Byrd v. Ronayne

                   UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           
                                                     

No. 94-1810

                          SUSAN R. BYRD,

                      Plaintiff, Appellant,

                                v.

                     JOHN T. RONAYNE, ET AL.,

                      Defendants, Appellees.

                                           
                                                     

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. William G. Young, U.S. District Judge]
                                                                

                                           
                                                     

                     Torruella, Chief Judge,
                                                     

                  Coffin, Senior Circuit Judge,
                                                        

                     and Cyr, Circuit Judge.
                                                     

                                           
                                                     

   Norman Jackman,  with whom Martha  M. Wishart and Jackman  & Roth
                                                                              
were on brief for appellant.
   David  A. Bunis,  with  whom Dwyer  & Collora  was  on brief  for
                                                          
appellees.

                                           
                                                     

                          August 9, 1995
                                           
                                                     


           CYR, Circuit Judge.  Plaintiff  Susan R. Byrd, a former
                    CYR, Circuit Judge.
                                      

associate in the  defendant law firm of Harrison  & Maguire, P.C.

("H & M"), sued H & M and various individual partners and associ-

ates for alleged sexual discrimination, unequal pay, and retalia-

tory discharge.   The district court granted summary judgment for

defendants on all claims, and Byrd appealed.  As summary judgment

was proper, we affirm.

                                I
                                          I

                           BACKGROUND1
                                     BACKGROUND
                                               

          Byrd joined H & M as an  associate on June 5, 1989, one

month  after graduation from Boston University Law School with an

LL.M. in banking law.  Prior to attending Boston University, Byrd

had  been a  vice-president and  general  counsel for  Commercial

National Bank,  Kansas City,  Kansas.   Previously, she  had been

employed for  six months as  an associate counsel by  an Oklahoma

City bank; a  trial attorney with  the Federal Deposit  Insurance

Corporation  for one year; and a self-employed private practitio-

ner in Wichita Falls, Texas,  for two years following her gradua-

tion from Oklahoma City  University Law School.   Before entering

law school, Byrd had earned  an M.B.A. from Central State Univer-

sity.

          Prior to joining H &  M, Byrd inquired whether the firm

had a  "set partnership  track" for  associates.   Defendant John
                    
                              

     1All evidence  in  genuine dispute  is  related in  a  light
favorable to  Byrd, the  party resisting  summary judgment.   See
                                                                           
Velez-Gomez v. SMA  Life Assur. Co., 8 F.3d 873, 874-75 (1st Cir.
                                             
1993).

                                2


 Ronayne, president of  H & M, advised  her that there was  no set

track to partnership but that Byrd likely would be considered for

partnership within  two  to  three years  provided  she  met  the

performance standards.  Another partner,  defendant Alex MacDona-

ld, told her that she "would  be the first female partner in  the

law firm." 

          When Byrd began with  H & M, she  was its highest  paid

associate, at $62,500  and benefits.  During  her two-year tenure

she was  responsible for generating almost $100,000  in fees from

several new  clients she developed while  with the firm.   At the

outset,  her areas  of  practice  with H  &  M were  concentrated

principally  in  commercial  loan  workouts  and federal  banking

regulation.   By the  fall of 1989  her responsibilities included

all H & M  bankruptcy cases as well.2  A major client during this

period was Boston Five  Cents Savings Bank, FSB  ("Boston Five"),

which looked to Byrd for both its bankruptcy law and bank regula-

tion services.  

          During  the  latter  part of  1989,  John  Battaglia, a

Boston Five vice-president, advised defendant Matthew  Kameron, a

member  of the H & M management committee, that Byrd had prepared

a legal memorandum which did not  address the question put to her

and  that Battaglia's department had "lost confidence" and tended

to "work  around" Byrd rather than  rely on her  advice.  Kameron

                    
                              

     2Although  Byrd came  to H &  M with  what she  describes as
"considerable experience" in bankruptcy law, the record indicates
only that during her four years with Commercial National Bank she
handled some bankruptcy matters.  See infra note 10. 
                                                     

                                3


 discussed Battaglia's concerns with  Byrd, then communicated  the

complaint to  Ronayne.   Ronayne and  Kameron subsequently  spoke

with  Byrd about her performance and her problematic relationship

with Boston Five.   Nevertheless, in January 1990  she received a

$1,500  bonus and a  highly complimentary  performance evaluation

praising her  professional competence, writing  skills, and atti-

tude.  

