Coward v. ADT Security Systems, Inc.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 1999 Decided November 12, 1999

No. 98-7230

Edward Coward,
Appellant

v.

ADT Security Systems, Inc.,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 95cv02062)

H. Vincent McKnight, Jr., argued the cause and filed the
briefs for appellant.

Max H. Lauten argued the cause and filed the brief for
appellee.

Before: Edwards, Chief Judge, Wald and Williams,
Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Opinion filed by Circuit Judge Williams concurring in part
and dissenting in part.

 Edwards, Chief Judge: Appellant, Edward Coward, alleges
that, in violation of 42 U.S.C. s 1981 (1994), his employer,
ADT Security Systems, Inc. ("ADT"), intentionally discrimi-
nated against him by paying him less than similarly situated
white employees who hold the same job titles. The District
Court, however, found Mr. Coward's allegations baseless. As
a result, it granted ADT's motion for summary judgment.

This marks the second time that the District Court has
granted summary judgment in ADT's favor. When the case
was first heard, the District Court ruled that Mr. Coward had
failed to make out a prima facie case of discrimination. See
Boling v. ADT Sec. Sys., No. 95-2062, 1997 WL 198111
(D.D.C. Apr. 11, 1997). On appeal, this judgment was re-
versed, and the case was remanded to the District Court for
further proceedings. See Coward v. ADT Sec. Sys., 140 F.3d
271 (D.C. Cir. 1998) ("Coward I").

On remand, the District Court recognized that there was
no longer a question as to whether Mr. Coward had met the
burden of establishing a prima facie case. See Coward v.
ADT Sec. Sys., Civ. Act. No. 95-2062, Mem. Op. at 3, 7
(D.D.C. Nov. 18, 1998), reprinted in Joint Appendix ("J.A.")
142,204, 142,208. The District Court also recognized that
there were at least three genuine issues of fact before it:
whether similarly situated white employees were better com-
pensated than the plaintiff; whether the plaintiff's salary
grade reflected wage discrimination; and whether the plain-
tiff was still in fact working as a Telecommunications Net-
work Facilities Manager ("TNFM") even after being reclassi-
fied to a lower position title. See id. at 3, reprinted in J.A.
142,204. However, the District Court noted that the decision
in Coward I referred only to "genuine issues of fact, not
genuine issues of material fact." Id. at 4, reprinted in J.A.
142,205. Thus, the District Court assumed that the "materi-
ality" of these factual issues remained to be determined. The
District Court also was convinced that the judgment of the
Court of Appeals did not compel a jury trial; this made sense,
because the decision in Coward I merely directed the trial
court to complete the summary judgment inquiry prescribed
by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to

determine whether ADT could proffer a nondiscriminatory
reason for Mr. Coward's lower salary and grade, and whether
Mr. Coward could rebut such a proffer. See Coward I, 140
F.3d at 276.

After reviewing the evidence before it, the District Court
concluded that Mr. Coward had failed to show that his duties
were comparable to those of other TNFMs and that there
was no evidence to indicate that the reduction in his job grade
was motivated by race. See Mem. Op. at 9, reprinted in J.A.
142,210. In short, the District Court held that "the plaintiff
failed to introduce any evidence or even argue any rationale
for finding the defendant's reasons merely a pretext for
discrimination." Id.

On appeal, Mr. Coward again asserts that the trial judge
has usurped the jury's fact-finding function in resolving mate-
rial issues of fact. Mr. Coward's most compelling argument
is that ADT failed to offer a reasonable business justification
for the salary and grade disparities that occurred before April
19, 1995, i.e., before the date when he was reclassified and
demoted from an E-9 to an E-8 salary grade. On this point,
Mr. Coward notes that only the District Court, not the
defendant, proffered the explanation that any disparities be-
tween Mr. Coward and white employees who were also
classified as TNFMs must have been attributable to the fact
that Mr. Coward's duties were "narrower" than those of the
other TNFMs. See Initial Br. of Appellant at 18-19; see also
Mem. Op. at 7-8, reprinted in J.A. 142,208-09 (providing the
District Court's "logical inference" that ADT's proffered justi-
fication extended to the pre-reclassification period).

