends that these complaints pertained to
bankruptcy matters entrusted to other attorneys, she has included
no evidentiary support in the appellate record. See Fed. R. App. ___
P. 11(a) (appellant bears burden of including materials essential
to her claim); Silva v. Witschen, 19 F.3d 725, 728 n.4, 731 n.9 _____ ________
(1st Cir. 1994); see also Fed. R. Civ. P. 56(e). ___ ____
5Summarizing, Ronayne noted:
I think you are well motivated and very quick
on your feet . . . and have shown a commend-
able willingness to accept tasks which are
assigned to you. . . . On the weakness side,
I have sometimes had the sense that you do
not have the backup for answers which are
5
Similarly, the 1990 review from Kameron was mixed.
Noting that Byrd had improved her ability to communicate with
clients but still needed to be "more sensitive to damage con-
trol," Kameron observed: "She has had a difficult time with a
major client and although the difficulties may have been unre-
solvable, I think more effort could have been made before the
situation deteriorated."6
In the fall of 1990, Byrd responded as follows to H &
M's standardized self-evaluation form:
Being an attorney for ten years my strengths
and weaknesses are pretty much set in con-
crete. What they are is what most likely
they will remain. Boredom has always been my
biggest weakness, causing procrastination,
____________________
given with apparent certainty. This is obvi-
ously an ambiguous area since you certainly
want to give the appearance of confidence,
especially to clients, but you want to be
careful about trying to give an impression of
certainty when you are not really sure or
can't immediately back up the position. It
is acceptable from time to time to admit you
don't know something and will have to look it
up and it is helpful when someone else (i.e.
a regulator or another lawyer) gives you an
answer to a question to understand the ratio-
nale for the answer.
6Kameron summarized:
Hopefully, Susan can put some of the more
negative aspects of 1990 behind her and con-
centrate on the positive and continue to
expand in those areas where she has been
successful and to continue to serve those
clients who are very happy with her in an
expanded capacity. However, I reiterate what
I think must change and that is Susan has to
be willing to admit that asking questions and
researching issues are part of being a good
lawyer.
6
etc. My strengths have never been utilized
in this firm but include management and busi-
ness.
In November 1990, John Davis became "of counsel" to H &
M after five years' specialization in bankruptcy practice,
bringing with him clients from whom the firm generated fees
approximating $200,000 in a single year. Davis started at
$70,000 and benefits, plus 15% of the fees generated in cases for
which he was responsible. He assumed client responsibilities
apart from those assigned to Byrd.
On April 2, 1991, defendant Ronayne and Denis Maguire,
another H & M attorney, met with representatives of the Campane-
lli Companies ("Campanelli"), one of H & M's largest clients, who
inquired about supervision in H & M's "bankruptcy department,"
expressed concerns as to whether Byrd "really knew what she was
doing," complained that Campanelli's legal work was not being
handled in a timely fashion by Byrd, and that the fees Campanelli
was charged for her services were too high. Ronayne and Maguire
concluded that there were serious problems with the quality of
Byrd's performance for Campanelli and that H & M risked losing
Campanelli altogether unless it took immediate action.
Later that day, Ronayne and Maguire met with Byrd and
informed her that the firm had decided that the Campanelli
account should be reassigned to Davis, with Byrd to continue
at the same salary handling Boston Five's consumer bankruptcy
work and regulatory matters, as well as her other clients. Two
days later, Byrd filed a Title VII sexual discrimination claim
7
with the Equal Employment Opportunity Commission ("EEOC") and so
informed H & M, which promptly retained outside counsel.
In late April 1991, Katherine Hinderhoffer, executive
vice-president for Boston Five, contacted Ronayne. She stated
that Byrd did not have sufficient knowledge of the law and that
Boston Five lacked confidence in Byrd's legal advice and work
product. Finally, in early May 1991, Wayne Ferguson once again
contacted the firm to complain that Byrd was not submitting
timely and accurate status reports and that her cases continued
to proceed too slowly.
At their June 1991 meeting, the H & M partners deter-
mined that Byrd's professional judgment and client-communications
skills were not in keeping with the firm's professional stan-
dards. After consulting with outside counsel, the partners
unanimously voted to terminate Byrd's employment. Defendant
Ronayne so informed Byrd on July 11, 1991.
