United States Court of Appeals
For the First Circuit
No. 03-1530
BETSEY E. RATHBUN,
Plaintiff, Appellant,
v.
AUTOZONE, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Stahl, Senior Circuit Judge.
Stephen A. Rodio and Lynette Labinger, with whom Rodio &
Brown, Ltd. and Roney & Labinger were on brief, for appellant.
Charles S. Kirwan and Charles S. Kirwan & Associates on brief
for Rhode Island Commission for Human Rights, Providence Human
Relations Commission, Progreso Latino, Center for Hispanic Policy
and Advocacy, Rhode Island Civil Rights Roundtable, and Rhode
Island chapter of the National Employment Lawyers Association,
amici curiae.
Renee Gluth, with whom Tracy K. Hidalgo, Frilot, Partridge,
Kohnke & Clements, L.C., and Joe Whelan were on brief, for
appellee.
Michael E. Malamut on brief for New England Legal Foundation,
amicus curiae.
March 18, 2004
SELYA, Circuit Judge. In this employment discrimination
case, the district court granted summary judgment in the employer's
favor on both the plaintiff's failure-to-promote and unequal pay
claims. Rathbun v. Autozone, Inc., 253 F. Supp. 2d 226 (D.R.I.
2003). The employee's ensuing appeal requires us to decide a
series of questions, the most significant of which concerns the
limitations period that governs employment discrimination actions
brought under the Rhode Island Civil Rights Act of 1990 (RICRA),
R.I. Gen. Laws §§ 42-112-1 to 41-112-2. We have had the benefit of
briefing on this important issue not only from the parties but also
from able amici on both sides (for whose help we are grateful).
Having fully considered the matter, we hold that RICRA employment
discrimination claims are subject to Rhode Island's three-year
residual statute of limitations for actions involving injuries to
the person and, accordingly, countermand the district court's
application of a one-year limitations period.
We next consider the merits of the plaintiff's claims.
Although our holding as to the appropriate rule of timeliness
broadens the scope of her claims, we nonetheless affirm the
district court's entry of summary judgment. Even when viewed
through a widened lens, the evidence is insufficient to permit a
reasonable finder of fact to resolve either her failure-to-promote
or unequal pay claims favorably to her. Accordingly, we affirm the
district court's entry of summary judgment.
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I. BACKGROUND
We rehearse the facts in the light most agreeable to the
party opposing the entry of summary judgment (here, the plaintiff),
drawing all reasonable inferences to her behoof. Garside v. Osco
Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990).
A. Employment History.
At the times material hereto, plaintiff-appellant Betsey
E. Rathbun worked for defendant-appellee AutoZone, Inc. or its
predecessor in interest, Auto Palace. The district court's opinion
contains a meticulous account of the appellant's relevant
employment history, Rathbun, 253 F. Supp. 2d at 229-30, and we
offer only a brief sketch.
AutoZone operates a chain of retail stores selling
automobile parts and accessories, and Auto Palace (now defunct) was
in substantially the same business. In 1995, Auto Palace hired the
appellant as a part-time cashier and assigned her to its Cranston,
Rhode Island location. Her duties included running the cash
register, stocking shelves, and assisting customers. Early in
1998, AutoZone purchased the Auto Palace chain and converted the
stores to the AutoZone brand.
AutoZone organizes its store employees into four job
classifications: (i) customer service representative (CSR); (ii)
parts sales manager (PSM); (iii) assistant store manager (ASM); and
(iv) store manager. At the time of the acquisition, AutoZone made
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the appellant a part-time CSR at a pay rate of $6.59/hr. In April
of 1998, she became full-time at a rate of $6.92/hr. Her duties
expanded to encompass the whole range of customer sales. She was
not tasked with managerial duties but helped train several new
employees in company policies and systems.
In the summer of 1998, the appellant began lobbying for
a promotion to PSM. When her interest went unrequited, she
approached her district manager, Jeff Mello, and voiced a suspicion
that gender had played a role in AutoZone's unwillingness to move
her up the corporate ladder. Mello pooh-poohed this suggestion and
provided the appellant with a list of skills she should master in
order to improve her qualifications for a PSM position.
The appellant received a promotion to the PSM rank and a
raise to $8/hr. in September of 1999. From the time that AutoZone
acquired Auto Palace until the date of her ascension, AutoZone
filled five PSM vacancies (only two of which were filled after the
appellant had applied for a promotion). Every successful candidate
was a man.
Soon after her promotion to PSM, the appellant expressed
an interest in becoming an ASM. She was passed over four times for
ASM openings — each time in favor of a man (some of whom were new
hires). The appellant remains a PSM.
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B. Travel of the Case.
On November 16, 2000, the appellant filed a charge of
discrimination with the Rhode Island Commission for Human Rights
(the Commission). See R.I. Gen. Laws § 28-5-17 (making the filing
of an administrative charge a precondition to suit under the Rhode
Island Fair Employment Practices Act). Having obtained a right-to-
sue letter, the appellant commenced a civil action in a Rhode
Island state court. In her complaint, she charged that, due to her
gender, AutoZone had unduly delayed her elevation to PSM, denied
her a promotion to ASM, and paid her less than similarly situated
males. All of her claims were grounded on two state statutes — the
RICRA and the Rhode Island Fair Employment Practices Act (FEPA),
R.I. Gen. Laws §§ 28-5-1 to 28-5-42.
Citing the existence of diversity of citizenship and a
controversy in the requisite amount, AutoZone removed the action to
the federal district court. 28 U.S.C. §§ 1332(a), 1441. After the
completion of pretrial discovery, the district court granted an
across-the-board summary judgment in AutoZone's favor. Rathbun,
253 F. Supp. 2d at 236. The court applied the one-year FEPA
statute of limitations, R.I. Gen. Laws § 28-5-17(a), to all the
failure-to-promote claims (including those brought under the
RICRA). The court reasoned that it would be anomalous for
factually identical claims to be time-barred under the FEPA yet
timely under the RICRA, and that, therefore, the state legislature
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must have intended a one-year limitations period to apply to both
statutes. Rathbun, 253 F. Supp. 2d at 231-34.
Since the appellant had filed her charge of
discrimination with the state agency on November 16, 2000, the
lower court's limitations decision meant that the court regarded as
potentially actionable only those employment decisions that took
place between November 16, 1999 and November 16, 2000. From this
coign of vantage, the court concluded that the failure-to-promote
claims could not successfully run the summary judgment gauntlet.