On the record at hand, we have no choice but to reverse
and remand again for further proceedings before the District
Court. Although the District Court was correct in concluding
that ADT's justification for salary and grade disparities be-
tween Mr. Coward and TNFMs during the post-
reclassification period was not pretextual, the court erred in
reaching the same conclusion with respect to the period from
March 1994 to April 19, 1995, when Mr. Coward was promot-
ed to and worked as a TNFM. As the District Court

apparently recognized, ADT offered no justification whatso-
ever for the salary and grade disparities that existed during
this period. Thus, it was not for the District Court to "infer"
a justification where none was forthcoming from the employ-
er. The case must be remanded for a precise determination
as to whether ADT can proffer a nondiscriminatory reason
for Mr. Coward's lower salary and grade during the pre-
reclassification period, and whether Mr. Coward can rebut
such a proffer, or whether the case must proceed to trial.

* * * *

In reviewing the District Court's grant of summary judg-
ment, this court reviews the evidence de novo. See Hall v.
Giant Food, Inc., 175 F.3d 1074, 1077 (D.C. Cir. 1999).
Indeed, "a party is only entitled to summary judgment if the
record, viewed in the light most favorable to the nonmoving
party, reveals that there is no genuine issue as to any
material fact." Id. (quoting Aka v. Washington Hosp. Ctr.,
156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc)) (internal
quotation marks omitted). Of particular importance in this
case, if material facts are susceptible to divergent inferences,
summary judgment is not available, because all inferences
must be drawn in favor of the non-moving party. See Alyes-
ka Pipeline Serv. Co. v. United States Envtl. Protection
Agency, 856 F.2d 309, 314 (D.C. Cir. 1988). In addition,
"summary judgment will not lie if ... the evidence is such
that a reasonable jury could return a verdict for the nonmov-
ing party." Giant Food, 175 F.3d at 1077 (quoting Aka, 156
F.3d at 1288) (internal quotation marks omitted). We review
the record in this case with these standards in mind.

* * * *

ADT has employed Edward Coward, an African-American
male, since October 3, 1974. A supplier of electronic security
systems and services, ADT maintains a salary grade struc-
ture consisting of grades E-3 through E-20. Each grade has
five salary steps. Salary ranges between grades overlap.
ADT assigns job titles, codes, and grades to every employee.

Employees with the same job title may have different codes,
different grades, and even different duties; together, all of
these factors determine salary. Job titles generally reflect
duties performed and serve as an important factor in setting
salary. See Coward I, 140 F.3d at 272-73.

An E-8 for most of the last 18 years, Mr. Coward was
briefly promoted in March 1994 to a TNFM job, in a position
purportedly carrying a grade of E-9. Approximately one
year later, on April 19, 1995, ADT reclassified him from E-9
back to E-8, later changing his title to "Technical Support."
In his reclassified grade and position, Mr. Coward earned less
than most TNFMs, all of whom were white; however, he
earned more than most Technical Support staff. See id. at
273. The main point is that, following his reclassification, Mr.
Coward's job duties were narrower than those of employees
then working as TNFMs. Not surprisingly, ADT proffered
that, during the post-reclassification period, Mr. Coward
earned less than the cited white employees because he had
fewer job responsibilities. Mr. Coward offered nothing suffi-
cient to refute this or to otherwise suggest that the explana-
tion was pretextual.

The problem with this case arises with respect to the pre-
reclassification period, i.e., the period when Mr. Coward
admittedly was assigned to the position of TNFM. Mr.
Coward claimed he was never given an E-9 grade and was
never given a salary commensurate with that grade upon
promotion. ADT argued otherwise. The District Court not-
ed that the parties disagreed over these points, and the
record offers no clear answers.

