Rathbun v. Autozone, Inc.

United States Court of Appeals
For the First Circuit

No. 03-1530

BETSEY E. RATHBUN,
Plaintiff, Appellant,

v.

AUTOZONE, INC.,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Boudin, Chief Judge,
Selya, Circuit Judge,
and Stahl, Senior Circuit Judge.

Stephen A. Rodio and Lynette Labinger, with whom Rodio &
Brown, Ltd. and Roney & Labinger were on brief, for appellant.
Charles S. Kirwan and Charles S. Kirwan & Associates on brief
for Rhode Island Commission for Human Rights, Providence Human
Relations Commission, Progreso Latino, Center for Hispanic Policy
and Advocacy, Rhode Island Civil Rights Roundtable, and Rhode
Island chapter of the National Employment Lawyers Association,
amici curiae.
Renee Gluth, with whom Tracy K. Hidalgo, Frilot, Partridge,
Kohnke & Clements, L.C., and Joe Whelan were on brief, for
appellee.
Michael E. Malamut on brief for New England Legal Foundation,
amicus curiae.

March 18, 2004
 SELYA, Circuit Judge. In this employment discrimination

case, the district court granted summary judgment in the employer's

favor on both the plaintiff's failure-to-promote and unequal pay

claims. Rathbun v. Autozone, Inc., 253 F. Supp. 2d 226 (D.R.I.

2003). The employee's ensuing appeal requires us to decide a

series of questions, the most significant of which concerns the

limitations period that governs employment discrimination actions

brought under the Rhode Island Civil Rights Act of 1990 (RICRA),

R.I. Gen. Laws §§ 42-112-1 to 41-112-2. We have had the benefit of

briefing on this important issue not only from the parties but also

from able amici on both sides (for whose help we are grateful).

Having fully considered the matter, we hold that RICRA employment

discrimination claims are subject to Rhode Island's three-year

residual statute of limitations for actions involving injuries to

the person and, accordingly, countermand the district court's

application of a one-year limitations period.

We next consider the merits of the plaintiff's claims.

Although our holding as to the appropriate rule of timeliness

broadens the scope of her claims, we nonetheless affirm the

district court's entry of summary judgment. Even when viewed

through a widened lens, the evidence is insufficient to permit a

reasonable finder of fact to resolve either her failure-to-promote

or unequal pay claims favorably to her. Accordingly, we affirm the

district court's entry of summary judgment.

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I. BACKGROUND

We rehearse the facts in the light most agreeable to the

party opposing the entry of summary judgment (here, the plaintiff),

drawing all reasonable inferences to her behoof. Garside v. Osco

Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990).

A. Employment History.

At the times material hereto, plaintiff-appellant Betsey

E. Rathbun worked for defendant-appellee AutoZone, Inc. or its

predecessor in interest, Auto Palace. The district court's opinion

contains a meticulous account of the appellant's relevant

employment history, Rathbun, 253 F. Supp. 2d at 229-30, and we

offer only a brief sketch.

AutoZone operates a chain of retail stores selling

automobile parts and accessories, and Auto Palace (now defunct) was

in substantially the same business. In 1995, Auto Palace hired the

appellant as a part-time cashier and assigned her to its Cranston,

Rhode Island location. Her duties included running the cash

register, stocking shelves, and assisting customers. Early in

1998, AutoZone purchased the Auto Palace chain and converted the

stores to the AutoZone brand.

AutoZone organizes its store employees into four job

classifications: (i) customer service representative (CSR); (ii)

parts sales manager (PSM); (iii) assistant store manager (ASM); and

(iv) store manager. At the time of the acquisition, AutoZone made

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the appellant a part-time CSR at a pay rate of $6.59/hr. In April

of 1998, she became full-time at a rate of $6.92/hr. Her duties

expanded to encompass the whole range of customer sales. She was

not tasked with managerial duties but helped train several new

employees in company policies and systems.

In the summer of 1998, the appellant began lobbying for

a promotion to PSM. When her interest went unrequited, she

approached her district manager, Jeff Mello, and voiced a suspicion

that gender had played a role in AutoZone's unwillingness to move

her up the corporate ladder. Mello pooh-poohed this suggestion and

provided the appellant with a list of skills she should master in

order to improve her qualifications for a PSM position.

The appellant received a promotion to the PSM rank and a

raise to $8/hr. in September of 1999. From the time that AutoZone

acquired Auto Palace until the date of her ascension, AutoZone

filled five PSM vacancies (only two of which were filled after the

appellant had applied for a promotion). Every successful candidate

was a man.

Soon after her promotion to PSM, the appellant expressed

an interest in becoming an ASM. She was passed over four times for

ASM openings — each time in favor of a man (some of whom were new

hires). The appellant remains a PSM.

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 B. Travel of the Case.

On November 16, 2000, the appellant filed a charge of

discrimination with the Rhode Island Commission for Human Rights

(the Commission). See R.I. Gen. Laws § 28-5-17 (making the filing

of an administrative charge a precondition to suit under the Rhode

Island Fair Employment Practices Act). Having obtained a right-to-

sue letter, the appellant commenced a civil action in a Rhode

Island state court. In her complaint, she charged that, due to her

gender, AutoZone had unduly delayed her elevation to PSM, denied

her a promotion to ASM, and paid her less than similarly situated

males. All of her claims were grounded on two state statutes — the

RICRA and the Rhode Island Fair Employment Practices Act (FEPA),

R.I. Gen. Laws §§ 28-5-1 to 28-5-42.

Citing the existence of diversity of citizenship and a

controversy in the requisite amount, AutoZone removed the action to

the federal district court. 28 U.S.C. §§ 1332(a), 1441. After the

completion of pretrial discovery, the district court granted an

across-the-board summary judgment in AutoZone's favor. Rathbun,

253 F. Supp. 2d at 236. The court applied the one-year FEPA

statute of limitations, R.I. Gen. Laws § 28-5-17(a), to all the

failure-to-promote claims (including those brought under the

RICRA). The court reasoned that it would be anomalous for

factually identical claims to be time-barred under the FEPA yet

timely under the RICRA, and that, therefore, the state legislature

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must have intended a one-year limitations period to apply to both

statutes. Rathbun, 253 F. Supp. 2d at 231-34.

Since the appellant had filed her charge of

discrimination with the state agency on November 16, 2000, the

lower court's limitations decision meant that the court regarded as

potentially actionable only those employment decisions that took

place between November 16, 1999 and November 16, 2000. From this

coign of vantage, the court concluded that the failure-to-promote

claims could not successfully run the summary judgment gauntlet.

