Gu v. Boston Police Department

United States Court of Appeals
For the First Circuit

No. 01-2354

JOANN GU and CAROL SANTORO,

Plaintiffs, Appellants,

v.

BOSTON POLICE DEPARTMENT and DONALD MCGOUGH,
individually and in his official capacity as DIRECTOR OF THE
OFFICE OF RESEARCH AND EVALUATION OF THE
BOSTON POLICE DEPARTMENT,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Greenberg,* and Howard,
Circuit Judges.

Shannon Liss-Riordan, with whom Harold L. Lichten and Pyle,
Rome, Lichten & Ehrenberg, P.C. were on brief, for appellants.
William V. Hoch, Staff Attorney, Office of the Legal Advisor,
Boston Police Department, for appellees.

December 2, 2002

*
Of the Third Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. Plaintiffs-appellants, Joann

Gu and Carol Santoro, appeal from a grant of summary judgment for

defendants-appellees, the Boston Police Department and Donald

McGough. Plaintiffs first contend that defendants discriminated on

the basis of sex by failing to promote either plaintiff to the

position of Deputy Director of the Office of Research and

Evaluation. Second, plaintiffs allege that they are victims of

unlawful retaliation by defendants. Both claims purport violations

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e -

2000e-17, and Massachusetts General Laws chapter 151B, § 4(1).

Finally, plaintiffs assert that they were paid less than men

performing comparable work, in violation of the Federal Equal Pay

Act, 29 U.S.C. § 206(d), and the Massachusetts Equal Pay Act, Mass.

Gen. L. ch. 149, § 105A. Upon defendants' motion for summary

judgment, the district court found no material facts in dispute

and, thereafter, ruled in defendants' favor as a matter of law.

After careful review, we affirm.

I.

Plaintiffs both work in the Office of Research and

Evaluation ("ORE") for defendant Boston Police Department ("the

Department"). Gu has held the position of Senior Research Analyst1

1
ORE employees generally give themselves working titles which
more accurately describe their positions than the generic titles
associated with their pay grades. We use those working titles
here.

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since 1997, and Santoro, currently a Senior Crime Analyst, has

worked at ORE since 1994. Both plaintiffs' positions place them

within the MM-6 salary grade (Gu at step 7; Santoro at step 4).2

Defendant McGough is the current Director of ORE, a

position he assumed in December 1998 after the prior director, Luis

García, stepped down. Previously, McGough was the Deputy Director,

a title typically assigned to the employee with the second-highest

rank, and thus the most seniority, after the Director.

Shortly before McGough became Director, ORE received

funding for a new MM-8 position. This position offered a much

higher salary range than either of plaintiffs' jobs. Because of

the higher grade, the new MM-8 employee would also sit higher in

the office hierarchy. While García obtained the funding for this

new position, it was McGough who ultimately created the job

description and filled the position. McGough submitted this job

description for the Department's approval in November 1998, and the

posting focused on advanced technical skills, specifically training

and experience in Geographic Information Systems ("GIS"). The

Department gave its approval to the description in February 1999,

and the posting officially appeared on March 2, 1999.

Plaintiffs both applied for the new position, after being

encouraged by McGough. However, it was clear from the outset that

2
The pay schedule ranges from MM-3 (lowest grade) to MM-14
(highest grade), and each grade has 9 steps.

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Gu did not meet the basic requirements of the posting because she

had very limited experience with GIS. Specifically, the posting

required four years of experience with GIS, and Gu only had two

days of training. Santoro also failed to meet this requirement,

having only two years experience with GIS. Despite the disparity

between plaintiffs' qualifications and the requirements of the job

posting, both plaintiffs received interviews. Ultimately, neither

was hired.

Another Department employee, Jeremy Cox, applied and

interviewed for the MM-8 position. At the time, Cox worked as an

MM-6 step 9 employee, but not in ORE. Cox did have significant GIS

experience, and McGough originally expressed interest in filling

the MM-8 position with Cox. However, Cox did not receive the job

either. Later, he transferred to ORE as an MM-6 step 9 employee.