Mr. Coward says that, in any event, he was paid less than
white TNFMs during the cited pre-reclassification period.
This hardly seems surprising, because if Mr. Coward was
concededly paid less than white TNFMs immediately after his
reclassification, he undoubtedly was paid less immediately
before the reclassification. In Coward I, we said that, "[h]av-
ing identified eight higher-paid white employees, the majority
of TNFMs, Coward has satisfied the minimal requirements of
a prima facie case." Id. at 276. An ADT manager acknowl-

edged in his deposition that there were company records
available to address salary disparities during the pre-
reclassification period, yet none were offered. See Deposition
of Edward B. Pictroski at 86-87, reprinted in J.A. at 141,624-
25. And ADT did not assert before either the trial court or
this court that Mr. Coward was fabricating or otherwise
wrong in his claim that his salary was below what was being
paid to other TNFMs during the period when he was promot-
ed to that position.

The District Court sought to escape the problem of ADT's
failure to explain the pre-reclassification period by finding a
"logical inference" to support a conclusion that Mr. Coward's
duties always have been narrower than other TNFMs.
Mem. Op. at 7-8, reprinted in J.A. 142,208-09. We reject
this approach as entirely unacceptable under McDonnell
Douglas and its progeny.

First, under the McDonnell Douglas framework, a party
alleging discrimination must establish a prima facie case of
prohibited discrimination. See 411 U.S. at 802. Once he has
done so, the burden shifts to the employer to articulate
legitimate, nondiscriminatory reasons for the challenged em-
ployment decision. See id. If the employer presents such
reasons, then the complainant (who always carries the burden
of persuasion) has the opportunity to discredit the employer's
explanation. See id. at 804-05. In this case, Mr. Coward has
established a prima facie case-that is no longer in issue.
ADT was required to respond. And the District Court should
not have responded on behalf of ADT.

Second, as the District Court plainly recognized, there was
a significant difference between the alleged salary disparities
in the pre- and post-reclassification periods. In other words,
each period warranted a legitimate, nondiscriminatory reason
for the challenged employment practices. And the District
Court also recognized, as do we, that ADT offered an expla-
nation only for the post-reclassification period.

Third, the District Court's purported "logical inference"
that Mr. Coward's duties always have been narrower than
other TNFMs does not survive scrutiny. For one thing, it

does not follow that because Mr. Coward earned a salary
below the rate paid to TNFMs after he was demoted to a
lesser grade and a different title he necessarily should have
been paid at a lower rate during a period when he was
assigned to the higher TNFM position. The record here
indicates that job title carries weight in the assignment of job
grades and salaries, presumably because a job title denotes
something about job responsibilities.

Furthermore, there is at best confusion on the record here
as to whether Mr. Coward's job duties changed after he was
reclassified. Compare Deposition of Edward B. Pictroski at
75, reprinted in J.A. 141,613 (observing that when Mr. Cow-
ard's job changed from TNFM to Technical Support-SSO, his
duties changed), and Deposition of Edward Coward at 66,
124-25, reprinted in J.A. 141,862, 141,872 (recounting that
Mr. Coward was excluded from supervisory meetings after
his reclassification), with id. at 60, reprinted in J.A. 141,861
(noting Mr. Coward's statement that he was "basically doing
the same job" after he was demoted from his TNFM status).
It appears that ADT's management officials viewed Mr. Cow-
ard as being in a lesser position after reclassification and that
Mr. Coward's supervisory position in the company changed.
Thus, even if his day-to-day duties remained steady, his
status and responsibilities were diminished. If, as appears to
be the case, Mr. Coward's position diminished after reclassifi-
cation, then there is no way to draw a "logical inference"
about what he should have been paid as a TNFM performing
greater duties before reclassification.