Id. at 235-36. With respect to the unequal pay claim, the court

treated the relevant events as constituting "a series of related,

connected acts" within the meaning of the continuing violation

doctrine. Id. at 231. On that basis, it deemed potentially

actionable events outside the one-year limitations period. Id.

Still, it found no evidentiary predicate sufficient to allow the

unequal pay claim to proceed to trial. Id. at 235-36. This appeal

followed.

II. THE SUMMARY JUDGMENT STANDARD

We review the entry of summary judgment de novo.

Garside, 895 F.2d at 48. Summary judgment is appropriate "if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law." Fed. R. Civ. P.

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56(c). Once the moving party avers the absence of genuine issues

of material fact, the nonmovant must show, through materials of

evidentiary quality, that such a dispute exists. A properly

supported motion for summary judgment cannot be defeated by relying

upon improbable inferences, conclusory allegations, or rank

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

Cir. 1991).

III. THE RICRA LIMITATIONS PERIOD

The threshold issue in this case involves the rule of

prescription that applies to employment discrimination claims

brought under the RICRA. The Rhode Island General Assembly enacted

the RICRA in 1990. The statute does not contain a built-in statute

of limitations. The court below was the first to attempt a

definitive answer to the question of when an employment

discrimination action brought under the RICRA should be deemed

timely.

Where, as here, a state's highest court has not spoken on

a matter of state substantive law, a federal court sitting in

diversity must "ascertain the rule the state court would most

likely follow under the circumstances, even if [its] independent

judgment on the question might differ." Blinzler v. Marriot Int'l,

Inc., 81 F.3d 1148, 1151 (1st Cir. 1996). In that endeavor, the

federal court may seek guidance from a wide range of sources,

including but not limited to "analogous state court decisions,

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persuasive adjudications by courts of sister states, learned

treatises, and public policy considerations identified in state

decisional law." Id.

When a rights-creating statute is silent as to what

limitations period should apply, the Rhode Island Supreme Court's

practice has been to look first to residual statutes of

limitations. See, e.g., Paul v. City of Woonsocket, 745 A.2d 169,

171-72 (R.I. 2000); Lyons v. Town of Scituate, 554 A.2d 1034, 1035

(R.I. 1989); Commerce Oil Ref. Corp. v. Miner, 199 A.2d 606, 607-08

(R.I. 1964). Two of these residual statutes are arguably

applicable here: a three-year statute of limitations for

"[a]ctions for injuries to the person," R.I. Gen. Laws § 9-1-14(b),

and a catchall ten-year statute of limitations for civil actions to

which no other provision applies, id. § 9-1-13(a).

We believe that the former is a natural fit. The state

supreme court has construed the "injuries to the person" taxonomy

broadly:

[T]he phrase 'injuries to the person' is to be
construed comprehensively and as contemplating
its application to actions involving injuries
that are other than physical. Its purpose is
to include within that period of limitation
actions brought for injuries resulting from
invasions of rights that inhere in man as a
rational being, that is, rights to which one
is entitled by reason of being a person in the
eyes of the law.

Commerce Oil, 199 A.2d at 610. As a result, the vast majority of

state statutes that create tort-like rights of action but do not

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contain built-in timeliness rules have been deemed to fall within

the compass of section 9-1-14(b). See Lyons, 554 A.2d at 1036

(collecting cases); see also Commerce Oil, 199 A.2d at 610

(applying section 9-1-14(b) to actions for malicious use of

process). Although the case law admits of an occasional

aberration, see, e.g., Church v. McBurney, 513 A.2d 22, 24-26 (R.I.

1986), the trend is clear.

The RICRA's provenance confirms this intuition. The

Rhode Island General Assembly enacted the statute in response to

the United States Supreme Court's decision in Patterson v. McLean

Credit Union, 491 U.S. 164 (1989). See Ward v. City of Pawtucket

Police Dep't, 639 A.2d 1379, 1381 (R.I. 1994) (discussing the

RICRA's legislative history). The Patterson Court interpreted 42

U.S.C. § 1981 to provide protection from racial discrimination only

in contract formation and not in the subsequent modification and

performance of contracts. 491 U.S. at 171. The RICRA aspired to

fill this void and to afford the same expanded protection in

instances of discrimination based on age, sex, religion,

disability, and national origin.1 The contours of the RICRA

1
The RICRA provides in relevant part:

(a) All persons within the state, regardless of race,
color, religion, sex, disability, age, or country of
ancestral origin, shall have, except as is otherwise
provided or permitted by law, the same rights to make and
enforce contracts . . . and to the full and equal benefit
of all laws and proceedings for the security of persons
and property . . . .

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plainly reveal the General Assembly's overarching intent to craft

a broad civil rights act that would both complement and supplement

federal civil rights protections. See Eastridge v. R.I. Coll., 996

F. Supp. 161, 169 (D.R.I. 1998); Ward, 639 A.2d at 1381-82.

A frank recognition of this goal simplifies the

interpretive task. The Rhode Island Supreme Court consistently has

regarded civil rights violations as injuries to the person, see,

e.g., Paul, 745 A.2d at 172, and the natural inference to be drawn

from the case law is that the RICRA, like other civil rights laws,

makes actionable injuries to the person.

Then, too, it is reasonable to presume that the RICRA's

drafters, who modeled the statute after section 1981, must have

been aware of the precedents interpreting the federal statute and

must have intended the state law to trigger the same limitations

period. In Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), for

example, the United States Supreme Court held squarely that the

relevant state statute of limitations governing personal injury

* * *

(b) For the purposes of this section, the
right to make and enforce contracts . . .
includes the making, performance, modification
and termination of contracts and rights
concerning real or personal property, and the
enjoyment of all benefits, terms, and
conditions of the contractual and other
relationships.

R.I. Gen. Laws § 42-112-1 (internal quotation marks omitted).

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claims applied to section 1981 actions. Id. at 660-62. The Court

reasoned that since section 1981 is a civil rights statute

primarily concerned with preventing and compensating "fundamental

injur[ies] to the individual rights of a person," the most

analogous state statute of limitations would be the one generally

applicable to personal injury actions. Id. at 661; see also Partin

v. St. Johnsbury Co., 447 F. Supp. 1297, 1299, 1301 (D.R.I. 1978)

(characterizing an action under section 1981 as "essentially an

action to redress a violation of a tort duty" and applying the

statute of limitations for injuries to the person); cf. Wilson v.

Garcia, 471 U.S. 261, 277 (1985) (characterizing a violation of 42

U.S.C. § 1983 as "an injury to the individual rights of the person"

and upholding the use of a state statute of limitations governing

actions for injuries to the person).