Id. at 235-36. With respect to the unequal pay claim, the court
treated the relevant events as constituting "a series of related,
connected acts" within the meaning of the continuing violation
doctrine. Id. at 231. On that basis, it deemed potentially
actionable events outside the one-year limitations period. Id.
Still, it found no evidentiary predicate sufficient to allow the
unequal pay claim to proceed to trial. Id. at 235-36. This appeal
followed.
II. THE SUMMARY JUDGMENT STANDARD
We review the entry of summary judgment de novo.
Garside, 895 F.2d at 48. Summary judgment is appropriate "if 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 judgment as a matter of law." Fed. R. Civ. P.
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56(c). Once the moving party avers the absence of genuine issues
of material fact, the nonmovant must show, through materials of
evidentiary quality, that such a dispute exists. A properly
supported motion for summary judgment cannot be defeated by relying
upon improbable inferences, conclusory allegations, or rank
speculation. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st
Cir. 1991).
III. THE RICRA LIMITATIONS PERIOD
The threshold issue in this case involves the rule of
prescription that applies to employment discrimination claims
brought under the RICRA. The Rhode Island General Assembly enacted
the RICRA in 1990. The statute does not contain a built-in statute
of limitations. The court below was the first to attempt a
definitive answer to the question of when an employment
discrimination action brought under the RICRA should be deemed
timely.
Where, as here, a state's highest court has not spoken on
a matter of state substantive law, a federal court sitting in
diversity must "ascertain the rule the state court would most
likely follow under the circumstances, even if [its] independent
judgment on the question might differ." Blinzler v. Marriot Int'l,
Inc., 81 F.3d 1148, 1151 (1st Cir. 1996). In that endeavor, the
federal court may seek guidance from a wide range of sources,
including but not limited to "analogous state court decisions,
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persuasive adjudications by courts of sister states, learned
treatises, and public policy considerations identified in state
decisional law." Id.
When a rights-creating statute is silent as to what
limitations period should apply, the Rhode Island Supreme Court's
practice has been to look first to residual statutes of
limitations. See, e.g., Paul v. City of Woonsocket, 745 A.2d 169,
171-72 (R.I. 2000); Lyons v. Town of Scituate, 554 A.2d 1034, 1035
(R.I. 1989); Commerce Oil Ref. Corp. v. Miner, 199 A.2d 606, 607-08
(R.I. 1964). Two of these residual statutes are arguably
applicable here: a three-year statute of limitations for
"[a]ctions for injuries to the person," R.I. Gen. Laws § 9-1-14(b),
and a catchall ten-year statute of limitations for civil actions to
which no other provision applies, id. § 9-1-13(a).
We believe that the former is a natural fit. The state
supreme court has construed the "injuries to the person" taxonomy
broadly:
[T]he phrase 'injuries to the person' is to be
construed comprehensively and as contemplating
its application to actions involving injuries
that are other than physical. Its purpose is
to include within that period of limitation
actions brought for injuries resulting from
invasions of rights that inhere in man as a
rational being, that is, rights to which one
is entitled by reason of being a person in the
eyes of the law.
Commerce Oil, 199 A.2d at 610. As a result, the vast majority of
state statutes that create tort-like rights of action but do not
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contain built-in timeliness rules have been deemed to fall within
the compass of section 9-1-14(b). See Lyons, 554 A.2d at 1036
(collecting cases); see also Commerce Oil, 199 A.2d at 610
(applying section 9-1-14(b) to actions for malicious use of
process). Although the case law admits of an occasional
aberration, see, e.g., Church v. McBurney, 513 A.2d 22, 24-26 (R.I.
1986), the trend is clear.
The RICRA's provenance confirms this intuition. The
Rhode Island General Assembly enacted the statute in response to
the United States Supreme Court's decision in Patterson v. McLean
Credit Union, 491 U.S. 164 (1989). See Ward v. City of Pawtucket
Police Dep't, 639 A.2d 1379, 1381 (R.I. 1994) (discussing the
RICRA's legislative history). The Patterson Court interpreted 42
U.S.C. § 1981 to provide protection from racial discrimination only
in contract formation and not in the subsequent modification and
performance of contracts. 491 U.S. at 171. The RICRA aspired to
fill this void and to afford the same expanded protection in
instances of discrimination based on age, sex, religion,
disability, and national origin.1 The contours of the RICRA
1
The RICRA provides in relevant part:
(a) All persons within the state, regardless of race,
color, religion, sex, disability, age, or country of
ancestral origin, shall have, except as is otherwise
provided or permitted by law, the same rights to make and
enforce contracts . . . and to the full and equal benefit
of all laws and proceedings for the security of persons
and property . . . .
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plainly reveal the General Assembly's overarching intent to craft
a broad civil rights act that would both complement and supplement
federal civil rights protections. See Eastridge v. R.I. Coll., 996
F. Supp. 161, 169 (D.R.I. 1998); Ward, 639 A.2d at 1381-82.
A frank recognition of this goal simplifies the
interpretive task. The Rhode Island Supreme Court consistently has
regarded civil rights violations as injuries to the person, see,
e.g., Paul, 745 A.2d at 172, and the natural inference to be drawn
from the case law is that the RICRA, like other civil rights laws,
makes actionable injuries to the person.
Then, too, it is reasonable to presume that the RICRA's
drafters, who modeled the statute after section 1981, must have
been aware of the precedents interpreting the federal statute and
must have intended the state law to trigger the same limitations
period. In Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), for
example, the United States Supreme Court held squarely that the
relevant state statute of limitations governing personal injury
* * *
(b) For the purposes of this section, the
right to make and enforce contracts . . .
includes the making, performance, modification
and termination of contracts and rights
concerning real or personal property, and the
enjoyment of all benefits, terms, and
conditions of the contractual and other
relationships.
R.I. Gen. Laws § 42-112-1 (internal quotation marks omitted).
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claims applied to section 1981 actions. Id. at 660-62. The Court
reasoned that since section 1981 is a civil rights statute
primarily concerned with preventing and compensating "fundamental
injur[ies] to the individual rights of a person," the most
analogous state statute of limitations would be the one generally
applicable to personal injury actions. Id. at 661; see also Partin
v. St. Johnsbury Co., 447 F. Supp. 1297, 1299, 1301 (D.R.I. 1978)
(characterizing an action under section 1981 as "essentially an
action to redress a violation of a tort duty" and applying the
statute of limitations for injuries to the person); cf. Wilson v.
Garcia, 471 U.S. 261, 277 (1985) (characterizing a violation of 42
U.S.C. § 1983 as "an injury to the individual rights of the person"
and upholding the use of a state statute of limitations governing
actions for injuries to the person).