There is another potential material issue of fact yet to be
resolved on this record. As noted above, the District Court
recognized that the parties disagreed over whether Mr. Cow-
ard actually received his E-9 grade when he was promoted to
the TNFM position. The District Court dismissed this ques-
tion as "immaterial," on the assumption that the "defendant
has introduced evidence that plaintiff's duties were narrower
in scope than employees at the E-9 salary grade." Mem. Op.
at 8, reprinted in J.A. 142,209. However, just as there is no
proffer from ADT to explain salary disparities during the pre-

reclassification period, there is also no proffer explaining why
Mr. Coward may not have received the E-9 grade. Indeed,
the District Court's observations on this point are perplexing,
because ADT argues that it did in fact promote Mr. Coward
and then later reclassified him to a lower grade and title.
And it surely cannot be said that a higher job grade is
insignificant, for, although some salaries overlap two grades,
higher grades carry higher scales of pay. Thus, Mr. Coward,
like any employee, obviously would have been better off with
a higher than with a lower salary grade.
* * * *

The District Court was correct in concluding that ADT
offered a legitimate business justification for salary and grade
disparities between Mr. Coward and TNFMs during the post-
reclassification period, and that Mr. Coward failed to show
that this justification was a pretext for unlawful discrimina-
tion. However, the court erred in reaching the same conclu-
sion with respect to the period from March 1994 to April 19,
1995, when Mr. Coward was assigned to work as a TNFM.
If there is an explanation to be offered for the pre-
reclassification period, it must come from ADT, not the
District Court.

As indicated above, our review of the record reveals mate-
rial issues of fact yet to be resolved in the trial court. This
might require a trial of the issues, but we are not sure about
this. In candor, it appears that the record in this case is a bit
of a muddle, so we do not know whether this matter is still
susceptible to disposition pursuant to summary judgment.
The problem now is that ADT has failed to proffer explana-
tions with respect to practices occurring during a specific
time period, and Mr. Coward has had no occasion to respond
to any such proffers. It is possible that this can be done
after the parties are permitted to supplement the existing
record before the District Court and then offer appropriate
motions. However, if the material issues of fact survive

supplementation and any new motions for summary disposi-
tion, the case will have to proceed to trial.

For the reasons given herein, the judgment of the District
Court is affirmed in part and reversed in part. The case is
hereby remanded to the District Court for further proceed-
ings consistent with this opinion.

So ordered.

 Williams, Circuit Judge, concurring in part and dissenting
in part: The majority affirms the district court's grant of
summary judgment for the period of time after April 19,
1995,1 but remands the case on the theory that certain
unidentified wage and grade disparities existed between
plaintiff Edward Coward and other Telecommunications Net-
work Facilities Managers ("TNFMs") between March 1994
and April 19, 1995, disparities that it believes ADT failed to
justify. I think the remand is unwarranted. Coward has not
established a prima facie case for the earlier period; ADT's
nondiscriminatory explanation for Coward's pay and grade
for the period after April 19, 1995 is, moreover, equally
applicable to the prior period and stands equally unrebutted.
I believe the district court properly ordered summary judg-
ment in ADT's favor on Coward's entire claim, and therefore
respectfully dissent.

* * *

Under the familiar burden-shifting framework in McDon-
nell Douglas Corp. v. Green, 411 U.S. 792 (1973), Coward has
the burden of demonstrating by a preponderance of the
evidence that he was performing work substantially equal to
that of a white employee who was compensated at a higher
rate than he was. Coward v. ADT Security Sys., Inc., 140
F.3d 271, 273 (D.C. Cir. 1998) ("Coward I"). In the first
appeal in this case, we determined that Coward had estab-
lished a prima facie case of wage discrimination. See id. at
275-76. Coward I did not, however, specify the time period
covered by the prima facie case. Yet the majority now
assumes that Coward I must have found a prima facie case
for the entire period addressed in Coward's complaint.
"Coward has established a prima facie case--that is no longer
in issue. ADT was required to respond." Maj. Op. at 6.
Under this logic, the recognition by a panel of this court that
a prima facie case existed for any period of time compels the
conclusion (under law-of-the-case principles) that the prima

__________
1 Presumably, the majority also affirms the grant of summary
judgment in ADT's favor on Coward's retaliation claim.

facie case extends to the entire period covered by plaintiff's
allegations. But allegations are notoriously not evidence.
The only evidence in the record concerns wage and grade
disparities after April 19, 1995. Thus the panel leaves unan-
swered the question of what it is to which ADT must respond.