Despite this wealth of authority, we cannot settle upon

section 9-1-14(b) as the appropriate source for a rule of

timeliness without first testing the district court's conviction

that the legislature could not have intended that limitations

period to apply. The court noted that in the employment

discrimination context the RICRA and the FEPA furnish overlapping

remedies. Rathbun, 253 F. Supp. 2d at 231. In its view, reading

the two statutes together indicates a legislative intention that

the later enacted statute (the RICRA) should be subjected to the

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one-year statute of limitations that the General Assembly

explicitly inserted into the FEPA. Id. at 231-32.

The district court premised this holding on two well-

traveled canons of construction. One is the venerable concept that

"statutes which relate to the same subject matter should be

considered together so that they will harmonize with each other and

be consistent with their general objective scope." State v.

Ahmadjian, 438 A.2d 1070, 1081 (R.I. 1981). This canon of

construction, often referred to by the catch phrase "in pari

materia," does not necessarily require that the two statutes be

enacted at the same time or even that they refer to one another.

See, e.g., Blanchette v. Stone, 591 A.2d 785, 786 (R.I. 1991). In

pari materia treatment requires only that a logical nexus between

two laws pulls strongly in favor of uniform treatment. Berthiaume

v. Sch. Comm. of Woonsocket, 397 A.2d 889, 893 (R.I. 1979).

Even assuming, purely for argument's sake, that the FEPA

and the RICRA are in pari materia, the district court's thesis —

that harmonizing them requires application of the same rule of

timeliness to both — is incorrect. The FEPA is intended to foster

equality of employment opportunities. See R.I. Gen. Laws §§ 28-5-

3, 28-5-5. It closely tracks the language of, and acts as Rhode

Island's analogue to, Title VII. Like Title VII, the FEPA is

principally directed at employers. It establishes a comprehensive

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scheme for the vindication of the rights it protects. This scheme

relies heavily on an obligatory administrative process.

The FEPA's temporal requirements are tied to this

administrative process. A person seeking to enforce rights under

the FEPA must file a charge with the Commission within one year

from the time of the alleged discriminatory act or practice. Id.

§ 28-5-17(a). If, after a preliminary investigation, the

Commission finds probable cause to believe that unlawful employment

practices have occurred, "it shall endeavor to eliminate [those

practices] by informal methods of conference, conciliation, and

persuasion." Id. § 28-5-17(b). The complainant, should he or she

so choose, may obtain a right-to-sue letter from the Commission and

bring suit within ninety days of receiving such a letter. Id. §

28-5-24.1(a). Failing all else, the Commission itself has the

power to sue the offending party within two years of the charge-

filing date. Id. § 28-5-18.

This statutory framework indicates a desire for intense

agency involvement in resolving employment discrimination disputes.

Cf. Burnett v. Grattan, 468 U.S. 42, 53-54 (1984) (noting that the

administrative procedures in Maryland's fair employment practices

law indicate a preference for "the [state] agency's intervention in

live disputes"). A short limitations period for filing an

administrative charge makes sense in light of the obvious

desirability of getting the agency involved while the wounds are

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fresh. See Roadway Express, Inc. v. RICHR, 416 A.2d 673, 676 (R.I.

1980) ("A mandatory time limit promotes prompt investigations and

attempts to conciliate alleged violations of the Act."). In that

context, prompt notification also enables employers to collect and

preserve evidence before the trail grows cold. Id. While the

state supreme court has not commented directly on the requirement

that a complainant file an administrative charge within one year of

the alleged discrimination, R.I. Gen. Laws § 28-5-17(a) — the

Roadway Express court was dealing with an earlier incarnation of

the FEPA — it is reasonable to assume that the desire for prompt

and efficient resolution of FEPA complaints animates that rule of

timeliness as well.

The RICRA is a different kind of statute. It sweeps far

more broadly than the FEPA, covering a host of situations, many of

which do not involve the employer-employee relationship at all.

Moreover, the RICRA neither establishes nor incorporates any sort

of administrative process. As the Rhode Island Supreme Court

stated in rejecting an attempt to apply the FEPA's administrative

exhaustion requirements to RICRA claims by judicial fiat, "[t]here

is no language requiring, or even suggesting, that a plaintiff must

first exhaust any or all administrative remedies before filing a

civil action [under the RICRA]." Ward, 639 A.2d at 1382. And,

moreover, there is no basis for "reading such a requirement into

the statute." Id.

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 This difference in orientation is telling. The RICRA is

primarily a vehicle for compensating victims of civil rights

violations. Cf. Burnett, 468 U.S. at 53 (explaining that a

principal goal of the federal civil rights statutes is

"compensation of persons whose civil rights have been violated").

Seen in this light, it makes sense that the legislature would have

wanted to apply to RICRA claims a limitations period geared to the

occurrence of the discriminatory act or practice rather than a

limitations period geared to a non-existent administrative process.

See id. at 48-55 (holding that state residual statutes of

limitations, not the period for filing administrative employment

discrimination complaints, are appropriate for federal civil rights

actions); see also Rossiter v. Potter, 357 F.3d 26, 29-32 (1st Cir.

2004) (rejecting application of Title VII's limitations period to

ADEA actions that bypass the administrative process). We conclude,

therefore, that the two statutes need not — and should not — be

construed in lockstep.2

2
In reaching this conclusion, we also take into account that
many RICRA claims are not actionable under the FEPA. The RICRA
applies both inside and outside the employment context. See, e.g.,
Liu v. Striuli, 36 F. Supp. 2d 452, 469 (D.R.I. 1999). Even in the
employment context, the RICRA provides a vehicle for suing all
employers while the FEPA reaches only those who employ four or more
persons. See R.I. Gen. Laws § 28-5-6(7)(i). In the face of a
silent statute, it would be surpassingly difficult to presume an
intent to divide RICRA claims into sub-classes so that different
rules of timeliness would apply depending on the context. The
state, no less than the federal government, has an interest in
consistent application of its laws.

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 The district court also based its holding on another

canon of construction: that repeals by implication are disfavored

and should not be judicially imposed unless that conclusion is

inevitable. See Passamaquoddy Tribe v. Maine, 75 F.3d 784, 790

(1st Cir. 1996); Berthiaume, 397 A.2d at 893. Legislatures are

presumed to know of their prior enactments and not to have repealed

any part of a prior law without registering an explicit statement

to that effect. Brennan v. Kirby, 529 A.2d 633, 637 (R.I. 1987).