          During early  1990, Susan  Monahan, vice-president  for

asset management at Boston Five, told Ronayne that she and others

in her department were dissatisfied  with Byrd's work and doubted

that she had the bankruptcy law knowledge she claimed.  According

to  Monahan, Byrd  frequently gave  legal advice  "off  the cuff"

which  later proved incorrect.   Monahan  reported that  Byrd had

delayed  filing judicial  pleadings she  had  been instructed  to

file,  and that  on at  least  one occasion  she had  represented

having filed a motion  for relief from stay which had  never been

filed.   Finally, Monahan informed  Ronayne that Boston  Five did

not have  confidence in Byrd's  advice or work product.   Ronayne

relayed these  complaints to Byrd  and encouraged her  to improve

her relationship with Monahan and Boston Five.   Shortly thereaf-

ter, Byrd wrote  Monahan and suggested a meeting  "to resolve any

difficulties and improve upon our working relationship."  

          Monahan  again complained  to Ronayne  in August  1990,

stating that she would transfer Boston Five's bankruptcy law work

to another firm unless H & M reassigned it to someone  other than

                                4


 Byrd.3  At  around the same time,  Wayne Ferguson, vice-president

for lending at  Boston Five, complained to Ronayne  that Byrd was

slow to respond to inquiries and her court cases were  taking far

too long.4

          Byrd nonetheless received a $3,000 bonus in the fall of

1990,  notwithstanding  "mixed"  evaluations   from  Ronayne  and

Kameron.  Ronayne wrote:  "You seem to have gotten a good grip on

the bank regulatory work over the past year and to have developed

your bankruptcy skills."  He continued:  "In general, you seem to

have  done a  good job  on client  relations although  there have

obviously  been some issues  with the Boston  Five relationship."

Ronayne candidly  noted as  well that  supervision of Byrd  might

entail a "problem" for the  firm since her areas of concentration

were "not something with which the other lawyers in the firm have

more than a general knowledge."5  
                    
                              

     3The  record  would  permit an  inference  that  Monahan was
"demanding" and complained  about other H & M  attorneys as well,
which resulted in a male associate, Clive  Martin, being relieved
of  responsibility  for matters  involving  Monahan's department.
See also infra pp. 13-15. 
                        

     4Although Byrd  contends that these complaints  pertained to
bankruptcy matters entrusted to other attorneys, she has included
no evidentiary support in the appellate record.  See Fed. R. App.
                                                              
P. 11(a) (appellant bears burden of including materials essential
to her claim); Silva v. Witschen,  19 F.3d 725, 728 n.4, 731  n.9
                                          
(1st Cir. 1994); see also Fed. R. Civ. P. 56(e).
                                   

     5Summarizing, Ronayne noted: 

          I think you are well motivated and very quick
          on your feet . .  . and have shown a commend-
          able  willingness to  accept tasks  which are
          assigned to you. . . .  On the weakness side,
          I  have sometimes had  the sense that  you do
          not  have the  backup for  answers which  are

                                5


           Similarly,  the  1990  review from  Kameron  was mixed.

