Ingram v. Brinks Incorporated

United States Court of Appeals
For the First Circuit

No. 04-2343

KATHLEEN M. INGRAM,
Plaintiff, Appellant,

v.

BRINK’S, INCORPORATED,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, Senior U.S. District Judge]

Before

Boudin, Chief Judge,

Campbell, Senior Circuit Judge,

and Gertner,* U.S. District Judge.

Jonathan J. Margolis with whom Robert S. Mantell, Laurie A.
Frankl, and Rodgers Powers & Schwartz, LLP were on brief for
appellant.
James E. Kellett, Frank M. Esposito, and King, Pagano & Harrison
were on brief for appellee.

July 15, 2005

*
Of the District of Massachusetts, sitting by designation.
 GERTNER, U.S. District Judge. This is an employment

discrimination action in which appellant Kathleen Ingram (“Ingram”)

brought state and federal claims against her former employer,

appellee Brink’s, Incorporated (“Brink’s”), pursuant to M.G.L. ch.

151B §§ 4(1) and (16A), and the Equal Pay Act, 29 U.S.C. § 206(d).

The district court granted summary judgment for Brink’s on both the

failure-to-promote and unequal pay claims. Ingram now appeals.

Finding no error, we affirm the district court’s entry of summary

judgment.

I. Background

Brink’s is a nationwide corporation whose core business is

providing secure, armored transportation of valuables. Brink’s

operates from local, largely autonomous branches that vary widely

in size from five to hundreds of employees. Branches are

administered by a branch manager with the assistance of an

assistant branch manager.

Ingram worked at Brinks for nearly three years. She was hired

in September 1998 and resigned in May 2001. Although her work was

exemplary, she claims that she was passed over for a number of

promotions between 1998 and early 2001. The fatal problem for

Ingram’s discrimination claims, however, is her failure to file

suit until August 2001, by which time her earlier grievances were

time barred. The only relevant hiring decision during the

applicable limitations period was the decision to fill the Lawrence

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assistant branch manager position, but that decision was favorable

to Ingram as she was offered the job. But she rejected it for a

better paying one outside the company. Although Ingram goes to

great lengths to describe a pattern of sex-based discrimination

during her first two years with the company, without a showing of

an adverse employment action within the limitations period, Ingram

cannot make out even the minimal prima facie case of

discrimination.

With respect to the Equal Pay Act claim, Ingram alleges that

there were two male employees in the Lawrence branch and several

male employees throughout the company who were paid more than she

was paid for performing comparable work. But the only two

employees that Ingram names – David Hardy and Jeffrey Hosfeld –

were assistant branch managers. Ingram never formally held that

position; she turned it down when it was offered to her. Nor did

she effectively perform the same duties while she was in other

positions. Without more, her pay discrimination claim cannot

prevail.

A. Ingram’s Employment from September 1998 through December
2000

Ingram took her first position at Brink’s in September 1998 as

Chief Office Employee of its Lawrence, Massachusetts branch at an

hourly wage of $11.50. The job was largely administrative and

clerical. By November 1998, according to the branch manager,

Ingram had become “a great asset” to the Lawrence branch, and was

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reclassified from an hourly employee to a salaried employee earning

$28,000 per year. Her new job title was “branch supervisor,” a

rare, non-managerial position with flexible duties depending on the

needs of the individual branch.1

At the time that Ingram was hired, the Lawrence branch had no

assistant branch manager. In December 1998, two months after she

began working at Brink’s, the assistant manager position was

posted. Ingram applied, although she conceded in her application

that a co-worker deserved the promotion because of his longer

tenure with the company. Neither was hired; the assistant branch

manager position was not filled, and the company stopped recruiting

applicants until 2000 when the vacancy was posted again.

In March 1999 Ingram became pregnant. She claims no adverse

employment consequence attributable to her pregnancy except for a

dispute about the painting of the Lawrence branch.2 While on

maternity leave, in January 2000, the assistant branch manager

position in Lawrence was posted once again. For the first time,

the posting stated that the assistant branch manager will be

1
At least two members of Brink’s management testified that
they had never heard of the branch supervisor position before this
lawsuit commenced.
2
Ingram presented the branch manager with a note from her
doctor indicating that no painting should take place in her
immediate work areas, and suggesting that an air purifier be
installed. In response, the branch manager ordered that the
painting take place at night, but he did not install the purifier.