Thus, "when apparently inconsistent statutory provisions are

questioned, every attempt should be made to construe and apply them

so as to avoid the inconsistency and [the words] should not be

applied literally if to do so would produce patently absurd or

unreasonable results." Id. Brandishing this doctrinal staff, the

district court suggests that applying anything except a one-year

limitations period to employment discrimination actions brought

under the RICRA would impliedly repeal the FEPA's limitations

period. Rathbun, 253 F. Supp. 2d at 232.

We find this suggestion unconvincing. Repeal by

implication is a matter of concern when two statutory provisions

are inconsistent on their face. See, e.g., Blanchette, 591 A.2d at

786-87; Prov. Elec. Co. v. Donatelli Bldg. Co., 356 A.2d 483, 485-

86 (R.I. 1976). Here, however, no such collision looms: the

FEPA's one-year statute of limitations can coexist peacefully with

a disparate limitations period for RICRA actions. Although this

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coexistence means that factually identical claims will be treated

differently by the courts depending on the statute under which a

particular claim is asserted, that differential treatment flows

naturally from the General Assembly's choice to embroider one

statute (the FEPA) with an elaborate administrative process and to

craft the other (the RICRA) without any reference to that

administrative process.

The significance of this choice hardly can be overstated.

The Rhode Island Supreme Court has determined unequivocally that,

despite the area of overlap between the FEPA and the RICRA, the two

statutes were meant to provide separate, if sometimes converging,

avenues to relief. See Ward, 639 A.2d at 1382; cf. Johnson v. Ry.

Express Agency, Inc., 421 U.S. 454, 457-61 (1975) (reaching a

similar conclusion in comparing 42 U.S.C. § 1981 and Title VII).

That factually identical claims may be subject to different rules

of timeliness depending upon the statutory vehicle that the

claimant elects to employ is a natural consequence of the

legislature's decision to offer claimants separate administrative

and judicial paths through which to rectify the same wrongs. In

the absence of a literal inconsistency, differential treatment of

factually identical claims is not a proper ground for invoking the

doctrine of repeal by implication. See Radzanower v. Touche Ross

& Co., 426 U.S. 148, 155 (1976); Passamaquoddy Tribe, 75 F.3d at

790.

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 In sum, there is strong evidence that the authors of the

RICRA intended that statute to function as a broad civil rights law

aimed at remedying injuries to the person. We discern no valid

reason to rewrite that scheme by importing into it the FEPA's one-

year limitations period. Because we are confident that the Rhode

Island Supreme Court, when faced with the question, will not choose

that course, we hold that RICRA actions are governed by Rhode

Island's three-year residual statute of limitations for injuries to

the person, namely, R.I. Gen. Laws § 9-1-14(b). In ruling to the

contrary, the district court erred.

IV. THE MERITS

Our conclusion that the district court used the wrong

limitations period does not end our odyssey. An appellate court

ordinarily is not confined to the trial court's rationale, but,

rather, may sustain the entry of summary judgment on any ground

made manifest in the record. See Houlton Citizens' Coalition v.

Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999). We proceed,

therefore, to address AutoZone's asseveration that, notwithstanding

the lower court's incorrect appraisal of the applicable rule of

timeliness, none of the appellant's claims are trialworthy.

A. The Legal Framework.

The appellant's claims are based on two distinct species

of factual allegations: failure to promote and unequal pay.

Despite these factual differences, however, all the claims are

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brought under the FEPA and the RICRA.3 We start with these

statutes.

The FEPA, in terms, makes it illegal for any covered

employer to discriminate against an employee on account of gender

"with respect to hire, tenure, compensation, terms, conditions or

privileges of employment, or any other matter directly or

indirectly related to employment." R.I. Gen. Laws § 28-5-7(1)(ii).

The RICRA sweeps more broadly, guaranteeing an individual's rights

in regard to the "making, performance, modification and termination

of contracts" and "the enjoyment of all benefits, terms, and

conditions of the contractual and other relationships." Id. § 42-

112-1(b). This language has been authoritatively determined to

forfend "against all forms of discrimination in all phases of

employment." Ward, 639 A.2d at 1381.

Neither statute explicitly limns the legal framework that

courts should use to determine the existence vel non of

discrimination. In FEPA cases challenging failures to promote —

there are no RICRA cases directly on point — the Rhode Island

Supreme Court has used the burden-shifting framework developed by

the federal courts in Title VII cases. See, e.g., Mine Safety

Appl. Co. v. Berry, 620 A.2d 1255, 1258 (R.I. 1993). We assume

3
The appellant could have brought her claims under applicable
federal statutes. See, e.g., 42 U.S.C. §§ 2000e to 2000e-17 (Title
VII); 29 U.S.C. § 206(d)(1) (Equal Pay Act). She eschewed that
course.

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that this framework applies equally under the RICRA. See Rathbun,

253 F. Supp. 2d at 236 (holding to that effect).

The failure-to-promote claims rest on the premise that

AutoZone treated women in general (and the appellant in particular)

differently than men. The core inquiry in such disparate treatment

cases is whether the defendant intentionally discriminated against

the plaintiff because of her gender. Cumpiano v. Banco Santander,

902 F.2d 148, 153 (1st Cir. 1990). Direct evidence of

discriminatory intent is not required. U.S. Postal Serv. Bd. of

Govs. v. Aikens, 460 U.S. 711, 716-17 (1983). Instead, a plaintiff

may employ the aforementioned burden-shifting framework. If she

follows that path, the plaintiff first must establish a prima facie

case of gender discrimination. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973). The elements of the plaintiff's prima

facie case vary according to the nature of her claim. In a

failure-to-promote claim, for example, those elements are that the

plaintiff (i) is a member of a protected class who (ii) was

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

rejected (iv) in favor of someone possessing similar

qualifications. Gu v. Boston Police Dep't, 312 F.3d 6, 11 (1st

Cir. 2002).

That modest showing suffices to raise an inference of

intentional discrimination. Texas Dep't of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253-54 (1981). The burden of production

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then shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its employment decision(s). Id. at

254-56. "So long as the employer proffers such a reason, the

inference raised by plaintiff's prima facie case vanishes."

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7 (1st Cir.

1990).

At that juncture, the burden of production reverts to the

plaintiff, who then must proffer evidence that she was treated

differently on account of her sex. See Burdine, 450 U.S. at 256.