Noting that  Byrd had improved  her ability  to communicate  with

clients but  still needed  to be "more  sensitive to  damage con-

trol," Kameron observed:   "She has had  a difficult time  with a

major client  and although the  difficulties may have  been unre-

solvable, I  think more  effort could have  been made  before the

situation deteriorated."6  

          In the fall of 1990,  Byrd responded as follows to H  &

M's standardized self-evaluation form:  

          Being an attorney for  ten years my strengths
          and  weaknesses are  pretty much set  in con-
          crete.   What they  are is  what most  likely
          they will remain.  Boredom has always been my
          biggest  weakness,  causing  procrastination,
                    
                              

          given with apparent certainty.  This is obvi-
          ously an  ambiguous area since  you certainly
          want  to give  the appearance  of confidence,
          especially  to clients,  but you  want  to be
          careful about trying to give an impression of
          certainty  when you  are not  really sure  or
          can't immediately  back up the  position.  It
          is  acceptable from time to time to admit you
          don't know something and will have to look it
          up  and it is helpful when someone else (i.e.
          a regulator or another  lawyer) gives you  an
          answer to a question to understand the ratio-
          nale for the answer.

     6Kameron summarized:

          Hopefully,  Susan  can put  some of  the more
          negative aspects  of 1990 behind her and con-
          centrate  on  the  positive  and continue  to
          expand  in those  areas  where  she has  been
          successful  and to  continue  to serve  those
          clients who  are very  happy with  her in  an
          expanded capacity.  However, I reiterate what
          I  think must change and that is Susan has to
          be willing to admit that asking questions and
          researching  issues are part  of being a good
          lawyer.

                                6


           etc.  My strengths  have never been  utilized
          in this firm but include management and busi-
          ness.

          In November 1990, John Davis became "of counsel" to H &

M  after  five  years'  specialization  in  bankruptcy  practice,

bringing  with him  clients  from whom  the  firm generated  fees

approximating  $200,000  in  a single  year.    Davis started  at

$70,000 and benefits, plus 15% of the fees generated in cases for

which he  was responsible.   He  assumed client  responsibilities

apart from those assigned to Byrd.  

          On  April 2, 1991, defendant Ronayne and Denis Maguire,

another H & M attorney,  met with representatives of the Campane-

lli Companies ("Campanelli"), one of H & M's largest clients, who

inquired  about supervision in  H & M's  "bankruptcy department,"

expressed concerns as  to whether Byrd "really knew  what she was

doing," complained  that Campanelli's  legal work  was not  being

handled in a timely fashion by Byrd, and that the fees Campanelli

was charged for her services were too high.  Ronayne and  Maguire

concluded that there  were serious problems  with the quality  of

Byrd's performance  for Campanelli and  that H & M  risked losing

Campanelli altogether unless it took immediate action.  

          Later  that day, Ronayne and  Maguire met with Byrd and

informed  her  that  the  firm had  decided  that  the Campanelli

account should be  reassigned to Davis, with Byrd  to continue   

at the same salary    handling  Boston Five's consumer bankruptcy

work and  regulatory matters, as well as  her other clients.  Two

days later,  Byrd filed a  Title VII sexual  discrimination claim

                                7


 with  the Equal Employment Opportunity Commission ("EEOC") and so

informed H & M, which promptly retained outside counsel. 

          In late April  1991, Katherine Hinderhoffer,  executive

vice-president  for Boston Five,  contacted Ronayne.   She stated

that Byrd did not  have sufficient knowledge of the law  and that

Boston Five lacked  confidence in  Byrd's legal  advice and  work

product.  Finally,  in early May 1991, Wayne  Ferguson once again

contacted  the firm  to  complain that  Byrd  was not  submitting

timely and  accurate status reports and that  her cases continued

to proceed too slowly. 

          At their June  1991 meeting, the H &  M partners deter-

mined that Byrd's professional judgment and client-communications

skills  were not in  keeping with  the firm's  professional stan-

dards.    After  consulting with  outside  counsel,  the partners

unanimously  voted  to  terminate Byrd's  employment.   Defendant

Ronayne so informed Byrd on July 11, 1991.  