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required “to learn every run and make recommendations for route

restructuring.” And it included a new requirement for on-call

availability seven days per week, which Ingram, as a new mother,

found to be virtually impossible. She nevertheless expressed an

interest in the position to David Weinstock, the Lawrence branch

manager at the time. He responded that she needed “more armored

experience.”

While it is true that Ingram had never worked in the armored

vehicle industry before her employment with Brink’s, and had no

experience working on the armored trucks even within Brink’s,

Weinstock had never before mentioned the need for her to gain

“armored experience.” Indeed, notwithstanding this supposed

deficiency, Weinstock rated her as “outstanding” in seventeen out

of twenty categories on her February 2000 performance review. And

in the section assessing areas in which Ingram needed to improve,

Weinstock made no mention of the need for armored experience. In

any event, when Ingram returned from maternity leave in March 2000

she set out to obtain armored experience by accompanying drivers

and messengers on runs.

On April 15, 2000, Brink’s appointed Jeffrey Hosfeld to the

assistant branch manager position that had then been vacant for

over two years. Hosfeld was a former corrections officer and had

previously served as a Brink’s branch supervisor in another branch,

the same title that Ingram had, where he earned $4,000 more per

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year than Ingram despite what Ingram describes as comparable

experience and job responsibilities.3 In support of her challenge

to Hosfeld being promoted instead of her, Ingram also claims –

contradicting herself – that Hosfeld had no experience in the

administrative side of business operations prior to his appointment

as assistant branch manager. In any case, Hosfeld apparently had

extensive experience in the field working on armored trucks, as

required by the assistant branch manager job posting.4

In May 2000, Weinstock was promoted to regional management,

leaving the Lawrence branch without a branch manager. Brink’s

posted the branch manager position, specifying that it required a

bachelor’s degree or its equivalent. Ingram expressed an interest

in the position. Weinstock recommended her to his supervisor,

Thomas Szczepanski. Szczepanski disagreed and chose a male, Mark

Albright, on the ground that Albright was more qualified because he

had a bachelor’s degree and Ingram did not. However, Szczepanski

offered Ingram a branch manager position at a smaller branch in

Rochester, New York, although he acknowledged that she probably was

not interested in moving in light of her recent maternity. Ingram

3
Although Hosfeld earned $4000 more per year than Ingram as
branch supervisor of another branch, Ingram does not make an Equal
Pay Act claim with respect to this issue.
4
In any event, as described below, her challenges to his
selection in this position would be time barred.

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did not pursue the Rochester position. In June 2000, Albright was

appointed to the branch manager position, replacing Weinstock.

In September 2000, Ingram was promoted to the position of

“Operations Manager.” Her salary was raised to $37,000 per year

from $28,000 per year.5

Shortly thereafter Albright left the Lawrence branch manager

position and the vacancy was posted yet again. Ingram again

expressed an interest.6 In early-October 2000, Szczepanski

appointed Tim Messner, the Syracuse branch manager, as interim

manager of the Lawrence branch while a more thorough search for a

permanent branch manager could be conducted. As interim branch

manager, Messner split his time between the Syracuse and Lawrence

branches.

B. The Position At Issue – Assistant Branch Manger

In mid-October 2000, Hosfeld, then the Lawrence assistant

branch manager, transferred to another branch, leaving vacant both

the assistant branch manager and branch manager positions. Ingram

applied for the former. In her letter of application, Ingram

acknowledged that she did not feel ready for the branch manager

5
She describes her responsibilities as Operations Manager as
“overseeing all of the administrative operations of the branch,
including... billing and accounting, human resources and customer
troubleshooting.”
6
After the position was filled, Ingram conceded that she was
not genuinely interested in the position.

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position, but was “unequivocally prepared to successfully function

in the capacity of Assistant Manager.”

After Ingram applied, Jim Gaherity, Szczepanski’s replacement

as regional manager, informed Ingram that he was keeping the

assistant branch manager position open until the branch manager

position was filled. He wanted the new branch manager to be

involved in the selection of his staff.