This evidence, viewed in the light most favorable to the plaintiff,

must be sufficient "to prove . . . that the legitimate reasons

offered by the [employer] were not its true reasons, but were a

pretext for discrimination." Id. at 253. To this end, "many veins

of circumstantial evidence . . . may be mined." Mesnick, 950 F.2d

at 824. These include — but are by no means limited to — evidence

of differential treatment, evidence of discriminatory comments,

statistical evidence, and comparative evidence. See id.

Satisfying this third-stage burden does not necessarily

require independent evidence of discriminatory animus. In a proper

case, the trier may infer the ultimate fact of discrimination from

components of the plaintiff's prima facie showing combined with

compelling proof of the pretextual nature of the employer's

explanation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 147-49 (2000); Feliciano de la Cruz v. El Conquistador Resort

-21-
& Country Club, 218 F.3d 1, 6 (1st Cir. 2000). Where, as here, the

case arises on the employer's motion for summary judgment, the

plaintiff's task is to identify a genuine issue of material fact

with respect to whether the employer's stated reason for the

adverse employment action was a pretext for a proscribed type of

discrimination. See Thomas v. Eastman Kodak Co., 183 F.3d 38, 62

(1st Cir. 1999); see also Mesnick, 950 F.2d at 824-25 (discussing

the interplay between Rule 56 and the McDonnell Douglas framework).

Rhode Island law is less clear about how to approach

unequal pay claims brought under the FEPA and the RICRA. The Rhode

Island Supreme Court has not spoken to the subject. We believe it

is likely, however, that when confronted with the issue, the court

will follow its habitual pattern and look to the closest federal

analogue. See, e.g., Ctr. for Behav. Health v. Barros, 710 A.2d

680, 685 (R.I. 1998). On the surface, that might be either the

Equal Pay Act or Title VII.

The choice may matter. A plaintiff can establish a prima

facie case under the Equal Pay Act simply by showing that the

employer paid different wages to employees of different sexes for

jobs performed under similar working conditions and that require

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

Brennan, 417 U.S. 188, 195 (1974). Unlike a prima facie case under

the McDonnell Douglas rubric, that showing suffices to shift the

burden of proof — not merely the burden of production — to the

-22-
employer. From that point forward, the employer may escape

liability only by establishing that the wage disparity resulted

from "(i) a seniority system; (ii) a merit system; (iii) a system

which measures earnings by quantity or quality of production; or

(iv) a differential based on a factor other than sex." Id. at 196

(quoting 29 U.S.C. § 206(d)(1)).

To complicate matters, even were the state supreme court

to choose the Title VII analogy, it would discover that federal

courts are divided on whether to use the McDonnell Douglas burden-

shifting framework or the Equal Pay Act's more specialized paradigm

when unequal pay claims are raised under Title VII. Compare, e.g.,

Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1019-20 (11th Cir.

1994) (applying McDonnell Douglas), and Fallon v. Illinois, 882

F.2d 1206, 1214 (7th Cir. 1989) (same), with, e.g., Korte v.

Deimer, 909 F.2d 954, 959 (6th Cir. 1990) (applying Equal Pay Act

framework), and Kouba v. Allstate Ins. Co., 691 F.2d 873, 875 (9th

Cir. 1982) (same). This court has not taken a position on the

matter. See Rodriguez v. Smithkline Beecham, 224 F.3d 1, 8 n.11

(1st Cir. 2000) (reserving the question).

We need not decide these intriguing questions today. The

district court analyzed the unequal pay claim under the McDonnell

Douglas burden-shifting framework. See Rathbun, 253 F. Supp. 2d at

234-36. The appellant acquiesced in this mode of analysis.

Throughout the proceedings below, she abjured any suggestion that

-23-
the Equal Pay Act framework might apply and, on appeal, she has not

challenged this aspect of the lower court's decision. She has,

therefore, forfeited the opportunity to argue for the application

of a different, more plaintiff-friendly standard. See Marcoux v.

Maine, 797 F.2d 1100, 1106 (1st Cir. 1986). We therefore proceed

to analyze the appellant's unequal pay claim in terms of the

McDonnell Douglas burden-shifting framework.4

B. The Promotion Claims.

The appellant contends that, on several occasions,

AutoZone refused to promote her to management positions for which

she was qualified and in which she had expressed an interest. She

claims that these employment decisions were motivated by gender

bias, noting that each time a man was hired or promoted into the

position. To state the obvious, only those employment actions that

took place within the limitations period are actionable. See Nat'l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). For

purposes of the appellant's RICRA claims, that grouping encompasses

only those actions that took place within the three-year period

preceding August 3, 2001.5

4
While we sometimes review forfeited challenges for plain
error, the decision to apply McDonnell Douglas to the appellant's
unequal pay claim cannot plausibly be said to sink to that level.
See, e.g., Marcoux, 797 F.2d at 1106.
5
Concluding, as we do, that none of the RICRA-eligible
failure-to-promote claims survive summary judgment, see text infra,
we have no need to consider separately the narrower subset of
claims that are actionable under the FEPA's one-year limitations

-24-
 Here, however, the universe of actionable claims is

further truncated. The appellant first expressed an interest in

the PSM position in mid-1998. AutoZone promoted her to that post

on September 12 of the following year. Consequently, we deem

potentially actionable only those PSM promotions that occurred

between August 3, 1998 and September 12, 1999. Similarly, the

appellant first expressed an interest in becoming an ASM sometime

after September 12, 1999. Thus, we deem potentially actionable

only those ASM promotions arising between September 13, 1999 and

August 3, 2001.

This line-drawing leaves six employment decisions in play

(as contrasted with the two considered by the district court, see

Rathbun, 253 F. Supp. 2d at 235). Two of these six potentially

actionable decisions involve the PSM position. Rick Allen was

hired as a PSM in November of 1998 at AutoZone's Warwick store.6

The second PSM decision involved Chris Brosco, who was elevated

from a CSR slot in March of 1999. Four other potentially

actionable employment decisions involve ASM positions. Two were

filled by direct hires, namely, Tom Disano (September 1999) and

Nick Medeiros (April 2000). Two more were filled by promotions

period.
6
When a PSM position in Cranston became vacant the following
June, Allen was laterally transferred to fill it. That employment
action does not figure in our decisional calculus as it does not
involve a promotion.

-25-
from within the organization, namely, Rick Allen (April 2000) and

José Rios (February 2001).

The district court assumed that the record, viewed in the

light most favorable to the appellant, satisfies the prima facie

case requirement. Rathbun, 253 F. Supp. 2d at 234. We do the

same: the evidence shows that the appellant is a member of a

protected class (a woman); that an adverse employment action

occurred (her employer denied her serial bids for promotion); that

she was at least arguably qualified for the position(s) that she

sought; and that the position(s) were filled by others whose

credentials were more or less comparable to hers. See Gu, 312 F.3d

at 11; Rossy v. Roche Prods., Inc., 880 F.2d 621, 624 (1st Cir.