          Byrd  brought  suit   against  defendants-appellees  in

Massachusetts  Superior  Court,  asserting  various claims  under

state law, Title VII sexual discrimination and retaliation claims

under  42 U.S.C.     2000e et  seq., and  an Equal Pay  Act claim
                                            

under  29 U.S.C.    206(d)(1).   Following  removal,  the federal

district court granted summary judgment for all defendants on all

federal claims, and dismissed the state-law claims pursuant to 28

U.S.C.   1367(c)(3).  Byrd appealed.

                                II
                                          II

                            DISCUSSION
                                      DISCUSSION
                                                

                                8


           We  examine  the  grant of  summary  judgment  de novo,
                                                                          

viewing all competent evidence in genuine dispute, and reasonable

infer-ences therefrom,  in a light  more favorable to Byrd.   See
                                                                           

O'Connor v. Steeves, 994 F.2d  905, 907 (1st Cir.), cert. denied,
                                                                          

114 S. Ct. 634 (1993).   Summary judgment is inappropriate unless

"the  pleadings,  depositions,  answers  to interrogatories,  and

admissions  on file, together  with the affidavits,  if any, show

that there is no genuine issue  as to any material fact and  that

the moving party is  entitled to a judgment as a  matter of law."

Fed. R. Civ. P. 56(c); Henley Drilling Co. v. McGee, 36 F.3d 143,
                                                             

144 (1st Cir. 1994).  Nevertheless, even in  discrimination cases

"summary judgment may  be appropriate" where the  party resisting

judgment relies  "upon conclusory allegations,  improbable infer-

ences, and unsupported  speculation" as to any  essential element

in her claim.  See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896
                                                                      

F.2d 5, 8 (1st Cir. 1990).

A.   Employment Discrimination Claim 
          A.   Employment Discrimination Claim
                                              

     1.   The McDonnell Douglas Framework
               1.   The McDonnell Douglas Framework
                                                   

          The three-stage, burden-shifting framework announced in

McDonnell Douglas  Corp. v.  Green, 411 U.S.  792, 802-04  (1973)
                                            

["McDonnell Douglas"], serves  to allocate burdens of  production
                             

and  order the  presentation of evidence  in Title  VII disparate

treatment  cases,  thus  "progressively .  .  .  sharpen[ing] the

inquiry into the elusive factual question of intentional discrim-

ination."  Texas Dep't of  Community Affairs v. Burdine, 450 U.S.
                                                                 

248, 255 n.8 (1981).  See St. Mary's Honor Ctr. v. Hicks,  113 S.
                                                                  

                                9


 Ct. 2742, 2746 (1993).

          At the first  stage, Byrd was required to  make a prima

facie showing  that (1) she  "was within a protected  class," (2)

possessed  the  necessary  qualifications  for,  "and  adequately

performed,  her job," (3)  but "was nevertheless  dismissed," and

(4) her "employer  sought someone of roughly  equivalent qualifi-

cations to  perform substantially  the same work."   Cumpiano  v.
                                                                       

Banco Santander Puerto  Rico, 902 F.2d 148, 153  (1st Cir. 1990).
                                      

A prima  facie case gives  rise to a rebuttable  presumption that

the  employer  unlawfully  discriminated against  the  Title  VII

plaintiff.  Smith v. Stratus Computer, Inc., 40 F.3d  11, 15 (1st
                                                     

Cir. 1994), cert. denied, 115 S. Ct. 1958 (1995).
                                  

          At the second  stage, the employer must  produce suffi-

cient competent evidence, "taken  as true," to permit a  rational
                                                               

factfinder  to  conclude  that  there  was  a  "nondiscriminatory

reason" for the challenged  employment action, thereby displacing

the presumption  of intentional  discrimination generated  by the

prima facie  case.  Woodman  v. Haemonetics Corp., 51  F.3d 1087,
                                                           

1091 (1st Cir. 1995) (citing Hicks, 113 S. Ct. at 2748).  
                                            