Despite this wealth of authority, we cannot settle upon
section 9-1-14(b) as the appropriate source for a rule of
timeliness without first testing the district court's conviction
that the legislature could not have intended that limitations
period to apply. The court noted that in the employment
discrimination context the RICRA and the FEPA furnish overlapping
remedies. Rathbun, 253 F. Supp. 2d at 231. In its view, reading
the two statutes together indicates a legislative intention that
the later enacted statute (the RICRA) should be subjected to the
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one-year statute of limitations that the General Assembly
explicitly inserted into the FEPA. Id. at 231-32.
The district court premised this holding on two well-
traveled canons of construction. One is the venerable concept that
"statutes which relate to the same subject matter should be
considered together so that they will harmonize with each other and
be consistent with their general objective scope." State v.
Ahmadjian, 438 A.2d 1070, 1081 (R.I. 1981). This canon of
construction, often referred to by the catch phrase "in pari
materia," does not necessarily require that the two statutes be
enacted at the same time or even that they refer to one another.
See, e.g., Blanchette v. Stone, 591 A.2d 785, 786 (R.I. 1991). In
pari materia treatment requires only that a logical nexus between
two laws pulls strongly in favor of uniform treatment. Berthiaume
v. Sch. Comm. of Woonsocket, 397 A.2d 889, 893 (R.I. 1979).
Even assuming, purely for argument's sake, that the FEPA
and the RICRA are in pari materia, the district court's thesis —
that harmonizing them requires application of the same rule of
timeliness to both — is incorrect. The FEPA is intended to foster
equality of employment opportunities. See R.I. Gen. Laws §§ 28-5-
3, 28-5-5. It closely tracks the language of, and acts as Rhode
Island's analogue to, Title VII. Like Title VII, the FEPA is
principally directed at employers. It establishes a comprehensive
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scheme for the vindication of the rights it protects. This scheme
relies heavily on an obligatory administrative process.
The FEPA's temporal requirements are tied to this
administrative process. A person seeking to enforce rights under
the FEPA must file a charge with the Commission within one year
from the time of the alleged discriminatory act or practice. Id.
§ 28-5-17(a). If, after a preliminary investigation, the
Commission finds probable cause to believe that unlawful employment
practices have occurred, "it shall endeavor to eliminate [those
practices] by informal methods of conference, conciliation, and
persuasion." Id. § 28-5-17(b). The complainant, should he or she
so choose, may obtain a right-to-sue letter from the Commission and
bring suit within ninety days of receiving such a letter. Id. §
28-5-24.1(a). Failing all else, the Commission itself has the
power to sue the offending party within two years of the charge-
filing date. Id. § 28-5-18.
This statutory framework indicates a desire for intense
agency involvement in resolving employment discrimination disputes.
Cf. Burnett v. Grattan, 468 U.S. 42, 53-54 (1984) (noting that the
administrative procedures in Maryland's fair employment practices
law indicate a preference for "the [state] agency's intervention in
live disputes"). A short limitations period for filing an
administrative charge makes sense in light of the obvious
desirability of getting the agency involved while the wounds are
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fresh. See Roadway Express, Inc. v. RICHR, 416 A.2d 673, 676 (R.I.
1980) ("A mandatory time limit promotes prompt investigations and
attempts to conciliate alleged violations of the Act."). In that
context, prompt notification also enables employers to collect and
preserve evidence before the trail grows cold. Id. While the
state supreme court has not commented directly on the requirement
that a complainant file an administrative charge within one year of
the alleged discrimination, R.I. Gen. Laws § 28-5-17(a) — the
Roadway Express court was dealing with an earlier incarnation of
the FEPA — it is reasonable to assume that the desire for prompt
and efficient resolution of FEPA complaints animates that rule of
timeliness as well.
The RICRA is a different kind of statute. It sweeps far
more broadly than the FEPA, covering a host of situations, many of
which do not involve the employer-employee relationship at all.
Moreover, the RICRA neither establishes nor incorporates any sort
of administrative process. As the Rhode Island Supreme Court
stated in rejecting an attempt to apply the FEPA's administrative
exhaustion requirements to RICRA claims by judicial fiat, "[t]here
is no language requiring, or even suggesting, that a plaintiff must
first exhaust any or all administrative remedies before filing a
civil action [under the RICRA]." Ward, 639 A.2d at 1382. And,
moreover, there is no basis for "reading such a requirement into
the statute." Id.
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This difference in orientation is telling. The RICRA is
primarily a vehicle for compensating victims of civil rights
violations. Cf. Burnett, 468 U.S. at 53 (explaining that a
principal goal of the federal civil rights statutes is
"compensation of persons whose civil rights have been violated").
Seen in this light, it makes sense that the legislature would have
wanted to apply to RICRA claims a limitations period geared to the
occurrence of the discriminatory act or practice rather than a
limitations period geared to a non-existent administrative process.
See id. at 48-55 (holding that state residual statutes of
limitations, not the period for filing administrative employment
discrimination complaints, are appropriate for federal civil rights
actions); see also Rossiter v. Potter, 357 F.3d 26, 29-32 (1st Cir.
2004) (rejecting application of Title VII's limitations period to
ADEA actions that bypass the administrative process). We conclude,
therefore, that the two statutes need not — and should not — be
construed in lockstep.2
2
In reaching this conclusion, we also take into account that
many RICRA claims are not actionable under the FEPA. The RICRA
applies both inside and outside the employment context. See, e.g.,
Liu v. Striuli, 36 F. Supp. 2d 452, 469 (D.R.I. 1999). Even in the
employment context, the RICRA provides a vehicle for suing all
employers while the FEPA reaches only those who employ four or more
persons. See R.I. Gen. Laws § 28-5-6(7)(i). In the face of a
silent statute, it would be surpassingly difficult to presume an
intent to divide RICRA claims into sub-classes so that different
rules of timeliness would apply depending on the context. The
state, no less than the federal government, has an interest in
consistent application of its laws.
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The district court also based its holding on another
canon of construction: that repeals by implication are disfavored
and should not be judicially imposed unless that conclusion is
inevitable. See Passamaquoddy Tribe v. Maine, 75 F.3d 784, 790
(1st Cir. 1996); Berthiaume, 397 A.2d at 893. Legislatures are
presumed to know of their prior enactments and not to have repealed
any part of a prior law without registering an explicit statement
to that effect. Brennan v. Kirby, 529 A.2d 633, 637 (R.I. 1987).