1989). In each instance, AutoZone has proffered reasons for its

employment decision that are, on their face, nondiscriminatory. It

says that the successful applicants were better qualified than the

appellant (e.g., Allen was a "parts pro"; Medeiros previously had

managed an auto body shop; and Rios, who was hired for a store with

a predominantly Spanish-speaking clientele, was bilingual). The

appellant's failure-to-promote claims therefore stand or fall on

the third prong of the McDonnell Douglas framework.

Even when viewed through a wider-angled lens, the

evidence of pretext is scant. It consists primarily of the

appellant's assertion that she was more qualified than the

successful male aspirants. She emphasizes her knowledge of auto

-26-
parts, her positive performance reviews, her seniority with the

company, and what she terms her superior "people skills."

When an employer claims to have hired or promoted one

person over another on the basis of qualifications, the question is

not which of the aspirants was better qualified, but, rather,

whether the employer's stated reasons for selecting one over the

other were pretextual. See Smith v. F. W. Morse & Co, 76 F.3d 413,

421 (1st Cir. 1996). In a rare case, the disappointed applicant

may be able to prove pretext by showing that she was in fact better

qualified than the individual selected. Patterson, 491 U.S. at

187-88; Rossy, 880 F.2d at 625. But that is an uphill struggle:

in the absence of strong objective evidence (e.g., test scores),

proof of competing qualifications will seldom, in and of itself, be

sufficient to create a triable issue of pretext. See Millbrook v.

IBP, Inc., 280 F.3d 1169, 1178-79 (7th Cir.), cert. denied, 537

U.S. 884 (2002); Deines v. Tex. Dep't of Protective & Regulatory

Servs., 164 F.3d 277, 280-82 (5th Cir. 1999).

This result follows from a form of the business judgment

rule. See Mesnick, 950 F.2d at 825 (explaining that "[c]ourts may

not sit as super personnel departments, assessing the merits — or

even the rationality — of employers' nondiscriminatory business

decisions"). Qualifications are notoriously hard to judge and, in

a disparate treatment case, more must be shown than that the

employer made an unwise personnel decision by promoting "X" ahead

-27-
of "Y." See Keyes v. Sec'y of Navy, 853 F.2d 1016, 1024-26 (1st

Cir. 1988); Gray v. New Engl. Tel. & Tel. Co., 792 F.2d 251, 255

(1st Cir. 1986). In other words, subjective evidence of competing

qualifications seldom provides a principled way for a factfinder to

determine whether a given employment decision, even if wrong-

headed, was anything more than "a garden-variety mistake in

corporate judgment." Freeman v. Package Mach. Co., 865 F.2d 1331,

1341 (1st Cir. 1988).

We recognize that there may be situations in which the

difference in qualifications is so stark as to support an inference

of pretext. See, e.g., Deines, 164 F.3d at 282 (suggesting that,

in an extreme case, qualifications may be "so widely disparate that

no reasonable employer would have made the same decision," and,

therefore, may be independently probative of pretext). Or,

perhaps, there may be situations in which a great number of

individual employment decisions, each of which arguably can be

justified as a business judgment, may in cumulation present so one-

sided a picture as to raise an inference of pretext. Cf. EEOC v.

Steamship Clerks Union, 48 F.3d 594, 605 (1st Cir. 1995) (holding

that a union's facially neutral, sponsorship-based admissions

policy, which yielded only white members over a six-year period,

sufficed to support an inference of discrimination). The case at

bar, however, does not conform to either of those models. From an

objective standpoint, the appellant's qualifications are not so

-28-
obviously superior to those of the successful male applicants as to

undermine the legitimacy of the selection process. And the

appellant has offered too few potentially relevant employment

actions and too little information about company-wide promotion

practices to constitute an accumulation sufficient to raise an

inference of pretext.

We also recognize that a claimed difference in

qualifications may be sufficient to ground an action if accompanied

by independent evidence (say, evidence of pretext or discriminatory

animus). See, e.g., Byrnie v. Town of Cromwell, Bd. of Educ., 243

F.3d 93, 110-11 (2d Cir. 2001); Emmel v. Coca-Cola Bottling Co., 95

F.3d 627, 633-36 (7th Cir. 1996); Rossy, 880 F.2d at 625. The

appellant has adduced two pieces of independent evidence that she

claims show pretext.

The first relates to the promotion of Rick Allen to an

ASM position. At the time of his elevation, Allen had (i) nine

disciplinary citations (as opposed to one for the appellant) and

(ii) lower performance reviews in the immediately preceding

period.7 The appellant suggests that this evidence raises an

inference that AutoZone's stated reason for promoting Allen ahead

7
The appellant also calls attention to Allen's subsequent
disciplinary problems. These are immaterial, however, for the
focus must be on the employer's mindset at the time of the
promotion decision. See Cullen v. Olin Corp., 195 F.3d 317, 324
(7th Cir. 1999); Gray, 792 F.2d at 256.

-29-
of her — superior qualifications — was a pretext for gender

discrimination.

This argument overlooks AutoZone's assertion, based on

undisputed facts, that Allen's superior parts knowledge (he

previously had been employed by another automotive chain and had

received a "special certification in parts") and the length of his

tenure as an AutoZone PSM (seventeen months, as opposed to eight

months for the appellant) rendered him better qualified for the ASM

position notwithstanding his other shortcomings. These are

difficult balances to strike — and while the wisdom of this

rationale certainly can be debated, we think that AutoZone's choice

comes within the sweep of the business judgment rule. See, e.g.,

Millbrook, 280 F.3d at 1182-83; Guerrero v. Ashcroft, 253 F.3d 309,

314-15 (7th Cir. 2001); Lehman v. Prudential Ins. Co., 74 F.3d 323,

329-30 (1st Cir. 1996). There is no evidence of discriminatory

animus here, and we do not believe that the record, taken as a

whole, would allow a reasonable factfinder to infer, on this meager

showing, that Allen's promotion was an exercise in gender

discrimination. See Feliciano, 218 F.3d at 8.

The appellant's second evidentiary proffer is temporal in

nature: she spent nineteen months with AutoZone before achieving

a promotion to PSM whereas several men thereafter attained the same

rank more celeritously. She argues that the much shorter

incubation periods experienced by these men (e.g., Guillermo Feliz

-30-
— one month; Rob Stone and José Rios — three months; Michael Crumb

— five months; and Luis McDougall — eleven months) supports an

inference of pretext.