          At  the third and final stage  in the McDonnell Douglas
                                                                           

analysis, the Title VII plaintiff, "with whom the ultimate burden

of  persuasion  remains  throughout,"  must  proffer  "sufficient
                        

admissible evidence,  if believed, to prove by a preponderance of

the evidence  each essential  element in a  prima facie  case and
                                                                 

that the employer's  justification for the challenged  employment

action was merely  a pretext for impermissible .  . . discrimina-

                                10


 tion."   Id. at 1092.  "Where the  elements of a sufficient prima
                      

facie case combine with the factfinder's belief that the ostensi-

ble basis for  dismissing the employee was  pretextual, `particu-

larly  if .  . .  accompanied by  a suspicion of  mendacity,' the

factfinder is permitted to infer  the intentional . . . discrimi-
                                 

nation  required to enable  the plaintiff-employee to  prevail on

the merits."  Id. (quoting Hicks, 113 S. Ct. at 2749). 
                                          

          a)   Prima Facie Case
                    a)   Prima Facie Case
                                         

          Although  "the  required  prima facie  showing  is  not

especially onerous," id.  at 1091, the district  court ruled that
                                  

Byrd had not established the second essential element    that she

possessed  the  requisite  qualifications   for,  and  adequately

performed, the  legal services  assigned to  her by  H &  M.   We

believe  it advisable, nonetheless,  to assume that  Byrd managed

her prima facie case, see, e.g., LeBlanc v. Great Am. Ins. Co., 6
                                                                        

F.3d 836, 843-44 (1st  Cir. 1993), cert. denied, 114 S.  Ct. 1398
                                                         

(1994),  and to proceed further into the burden-shifting analysis

where the shortcomings in her claim are more clear. 

          b)   Defendants' Burden of Production
                    b)   Defendants' Burden of Production
                                                         

          As  nondiscriminatory  grounds   for  their  challenged

actions, defendants  proffered competent  evidence of  continuing

client  complaints  relating  to  the  timeliness,  quality,  and

reliability  of  Byrd's  legal  services.    Whether  "ultimately

persuasive or  not," Hicks,  113 S. Ct.  at 2748,  their proffers
                                    

rebutted  any  presumption of  unlawful sexual  discrimination in

employment  generated by  the prima  facie  showing attempted  by

                                11


 Byrd, see  Woodman, 51 F.3d at 1092, and it became incumbent upon
                            

her  to produce  competent  evidence  that the  nondiscriminatory

reasons proffered by  defendants were a mere pretext for unlawful

discrimination.  Id.  
                              

          Byrd  has never  denied that  two large  H &  M clients

lodged serious complaints concerning  her professional competence

and performance.   Indeed, the self-evaluation form  submitted by

Byrd conceded not  only that boredom was  her "biggest weakness,"

and that it caused her to "procrastinat[e]," but that her profes-

sional weaknesses were "pretty much  set in concrete[]" and "most

likely .  . . will  remain."  These admissions  are buttressed by

the  uncontroverted evidence  that H  & M,  despite  its numerous

appeals to  Byrd, continued  to receive  similar complaints  from

clients relating to  the untimeliness and  unsatisfactory quality

of her legal services.   Moreover, the record is unequivocal that

despite its numerous  unsuccessful attempts to encourage  Byrd to

be more responsive to these client concerns, H & M refrained from

any  adverse  employment  action  until  Campanelli's  complaints
             

raised  serious concerns  that the  firm  would lose  one of  its

largest clients unless  Byrd were replaced.  Even then, H & M did

not terminate Byrd.  It was  not until the complaints from Boston

Five resumed  several weeks later  that the firm decided  to dis-
                      

charge her for failing to meet its professional standards.7  
                    
                              

     7There is  no evidentiary basis  for inferring that H  & M's
professional standards  were  met by  Byrd,  nor that  any  other
associate remained with the  firm notwithstanding such  deficien-
cies in performance.   And though it is undisputed that no female
associate  had ever  been considered  for  partnership at  H &  M

                                12


           Byrd relies on the favorable performance evaluation she

received from  the firm  in January  1990, approximately  fifteen

months  before her client responsibilities were realigned, and on

the  mixed  performance  evaluations  received from  Ronayne  and

Kameron in late 1990,  as evidence that the principal  defendants

were "happy with her work  and her ability to generate business."