Thus, "when apparently inconsistent statutory provisions are
questioned, every attempt should be made to construe and apply them
so as to avoid the inconsistency and [the words] should not be
applied literally if to do so would produce patently absurd or
unreasonable results." Id. Brandishing this doctrinal staff, the
district court suggests that applying anything except a one-year
limitations period to employment discrimination actions brought
under the RICRA would impliedly repeal the FEPA's limitations
period. Rathbun, 253 F. Supp. 2d at 232.
We find this suggestion unconvincing. Repeal by
implication is a matter of concern when two statutory provisions
are inconsistent on their face. See, e.g., Blanchette, 591 A.2d at
786-87; Prov. Elec. Co. v. Donatelli Bldg. Co., 356 A.2d 483, 485-
86 (R.I. 1976). Here, however, no such collision looms: the
FEPA's one-year statute of limitations can coexist peacefully with
a disparate limitations period for RICRA actions. Although this
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coexistence means that factually identical claims will be treated
differently by the courts depending on the statute under which a
particular claim is asserted, that differential treatment flows
naturally from the General Assembly's choice to embroider one
statute (the FEPA) with an elaborate administrative process and to
craft the other (the RICRA) without any reference to that
administrative process.
The significance of this choice hardly can be overstated.
The Rhode Island Supreme Court has determined unequivocally that,
despite the area of overlap between the FEPA and the RICRA, the two
statutes were meant to provide separate, if sometimes converging,
avenues to relief. See Ward, 639 A.2d at 1382; cf. Johnson v. Ry.
Express Agency, Inc., 421 U.S. 454, 457-61 (1975) (reaching a
similar conclusion in comparing 42 U.S.C. § 1981 and Title VII).
That factually identical claims may be subject to different rules
of timeliness depending upon the statutory vehicle that the
claimant elects to employ is a natural consequence of the
legislature's decision to offer claimants separate administrative
and judicial paths through which to rectify the same wrongs. In
the absence of a literal inconsistency, differential treatment of
factually identical claims is not a proper ground for invoking the
doctrine of repeal by implication. See Radzanower v. Touche Ross
& Co., 426 U.S. 148, 155 (1976); Passamaquoddy Tribe, 75 F.3d at
790.
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In sum, there is strong evidence that the authors of the
RICRA intended that statute to function as a broad civil rights law
aimed at remedying injuries to the person. We discern no valid
reason to rewrite that scheme by importing into it the FEPA's one-
year limitations period. Because we are confident that the Rhode
Island Supreme Court, when faced with the question, will not choose
that course, we hold that RICRA actions are governed by Rhode
Island's three-year residual statute of limitations for injuries to
the person, namely, R.I. Gen. Laws § 9-1-14(b). In ruling to the
contrary, the district court erred.
IV. THE MERITS
Our conclusion that the district court used the wrong
limitations period does not end our odyssey. An appellate court
ordinarily is not confined to the trial court's rationale, but,
rather, may sustain the entry of summary judgment on any ground
made manifest in the record. See Houlton Citizens' Coalition v.
Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999). We proceed,
therefore, to address AutoZone's asseveration that, notwithstanding
the lower court's incorrect appraisal of the applicable rule of
timeliness, none of the appellant's claims are trialworthy.
A. The Legal Framework.
The appellant's claims are based on two distinct species
of factual allegations: failure to promote and unequal pay.
Despite these factual differences, however, all the claims are
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brought under the FEPA and the RICRA.3 We start with these
statutes.
The FEPA, in terms, makes it illegal for any covered
employer to discriminate against an employee on account of gender
"with respect to hire, tenure, compensation, terms, conditions or
privileges of employment, or any other matter directly or
indirectly related to employment." R.I. Gen. Laws § 28-5-7(1)(ii).
The RICRA sweeps more broadly, guaranteeing an individual's rights
in regard to the "making, performance, modification and termination
of contracts" and "the enjoyment of all benefits, terms, and
conditions of the contractual and other relationships." Id. § 42-
112-1(b). This language has been authoritatively determined to
forfend "against all forms of discrimination in all phases of
employment." Ward, 639 A.2d at 1381.
Neither statute explicitly limns the legal framework that
courts should use to determine the existence vel non of
discrimination. In FEPA cases challenging failures to promote —
there are no RICRA cases directly on point — the Rhode Island
Supreme Court has used the burden-shifting framework developed by
the federal courts in Title VII cases. See, e.g., Mine Safety
Appl. Co. v. Berry, 620 A.2d 1255, 1258 (R.I. 1993). We assume
3
The appellant could have brought her claims under applicable
federal statutes. See, e.g., 42 U.S.C. §§ 2000e to 2000e-17 (Title
VII); 29 U.S.C. § 206(d)(1) (Equal Pay Act). She eschewed that
course.
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that this framework applies equally under the RICRA. See Rathbun,
253 F. Supp. 2d at 236 (holding to that effect).
The failure-to-promote claims rest on the premise that
AutoZone treated women in general (and the appellant in particular)
differently than men. The core inquiry in such disparate treatment
cases is whether the defendant intentionally discriminated against
the plaintiff because of her gender. Cumpiano v. Banco Santander,
902 F.2d 148, 153 (1st Cir. 1990). Direct evidence of
discriminatory intent is not required. U.S. Postal Serv. Bd. of
Govs. v. Aikens, 460 U.S. 711, 716-17 (1983). Instead, a plaintiff
may employ the aforementioned burden-shifting framework. If she
follows that path, the plaintiff first must establish a prima facie
case of gender discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). The elements of the plaintiff's prima
facie case vary according to the nature of her claim. In a
failure-to-promote claim, for example, those elements are that the
plaintiff (i) is a member of a protected class who (ii) was
qualified for an open position for which she applied, but (iii) was
rejected (iv) in favor of someone possessing similar
qualifications. Gu v. Boston Police Dep't, 312 F.3d 6, 11 (1st
Cir. 2002).
That modest showing suffices to raise an inference of
intentional discrimination. Texas Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253-54 (1981). The burden of production
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then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its employment decision(s). Id. at
254-56. "So long as the employer proffers such a reason, the
inference raised by plaintiff's prima facie case vanishes."
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7 (1st Cir.
1990).
At that juncture, the burden of production reverts to the
plaintiff, who then must proffer evidence that she was treated
differently on account of her sex. See Burdine, 450 U.S. at 256.