AutoZone asks us to dismiss this proffer on the ground

that all five of these PSM promotions took place after the

appellant had been promoted to that rank. But the fact that an

event itself is not actionable does not automatically negate its

evidentiary value. A discriminatory act or practice that is not

the basis for a timely charge of discrimination nonetheless may

constitute relevant background evidence in a proceeding in which

the same type of discriminatory act or practice has been timely

challenged. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558

(1977). This rule permits reference to evidence of untimely prior

acts or practices. Nat'l R.R. Passenger Corp., 536 U.S. at 113.

It likewise permits reference to evidence of subsequent acts or

practices. As the Seventh Circuit explained:

The last date of the allegedly discriminatory
conduct is not a bright line beyond which the
conduct of the employer is no longer relevant
in a discrimination case. Otherwise, clearly
relevant evidence would be arbitrarily
excluded; for instance, a plaintiff in a race
discrimination case would then be precluded
from producing evidence that the week after he
was fired, a white employee escaped discipline
for the exact same conduct.

Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374, 382 (7th Cir.

2000). Whether such evidence is relevant depends, as in every

case, on its probative force (or lack thereof). See Fed. R. Evid.

-31-
401, 402. That said, the appellant's evidence of swifter

promotions does not generate an inference of pretext. We explain

briefly.

As with all such comparative evidence, it is the

plaintiff's burden to demonstrate that she is comparing apples to

apples. Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 751 (1st

Cir. 1996). She "must provide a suitable provenance for the

evidence by showing that others similarly situated to h[er] in all

relevant respects were treated differently by the employer."

Conward v. Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999).

"The test is whether a prudent person, looking objectively at the

incidents, would think them roughly equivalent and the protagonists

similarly situated." Dartmouth Review v. Dartmouth Coll., 889 F.2d

13, 19 (1st Cir. 1989). The appellant has not carried that burden

here.

Taken most favorably to her case, the appellant's

evidence shows only that she and the men to whom she compares

herself were all promoted to the same position; that their

qualifications were roughly equivalent; that the men were elevated

more quickly; and that, when promoted, they had less seniority with

AutoZone. But she and her putative congeners were not applying for

the same openings at the same times; the speedier promotions

occurred between eight and twenty-one months after the appellant's

promotion to PSM. This is critically important because the

-32-
appellant has offered nothing to show either that PSM openings

occur at an even rate or that the market environment during the

periods when the men were promoted was at all similar to the market

environment that prevailed while she was seeking a promotion. This

lack of proof leaves unaccounted for too many variables. A

multiplicity of factors (e.g., new store openings, the number of

extant PSM vacancies, the number and quality of applicants,

differing unemployment rates, and increased customer demand) may

have influenced the need to promote employees at a faster rate than

theretofore had been the case. The appellant has adduced no

evidence as to these, and other, variables. See Garside, 895 F.2d

at 48 ("On issues where the nonmovants bear the burden of proof .

. . they must reliably demonstrate that specific facts sufficient

to create an authentic dispute exist.").

That ends this aspect of the matter. Without controlling

for important variables, comparator evidence cannot generate an

inference either of pretext or of discriminatory intent. See

Conward, 171 F.3d at 21-22; cf. Rea v. Martin Marietta Corp., 29

F.3d 1450, 1456 (10th Cir. 1994) (holding that data, which failed

to take into account nondiscriminatory variables, did not offer a

probative comparison of similarly situated individuals). So it is

here. On this record, allowing the failure-to-promote claims to go

forward would be an invitation to the jury to engage in unbridled

speculation.

-33-
 C. The Unequal Pay Claim.

This leaves the appellant's claim that she was

discriminated against in terms of her pay. In support of this

claim, she identifies several male employees who, she asserts, were

performing work substantially similar to hers for higher wages,

despite the fact that each of the men had less seniority with

AutoZone. She attributes this pay disparity to her gender.

As a preliminary matter, we must determine which (if any)

of the alleged instances of pay discrimination might give rise to

actionable claims. We restrict that grouping to those instances in

which male employees who held the same position as the appellant

were rewarded more handsomely in the same time frame. Four male

PSMs fit this description: Allen, Rios, Feliz, and McDougall.

We gauge the proof as to these four individuals under the

McDonnell Douglas burden-shifting framework. See supra Part IV(A).

With respect to all four, the appellant has made out a prima facie

case: she has adduced evidence tending to show that she is a

member of a protected class; that she performed her job in keeping

with her employer's expectations; and that she was paid less than

men who held the same position. See Cullen v. Ind. Univ. Bd. of

Trustees, 338 F.3d 693, 703-04 (7th Cir. 2003); Belfi v.

Prendergast, 191 F.3d 129, 139-40 (2d Cir. 1999). AutoZone's

response is that its nondiscriminatory application of its standard

compensation system accounts for the appellant's lower pay.

-34-
 To this end, AutoZone introduced evidence that, each

year, it promulgates revised compensation guidelines. These

guidelines are in tabular form. They apply only to new hires or

newly-promoted individuals and have no retroactive effect.

Each year's table lists a range of starting wage rates

for each job title. To illustrate, the table for 1999 dictates

that an employee who became a PSM that year (as did the appellant)

would earn somewhere between $7.46/hr. and $11.03/hr. to start.

Where a particular employee falls within that range depends on the

quartile into which she is placed. This placement devolves from

AutoZone's assessment of the employee's skills, experience,

ability, and knowledge. The placement determination can have a

significant monetary impact. For example (again using the 1999

table), if a new PSM were placed in Quartile No. 4, she would earn

between $10.13/hr. and $11.03/hr., but if placed in Quartile No. 1,

she would earn between $7.46/hr. and $8.34/hr.

Employees also receive raises based on annual performance

reviews. AutoZone issues guidelines for merit-based raises for

each region, typically ranging from 3% to 5% of an employee's

hourly rate. The guidelines are hortatory, and the company

sometimes bestows raises exceeding the suggested increments. The

appellant has adduced no evidence showing that raises have been

allocated on the basis of gender. Because the raises have a

-35-
percentage-based focus, however, discriminatory quartile

determinations may well influence the amount of future raises.