The position was ultimately filled by Carl Walter, who

was working for the Charlotte-Mecklenburg Police Department at the

time that he applied. Walter clearly met all the required

qualifications and many of the preferred qualifications listed on

the MM-8 job posting -- a factor that set him apart from the

plaintiffs and Cox. There was, however, some controversy regarding

Walter's application because it was dated February 27, 1999, before

the date of the official posting. Plaintiffs neither saw the job

posting nor applied before its official posting on March 2, and

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defendants offer no explanation as to why Walter received the

posting and applied early.

Upon selecting Walter for the MM-8 position, the

Department also offered Walter the title of Deputy Director,

ostensibly to make the offer more attractive and because, if hired,

Walter would be the second-highest ranking employee in ORE

(excluding ex-Director García who did not seek managerial

responsibilities). It is undisputed that the Deputy Director, when

there is one, has always been the second-highest ranking employee

in ORE, after the Director. Plaintiffs further contend that the

position of Deputy Director has always been filled from within by

someone familiar with the office. However, it is also undisputed

that the Deputy Director receives no added compensation, only added

responsibilities.

Since McGough became Director in 1998, he has

restructured ORE in various ways. ORE is generally divided into

two teams: the research team and the crime analysis team. McGough

has de-emphasized research, decreasing the number of employees in

that area. Correspondingly, Gu has fewer employees working under

her on research projects. The crime analysis team has also

experienced changes, with several people being promoted to the

level of Senior Crime Analyst and redistributions of

responsibilities among Santoro and these new Senior Crime Analysts.

Instead of being responsible for the entire City of Boston, Santoro

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now only works with statistics from one area of the city. Also,

McGough has instituted several new checks on management: requiring

two people to sit in on interviews, personally reviewing all hiring

decisions, and limiting the use of overtime hours.

Following the hiring of Walter and restructuring of ORE,

the plaintiffs filed their complaint alleging sex discrimination,

violations of the Federal and Massachusetts Equal Pay acts, and

retaliation. Following discovery, the district court granted

summary judgment in favor of the defendants on all claims. This

appeal followed in a timely fashion.

II.

We review grants of summary judgment de novo, viewing the

facts in the light most favorable to the plaintiffs. Macone v.

Town of Wakefield, 277 F.3d 1, 5 (1st Cir. 2002). If no genuine

dispute of material fact exists, we will affirm. Fed. R. Civ. P.

56.

III.

Plaintiffs challenge the grant of summary judgment as to

each of their claims: (1) sex discrimination, (2) retaliation, and

(3) violation of the equal pay acts. Because we find that there is

no dispute of material fact, we affirm.

A. Sex discrimination

The gravamen of plaintiffs' sex discrimination complaint

is that they were passed up for a promotion to Deputy Director of

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ORE because they are women. They claim that one of them was

entitled to this position since, at the time that McGough became

Director, they were the most senior employees in ORE. Rather than

appoint one of the plaintiffs to this position, they allege that

McGough went outside the Department to find a Deputy Director.

This new Deputy Director, Walter, has no direct supervisory

experience or familiarity with the Department or ORE. The only

reason that McGough hired Walter and ignored them, plaintiffs

claim, is because they are women, and McGough was opposed to having

a woman in a position of authority.

An initial problem presents itself with plaintiffs'

argument; they conflate the MM-8 position with the Deputy Director

position. The fact that two separate jobs are involved creates a

problem because it is undisputed that the MM-8 and Deputy Director

positions, while eventually combined, entail different

responsibilities and require different experience from applicants.