This evidence, viewed in the light most favorable to the plaintiff,
must be sufficient "to prove . . . that the legitimate reasons
offered by the [employer] were not its true reasons, but were a
pretext for discrimination." Id. at 253. To this end, "many veins
of circumstantial evidence . . . may be mined." Mesnick, 950 F.2d
at 824. These include — but are by no means limited to — evidence
of differential treatment, evidence of discriminatory comments,
statistical evidence, and comparative evidence. See id.
Satisfying this third-stage burden does not necessarily
require independent evidence of discriminatory animus. In a proper
case, the trier may infer the ultimate fact of discrimination from
components of the plaintiff's prima facie showing combined with
compelling proof of the pretextual nature of the employer's
explanation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 147-49 (2000); Feliciano de la Cruz v. El Conquistador Resort
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& Country Club, 218 F.3d 1, 6 (1st Cir. 2000). Where, as here, the
case arises on the employer's motion for summary judgment, the
plaintiff's task is to identify a genuine issue of material fact
with respect to whether the employer's stated reason for the
adverse employment action was a pretext for a proscribed type of
discrimination. See Thomas v. Eastman Kodak Co., 183 F.3d 38, 62
(1st Cir. 1999); see also Mesnick, 950 F.2d at 824-25 (discussing
the interplay between Rule 56 and the McDonnell Douglas framework).
Rhode Island law is less clear about how to approach
unequal pay claims brought under the FEPA and the RICRA. The Rhode
Island Supreme Court has not spoken to the subject. We believe it
is likely, however, that when confronted with the issue, the court
will follow its habitual pattern and look to the closest federal
analogue. See, e.g., Ctr. for Behav. Health v. Barros, 710 A.2d
680, 685 (R.I. 1998). On the surface, that might be either the
Equal Pay Act or Title VII.
The choice may matter. A plaintiff can establish a prima
facie case under the Equal Pay Act simply by showing that the
employer paid different wages to employees of different sexes for
jobs performed under similar working conditions and that require
equal skill, effort, and responsibility. Corning Glass Works v.
Brennan, 417 U.S. 188, 195 (1974). Unlike a prima facie case under
the McDonnell Douglas rubric, that showing suffices to shift the
burden of proof — not merely the burden of production — to the
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employer. From that point forward, the employer may escape
liability only by establishing that the wage disparity resulted
from "(i) a seniority system; (ii) a merit system; (iii) a system
which measures earnings by quantity or quality of production; or
(iv) a differential based on a factor other than sex." Id. at 196
(quoting 29 U.S.C. § 206(d)(1)).
To complicate matters, even were the state supreme court
to choose the Title VII analogy, it would discover that federal
courts are divided on whether to use the McDonnell Douglas burden-
shifting framework or the Equal Pay Act's more specialized paradigm
when unequal pay claims are raised under Title VII. Compare, e.g.,
Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1019-20 (11th Cir.
1994) (applying McDonnell Douglas), and Fallon v. Illinois, 882
F.2d 1206, 1214 (7th Cir. 1989) (same), with, e.g., Korte v.
Deimer, 909 F.2d 954, 959 (6th Cir. 1990) (applying Equal Pay Act
framework), and Kouba v. Allstate Ins. Co., 691 F.2d 873, 875 (9th
Cir. 1982) (same). This court has not taken a position on the
matter. See Rodriguez v. Smithkline Beecham, 224 F.3d 1, 8 n.11
(1st Cir. 2000) (reserving the question).
We need not decide these intriguing questions today. The
district court analyzed the unequal pay claim under the McDonnell
Douglas burden-shifting framework. See Rathbun, 253 F. Supp. 2d at
234-36. The appellant acquiesced in this mode of analysis.
Throughout the proceedings below, she abjured any suggestion that
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the Equal Pay Act framework might apply and, on appeal, she has not
challenged this aspect of the lower court's decision. She has,
therefore, forfeited the opportunity to argue for the application
of a different, more plaintiff-friendly standard. See Marcoux v.
Maine, 797 F.2d 1100, 1106 (1st Cir. 1986). We therefore proceed
to analyze the appellant's unequal pay claim in terms of the
McDonnell Douglas burden-shifting framework.4
B. The Promotion Claims.
The appellant contends that, on several occasions,
AutoZone refused to promote her to management positions for which
she was qualified and in which she had expressed an interest. She
claims that these employment decisions were motivated by gender
bias, noting that each time a man was hired or promoted into the
position. To state the obvious, only those employment actions that
took place within the limitations period are actionable. See Nat'l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). For
purposes of the appellant's RICRA claims, that grouping encompasses
only those actions that took place within the three-year period
preceding August 3, 2001.5
4
While we sometimes review forfeited challenges for plain
error, the decision to apply McDonnell Douglas to the appellant's
unequal pay claim cannot plausibly be said to sink to that level.
See, e.g., Marcoux, 797 F.2d at 1106.
5
Concluding, as we do, that none of the RICRA-eligible
failure-to-promote claims survive summary judgment, see text infra,
we have no need to consider separately the narrower subset of
claims that are actionable under the FEPA's one-year limitations
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Here, however, the universe of actionable claims is
further truncated. The appellant first expressed an interest in
the PSM position in mid-1998. AutoZone promoted her to that post
on September 12 of the following year. Consequently, we deem
potentially actionable only those PSM promotions that occurred
between August 3, 1998 and September 12, 1999. Similarly, the
appellant first expressed an interest in becoming an ASM sometime
after September 12, 1999. Thus, we deem potentially actionable
only those ASM promotions arising between September 13, 1999 and
August 3, 2001.
This line-drawing leaves six employment decisions in play
(as contrasted with the two considered by the district court, see
Rathbun, 253 F. Supp. 2d at 235). Two of these six potentially
actionable decisions involve the PSM position. Rick Allen was
hired as a PSM in November of 1998 at AutoZone's Warwick store.6
The second PSM decision involved Chris Brosco, who was elevated
from a CSR slot in March of 1999. Four other potentially
actionable employment decisions involve ASM positions. Two were
filled by direct hires, namely, Tom Disano (September 1999) and
Nick Medeiros (April 2000). Two more were filled by promotions
period.
6
When a PSM position in Cranston became vacant the following
June, Allen was laterally transferred to fill it. That employment
action does not figure in our decisional calculus as it does not
involve a promotion.
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from within the organization, namely, Rick Allen (April 2000) and
José Rios (February 2001).