Byrd brought suit against defendants-appellees in
Massachusetts Superior Court, asserting various claims under
state law, Title VII sexual discrimination and retaliation claims
under 42 U.S.C. 2000e et seq., and an Equal Pay Act claim __ ___
under 29 U.S.C. 206(d)(1). Following removal, the federal
district court granted summary judgment for all defendants on all
federal claims, and dismissed the state-law claims pursuant to 28
U.S.C. 1367(c)(3). Byrd appealed.
II II
DISCUSSION DISCUSSION __________
8
We examine the grant of summary judgment de novo, __ ____
viewing all competent evidence in genuine dispute, and reasonable
infer-ences therefrom, in a light more favorable to Byrd. See ___
O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir.), cert. denied, ________ _______ _____ ______
114 S. Ct. 634 (1993). Summary judgment is inappropriate unless
"the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c); Henley Drilling Co. v. McGee, 36 F.3d 143, ___________________ _____
144 (1st Cir. 1994). Nevertheless, even in discrimination cases
"summary judgment may be appropriate" where the party resisting
judgment relies "upon conclusory allegations, improbable infer-
ences, and unsupported speculation" as to any essential element
in her claim. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 ___ ____________ _________________________
F.2d 5, 8 (1st Cir. 1990).
A. Employment Discrimination Claim A. Employment Discrimination Claim _______________________________
1. The McDonnell Douglas Framework 1. The McDonnell Douglas Framework _______________________________
The three-stage, burden-shifting framework announced in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) ________________________ _____
["McDonnell Douglas"], serves to allocate burdens of production _________________
and order the presentation of evidence in Title VII disparate
treatment cases, thus "progressively . . . sharpen[ing] the
inquiry into the elusive factual question of intentional discrim-
ination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. _________________________________ _______
248, 255 n.8 (1981). See St. Mary's Honor Ctr. v. Hicks, 113 S. ___ _____________________ _____
9
Ct. 2742, 2746 (1993).
At the first stage, Byrd was required to make a prima
facie showing that (1) she "was within a protected class," (2)
possessed the necessary qualifications for, "and adequately
performed, her job," (3) but "was nevertheless dismissed," and
(4) her "employer sought someone of roughly equivalent qualifi-
cations to perform substantially the same work." Cumpiano v. ________
Banco Santander Puerto Rico, 902 F.2d 148, 153 (1st Cir. 1990). ____________________________
A prima facie case gives rise to a rebuttable presumption that
the employer unlawfully discriminated against the Title VII
plaintiff. Smith v. Stratus Computer, Inc., 40 F.3d 11, 15 (1st _____ ______________________
Cir. 1994), cert. denied, 115 S. Ct. 1958 (1995). _____ ______
At the second stage, the employer must produce suffi-
cient competent evidence, "taken as true," to permit a rational _____ __ ____ ______
factfinder to conclude that there was a "nondiscriminatory
reason" for the challenged employment action, thereby displacing
the presumption of intentional discrimination generated by the
prima facie case. Woodman v. Haemonetics Corp., 51 F.3d 1087, _______ _________________
1091 (1st Cir. 1995) (citing Hicks, 113 S. Ct. at 2748). _____
At the third and final stage in the McDonnell Douglas _________________
analysis, the Title VII plaintiff, "with whom the ultimate burden
of persuasion remains throughout," must proffer "sufficient __________
admissible evidence, if believed, to prove by a preponderance of
the evidence each essential element in a prima facie case and _____ _____
that the employer's justification for the challenged employment
action was merely a pretext for impermissible . . . discrimina-
10
tion." Id. at 1092. "Where the elements of a sufficient prima ___
facie case combine with the factfinder's belief that the ostensi-
ble basis for dismissing the employee was pretextual, ``particu-
larly if . . . accompanied by a suspicion of mendacity,' the
factfinder is permitted to infer the intentional . . . discrimi- _________
nation required to enable the plaintiff-employee to prevail on
the merits." Id. (quoting Hicks, 113 S. Ct. at 2749). ___ _____
a) Prima Facie Case a) Prima Facie Case ________________
Although "the required prima facie showing is not
especially onerous," id. at 1091, the district court ruled that ___
Byrd had not established the second essential element that she
possessed the requisite qualifications for, and adequately
performed, the legal services assigned to her by H & M. We
believe it advisable, nonetheless, to assume that Byrd managed
her prima facie case, see, e.g., LeBlanc v. Great Am. Ins. Co., 6 ___ ____ _______ __________________
F.3d 836, 843-44 (1st Cir. 1993), cert. denied, 114 S. Ct. 1398 _____ ______
(1994), and to proceed further into the burden-shifting analysis
where the shortcomings in her claim are more clear.