The MM-8 position, as created by McGough, requires GIS expertise

and offers a higher salary than that received by plaintiffs. The

Deputy Director position involves additional managerial

responsibilities but does not confer a salary increase. Since the

Deputy Director has managerial responsibilities, familiarity with

ORE and managerial experience can be seen as appropriate

qualifications. At various times, plaintiffs equate the

qualifications needed by the Deputy Director to those required in

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the MM-8 position, but it is clear that these are two separate

positions with separate responsibilities. Therefore, we will tease

out the arguments and facts pertaining to the different positions.

Turning to the substantive merits of plaintiffs' case,

the familiar McDonnell Douglas burden-shifting framework applies to

both the federal and state claims. McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973); McKenzie v. Brigham & Women's Hosp.,

541 N.E.2d 325, 326-27 (Mass. 1989) (applying McDonnell Douglas

framework to analysis of discrimination claim under Mass. Gen. Laws

ch. 151B). Under McDonnell Douglas, the plaintiff must first

establish a prima facie case of discrimination. McDonnell Douglas,

411 U.S. at 802. Once the plaintiff makes out a prima facie case,

the burden "shift[s] to the employer to articulate some legitimate,

nondiscriminatory reason" for its actions. Id. If the defendant

provides such a legitimate explanation, the plaintiff then has an

opportunity to demonstrate that the proffered reason is pretextual.

Id. at 804. At all times, the plaintiff bears the "ultimate burden

of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff." Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981).

To survive summary judgment and establish a prima facie

case in a failure to hire case, plaintiffs must produce evidence on

four points: (1) they are members of a protected class; (2) they

applied for an open position; (3) they were not selected; and (4)

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their employer filled the position by hiring another individual

with similar qualifications. Feliciano de la Cruz v. El

Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000);

Wynn & Wynn P.C. v. Mass. Comm'n Against Discrimination, 729 N.E.2d

1068, 1078 n.22 (Mass. 2000). With regard to both contested

positions, plaintiffs have adduced sufficient evidence of the first

three criteria: (1) they are women; (2) they applied for or

expressed interest in the positions;3 and (3) they did not receive

either job. However, the fourth prong of plaintiffs' prima facie

case requires more analysis.

Walter, who received both the MM-8 and Deputy Director

positions, has significantly different qualifications than either

plaintiff. With regard to the MM-8 position, Gu admitted in her

deposition that she was not qualified for the job because she did

not meet the requirements specified in the job posting. Santoro,

while having some GIS experience, also clearly did not meet the

required qualifications. She only had two years of experience, and

the posting specified four years of experience as a minimum

requirement. It is undisputed that Walter met all of the required

3
We note that the Deputy Director position was not one for which
plaintiffs could apply. No official application is made; the
Director simply appoints someone. However, plaintiffs introduced
evidence that they expressed interest in the position. Viewing
that evidence in the light most favorable to plaintiffs, we find
this sufficient to satisfy their burden on this point.

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qualifications and most of the preferred qualifications listed on

the MM-8 posting.

With regard to the Deputy Director title, the evidence is

more disputed. Gu and Santoro introduced evidence that all

previous Deputy Directors had prior experience in ORE, while the

defendants offered evidence that the only relevant job

qualification was seniority, measured by both rank and time of

employment. It is undisputed that Gu and Santoro had significant

work experience and some managerial experience in ORE. Employing

an extremely deferential standard, we find that Gu and Santoro met

their minimal prima facie burden.

The burden then shifts to the defendants to articulate a

legitimate, nondiscriminatory reason for hiring Walter instead of

either of the plaintiffs. Feliciano de la Cruz, 218 F.3d at 5;

Blare v. Husky Injection Molding Sys. Boston, Inc., 646 N.E.2d 111,

115 (Mass. 1995). Defendants assert that they hired Walter for the

MM-8 position because he was the only candidate that met all of the

required and most of the preferred qualifications. Furthermore,

defendants assert that Walter was given the title of Deputy

Director because he was the most senior employee in ORE at the time

that he was appointed. In other words, defendants claim simply

that they hired the most qualified and appropriate person for the

jobs in question. The Department has met the burden of providing

a legitimate explanation for its actions. Woods v. Friction

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Materials, Inc., 30 F.3d 255, 261-62 (1st Cir. 1994) (accepting

legitimacy of hiring applicants because they were better qualified

than plaintiff).