She  points as  well  to  the undisputed  evidence  that she  was

rewarded with two bonuses in 1990.  

          We think these proffers fall well short of generating a

trialworthy dispute  as to whether the  nondiscriminatory reasons

articulated by H  & M constituted a pretext  for intentional sex-

based  discrimination in employment.   For one thing, the January

1990  evaluation was  the  only  altogether  favorable  one  Byrd
                                         

received.  More importantly, however, the "mixed" evaluations she

received  in  late  1990 presaged  the  declining  trajectory her

professional  performance  thereafter  reflected as  reported  by
                                                                           

                    
                              

before  Byrd's termination,  Byrd has  not shown  that any  other
                                                                           
associate    male  or female     who failed to  conform with  the
                                      
firm's  professional  standards,  had  ever  been  considered for
partnership.  See  Stratus, 40 F.3d at  17 ("[F]or us  to compare
                                    
[female plaintiff's] treatment with that of . . . male executives
in a meaningful way, [plaintiff] would have  to show that she was
similarly situated to those men in terms of performance, qualifi-
cations and conduct, 'without such differentiating  or mitigating
circumstances that would distinguish' their situations.")  (cita-
tion omitted);  cf. LeBlanc, 6  F.3d at 348 (statistical  data on
                                     
general hiring  patterns, though  relevant, carry  less probative
weight  in disparate  treatment cases  than  in disparate  impact
cases: "[A] company's  overall employment statistics will,  in at
least  many cases,  have little  direct bearing  on  the specific
intentions of the employer when dismissing a particular individu-
al."). 

                                13


 clients and projected in Byrd's self-evaluation.8
                                                         

          Byrd  further  notes  that  Monahan  complained   about

another H  & M  attorney, Clive Martin,  who was  not terminated.
                                                               

The  record likewise makes clear, though, that Byrd's termination
                                                               

was not  based on  Monahan's complaints  but  on subsequent  com-
                 

plaints from Campanelli  and renewed complaints from  Boston Five

representatives  other than  Monahan.   In  fact, throughout  her
                                                                           

tenure with H & M, Byrd continued to  perform bank regulation and
                

consumer bankruptcy services  for Boston Five.  It  was not until

Boston  Five  executive   vice-president  Katherine  Hinderhoffer

complained  for the  first  time, and  Wayne Ferguson  again com-

plained    following  the Campanelli complaint     that Byrd  was

terminated.

          A  disparate  treatment claimant  bears  the burden  of

proving  that she  was  subjected  to  different  treatment  than

persons similarly situated "`in all relevant aspects.'"  Stratus,
                                                                          

40 F.3d at 17 (quoting Dartmouth Review v. Dartmouth College, 889
                                                                      

F.2d 13, 19  (1st Cir. 1989)) (alteration in  original).  Accord-

ingly, Byrd  would have  had to demonstrate  that she  and Martin

were similarly situated "in terms of performance,  qualifications

and  conduct, `without such differentiating or mitigating circum-

stances  that would distinguish'  their situations."   Id.  at 17
                                                                    
                    
                              

     8Although  Byrd  proffered   undisputed  evidence  that  her
efforts in a complex commercial  loan workout had won high praise
from Michelle Dowd, head of Boston Five's loan review department,
and  that Dowd was especially impressed with Byrd's background in
commercial  lending, the Dowd affidavit  in no sense gainsays the
numerous  complaints relating to  Byrd's other professional legal
                                                                           
services.

                                14


 (quoting Mitchell  v. Toledo Hosp.,  964 F.2d 577, 583  (6th Cir.
                                            

1992)).  She proffered no such evidence.  