b) Defendants' Burden of Production b) Defendants' Burden of Production ________________________________
As nondiscriminatory grounds for their challenged
actions, defendants proffered competent evidence of continuing
client complaints relating to the timeliness, quality, and
reliability of Byrd's legal services. Whether "ultimately
persuasive or not," Hicks, 113 S. Ct. at 2748, their proffers _____
rebutted any presumption of unlawful sexual discrimination in
employment generated by the prima facie showing attempted by
11
Byrd, see Woodman, 51 F.3d at 1092, and it became incumbent upon ___ _______
her to produce competent evidence that the nondiscriminatory
reasons proffered by defendants were a mere pretext for unlawful
discrimination. Id. ___
Byrd has never denied that two large H & M clients
lodged serious complaints concerning her professional competence
and performance. Indeed, the self-evaluation form submitted by
Byrd conceded not only that boredom was her "biggest weakness,"
and that it caused her to "procrastinat[e]," but that her profes-
sional weaknesses were "pretty much set in concrete[]" and "most
likely . . . will remain." These admissions are buttressed by
the uncontroverted evidence that H & M, despite its numerous
appeals to Byrd, continued to receive similar complaints from
clients relating to the untimeliness and unsatisfactory quality
of her legal services. Moreover, the record is unequivocal that
despite its numerous unsuccessful attempts to encourage Byrd to
be more responsive to these client concerns, H & M refrained from
any adverse employment action until Campanelli's complaints ___
raised serious concerns that the firm would lose one of its
largest clients unless Byrd were replaced. Even then, H & M did
not terminate Byrd. It was not until the complaints from Boston
Five resumed several weeks later that the firm decided to dis- _______
charge her for failing to meet its professional standards.7
____________________
7There is no evidentiary basis for inferring that H & M's
professional standards were met by Byrd, nor that any other
associate remained with the firm notwithstanding such deficien-
cies in performance. And though it is undisputed that no female
associate had ever been considered for partnership at H & M
12
Byrd relies on the favorable performance evaluation she
received from the firm in January 1990, approximately fifteen
months before her client responsibilities were realigned, and on
the mixed performance evaluations received from Ronayne and
Kameron in late 1990, as evidence that the principal defendants
were "happy with her work and her ability to generate business."
She points as well to the undisputed evidence that she was
rewarded with two bonuses in 1990.
We think these proffers fall well short of generating a
trialworthy dispute as to whether the nondiscriminatory reasons
articulated by H & M constituted a pretext for intentional sex-
based discrimination in employment. For one thing, the January
1990 evaluation was the only altogether favorable one Byrd ____
received. More importantly, however, the "mixed" evaluations she
received in late 1990 presaged the declining trajectory her
professional performance thereafter reflected as reported by __ ________ __
____________________
before Byrd's termination, Byrd has not shown that any other ___ _____
associate male or female who failed to conform with the _________ ____ __ ______
firm's professional standards, had ever been considered for
partnership. See Stratus, 40 F.3d at 17 ("[F]or us to compare ___ _______
[female plaintiff's] treatment with that of . . . male executives
in a meaningful way, [plaintiff] would have to show that she was
similarly situated to those men in terms of performance, qualifi-
cations and conduct, 'without such differentiating or mitigating
circumstances that would distinguish' their situations.") (cita-
tion omitted); cf. LeBlanc, 6 F.3d at 348 (statistical data on __ _______
general hiring patterns, though relevant, carry less probative
weight in disparate treatment cases than in disparate impact
cases: "[A] company's overall employment statistics will, in at
least many cases, have little direct bearing on the specific
intentions of the employer when dismissing a particular individu-
al.").
13
clients and projected in Byrd's self-evaluation.8 _______ ___ _________ __ ______ _______________
Byrd further notes that Monahan complained about
another H & M attorney, Clive Martin, who was not terminated. ___
The record likewise makes clear, though, that Byrd's termination ______
was not based on Monahan's complaints but on subsequent com- ___
plaints from Campanelli and renewed complaints from Boston Five
representatives other than Monahan. In fact, throughout her _____ ____ _______ __________ ___
tenure with H & M, Byrd continued to perform bank regulation and ______
consumer bankruptcy services for Boston Five. It was not until
Boston Five executive vice-president Katherine Hinderhoffer
complained for the first time, and Wayne Ferguson again com-
plained following the Campanelli complaint that Byrd was
terminated.