Because defendants have advanced a legitimate

nondiscriminatory rationale for hiring Walter, the burden then

returns to plaintiffs, who must now advance some evidence that the

reason one of the plaintiffs was not hired was unlawful sex

discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,

507-08 (1993); see also Abramian v. President & Fellows of Harvard

Coll., 731 N.E.2d 1075, 1085 (Mass. 2000). Plaintiffs claim they

have satisfied this burden by arguing that McGough (1) tailored the

MM-8 job posting so as to exclude plaintiffs from that position and

(2) purposely delayed appointing a Deputy Director so as to avoid

having to name one of the plaintiffs. In other words, plaintiffs

assert that the Department's legitimate nondiscriminatory reasons

are simply pretextual, disguising the sex-based discriminatory

animus against plaintiffs.

In support of their argument that McGough tailored the

MM-8 posting to exclude them, plaintiffs point to three facts: (1)

McGough wrote the posting; (2) García expressed surprise at the

posting's emphasis on mapping; and (3) Walter received the posting

and submitted his application in advance of the official release

date of the posting. Certainly, if the Department and McGough

tailored the job qualifications to exclude women, this would be

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unlawful sex discrimination. Edwards v. Occidental Chem. Corp.,

892 F.2d 1442 (9th Cir. 1990).4 The MM-8 position is indisputably

a new position. Further, there is abundant evidence that the

Department frequently hired outsiders to high-level positions in

ORE. In fact, Gu herself entered as a MM-6 level employee from

outside the Department. As to García's surprise at the position

requirements, the evidence advanced by plaintiffs demonstrates, at

most, that García and McGough had differing views as to the proper

direction of ORE. Finally, the undisputed evidence shows that the

posting was created before McGough ever met Walter, excluding the

possibility that the posting was tailored to Walter's

qualifications. Cf. Rossy v. Roche Prods. Inc., 880 F.2d 621, 626

(1st Cir. 1989) (reversing a grant of summary judgment when

plaintiff presented evidence that an old job description was

changed after two potential candidates were identified to

accommodate the male candidate's qualifications). While plaintiffs

may disagree with the direction that McGough has chosen for ORE,

this is not a question that is properly the subject of litigation.

Id. at 625 ("Our role is not to second-guess the business decisions

of an employer, imposing our subjective judgments of which person

4
In Edwards, an employer changed a job description and filled
that position with someone outside the department for the first
time in fifty years after the first woman became eligible for the
promotion. 892 F.2d at 1447. The court found that these facts
provided sufficient evidence for a jury to find that the employer
had unlawfully tailored the job requirements to exclude women. Id.
at 1448.

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would best fulfill the responsibilities of a certain job."). On

this record, plaintiffs simply do not raise any question that the

MM-8 posting was tailored to exclude them, or women generally.

Regarding Walter's appointment to the position of Deputy

Director, plaintiffs attempt to undermine the Department's argument

by showing that all prior Deputy Directors had previously worked in

ORE. A departure from prior practice can indeed be probative of

discriminatory intent, see Johnson v. Lehman, 679 F.2d 918, 922

(D.C. Cir. 1982), but the evidence here does not show that there

was any departure from prior practice. While all prior deputies

were prior employees of ORE, the undisputed evidence also shows

that the Deputy Director title is a recent creation. It has been

the practice in the past for individual Directors to choose whether

they wanted to name a deputy. The evidence clearly shows that all

Deputy Directors have been the second-highest ranking employees of

ORE. It is undisputed that Walter is the second-highest ranking

employee of ORE, sitting two pay grades ahead of both plaintiffs.