The district court assumed that the record, viewed in the
light most favorable to the appellant, satisfies the prima facie
case requirement. Rathbun, 253 F. Supp. 2d at 234. We do the
same: the evidence shows that the appellant is a member of a
protected class (a woman); that an adverse employment action
occurred (her employer denied her serial bids for promotion); that
she was at least arguably qualified for the position(s) that she
sought; and that the position(s) were filled by others whose
credentials were more or less comparable to hers. See Gu, 312 F.3d
at 11; Rossy v. Roche Prods., Inc., 880 F.2d 621, 624 (1st Cir.
1989). In each instance, AutoZone has proffered reasons for its
employment decision that are, on their face, nondiscriminatory. It
says that the successful applicants were better qualified than the
appellant (e.g., Allen was a "parts pro"; Medeiros previously had
managed an auto body shop; and Rios, who was hired for a store with
a predominantly Spanish-speaking clientele, was bilingual). The
appellant's failure-to-promote claims therefore stand or fall on
the third prong of the McDonnell Douglas framework.
Even when viewed through a wider-angled lens, the
evidence of pretext is scant. It consists primarily of the
appellant's assertion that she was more qualified than the
successful male aspirants. She emphasizes her knowledge of auto
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parts, her positive performance reviews, her seniority with the
company, and what she terms her superior "people skills."
When an employer claims to have hired or promoted one
person over another on the basis of qualifications, the question is
not which of the aspirants was better qualified, but, rather,
whether the employer's stated reasons for selecting one over the
other were pretextual. See Smith v. F. W. Morse & Co, 76 F.3d 413,
421 (1st Cir. 1996). In a rare case, the disappointed applicant
may be able to prove pretext by showing that she was in fact better
qualified than the individual selected. Patterson, 491 U.S. at
187-88; Rossy, 880 F.2d at 625. But that is an uphill struggle:
in the absence of strong objective evidence (e.g., test scores),
proof of competing qualifications will seldom, in and of itself, be
sufficient to create a triable issue of pretext. See Millbrook v.
IBP, Inc., 280 F.3d 1169, 1178-79 (7th Cir.), cert. denied, 537
U.S. 884 (2002); Deines v. Tex. Dep't of Protective & Regulatory
Servs., 164 F.3d 277, 280-82 (5th Cir. 1999).
This result follows from a form of the business judgment
rule. See Mesnick, 950 F.2d at 825 (explaining that "[c]ourts may
not sit as super personnel departments, assessing the merits — or
even the rationality — of employers' nondiscriminatory business
decisions"). Qualifications are notoriously hard to judge and, in
a disparate treatment case, more must be shown than that the
employer made an unwise personnel decision by promoting "X" ahead
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of "Y." See Keyes v. Sec'y of Navy, 853 F.2d 1016, 1024-26 (1st
Cir. 1988); Gray v. New Engl. Tel. & Tel. Co., 792 F.2d 251, 255
(1st Cir. 1986). In other words, subjective evidence of competing
qualifications seldom provides a principled way for a factfinder to
determine whether a given employment decision, even if wrong-
headed, was anything more than "a garden-variety mistake in
corporate judgment." Freeman v. Package Mach. Co., 865 F.2d 1331,
1341 (1st Cir. 1988).
We recognize that there may be situations in which the
difference in qualifications is so stark as to support an inference
of pretext. See, e.g., Deines, 164 F.3d at 282 (suggesting that,
in an extreme case, qualifications may be "so widely disparate that
no reasonable employer would have made the same decision," and,
therefore, may be independently probative of pretext). Or,
perhaps, there may be situations in which a great number of
individual employment decisions, each of which arguably can be
justified as a business judgment, may in cumulation present so one-
sided a picture as to raise an inference of pretext. Cf. EEOC v.
Steamship Clerks Union, 48 F.3d 594, 605 (1st Cir. 1995) (holding
that a union's facially neutral, sponsorship-based admissions
policy, which yielded only white members over a six-year period,
sufficed to support an inference of discrimination). The case at
bar, however, does not conform to either of those models. From an
objective standpoint, the appellant's qualifications are not so
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obviously superior to those of the successful male applicants as to
undermine the legitimacy of the selection process. And the
appellant has offered too few potentially relevant employment
actions and too little information about company-wide promotion
practices to constitute an accumulation sufficient to raise an
inference of pretext.
We also recognize that a claimed difference in
qualifications may be sufficient to ground an action if accompanied
by independent evidence (say, evidence of pretext or discriminatory
animus). See, e.g., Byrnie v. Town of Cromwell, Bd. of Educ., 243
F.3d 93, 110-11 (2d Cir. 2001); Emmel v. Coca-Cola Bottling Co., 95
F.3d 627, 633-36 (7th Cir. 1996); Rossy, 880 F.2d at 625. The
appellant has adduced two pieces of independent evidence that she
claims show pretext.
The first relates to the promotion of Rick Allen to an
ASM position. At the time of his elevation, Allen had (i) nine
disciplinary citations (as opposed to one for the appellant) and
(ii) lower performance reviews in the immediately preceding
period.7 The appellant suggests that this evidence raises an
inference that AutoZone's stated reason for promoting Allen ahead
7
The appellant also calls attention to Allen's subsequent
disciplinary problems. These are immaterial, however, for the
focus must be on the employer's mindset at the time of the
promotion decision. See Cullen v. Olin Corp., 195 F.3d 317, 324
(7th Cir. 1999); Gray, 792 F.2d at 256.
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of her — superior qualifications — was a pretext for gender
discrimination.
This argument overlooks AutoZone's assertion, based on
undisputed facts, that Allen's superior parts knowledge (he
previously had been employed by another automotive chain and had
received a "special certification in parts") and the length of his
tenure as an AutoZone PSM (seventeen months, as opposed to eight
months for the appellant) rendered him better qualified for the ASM
position notwithstanding his other shortcomings. These are
difficult balances to strike — and while the wisdom of this
rationale certainly can be debated, we think that AutoZone's choice
comes within the sweep of the business judgment rule. See, e.g.,
Millbrook, 280 F.3d at 1182-83; Guerrero v. Ashcroft, 253 F.3d 309,
314-15 (7th Cir. 2001); Lehman v. Prudential Ins. Co., 74 F.3d 323,
329-30 (1st Cir. 1996). There is no evidence of discriminatory
animus here, and we do not believe that the record, taken as a
whole, would allow a reasonable factfinder to infer, on this meager
showing, that Allen's promotion was an exercise in gender
discrimination. See Feliciano, 218 F.3d at 8.
The appellant's second evidentiary proffer is temporal in
nature: she spent nineteen months with AutoZone before achieving
a promotion to PSM whereas several men thereafter attained the same
rank more celeritously. She argues that the much shorter
incubation periods experienced by these men (e.g., Guillermo Feliz
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— one month; Rob Stone and José Rios — three months; Michael Crumb
— five months; and Luis McDougall — eleven months) supports an
inference of pretext.