The purpose of the McDonnell Douglas framework is to
"sharpen the inquiry into the elusive factual question of
intentional discrimination." Texas Dep't of Community Af-
fairs v. Burdine, 450 U.S. 248, 255 n.8 (1981). In the panel's
hands it seems to have quite the opposite effect: by assuming
the existence of a prima facie case for a period where the
evidence shows none, it blunts rather than sharpens the
inquiry, requiring the defendant to explain what has not been
shown even to exist.

Indeed, the panel appears to reason that once allegations
are filed, a prima facie case exists unless the defendant comes
forward with proof of its absence. Thus it faults ADT for not
reaching back into its records unbidden to establish a prima
facie case for Coward, saying that although an ADT manager
said there were salary records for the period before April 19,
1995, "none were offered." Maj. Op. at 6. Use of the passive
voice is telling: Yes, no one bothered to show a wage dispari-
ty for that period--neither Coward, who had the burden, nor
ADT, which didn't. I do not understand why ADT should be
penalized for Coward's omission. The majority persists in
shifting the initial burden onto ADT: "And ADT did not
assert before either the trial court or this court that Mr.
Coward was fabricating or otherwise wrong in his claim that
his salary was below what was being paid to other TNFMs
during the period ... when he was promoted to that posi-
tion." Maj. Op. at 6 (emphasis added). Again, as Coward's
"claims" are not evidence, ADT had no need to rebut them.

The majority invokes the principle of continuity, saying
that as Coward was paid less than certain comparison em-
ployees in the post-reclassification period it stands to reason
that he was paid less in the period immediately preceding
classification. Maj. Op. at 5. The principle of continuity is
generally a sound one: the basic reason why we believe the

sun will rise tomorrow is the persistence of the pattern--of
its rising, day after day, and, in our modern sophisticated
times, the persistence of all the complex associated astronom-
ic phenomena. In this case, however, use of the principle is
questionable. First, the majority's whole claim that ADT's
stated explanation does not cover the earlier period turns on
the notion--false, as it turns out--that Coward suffered some
painful downgrade on April 19, 1995. If he had, the inference
of continuity would be self-evidently inapplicable as a matter
of fact. Second, there were hard data in the record in the
post-April 19, 1995 period; Coward offered none for the
period before, although, as the majority rightly notes, the
data were available to him. So the parties unsurprisingly
focused most clearly on the later time. Thus use of the
principle of continuity to create a prima facie case is proce-
durally askew. In short, Coward's failure to offer evidence
for a prima facie case should end the matter.

* * *

Nonetheless, it turns out that even if we assume a prima
facie case for the earlier period, ADT's evidence rebuts any
inference of discrimination. The majority theorizes that the
record is in conflict over ADT's justification of supposed
disparities. Its analysis turns essentially on two propositions
that in reality are contradicted by the evidence. First, it
asserts that there may have been some material reduction in
Coward's duties in the Spring of 1995. If true, then of course
ADT's evidence--showing that his post-April 19, 1995 respon-
sibilities were less than those of the employees with whom
Coward compared himself--would not work for the prior
period. But in fact the record is plain that there was no such
reduction in duties. To summarize the basic evidence: (1)
Soon after Coward was moved to the Sales and Service Office
("SSO") in Springfield, VA, in February 1994, he received the
title TNFM. (2) In the Spring of 1995 ADT concluded that
Coward, who was the only employee designated a TNFM who
worked outside of a Customer Monitoring Center ("CMC"), a
class of facility different from the SSO at Springfield, was
doing less demanding work than the TNFMs at CMCs. (3)

ADT therefore reclassified Coward out of TNFM status and
into "Technical Support-SSO." (4) Accordingly, when ADT's
evidence showed that for the period after April 19, 1995
Coward's work demanded less than that of the then remain-
ing TNFMs (his supposed comparison employees), it simulta-
neously showed that his prior work demanded less than that
of the other TNFMs--the same group of comparison employ-
ees. In short: post-April 19, 1995--Coward's work was less
than TNFMs; pre-April 19, 1995--his work was less than
that of "other" TNFMs, a group to which he was added only
because of confusion over his job title.