A disparate treatment claimant bears the burden of
proving that she was subjected to different treatment than
persons similarly situated "``in all relevant aspects.'" Stratus, _________ ________ __ ___ ________ _______ _______
40 F.3d at 17 (quoting Dartmouth Review v. Dartmouth College, 889 ________________ _________________
F.2d 13, 19 (1st Cir. 1989)) (alteration in original). Accord-
ingly, Byrd would have had to demonstrate that she and Martin
were similarly situated "in terms of performance, qualifications
and conduct, ``without such differentiating or mitigating circum-
stances that would distinguish' their situations." Id. at 17 ___
____________________
8Although Byrd proffered undisputed evidence that her
efforts in a complex commercial loan workout had won high praise
from Michelle Dowd, head of Boston Five's loan review department,
and that Dowd was especially impressed with Byrd's background in
commercial lending, the Dowd affidavit in no sense gainsays the
numerous complaints relating to Byrd's other professional legal _____
services.
14
(quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. ________ ____________
1992)). She proffered no such evidence.
Although there is competent evidence that Susan Monahan
complained against Clive Martin as well, yet he was not terminat-
ed, the only record evidence relating to Martin, even conceding ____
its competence, is a statement in Byrd's affidavit that based
on her "conversations . . . with Martin, Susan Monahan had
[Martin] removed from her cases." There is no evidence relating
to Martin's responsibilities in behalf of Boston Five, his
professional experience and expertise, his seniority with H & M,
nor even the nature and number of complaints against him. Nor is
there evidence that Martin had been the subject of repeated ________
complaints by Monahan or continuous complaints from other Boston _____
Five executives, and from another major H & M client. Finally,
there is no evidence that Martin was retained by the firm despite
repeated lapses in professional performance after numerous
appeals to improve his performance.
In sum, there is no competent evidence from which a
rational factfinder reasonably could infer that H & M's explana-
tion for its adverse employment action was a pretext for unlawful
employment discrimination. See id. at 16. ___ ___
B. Retaliation Claim B. Retaliation Claim _________________
Byrd asserts that the summary judgment order dismissing
her retaliatory discharge claim must be vacated because a ratio-
nal factfinder reasonably could conclude that she had been
discharged for filing a discrimination claim with the EEOC. See ___
15
Greenberg v. Union Camp Corp., 48 F.3d 22, 29 (1st Cir. 1995) _________ _________________
(plaintiff must show that articulated reason for employer's
action was a pretext for retaliation); Mesnick v. General Elec. _______ _____________
Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied, 504 U.S. ___ _____ ______
985 (1992). For the most part, her retaliatory discharge claim
rests on the identical inferences of pretext found wanting above.
See supra pp. 13-15. ___ _____
The only other evidentiary support for her retaliation
claim is a passage in the Ronayne deposition, which she charac-
terizes as "an admission that [her] filing of the discrimination
claim was a factor in her discharge." She adverts to a portion:
"I don't think the filing of a discrimination charge with the
EEOC significantly affected [Byrd]." But she disregards language
which provides critically important context. The full text
reflects that Ronayne stated: "The same thing would have hap- ___ ____ _____ _____ ____ ____
pened if [Byrd] hadn't filed a complaint. I'm not saying that _____ __ ______ _____ _ _________
people weren't annoyed by [her EEOC complaint], but I don't think
it significantly affected her." (emphasis added). Given Ronayne-
's flat denial in the opening sentence, his statement cannot
reasonably be considered an admission that the firm harbored a
retaliatory motive for Byrd's termination. Thus, summary judg-
ment on the retaliation claim was proper as well.