AutoZone asks us to dismiss this proffer on the ground
that all five of these PSM promotions took place after the
appellant had been promoted to that rank. But the fact that an
event itself is not actionable does not automatically negate its
evidentiary value. A discriminatory act or practice that is not
the basis for a timely charge of discrimination nonetheless may
constitute relevant background evidence in a proceeding in which
the same type of discriminatory act or practice has been timely
challenged. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558
(1977). This rule permits reference to evidence of untimely prior
acts or practices. Nat'l R.R. Passenger Corp., 536 U.S. at 113.
It likewise permits reference to evidence of subsequent acts or
practices. As the Seventh Circuit explained:
The last date of the allegedly discriminatory
conduct is not a bright line beyond which the
conduct of the employer is no longer relevant
in a discrimination case. Otherwise, clearly
relevant evidence would be arbitrarily
excluded; for instance, a plaintiff in a race
discrimination case would then be precluded
from producing evidence that the week after he
was fired, a white employee escaped discipline
for the exact same conduct.
Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374, 382 (7th Cir.
2000). Whether such evidence is relevant depends, as in every
case, on its probative force (or lack thereof). See Fed. R. Evid.
-31-
401, 402. That said, the appellant's evidence of swifter
promotions does not generate an inference of pretext. We explain
briefly.
As with all such comparative evidence, it is the
plaintiff's burden to demonstrate that she is comparing apples to
apples. Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 751 (1st
Cir. 1996). She "must provide a suitable provenance for the
evidence by showing that others similarly situated to h[er] in all
relevant respects were treated differently by the employer."
Conward v. Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999).
"The test is whether a prudent person, looking objectively at the
incidents, would think them roughly equivalent and the protagonists
similarly situated." Dartmouth Review v. Dartmouth Coll., 889 F.2d
13, 19 (1st Cir. 1989). The appellant has not carried that burden
here.
Taken most favorably to her case, the appellant's
evidence shows only that she and the men to whom she compares
herself were all promoted to the same position; that their
qualifications were roughly equivalent; that the men were elevated
more quickly; and that, when promoted, they had less seniority with
AutoZone. But she and her putative congeners were not applying for
the same openings at the same times; the speedier promotions
occurred between eight and twenty-one months after the appellant's
promotion to PSM. This is critically important because the
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appellant has offered nothing to show either that PSM openings
occur at an even rate or that the market environment during the
periods when the men were promoted was at all similar to the market
environment that prevailed while she was seeking a promotion. This
lack of proof leaves unaccounted for too many variables. A
multiplicity of factors (e.g., new store openings, the number of
extant PSM vacancies, the number and quality of applicants,
differing unemployment rates, and increased customer demand) may
have influenced the need to promote employees at a faster rate than
theretofore had been the case. The appellant has adduced no
evidence as to these, and other, variables. See Garside, 895 F.2d
at 48 ("On issues where the nonmovants bear the burden of proof .
. . they must reliably demonstrate that specific facts sufficient
to create an authentic dispute exist.").
That ends this aspect of the matter. Without controlling
for important variables, comparator evidence cannot generate an
inference either of pretext or of discriminatory intent. See
Conward, 171 F.3d at 21-22; cf. Rea v. Martin Marietta Corp., 29
F.3d 1450, 1456 (10th Cir. 1994) (holding that data, which failed
to take into account nondiscriminatory variables, did not offer a
probative comparison of similarly situated individuals). So it is
here. On this record, allowing the failure-to-promote claims to go
forward would be an invitation to the jury to engage in unbridled
speculation.
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C. The Unequal Pay Claim.
This leaves the appellant's claim that she was
discriminated against in terms of her pay. In support of this
claim, she identifies several male employees who, she asserts, were
performing work substantially similar to hers for higher wages,
despite the fact that each of the men had less seniority with
AutoZone. She attributes this pay disparity to her gender.
As a preliminary matter, we must determine which (if any)
of the alleged instances of pay discrimination might give rise to
actionable claims. We restrict that grouping to those instances in
which male employees who held the same position as the appellant
were rewarded more handsomely in the same time frame. Four male
PSMs fit this description: Allen, Rios, Feliz, and McDougall.
We gauge the proof as to these four individuals under the
McDonnell Douglas burden-shifting framework. See supra Part IV(A).
With respect to all four, the appellant has made out a prima facie
case: she has adduced evidence tending to show that she is a
member of a protected class; that she performed her job in keeping
with her employer's expectations; and that she was paid less than
men who held the same position. See Cullen v. Ind. Univ. Bd. of
Trustees, 338 F.3d 693, 703-04 (7th Cir. 2003); Belfi v.
Prendergast, 191 F.3d 129, 139-40 (2d Cir. 1999). AutoZone's
response is that its nondiscriminatory application of its standard
compensation system accounts for the appellant's lower pay.
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To this end, AutoZone introduced evidence that, each
year, it promulgates revised compensation guidelines. These
guidelines are in tabular form. They apply only to new hires or
newly-promoted individuals and have no retroactive effect.
Each year's table lists a range of starting wage rates
for each job title. To illustrate, the table for 1999 dictates
that an employee who became a PSM that year (as did the appellant)
would earn somewhere between $7.46/hr. and $11.03/hr. to start.
Where a particular employee falls within that range depends on the
quartile into which she is placed. This placement devolves from
AutoZone's assessment of the employee's skills, experience,
ability, and knowledge. The placement determination can have a
significant monetary impact. For example (again using the 1999
table), if a new PSM were placed in Quartile No. 4, she would earn
between $10.13/hr. and $11.03/hr., but if placed in Quartile No. 1,
she would earn between $7.46/hr. and $8.34/hr.
Employees also receive raises based on annual performance
reviews. AutoZone issues guidelines for merit-based raises for
each region, typically ranging from 3% to 5% of an employee's
hourly rate. The guidelines are hortatory, and the company
sometimes bestows raises exceeding the suggested increments. The
appellant has adduced no evidence showing that raises have been
allocated on the basis of gender. Because the raises have a
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percentage-based focus, however, discriminatory quartile
determinations may well influence the amount of future raises.