Second, the majority suggests that the record is in conflict
over whether Coward ever received an elevation from pay
grade E-8 to pay grade E-9. It is obscure why the majority
regards this as material: the record is crystal clear that the
two pay grades overlapped almost completely. The differ-
ence in the mid-point of the grades as of January 1, 1995 was
very small--less than $3500 ($35,644 v. $38,971); but the
spread of each grade was huge: E-8 sprawled from $28,826
to $42,241, and E-9 from $31,265 to $46,288. See Joint
Appendix ("J.A.") 1776.2 In any event, as we shall see,
Coward did get moved to E-9 and then back to E-8; his
actual salary kept increasing throughout the entire period
and was at all times within the range for both grades.

Sprinkled over the majority's torture of the record is the
further suggestion that ADT failed even to claim that its
post-April 19, 1995 defense embraced the earlier period.
This is not true. Accordingly, in addressing the evidence I
will also note the correspondence between the evidence and
ADT's reasoning.

Coward's duties. Coward and ADT agree that Coward
received the title TNFM in March 1994. Despite the "pro-
motion," Coward testified that his duties remained basically
the same when he acquired and then lost the title TNFM and
the pay grade E-9. He said, "[The TNFM title] was not a
promotion. It was just something that was set up to match

__________
2 I omit the initial two numbers from each citation to the Joint
Appendix.

the jobs that I was doing.... It was actually what I had
been doing for the past 10 or 12 years." Deposition of
Edward Coward ("Coward Dep.") at 57, J.A. 1851, 1861. He
continued, "I assume [the title Technical Support-SSO is] just
another ADT term because I'm basically doing the same job."
Id. His opening brief here agreed: "To date, there has been
little, if any, change in Coward's responsibilities as a TNFM."
Appellant's Initial Br. at 3.

In the Spring of 1995, the Mid-Atlantic Division president
reviewed the duties of all Capital Region employees. During
this review, ADT found that the only nominal TNFM at an
SSO (i.e., Coward) had narrower duties and responsibilities
than other TNFMs. See Swinarski Decl. at 7 p 21, J.A. 1773
(stating that Coward's pay grade was changed for reasons of
internal equity after ADT determined that his duties were
"significantly narrower than those of the [TNFMs] assigned
to CMC's."). Because ADT compared Coward to all of the
other TNFMs in the region at a time when Coward's duties
were as broad as they had ever been, its reasons for paying
him less than TNFMs at CMCs apply to the entire period at
issue in this case.

ADT's summary judgment motion invokes this evidence.
See ADT's Supplemental Memorandum in Support of Sum-
mary Judgment at 9-10, J.A. at 2182-83. Although ADT
referred to the division president's review both in its discus-
sion of the decision to lower Coward's pay grade and the
subsequent decision to change his title, the point of the pay
grade analysis in ADT's motion for summary judgment is that
effective April 19, 1995, Coward's pay grade was adjusted to
match the scope of his duties before and after that date. See
id. His title, however, was not changed until ADT decided
that it would not assign additional duties to Coward to bring
him in line with others who held the TNFM title. See
Deposition of Edward B. Pictroski ("Pictroski Dep.") at 64,
73-76, J.A. 1602, 1611-12 (noting that Coward did not receive
the title Technical Support-SSO until May 17, 1995, once
ADT determined that it would continue to confine the broader
telecommunication networking duties to workers at CMCs).
ADT made the point explicitly in its motion for summary

judgment. See ADT's Supplemental Memorandum in Sup-
port of Summary Judgment at 10, J.A. 2183.