Ingram then expressed an interest in the branch manager’s

position despite her admission only weeks earlier that she was not

qualified for it. Gaherity, the regional manager, rejected Ingram,

appointing Daniel Harrington in her stead. Harrington had worked

at Brink’s since February 1999, six months after Ingram was hired.

Although at the time of his appointment to branch manager,

Harrington was working as a messenger in the Lawrence branch,

Harrington had spent over fifteen years in management positions in

the trucking and delivery field before joining Brink’s. In

contrast, before her employment with Brink’s, Ingram had no

experience in the trucking and delivery field.7

According to Ingram, after interviewing her for the branch

manager position, Gaherity told her that she was well-suited for an

assistant branch manager position. Indeed, even the new branch

7
To be clear, Ingram is not suing over her failure to be
promoted to the position of branch manager. However, she compares
herself to Harrington for the purpose of showing that she was
passed over for promotion several times, and that each time a man
assumed the management role that she sought.

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manager, Harrington, agreed and expressly recommended Ingram for

the position. But Gaherity hesitated, reporting to Harrington that

Ingram lacked the requisite experience and qualifications.

Gaherity proposed that someone from outside the company be hired

instead – David Hardy, the eventual hire for the position.

Harrington rejected Hardy because he had no experience in the

armored car industry, and because Hardy had explicitly stated his

concerns about the job’s safety hazards during his interview with

Harrington. As of December 2000, the assistant branch manager

position remained vacant.

Ingram delivered her second child on February 22, 2001, and

took maternity leave through April 2001, although she continued to

come to work once a week. In March 2001, Harrington assured Ingram

that he would relate to Gaherity that she was still his pick for

assistant manager.

Shortly thereafter, Ingram saw the assistant branch manager

position advertised in a local newspaper. When she confronted

Harrington, he told her that Gaherity was resisting her promotion.

Then, in mid-April 2001, Harrington showed Ingram an email message

stating that Brink’s was eliminating the assistant branch manager

title in favor of the operations manager title, the very title that

she already held. According to Brink’s, the title was changed to

more accurately reflect the duties of the position. The internal

posting for the position was changed to reflect the title change,

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but was otherwise identical to the prior posting. It is unclear

from the record what the relationship was between the title change

and Ingram’s existing job title and duties. What is clear is that,

by this juncture, Ingram was convinced that the company had no

intention of promoting her.

On May 1, 2001, Harrington resigned without warning. Gaherity

visited the Lawrence branch the following day, and he and Ingram

had an emotional confrontation. Ingram expressed her anger at

being passed over for promotion several times. Gaherity told

Ingram that she could have the promotion to assistant branch

manager, and that he would make a phone call to accomplish her

promotion “in an hour.”

Later that day, Gaherity did send an email to his supervisor,

Jim Tingley, requesting that Ingram be appointed to the assistant

branch manager/operations manager position, with an accompanying

salary increase to $45,000, an $8,000 increase over Ingram’s salary

at the time and $3,000 more than Hosfeld made as assistant branch

manager. The next morning, Tingley forwarded the email, along with

a strong endorsement of his own, to Senior Vice President Greg

Hanno. On May 18, 2001, Hanno approved the request. Weinstock,

who was assisting with the management of the Lawrence branch in the

face of Harrington’s sudden resignation, called Ingram at home to

formally offer her the promotion.

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 By this time, however, Ingram was on medical leave on the

advice of her doctor. After not hearing back from Gaherity to

confirm her promotion after their confrontation on May 1, Ingram

reports leaving the office “a wreck, a total wreck.” She visited

her doctor who told her to take medical leave for stress. She was

still on medical leave on May 18, 2001, when Harrington called to

offer her the promotion. Ingram told him that she would think

about the offer.

In the meantime, Ingram looked for another job. On May 30, she

took a job at Genesys Software Systems with a starting salary of

$47,000 per year. Notably, Ingram cited her $45,000 salary at

Brink’s (the amount offered with the promotion) when applying to

Genesys. By letter dated May 31, 2001, Ingram resigned from

Brink’s, admitting that their most recent offer was what she had

sought but that “it took too long.”

In mid-June 2001, Hardy was hired as assistant branch

manager/operations manager for the Lawrence branch. His starting

salary was $50,000, $5,000 more than Brink’s offered Ingram just

one month prior.