C. Equal Pay Act Claim C. Equal Pay Act Claim ___________________
The Equal Pay Act prohibits wage discrimination "be-
tween employees on the basis of sex . . . for equal work on jobs
the performance of which requires equal skill, effort, and
16
responsibility, and which are performed under similar working
conditions." 29 U.S.C. 206(d)(1). An Equal Pay Act plaintiff
must make a prima facie showing that the employer paid different
wages to an employee of the opposite sex for substantially equal
work. See Corning Glass Works v. Brennan, 417 U.S. 188, 195 ___ ____________________ _______
(1974); see also Marcoux v. Maine, 797 F.2d 1100, 1106 (1st Cir. ___ ____ _______ _____
1986). At that point, the defendant-employer must establish one
of the following affirmative defenses: the wage discrepancy
resulted from (i) a seniority system, (ii) a merit system, (iii)
a system measuring earnings by quantity or quality of production,
or (iv) a differential based on a factor other than sex. 29 __
U.S.C. 206(d)(1); Corning Glass Works, 417 U.S. at 196. ___________________
Byrd claims that H & M violated the Equal Pay Act, in
that her starting salary was $62,500, augmented only by two
modest bonuses, compared with John Davis's $70,000 salary and 15%
of generated fees, even though her senior associate position was
substantially equivalent to the "of counsel" position held by
Davis. Byrd attempts to make her prima facie case by comparing
Davis's professional experience with her own.9 She asserts that
Davis had less bankruptcy law experience when he came to H & M ____
five years', by her calculation than her six years'. The only
____________________
9For present purposes, we simply assume arguendo that ________
competent evidence of comparable bankruptcy law experience might
provide indirect support for Byrd's claim that the two positions ________ _________
required substantially equal skills. We note, nonetheless, the
agency position that skill "must be measured in terms of the
performance requirements of the job. . . ." Possession of a
skill not needed to meet requirements of the job cannot be
considered in making a determination regarding equality of
skill." 29 C.F.R. 1620.15(a).
17
competent record evidence, however, is the affidavit of a former
executive vice-president of Commercial National Bank, who merely
states that one of the responsibilities assigned to Byrd during ___
her two-year tenure was to "handle[]" "many" chapter 12 (family-
farm debtor) matters doubtless not a relevant qualification at
H & M and "some" chapter 11 and chapter 7 cases.10
For additional support, Byrd points to the Ronayne
deposition, which she characterizes as an admission that she and
Davis performed "parallel functions" at H & M. On the contrary,
the Ronayne deposition evinces no more than that Davis did not
supervise Byrd, an undisputed fact which plainly affords insuffi- _________
cient support for a reasonable inference that the two held
positions requiring substantially equal skill, effort, and
responsibility. See Soble v. University of Md., 778 F.2d 164, ___ _____ _________________
167 (4th Cir. 1985) (finding no actionable wage discrimination
where female professor was paid less than male professors of same
academic rank who performed work requiring greater skill, effort,
or responsibility). Thus, the lack of evidence that their
respective professional responsibilities with H & M required
substantially equal skill, effort and responsibility, foredoomed
Byrd's Equal Pay Act claim.
Finally, on a more conclusive note, the record includes
____________________
10Byrd simply concludes that she "had a great deal of
bankruptcy experience" at the time Davis came to H & M. More-
over, though surely in a position to provide greater detail, she
has provided no evidentiary support for the claim that she had as __
much bankruptcy law experience when she joined H & M, as Davis ____
had when he came to the firm.
18
undisputed evidence that Davis came to H & M with clients whose
aggregate annual billings approached $200,000. These clients
paid H & M $180,000 in fees during 1990. On the other hand, Byrd
brought no clients with her when she joined H & M. The clients
for whom she rendered legal services while with H & M paid the
firm no more than $100,000 during her entire two-year tenure.
Thus, the substantially greater revenues Davis generated for the
firm afforded defendants an affirmative defense, under 29 U.S.C.
206(d)(1)(iv) (differences in compensation based on a factor
other than sex), to Byrd's prima facie wage discrimination claim.
See Stanley v. University of S. Cal., 13 F.3d 1313, 1322-23 (9th ___ _______ _____________________
Cir. 1994) (gender-neutral differences between responsibilities
incumbent upon coaches of men's and women's basketball teams
included the more substantial public relations and promotional
duties of men's coach, whose team generated revenue 90 times
greater than women's team).
III III
CONCLUSION CONCLUSION __________
As defendants were entitled to summary judgment as a
matter of law on all claims, the district court judgment is
affirmed. ________
19
Document Info
Docket Number： 94-1810
Filed Date： 8/9/1995
Precedential Status： Precedential
Modified Date： 3/3/2016