Coward's poster child comparison worker--supposedly do-
ing the same work but paid more--was John Wyatt, a TNFM
in Baltimore. It is now undisputed that his network and
management duties exceeded those of Coward; indeed, he
decided which continuing education courses workers such as
Coward would take. See Coward Dep. at 102-03, J.A. at
1868-69. But his duties had not suddenly eclipsed Coward's
after April 1995: he served as a facilities manager from the
time he started with ADT in 1987 into the period of litigation
itself. See Deposition of Michael Kennelly ("Kennelly Dep.")
at 43-44, J.A. 1644, 1686-87 (identifying Wyatt as having
started his facilities management work as of 1987 and having
broader duties than Coward because he was responsible for
the facilities for a large portion of the Mid-Atlantic Division).
In its brief on summary judgment ADT pointed to the Wyatt-
Coward comparison, never suggesting any time limits on the
contrast in duties.3 See ADT's Supplemental Memorandum
in Support of Summary Judgment at 10 & n.5, J.A. at 2183 &
n.5 (noting that Wyatt had substantial network and manage-
ment duties that exceeded those assigned to Coward).

The majority concludes its analysis of Coward's duties by
suggesting that no comparison can be drawn between Coward
and the TNFMs because Coward's responsibilities declined
after he was reclassified. As we have seen, the evidence in
fact shows that the reclassification occured simply to bring
Coward's title into line with his real responsibilities. There is
no evidence supporting the idea that the reclassification
brought on a reduction in duties. The majority cites the
testimony of ADT's director of benefits and compensation,
Edward B. Pictroski. See Maj. Op. at 7. While Pictroski
testified that Coward's "duties" changed when his job
changed from TNFM to Technical Support-SSO, see Pictro-
ski Dep. at 75, J.A. at 1614, it is plain that this referred only

__________
3 Of course its reference to pay alluded to the only pay
comparison data in the record, which did relate to the post-April 19,
1995 period.

to the uncontested fact (indeed, the tautology) that Coward's
general job description changed when he was classified as
Technical Support-SSO. Pictroski explicitly acknowledged
that he had no idea what Coward actually did on a day-to-day
basis. See id. at 76, J.A. at 1614. Given that ADT offered
him solely to describe corporate policy, see Appellee's Br. at
10-11, the ignorance is hardly surprising.

The majority also cites Coward's exclusion from superviso-
ry meetings as evidence that his duties changed. Maj. Op. at
7. But Coward gave this testimony about exclusion from a
supervisors' meeting on October 1, 1996, at least 19 months
after the supposed down-grading. Coward stated explicitly
that the exclusion occured "a few days earlier." See Coward
Dep. at 66, J.A. at 1862 (emphasis added); see also id. at 65-
66, J.A. at 1862 (explaining that he had complained about the
exclusion in "a conversation I had with my immediate boss
last week concerning my status with the company" (emphasis
added)). Obviously such attendance could not have been a
critical difference between the TNFM and Technical
Support-SSO jobs if it took until late September of 1996 for
ADT to stop inviting Coward to the meetings, or at least for
Coward to notice his exclusion. The change described by
Coward (assuming it occurred) was plainly a change within
the period for which we all agree summary judgment was
proper, not a change between the two periods.

The elevation to salary grade E-9. There is no basis for
the majority's uncertainty as to whether Coward ever re-
ceived the E-9 grade. See Maj. Op. at 7-8. Coward's
"Personnel Data Maintenance Form" shows the shift from
E-9 to E-8 effective April 19, 1995, J.A. 1799. No change in
actual pay occurred at the time; this is unsurprising as there
was no change in duties and his pay at the time was comfort-
ably within the ranges for both nominal pay grades. See J.A.
1776 (listing the salary ranges for each grade).

In short, even if we accept the majority's application of the
continuity principle (i.e., the supposition that Coward must
have earned less than some TNFMs prior to his reclassifica-
tion because he earned less than some TNFMs after reclassi-

fication), it turns out that ADT's explanation of the superficial
discrepancies of the post-April 19, 1995 era covers the entire
period that Coward's complaint--though not his evidence--
purported to put in issue.

* * *

For the foregoing reasons, I concur in the court's judgment
affirming summary judgment for the period after April 19,
1995, but dissent from it insofar as it remands the case for
further proceedings.