C. Procedural History Below

Ingram filed a claim with the Massachusetts Commission Against

Discrimination (MCAD) on August 8, 2001. The claim alleged

violations of Massachusetts General Laws, Chapter 151B §§ 4(1) and

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(16A), relating to promotions she sought during her employment with

Brink’s dating back to December 1998.

On May 15, 2002, Ingram filed a complaint in Essex Superior

Court. The Complaint alleged a pattern and practice of gender and

pregnancy discrimination by Brink’s, in violation of M.G.L. ch.

151B § 4(1). On July 2, 2002, Brink’s removed the case to federal

court. On April 24, 2003, Ingram filed an Amended Complaint,

adding a federal claim under the Equal Pay Act, 29 U.S.C. § 206(d),

on the ground that both Hosfeld and Hardy were paid more than her

for performing substantially equal work while they were assistant

branch managers of the Lawrence branch.

On September 7, 2004, the district court entered a memorandum

and order granting Brinks’ motion for summary judgment on both the

state and federal claims. Pursuant to the burden-shifting

framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), Judge Keeton concluded that Brink’s could successfully

rebut a prima facie showing of discrimination by showing that

Ingram was eventually offered the very promotion that she claims

she was denied, and that Ingram could not rebut with a showing of

pretext or discriminatory animus. See Memorandum and Order, Ingram

v. Brink’s, Inc., Civil Action No. 02-11333-REK, (D. Mass.

September 7, 2004) at 11-13 (“Memorandum and Order of September 7,

2004"). With regard to Ingram’s claim under the Equal Pay Act, the

district court found that Ingram could not show that she received

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less pay than any male employee performing “equal work on jobs the

performance of which requires equal skill, effort and

responsibility,” as required by Corning Glass Works v. Brennan, 417

U.S. 188, 195 (1974). Memorandum and Order of September 7, 2004,

at 14-15.

II. Discussion

A. Standard of Review

An appellate court reviews entries of summary judgment de

novo, Rathbun v. Autozone, Inc., 361 F.3d 62, 66 (1st Cir. 2004),

and the reviewing court is not confined to the trial court’s

rationale; the trial court’s ultimate holding may be sustained “on

any ground manifest in the record.” Id. at 70; Garside v. Osco

Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990).

Federal Rule of Civil Procedure 56(c) permits the trial court

to enter summary judgment “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.” On summary judgment, the facts are viewed in

the light most favorable to the nonmovant (here, Ingram), and all

reasonable inferences are drawn in the nonmovant’s favor. Rathbun,

361 F.3d at 64. Once the moving party avers the absence of genuine

issues of material fact, the nonmovant must show that a factual

dispute does exist, but summary judgment cannot be defeated by

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relying on improbable inferences, conclusory allegations, or rank

speculation. See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st

Cir. 1991) (“[n]ot every discrepancy in the proof is enough to

forestall a properly supported motion for summary judgment; the

disagreement must relate to some genuine issue of material fact”).

And summary judgment can be entered even where ambiguous, often

murky concepts such as motive and intent are involved, as in the

employment discrimination context. Id.

B. Ingram’s Failure-To-Promote Claim Under M.G.L. ch. 151B

Ingram alleges that Brinks’ failure to promote her to either

assistant branch manager or branch manager amounts to actionable

sex and pregnancy discrimination under Mass. Gen. Laws ch. 151B.

In relevant part, ch. 151B § 4(1) makes it unlawful for an employer

to discriminate on the basis of sex in hiring, firing,

compensating, or in providing other terms, conditions, or

privileges of employment. The protections of this provision have

been interpreted to apply to plaintiffs asserting claims of sex

discrimination stemming from their pregnancy. Gunther v. Gap,

Inc., 1 F.Supp.2d 73 (D. Mass. 1998).