AutoZone has met its burden of articulating a legitimate,

nondiscriminatory reason for the pay disparity. The salary

framework itself provides part of the justification. The

appellant's starting salary as a PSM, $8/hr., fell within the

standard guideline range for PSMs hired in 1999 ($7.46 to

$11.03/hr.), and the starting salaries paid to the four male PSMs

all fell within the ranges applicable to their respective start

dates. AutoZone further notes that the PSM salary ranges escalated

significantly after 1999, thus explaining, in part, why Rios,

Feliz, and McDougall began at higher hourly rates. The fact that

the company chooses to compensate employees based in part on start

dates can have the perverse effect of penalizing seniority, but

that fact, in and of itself, is gender-neutral and, in any event,

does not undermine the legitimacy of the employer's explanation.

Nevertheless, the start date differences alone do not

fully account for the divergence between the appellant's wages and

those of her male comparators. Allen, for example, was hired a

year earlier than the appellant and paid $1/hr. more despite the

fact that the guideline range remained the same for both years.

Allen's higher hourly rate stems not from the forced application of

an inflexible guideline but from AutoZone's decision to place him

in Quartile No. 2 while placing the appellant in Quartile No. 1.

-36-
By the same token, the company promoted Rios in 2000, placed him in

Quartile No. 2, and paid him $11/hr.; promoted Feliz in 2002,

placed him in Quartile No. 3, and paid him $10.50/hr.; and promoted

McDougall in 2001, placed him in Quartile No. 4, and paid him

$12/hr.

As quartile placement is a discretionary exercise,

governed by a very general set of principles, the employer bears

the burden of presenting legitimate, nondiscriminatory reasons for

its differential decisions. AutoZone has carried this burden of

production. Its affidavits suggest that the four men in question

received higher quartile placements due, inter alia, to their auto

parts knowledge, leadership experience, and linguistic abilities.

The appellant has tendered evidence designed to cast

doubt on this explanation. She offers two examples. With respect

to AutoZone's averment that it placed McDougall in Quartile No. 4

because, inter alia, he "had previously worked as a warehouse

supervisor," she points out that McDougall's employment application

lists his previous job as "forklift driver" and describes his

duties as using a forklift to move pallets of shoes. With respect

to AutoZone's averment that it placed Feliz in Quartile No. 3

because, inter alia, he previously worked in a body shop, she

suggests that Feliz spent only a single month at an auto body shop

(and, then, as a shipping clerk). According to the appellant,

these discrepancies, taken together with her prima facie case,

-37-
raise a genuine issue of material fact as to whether AutoZone's

professed rationales were pretexts for gender discrimination.

We do not agree. In the first place, the record does not

support the claimed discrepancy as to Feliz. The only place in

which we can find an indication that Feliz spent no more than a

month in an auto body shop is in the appellant's affidavit. The

difficulty is patent. The affidavit refers to "Exhibit T," but the

last exhibit attached to it is Exhibit S. The only Exhibit T that

we can locate in the record — an AutoZone exhibit — contains no

mention whatever of Feliz. Given the elusiveness of Exhibit T, we

are left with the appellant's unsupported statement about Feliz's

employment history — a statement that addresses a matter about

which the appellant lacks (or, at least, has not demonstrated any

basis for) personal knowledge. Thus, her statement cannot be

accorded any weight in the summary judgment calculus. See Cadle

Co. v. Hayes, 116 F.3d 957, 961 n.5 (1st Cir. 1997); see also Fed.

R. Civ. P. 56(e) (stating that affidavits "shall be made on

personal knowledge" and "shall show affirmatively that the affiant

is competent to testify to the matters stated therein").

This leads us naturally to a larger problem with the

appellant's proffers. Even if fully credited, they succeed only in

calling into doubt one of several rationales that AutoZone has

advanced for its decision to assign these men higher quartiles.

AutoZone placed McDougall in Quartile No. 4 not only because of his

-38-
past employment history but also because he was bilingual. So too

Feliz, who began in Quartile No. 3 due in part to his military

experience and linguistic abilities. These additional rationales

are unrebutted. On this record, we simply cannot say that the

scattered inconsistencies noted by the appellant bear the weight

that she attempts to pile upon them. Summary judgment was,

therefore, warranted. See Cullen, 338 F.3d at 704; Belfi, 191 F.3d

at 140.

In a last-ditch effort to salvage her unequal pay claim,

the appellant adverts to a chart prepared by AutoZone listing all

the PSMs in the relevant region as of February 23, 2000, their

gender, and their wage rates. The sample consists of 114 PSMs,

roughly 18% of whom are female. Of the twenty lowest-paid PSMs

(those making $9/hr. or less), 30% are female. Of the twenty-seven

highest-paid PSMs (those making $11/hr. or more), only 11% are

female. In the appellant's view, this data supports an inference

that her comparatively low wage rate falls into an overall pattern

of pay disparity at the PSM level.

Statistical evidence is permissible in the disparate

treatment context to show that the employer's conduct conformed to

a general pattern of discrimination. See Freeman, 865 F.2d at 1342

(citing McDonnell Douglas, 411 U.S. at 805). But "[t]he probative

worth of statistical testimony must be evaluated in light of the

methodology employed, the data available, and the factual mosaic

-39-
unique to the case at hand." Id. at 1342 n.5. While we have not

universally required sophisticated statistical comparisons in

disparate treatment cases, see, e.g., Cuello-Suarez v. P.R. Elec.

Power Auth., 988 F.2d 275, 278 (1st Cir. 1993); Freeman, 865 F.2d

at 1342 & n.5, the analysis must still cross a threshold of

dependability. The chart stumbles on that threshold. The

rudimentary analysis, conducted by the appellant's counsel rather

than by a qualified expert, makes no attempt to ascertain the

extent to which the apparent disparities may be attributable to

factors other than gender. That is a significant shortcoming. See

Coleman v. Quaker Oats Co., 232 F.3d 1271, 1283 (9th Cir. 2000);

Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir.

1997); Carter v. Ball, 33 F.3d 450, 457 (4th Cir. 1994). So too is

the absence of any indication of statistical significance. See

Bennett v. Total Minatome Corp., 138 F.3d 1053, 1062 (5th Cir.

1998); Ottaviani v. State Univ. of N.Y., 875 F.2d 365, 370-74 (2d

Cir. 1989). Without more methodical treatment, we cannot say that

this analysis, standing alone, is probative of discriminatory

intent.

V. CONCLUSION

We need go no further. To recapitulate, we hold that

employment discrimination claims brought under the RICRA are

governed by Rhode Island's residual three-year statute of

limitations for injuries to the person. Although this ruling

-40-
expands the universe of potentially actionable claims, we conclude

that the appellant has offered insufficient evidence on either her

promotion-related allegations or her unequal pay claim to survive

summary judgment. Consequently, we affirm the judgment of the

lower court.

Affirmed.

-41-