Byrd v. Ronayne

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