Neither party disputes that the applicable limitations period

is six months, since ch. 151B §5 as it existed before 2002 requires

a plaintiff to file a charge with the MCAD no later than six months

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after the alleged act of discrimination.8 See Ocean Spray

Cranberries v. MCAD, 441 Mass. 632, 641 (2004). Accordingly, only

events taking place between February 8, 2001, and August 8, 2001,

the day that Ingram filed her claim with the MCAD, are actionable.9

To be sure, discriminatory acts or practices that predate or

postdate the actionable period can be used as relevant background

evidence. Rathbun, 361 F.3d at 76. But the problem with Ingram’s

8
In 2002, the Massachusetts Legislature amended ch. 151B § 5,
extending the limitations period from six months to 300 days.
However, the parties agree that the earlier version of the statute
applies to the case at bar.
9
Pursuant to its authority under ch. 151B § 3(5), the MCAD
adopted an exception to the six-month limitations period for
violations “of a continuing nature,” 804 Code Mass. Regs. §
1.03(2), recognizing that “some claims of discrimination involve a
series of related events that have to be viewed in their totality
in order to assess adequately their discriminatory nature and
impact.” Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521,
531 (2001). For the continuing violation exception to apply, the
plaintiff must prove that (1) at least one discriminatory act
occurred within the six-month limitations period, (2) the alleged
timely discriminatory act has a substantial relationship to the
alleged untimely discriminatory act(s), and (3) earlier violations
outside the six-month limitations period did not trigger the
plaintiff’s awareness and duty to assert her rights. Desrosiers v.
Great Atl. & Pac. Tea Co., 885 F.Supp. 308, 312 (D. Mass. 1995).

The continuing violation exception is unavailable to Ingram.
Failure-to-hire claims, like Ingram’s, generally do not fit into
the exception because the discriminatory act alleged is discrete
and cabined, as opposed to hostile work environment claims in which
the discrimination alleged is itself a culmination of ongoing
workplace attributes. Indeed, in interpreting the meaning of “act
of discrimination” as it appears in the applicable statute of
limitations, the SJC noted that “[i]n some instances, the precise
moment of the ‘act of discrimination’ is easy to calculate:
plainly, if an employee is denied a promotion on an improper basis,
the date of the ‘act of discrimination’ is the date of that
denial.” Ocean Spray, 441 Mass. at 641.

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case is more fundamental: While the prior acts that Ingram

describes can be introduced to provide a background for or evidence

of animus in connection with an adverse decision, without an

adverse decision within the limitations period, the discrimination

inquiry simply stops.

The following events occurred during the actionable six-month

period between February 8, 2001, and August 8, 2001:

In March 2001, Harrington, the newly appointed branch manager,

assured Ingram that he would tell Gaherity that she was his choice

for assistant manager, although he asked Ingram whether she would

be able to meet the demands of the job with two small children.

She assured him that she would.

Notwithstanding Harrington’s assurances, while Ingram was

still on maternity leave, Brink’s advertised the assistant branch

manager position in the local newspaper. Gaherity, it appears, was

still resisting Ingram’s promotion. And then, on April 11, 2001,

evidence suggested that Brink’s was eliminating the assistant

branch manager position in favor of an “Operations Manager,”

Ingram’s job title at that time.

On May 1, 2001, after Harrington’s resignation, Ingram

reiterated her desire for the assistant branch manager title and

corresponding salary. While Gaherity assured her that he would get

the job for her that very day, he did not.

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 On May 18, 2001, Brink’s finally offered Ingram the promotion

and salary raise to $45,000. Ingram, however, turned it down and

instead accepted a higher paying job with a different firm. On May

31, 2001, Ingram formally resigned.

Three weeks later, Brink’s hired Hardy for the assistant

branch manager/operations manager position at a starting salary of

$50,000, $5,000 more than Brink’s offered Ingram the month prior.

1. The McDonnell Burden-Shifting Framework

Employment discrimination claims, including failure-to-promote

claims brought under ch. 151B, are reviewed according to the

burden-shifting framework articulated in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973). See Wheelock College v. MCAD, 371

Mass. 130 (1976).

Where there is no direct evidence of discriminatory intent –

no smoking gun – the plaintiff must first establish a prima facie

case of gender discrimination. McDonnell, 411 U.S. at 802. In a

failure-to-promote claim, the plaintiff establishes a prima facie

case by showing that (1) she is a member of a protected class, (2)

she was qualified for an open position for which she applied, (3)

she was rejected, and (4) someone possessing similar qualifications

filled the position instead. Rathbun, 361 F.2d at 71. If a prima

facie case is made out, an inference of intentional discrimination

is raised, and the burden of production shifts to the employer to

articulate a legitimate, nondiscriminatory reason for its

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employment decision(s). Id. If the employer does so, the burden

of production reverts to the plaintiff, who then must prove that

the employer’s neutral reasons were actually a pretext for the

alleged discrimination. Id.; see also Texas Dep’t of Cmty. Affairs

v. Burdine, 450 U.S. 248, 256 (1981).