          Although there is competent evidence that Susan Monahan

complained against Clive Martin as well, yet he was not terminat-

ed, the only record  evidence relating to Martin, even  conceding
                      

its competence, is a statement  in Byrd's affidavit    that based

on  her "conversations  . . .  with  Martin,  Susan  Monahan  had

[Martin] removed from her cases."   There is no evidence relating

to  Martin's responsibilities  in  behalf  of  Boston  Five,  his

professional experience and expertise, his  seniority with H & M,

nor even the nature and number of complaints against him.  Nor is

there  evidence  that Martin  had  been the  subject  of repeated
                                                                           

complaints  by Monahan or continuous complaints from other Boston
                                                                    

Five executives,  and from another major H  & M client.  Finally,

there is no evidence that Martin was retained by the firm despite

repeated  lapses  in   professional  performance  after  numerous

appeals to improve his performance. 

          In  sum, there  is no competent  evidence from  which a

rational factfinder reasonably could infer  that H & M's explana-

tion for its adverse employment action was a pretext for unlawful

employment discrimination.  See id. at 16.
                                             

B.   Retaliation Claim
          B.   Retaliation Claim
                                

          Byrd asserts that the summary judgment order dismissing

her retaliatory discharge claim must be vacated because  a ratio-

nal  factfinder reasonably  could  conclude  that  she  had  been

discharged for filing a discrimination  claim with the EEOC.  See
                                                                           

                                15


 Greenberg  v. Union  Camp Corp., 48  F.3d 22, 29  (1st Cir. 1995)
                                         

(plaintiff  must  show  that articulated  reason  for  employer's

action  was a pretext for  retaliation); Mesnick v. General Elec.
                                                                           

Co., 950 F.2d  816, 827 (1st Cir.  1991), cert. denied,  504 U.S.
                                                                

985 (1992).   For the most part, her  retaliatory discharge claim

rests on the identical inferences of pretext found wanting above.

See supra pp. 13-15.
                   

          The only  other evidentiary support for her retaliation

claim is a  passage in the Ronayne deposition,  which she charac-

terizes as "an admission that  [her] filing of the discrimination

claim was a  factor in her discharge."  She adverts to a portion:

"I don't  think the  filing of a  discrimination charge  with the

EEOC significantly affected [Byrd]."  But she disregards language

which  provides  critically  important context.    The  full text

reflects that  Ronayne stated:   "The same thing would  have hap-
                                                                           

pened if [Byrd]  hadn't filed a complaint.   I'm not saying  that
                                                   

people weren't annoyed by [her EEOC complaint], but I don't think

it significantly affected her." (emphasis added).  Given Ronayne-

's  flat denial  in the  opening sentence,  his statement  cannot

reasonably be  considered an admission  that the firm  harbored a

retaliatory motive for  Byrd's termination.  Thus,  summary judg-

ment on the retaliation claim was proper as well. 

C.   Equal Pay Act Claim
          C.   Equal Pay Act Claim
                                  

          The  Equal Pay  Act prohibits wage  discrimination "be-

tween employees on the basis of sex . . . for equal  work on jobs

the  performance of  which  requires  equal  skill,  effort,  and

                                16


 responsibility,  and which  are performed  under  similar working

conditions."  29 U.S.C.   206(d)(1).   An Equal Pay Act plaintiff

must make a prima facie  showing that the employer paid different

wages to an employee of  the opposite sex for substantially equal

work.  See  Corning Glass  Works v.  Brennan, 417  U.S. 188,  195
                                                      

(1974); see also Marcoux v. Maine, 797 F.2d 1100, 1106 (1st  Cir.
                                           

1986).   At that point, the defendant-employer must establish one

of  the following  affirmative defenses:    the wage  discrepancy

resulted from (i) a seniority  system, (ii) a merit system, (iii)

a system measuring earnings by quantity or quality of production,

or  (iv) a  differential based on  a factor  other than sex.   29
            

U.S.C.   206(d)(1); Corning Glass Works, 417 U.S. at 196.
                                                 