In fact, the evidence presented leads to only one conclusion, that

McGough knew that he would be filling the MM-8 position, either

with an insider or outsider, and that he decided to wait to appoint

a Deputy Director until filling the MM-8 position. Making a

decision to wait was neither inconsistent with prior practice nor

evidence of discriminatory animus. Furthermore, it was consistent

with prior practice to name the second-highest ranking employee as

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Deputy Director. In fact, the inconsistent action would have been

to name either of the plaintiffs as Deputy Director since they both

occupied positions below Walter in the ORE hierarchy.

Plaintiffs try one last tack to undermine the

Department's articulated nondiscriminatory rationale. They point

to the deposition testimony of their co-worker Marjorie Bernadeau

who complained generally about McGough's treatment of women in ORE.

She testified that McGough was not comfortable with women being in

charge, gave women more menial tasks and low level assignments, and

reprimanded female employees for taking extended breaks but did not

similarly reprimand the males. Viewing this evidence in the light

most favorable to plaintiffs, it raises the possibility that

McGough treats women differently. However, it does nothing to

rebut the facts that (1) neither plaintiff met the basic

requirements for the MM-8 position; (2) Walter met the job

requirements for that same position; and (3) McGough simply

followed office tradition in naming the second-highest ranking

employee as Deputy Director. In the face of that overwhelming and

unrebutted evidence, plaintiffs simply cannot sustain a claim for

sex discrimination in the filling of either the MM-8 or Deputy

Director positions. Therefore, the district court correctly

granted summary judgment to the defendants on this claim.

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B. Retaliation

Plaintiffs allege that they have also been subject to

retaliation for filing this suit. To sustain a claim of

retaliation, plaintiffs must product evidence on three points: (1)

they engaged in protected conduct under Title VII; (2) they

experienced an adverse employment action; and (3) a causal

connection exists between the protected conduct and the adverse

action. White v. N.H. Dep't of Corr., 221 F.3d 254, 262 (1st Cir.

2000); Tate v. Dep't of Mental Health, 645 N.E.2d 1159, 1165 (Mass.

1995). It is clear that the plaintiffs engaged in protected

conduct when they filed a lawsuit in good faith alleging, inter

alia, discrimination on the basis of sex, in violation of both

Title VII and Mass. Gen. Laws ch. 151B, § 4(1). 42 U.S.C. § 2000e-

3 (identifying protected conduct to include charging, testifying,

assisting or participating "in any manner in an investigation,

proceeding, or hearing" under Title VII). What is unclear is

whether the plaintiffs have introduced evidence showing that they

were subjected to adverse employment actions or that any adverse

actions were causally related to the filing of their complaint.

Plaintiffs point to a whole host of actions which they

claim are adverse. To be adverse, an action must materially change

the conditions of plaintiffs' employ. Blackie v. Maine, 75 F.3d

716, 725 (1st Cir. 1996) ("Work places are rarely idyllic retreats,

and the mere fact that an employee is displeased by an employer's

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act or omission does not elevate that act or omission to the level

of a materially adverse employment action."); MacCormack v. Boston

Edison Co., 672 N.E.2d 1, 7 (Mass. 1996) (indicating plaintiff must

demonstrate "a change in working conditions that materially

disadvantaged him" to demonstrate an adverse employment action).

Material changes include "demotions, disadvantageous transfers or

assignments, refusals to promote, unwarranted negative job

evaluations, and toleration of harassment by other employees."

Hernández-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47

(1st Cir. 1998). Here, plaintiffs complain about a variety of

changes in the office including: (1) loss of supervisory authority;

(2) exclusion from office meetings; and (3) diminished

communication regarding office matters. Certainly, if an employee

suddenly finds herself with dramatically decreased supervisory

authority and without a voice in major decisions, this could

constitute an adverse employment action. Cf. Marrero v. Goya of

P.R., 304 F.3d 7, 23-24 (1st Cir. 2002) (noting that a monetary

impact is not necessary for an action to be materially adverse so

long as the action is "equally adverse").