If, as is the case here, the plaintiff fails to make it past

the first stage, i.e. to aver a prima facie case, the inference of

discrimination simply never arises and the employer’s motion for

summary judgment is granted.

2. The Merits of Ingram’s Failure-to-Hire Claim

As the district court found, it is beyond dispute that (1)

Ingram is a member of a protected class based on her sex and her

pregnancy status during the relevant period, and (2) she applied

for the assistant manager position. One could even conclude that

Ingram was qualified for the assistant branch manager position, as

Brink’s apparently believed. The problem is with respect to the

third prong of the test – an adverse employment action. Ingram

finally got the promotion that she wanted and she turned it down.

Ingram argues that three events occurring after February 8,

2001 can be construed as a de facto rejection of her for the

assistant manager position – (1) the April 2001 advertisement for

the assistant manager position, notwithstanding earlier assurances

that the job was her’s, (2) the elimination in April 2001 of the

assistant branch manager position in favor of operations manager,

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the title Ingram held, and (3) Gaherity’s unfulfilled promise to

secure Ingram the assistant manager position “within an hour” on

May 2, 2001. But these events, while they surely may have been

frustrating to Ingram, comprise nothing more than delays in the

decision making process which are not actionable.

The district court correctly found that no reasonable

factfinder could conclude that the first or second occasion

amounted to a rejection. The process of finding a candidate for

the assistant manager position continued; no one else was hired.

After Ingram brought the newspaper advertisement to Harrington’s

attention, he told her that Gaherity was “resisting” his

recommendation, not that Gaherity had conclusively rejected Ingram

for the position. And, in the second instance, the change in title

from “assistant branch manager” to “operations manager” was nothing

more than an upper-management decision to change the title of the

position to more accurately reflect its role and responsibilities.

While the significance of the title change is not at all clear, it

surely did not spell rejection for Ingram.

The district court characterized the third instance –

Gaherity’s failed promise to secure Ingram the promotion “in an

hour” – as a closer call, and then passed on the question, finding

no need to decide whether this instance amounted to a rejection

because Ingram’s claim failed at another point in the McDonnell

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test, namely Brink’s ability to rebut a prima facie showing of

discrimination with legitimate non-discriminatory motives.

It is difficult to construe Gaherity’s actions on May 2, 2001,

as a rejection. Indeed, after boasting to Ingram that he could

secure her the promotion within the hour, Gaherity left the

Lawrence branch and promptly drafted an email to his supervisor

emphatically recommending Ingram for the assistant

manager/operations manager position. Gaherity’s email set the

hiring process in motion, and, only two weeks later, Ingram was

offered the promotion.

To be sure, Gaherity’s initial assurances about how quickly he

could effect her promotion were nothing more than a boast. But his

empty boasts hardly amounted to a rejection. On the contrary,

Ingram was offered the promotion within a relatively short time

thereafter.

Without establishing that she was rejected for the promotion

within the actionable time frame, Ingram cannot establish a prima

facie case of discrimination and her failure-to-promote claim

falters. Central to the first stage of the McDonell framework, is

evidence of an adverse employment decision. To be sure, the

favorable decision did not come as quickly as Ingram would have

liked, and she had her hopes dashed on more than one occasion. But

in the final analysis, she got the job and she chose not to take

it.

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 C. Ingram’s Equal Pay Claim Under 29 U.S.C. § 206(d)

Ingram alleges that several male employees within and outside

the Lawrence branch were paid more than she was paid in violation

of the federal Equal Pay Act (“EPA” or “the Act”), 29 U.S.C. §

206(d)(1). The EPA prohibits an employer from discriminating on

the basis of sex “by paying wages to employees in such

establishment at a rate less than the rate at which [s]he pays

wages to employees of the opposite sex in such establishment for

equal work on jobs the performance of which are performed under

similar working conditions, except where such payment is made

pursuant to (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 any other factor other

than sex.” 29 U.S.C. § 206(d)(1).