AutoZone has met its burden of articulating a legitimate,
nondiscriminatory reason for the pay disparity. The salary
framework itself provides part of the justification. The
appellant's starting salary as a PSM, $8/hr., fell within the
standard guideline range for PSMs hired in 1999 ($7.46 to
$11.03/hr.), and the starting salaries paid to the four male PSMs
all fell within the ranges applicable to their respective start
dates. AutoZone further notes that the PSM salary ranges escalated
significantly after 1999, thus explaining, in part, why Rios,
Feliz, and McDougall began at higher hourly rates. The fact that
the company chooses to compensate employees based in part on start
dates can have the perverse effect of penalizing seniority, but
that fact, in and of itself, is gender-neutral and, in any event,
does not undermine the legitimacy of the employer's explanation.
Nevertheless, the start date differences alone do not
fully account for the divergence between the appellant's wages and
those of her male comparators. Allen, for example, was hired a
year earlier than the appellant and paid $1/hr. more despite the
fact that the guideline range remained the same for both years.
Allen's higher hourly rate stems not from the forced application of
an inflexible guideline but from AutoZone's decision to place him
in Quartile No. 2 while placing the appellant in Quartile No. 1.
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By the same token, the company promoted Rios in 2000, placed him in
Quartile No. 2, and paid him $11/hr.; promoted Feliz in 2002,
placed him in Quartile No. 3, and paid him $10.50/hr.; and promoted
McDougall in 2001, placed him in Quartile No. 4, and paid him
$12/hr.
As quartile placement is a discretionary exercise,
governed by a very general set of principles, the employer bears
the burden of presenting legitimate, nondiscriminatory reasons for
its differential decisions. AutoZone has carried this burden of
production. Its affidavits suggest that the four men in question
received higher quartile placements due, inter alia, to their auto
parts knowledge, leadership experience, and linguistic abilities.
The appellant has tendered evidence designed to cast
doubt on this explanation. She offers two examples. With respect
to AutoZone's averment that it placed McDougall in Quartile No. 4
because, inter alia, he "had previously worked as a warehouse
supervisor," she points out that McDougall's employment application
lists his previous job as "forklift driver" and describes his
duties as using a forklift to move pallets of shoes. With respect
to AutoZone's averment that it placed Feliz in Quartile No. 3
because, inter alia, he previously worked in a body shop, she
suggests that Feliz spent only a single month at an auto body shop
(and, then, as a shipping clerk). According to the appellant,
these discrepancies, taken together with her prima facie case,
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raise a genuine issue of material fact as to whether AutoZone's
professed rationales were pretexts for gender discrimination.
We do not agree. In the first place, the record does not
support the claimed discrepancy as to Feliz. The only place in
which we can find an indication that Feliz spent no more than a
month in an auto body shop is in the appellant's affidavit. The
difficulty is patent. The affidavit refers to "Exhibit T," but the
last exhibit attached to it is Exhibit S. The only Exhibit T that
we can locate in the record — an AutoZone exhibit — contains no
mention whatever of Feliz. Given the elusiveness of Exhibit T, we
are left with the appellant's unsupported statement about Feliz's
employment history — a statement that addresses a matter about
which the appellant lacks (or, at least, has not demonstrated any
basis for) personal knowledge. Thus, her statement cannot be
accorded any weight in the summary judgment calculus. See Cadle
Co. v. Hayes, 116 F.3d 957, 961 n.5 (1st Cir. 1997); see also Fed.
R. Civ. P. 56(e) (stating that affidavits "shall be made on
personal knowledge" and "shall show affirmatively that the affiant
is competent to testify to the matters stated therein").
This leads us naturally to a larger problem with the
appellant's proffers. Even if fully credited, they succeed only in
calling into doubt one of several rationales that AutoZone has
advanced for its decision to assign these men higher quartiles.
AutoZone placed McDougall in Quartile No. 4 not only because of his
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past employment history but also because he was bilingual. So too
Feliz, who began in Quartile No. 3 due in part to his military
experience and linguistic abilities. These additional rationales
are unrebutted. On this record, we simply cannot say that the
scattered inconsistencies noted by the appellant bear the weight
that she attempts to pile upon them. Summary judgment was,
therefore, warranted. See Cullen, 338 F.3d at 704; Belfi, 191 F.3d
at 140.
In a last-ditch effort to salvage her unequal pay claim,
the appellant adverts to a chart prepared by AutoZone listing all
the PSMs in the relevant region as of February 23, 2000, their
gender, and their wage rates. The sample consists of 114 PSMs,
roughly 18% of whom are female. Of the twenty lowest-paid PSMs
(those making $9/hr. or less), 30% are female. Of the twenty-seven
highest-paid PSMs (those making $11/hr. or more), only 11% are
female. In the appellant's view, this data supports an inference
that her comparatively low wage rate falls into an overall pattern
of pay disparity at the PSM level.
Statistical evidence is permissible in the disparate
treatment context to show that the employer's conduct conformed to
a general pattern of discrimination. See Freeman, 865 F.2d at 1342
(citing McDonnell Douglas, 411 U.S. at 805). But "[t]he probative
worth of statistical testimony must be evaluated in light of the
methodology employed, the data available, and the factual mosaic
-39-
unique to the case at hand." Id. at 1342 n.5. While we have not
universally required sophisticated statistical comparisons in
disparate treatment cases, see, e.g., Cuello-Suarez v. P.R. Elec.
Power Auth., 988 F.2d 275, 278 (1st Cir. 1993); Freeman, 865 F.2d
at 1342 & n.5, the analysis must still cross a threshold of
dependability. The chart stumbles on that threshold. The
rudimentary analysis, conducted by the appellant's counsel rather
than by a qualified expert, makes no attempt to ascertain the
extent to which the apparent disparities may be attributable to
factors other than gender. That is a significant shortcoming. See
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1283 (9th Cir. 2000);
Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir.
1997); Carter v. Ball, 33 F.3d 450, 457 (4th Cir. 1994). So too is
the absence of any indication of statistical significance. See
Bennett v. Total Minatome Corp., 138 F.3d 1053, 1062 (5th Cir.
1998); Ottaviani v. State Univ. of N.Y., 875 F.2d 365, 370-74 (2d
Cir. 1989). Without more methodical treatment, we cannot say that
this analysis, standing alone, is probative of discriminatory
intent.
V. CONCLUSION
We need go no further. To recapitulate, we hold that
employment discrimination claims brought under the RICRA are
governed by Rhode Island's residual three-year statute of
limitations for injuries to the person. Although this ruling
-40-
expands the universe of potentially actionable claims, we conclude
that the appellant has offered insufficient evidence on either her
promotion-related allegations or her unequal pay claim to survive
summary judgment. Consequently, we affirm the judgment of the
lower court.
Affirmed.
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