Interpreted in favor of plaintiffs, the record supports

the conclusion that plaintiffs lost some of their supervisory

authority because the absolute number of their respective

subordinates decreased. However, this change occurred as a result

of a general restructuring of ORE, which included a new Director,

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new Deputy Director, and a shift in focus from research to crime

analysis/GIS for the ORE. Cf. Hernández-Torres, 158 F.3d at 47

(holding that the imposition of additional responsibilities on

plaintiff did not constitute an adverse employment action when

other employees, not engaged in the protected activity, had similar

demands placed on them). During that restructuring, neither of the

plaintiffs saw a significant change in her overall job

responsibilities. Gu continued to be responsible for research

projects. Santoro maintained her position as a Senior Crime

Analyst. While Santoro did lose some responsibility because of the

promotion of others, her essential job remained unchanged. When a

general reorganization results in some reduction in job

responsibilities without an accompanying decrease in salary, or

grade, those changes cannot be dubbed adverse employment actions.

MacCormack, 672 N.E.2d at 8. Finally, plaintiffs make bald

assertions that they were excluded from important meetings and

experienced diminished communication regarding office matters, but

they were unable to name a particular meeting or important decision

from which they were excluded. Such unsupported assertions are

insufficient evidence of a material change in working conditions.

While it is clear that ORE changed, the plaintiffs cannot

establish that these changes were material adverse actions against

plaintiffs because of their filing of a sex discrimination claim.

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Therefore, the district court correctly granted summary judgment on

plaintiffs' retaliation claim.

C. Equal pay

Plaintiffs claim that defendants violated both the

Federal and Massachusetts equal pay acts by paying them less than

their male co-workers, Walters and Cox, for substantially equal and

comparable work.

The Federal Equal Pay Act ("FEPA") prohibits wage

discrimination "between employees on the basis of sex . . . for

equal work on jobs the performance of which requires equal skill,

effort, and responsibility, and which are performed under similar

working conditions." 29 U.S.C. § 206(d)(1). To establish a prima

facie case for discrimination under FEPA, a plaintiff must

establish "that the employer paid different wages to a member of

the opposite sex for substantially equal work." Rodríguez v.

Smithkline Beecham, 224 F.3d 1, 6 (1st Cir. 2000). To rebut the

prima facie case, an employer has several affirmative defenses

under FEPA, including that the discrepancy resulted from a pay

system based on: (1) seniority; (2) merit; (3) quantity or quality

of production; or (4) another differential based on a factor other

than sex. 29 U.S.C. § 206(d)(1); Byrd v. Ronayne, 61 F.3d 1026,

1033 (1st Cir. 1995).

The Massachusetts Equal Pay Act ("MEPA") prohibits

different compensation for individuals who perform "comparable"

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work, unless such a difference is based on seniority; MEPA does not

include the other affirmative defenses found in FEPA. Mass. Gen.

L. ch. 149, § 105A. The Supreme Judicial Court of Massachusetts

has indicated that the MEPA standard is not the same as the FEPA

standard. Jancey v. Sch. Comm. of Everett, 658 N.E.2d 162, 166-67

(Mass. 1995) (indicating that MEPA and FEPA differ "significantly"

and Massachusetts does not "follow slavishly the Federal

approach"). Under MEPA, there is a two-step analysis for

determining what constitutes comparable work. Id. at 167-68.

First, the factfinder "must determine whether the substantive

content of the jobs is comparable, that is, whether the duties of

the jobs have 'important common characteristics.'" Id. at 167

(quoting Bureau of Labor & Indus. v. Roseburg, 706 P.2d 956, 959

n.2 (Or. Ct. App. 1985)). If the factfinder determines that the

jobs are comparable in terms of their substantive content, then the

second question becomes "whether the two positions entail

comparable skill, effort, responsibility, and working conditions."