1. The Corning Glass Burden-Shifting Framework

To prevail on a claim under the EPA, the plaintiff must first

establish a prima facie case by showing that the employer paid

different wages to specific employees of different sexes for jobs

performed under similar working conditions and requiring equal

skill, effort and responsibility. Corning Glass Works v. Brennan,

417 U.S. 188, 195 (1974). Such a showing is harder to make than

the prima facie showing under the McDonnell framework because it

requires the plaintiff to identify specific employees of the

opposite sex holding positions requiring equal skill, effort and

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responsibility under similar working positions who were more

generously compensated. Petsch-Schmid v. Boston Edison Co., 914

F.Supp. 697 (D. Mass. 1996). The EPA is more concerned with

substance than title, so Ingram is free to bring EPA claims against

male employees holding different positions then she held if she can

establish that they performed comparable work.

“Equal responsibility,” as it is used in the Act, is defined

as “concern[ing] the degree of accountability required in the

performance of the job, with emphasis on the importance of the job

obligation.” 29 C.F.R. § 1620.17. “Establishment,” as it is used

in the Act, refers to “a distinct physical place of business rather

than to an entire business or ‘enterprise’ which may include

several separate places of business.” 29 C.F.R. § 1620.9.

Accordingly, Ingram’s EPA claim focuses on two male employees

within a single establishment – the Lawrence branch.

Once the plaintiff establishes a prima facie case of an

unlawful wage differential, the burden shifts to the employer to

show that the differential is justified under one of the Act’s four

exceptions. At this stage, the Act’s exceptions serve as

affirmative defenses on which the employer carries the burden of

proof, not just production. Corning Glass, 417 U.S. at 196.

2. The Merits of Ingram’s EPA Claim

The district court properly noted that Ingram provided scant

evidence showing that she was paid less than Hardy and Hosfeld for

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jobs requiring equal responsibility. Ingram provides no specifics

as to Hardy’s job functions while he was assistant branch manager

after her resignation from Brink’s,10 and the specifics she provides

with regard to Hosfeld’s job functions while he was assistant branch

manager indicate that his responsibilities were distinct from hers,

and significantly more demanding. Based on these facts, Ingram’s

pay discrimination claim is not viable.

First, Ingram makes much of Hardy’s $50,000 starting salary as

assistant branch manager, $5,000 more than she was offered just a

few weeks earlier. But Ingram turned down Brinks’ promotion offer

because she found another job paying more than the $45,000 that they

offered her. But Ingram was never paid less than Hardy for the same

job – she never took the job – and Hardy was offered more after

Ingram had already left the company (quite possibly because the

company got the message that they were not offering enough).

Second, Ingram alleges that Hosfeld was paid $4000 more per

year than she was paid while he was the Lawrence assistant manager.

Based on the record, however, Hosfeld and Ingram performed distinct

duties. Hosfeld’s responsibilities included “learning more of the

operation of the branch, learning more of budgeting, being available

24 hours, seven days a week, overall supervision of the facility,

10
In an EPA action, it is appropriate to compare the
plaintiff-employee’s compensation to that of her immediate (and
non-immediate) successors and predecessors. See Broadus v. O.K.
Industries, Inc., 226 F.3d 937, 941-42 (8th Cir. 2000); Brinkley-
Obu v. Hughes Training, Inc., 36 F.3d 336, 352 (4th Cir. 1994).

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opening and closing, staffing, dispatching, scheduling the runs,

scheduling the personnel,” and on and on. Meanwhile, by her own

description, Ingram’s responsibilities as operations manager were

largely administrative, including maintaining billing records,

preparing monthly financial reports, handling customer service

issues related to billing, and performing vault audits.

In summary, both of the male employees that she alleges were

being paid more for performing equal responsibilities were paid as

assistant managers, a position that she never held either in title

or substance. By all accounts, their duties and responsibilities

were distinctly more demanding, requiring more skill breadth and

training, than Ingram’s duties as branch supervisor or operations

manager. Without more, Ingram has failed to show that Brink’s

compensated certain male employees at higher rates for performing

jobs requiring equal skill, effort and responsibility.

III. Conclusion

For the reasons stated in this opinion, the district court’s

entry of summary judgment for Defendant-Appellee Brink’s is

Affirmed.

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