          Byrd claims that  H & M violated the Equal  Pay Act, in

that  her starting  salary  was $62,500,  augmented  only by  two

modest bonuses, compared with John Davis's $70,000 salary and 15%

of  generated fees, even though her senior associate position was

substantially equivalent  to the  "of counsel"  position held  by

Davis.   Byrd attempts to make her  prima facie case by comparing

Davis's professional experience with her  own.9  She asserts that

Davis had less bankruptcy law experience when he came to H & M   
                        

five years', by her calculation    than her six years'.  The only
                    
                              

     9For  present  purposes,  we  simply  assume  arguendo  that
                                                                     
competent evidence of comparable  bankruptcy law experience might
provide indirect support for Byrd's  claim that the two positions
                                                                           
required substantially equal  skills.  We note,  nonetheless, the
agency  position that  skill "must  be measured  in terms  of the
performance  requirements of  the job. .  . ."   Possession  of a
skill  not needed  to  meet  requirements of  the  job cannot  be
considered  in  making  a  determination  regarding  equality  of
skill."  29 C.F.R.   1620.15(a).

                                17


 competent record evidence, however, is  the affidavit of a former

executive vice-president of Commercial  National Bank, who merely

states  that one of the  responsibilities assigned to Byrd during
                          

her two-year tenure was to "handle[]" "many"  chapter 12 (family-

farm debtor) matters    doubtless not a relevant qualification at

H & M    and "some" chapter 11 and chapter 7 cases.10  

          For  additional  support, Byrd  points  to the  Ronayne

deposition, which she characterizes as  an admission that she and

Davis  performed "parallel functions" at H & M.  On the contrary,

the Ronayne  deposition evinces no  more than that Davis  did not

supervise Byrd, an undisputed fact which plainly affords insuffi-
                   

cient support  for  a  reasonable inference  that  the  two  held

positions  requiring  substantially   equal  skill,  effort,  and

responsibility.   See Soble v.  University of Md., 778  F.2d 164,
                                                           

167  (4th Cir. 1985)  (finding no actionable  wage discrimination

where female professor was paid less than male professors of same

academic rank who performed work requiring greater skill, effort,

or  responsibility).   Thus,  the  lack  of evidence  that  their

respective professional  responsibilities  with H  &  M  required

substantially equal skill, effort and responsibility,  foredoomed

Byrd's Equal Pay Act claim.  

          Finally, on a more conclusive note, the record includes

                    
                              

     10Byrd  simply  concludes  that she  "had  a  great deal  of
bankruptcy experience" at  the time Davis came  to H & M.   More-
over, though surely in a  position to provide greater detail, she
has provided no evidentiary support for the claim that she had as
                                                                           
much bankruptcy law  experience when she joined  H & M,  as Davis
              
had when he came to the firm. 

                                18


 undisputed evidence that Davis came  to H & M with  clients whose

aggregate  annual billings  approached $200,000.   These  clients

paid H & M $180,000 in fees during 1990.  On the other hand, Byrd

brought no clients with her  when she joined H & M.   The clients

for whom she  rendered legal services while  with H & M  paid the

firm no more  than $100,000  during her  entire two-year  tenure.

Thus,  the substantially greater revenues Davis generated for the

firm  afforded defendants an affirmative defense, under 29 U.S.C.

   206(d)(1)(iv) (differences in  compensation based on  a factor

other than sex), to Byrd's prima facie wage discrimination claim.

See Stanley v. University of S. Cal., 13 F.3d  1313, 1322-23 (9th
                                              

Cir. 1994)  (gender-neutral differences  between responsibilities

incumbent  upon coaches  of men's  and  women's basketball  teams

included  the more  substantial public relations  and promotional

duties  of  men's coach,  whose team  generated revenue  90 times

greater than women's team).

                               III
                                         III

                            CONCLUSION
                                      CONCLUSION
                                                

          As  defendants were entitled  to summary judgment  as a

matter  of law  on all  claims,  the district  court judgment  is

affirmed.
                  

                                19