Jancey, 658 N.E.2d at 168. Only if both inquiries are answered in

the affirmative will the employer be required to pay the employees

equally under MEPA. Id.

Both MEPA and FEPA require a consideration of the skills,

efforts, and responsibilities involved as well as of working

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conditions.5 We first consider both Gu and Santoro as compared to

Walter, and then we compare Santoro and Cox.

Gu and Santoro compared to Walter

Gu and Santoro argue that their jobs, classed at MM-6

step 7 and MM-6 step 4 respectively, were substantially equal to

Walter's job, classed at MM-8 step 9. In order to determine

whether the plaintiffs can establish a prima facie case under FEPA

and MEPA, we must focus on the "responsibilities and functions of

[each] position" rather than relying solely on the job titles.

Rodríguez, 224 F.3d at 7. Taking the facts in the light most

favorable to the plaintiffs, we will endeavor to compare the

responsibilities and functions of Gu and Santoro with those of

Walter.

Gu's job responsibilities include "initiating,

developing, and conducting research projects," "representing the

ORE at meetings related to research projects," purchasing, and

negotiating contracts. Santoro conducts "extensive crime analysis

using GIS technology" and both presents such information at the

Department's Crime Analysis meetings and keeps the members of the

Command staff apprized of crime trends and clusters. Santoro also

helps "develop the Department's automated crime analysis functions"

and "crime mapping capabilities within the ORE." Walter negotiates

5
Here, only the skills, effort and responsibilities involved are
at issue because all employees work in the ORE and thus have the
same working conditions.

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software purchases, integrates the Projects Tracking Database, and

attends Command Staff meetings. He also testifies "as an expert

witness in mapping and measuring distances." From these job

descriptions and the more extensive duties listed in the record, we

can conclude that Walter's job differed from those of Gu and

Santoro in at least one significant way. In particular, Walter had

the Department's imprimatur as a GIS expert and his job entailed

testifying in that capacity. Gu and Santoro did not have similar

responsibilities.

It is obvious from the record that Gu and Santoro do not

have the same managerial responsibilities as Walter. While Gu and

Santoro each have some managerial tasks relating to their

particular team, neither has responsibilities on an ORE-wide level,

as Walter does. Walter oversees overtime usage and monitors

vacation requests for the entire ORE, not just a specific subpart

as is the case with Gu and Santoro. Further, Walter trains and

supervises crime analysts, including Santoro. Given these

differences in job responsibilities, we hold that plaintiffs cannot

establish they performed "substantially similar work" as required

by FEPA or "comparable work" as required by MEPA.

Santoro compared to Cox

Santoro argues her work was similar to that of Jeremy

Cox, who was five pay steps above her on the MM-6 level. While

Santoro and Cox share the title of Senior Crime Analysts, Cox has

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several additional responsibilities, including: (1) continuing "to

develop and enhance the Department's Intranet GIS," a project he

began while working in another unit in the Department; (2) managing

the ORE databases; and (3) training other employees in database

management. Plaintiffs claim that Santoro "performed numerous

duties" that Cox did not, but do not point specifically to any such

duties. Unsubstantiated and conclusory arguments regarding the

differences in their jobs do not suffice to meet the plaintiffs'

burden of establishing a prima facie case under FEPA or MEPA.

Indeed, the record demonstrates that Cox had significantly

different duties than Santoro, some of which required highly

technical knowledge of GIS. Consequently, the evidence adduced by

the plaintiff on this point does not suffice to raise an issue of

material fact.

We need not reach the issue of affirmative defenses

because no prima facie case of pay discrimination has been

established under either statute with regard to either Walter or

Cox. The District Court correctly granted defendants' motion for

summary judgment on all alleged equal pay violations.

IV.

For the reasons discussed above, we affirm summary

judgment on all counts.

Affirmed.

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