Byrd v. Ronayne

Opinion

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                                     
                                 ____________________



        No. 94-1810



                                    SUSAN R. BYRD,



                                Plaintiff, Appellant,



                                          v.



                               JOHN T. RONAYNE, ET AL.,



                                Defendants, Appellees.



                                                     
                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



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



                                                     
                                 ____________________



                               Torruella, Chief Judge,
                                          ___________



                            Coffin, Senior Circuit Judge,
                                    ____________________



                               and Cyr, Circuit Judge.
                                        _____________



                                                     
                                 ____________________


Norman Jackman,  with whom Martha  M. Wishart and Jackman  & Roth
             ______________             __________________     _______________

        were on brief for appellant.

             David  A. Bunis,  with  whom Dwyer  & Collora  was  on brief  for
             _______________              ________________

        appellees.


____________________



                                    August 9, 1995

                                                     
                                 ____________________



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



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



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



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



          tory discharge.   The district court granted summary judgment for



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



          was proper, we affirm.


I
                                          I



                                     BACKGROUND1
                                     BACKGROUND
                                     __________



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



          month  after graduation from Boston University Law School with an



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



          had  been a  vice-president and  general  counsel for  Commercial



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



          employed for  six months as  an associate counsel by  an Oklahoma



          City bank; a  trial attorney with  the Federal Deposit  Insurance



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



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



          tion from Oklahoma City  University Law School.   Before entering



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



          sity.



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



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

                              
          ____________________



               1All evidence  in  genuine dispute  is  related in  a  light

          favorable to  Byrd, the  party resisting  summary judgment.   See
                                                                        ___

          Velez-Gomez v. SMA  Life Assur. Co., 8 F.3d 873, 874-75 (1st Cir.
          ___________    ____________________

          1993).



                                          2



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



          track to partnership but that Byrd likely would be considered for



          partnership within  two  to  three years  provided  she  met  the



          performance standards.  Another partner,  defendant Alex MacDona-



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



          law firm." 



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



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



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



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



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



          principally  in  commercial  loan  workouts  and federal  banking



          regulation.   By the  fall of 1989  her responsibilities included



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



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



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



          tion services.  



                    During  the  latter  part of  1989,  John  Battaglia, a



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



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



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



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



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



                              
          ____________________



               2Although  Byrd came  to H &  M with  what she  describes as

          "considerable experience" in bankruptcy law, the record indicates

          only that during her four years with Commercial National Bank she

          handled some bankruptcy matters.  See infra note 10. 
                                            ___ _____



                                          3



discussed Battaglia's concerns with  Byrd, then communicated  the



          complaint to  Ronayne.   Ronayne and  Kameron subsequently  spoke



          with  Byrd about her performance and her problematic relationship



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



          $1,500  bonus and a  highly complimentary  performance evaluation



          praising her  professional competence, writing  skills, and atti-



          tude.  



                    During early  1990, Susan  Monahan, vice-president  for



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



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



          that she had the bankruptcy law knowledge she claimed.  According



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



          which  later proved incorrect.   Monahan  reported that  Byrd had



          delayed  filing judicial  pleadings she  had  been instructed  to



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



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



          filed.   Finally, Monahan informed  Ronayne that Boston  Five did



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



          relayed these  complaints to Byrd  and encouraged her  to improve



          her relationship with Monahan and Boston Five.   Shortly thereaf-



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



          difficulties and improve upon our working relationship."  



                    Monahan  again complained  to Ronayne  in August  1990,



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



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


4



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



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



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



          too long.4



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



          1990,  notwithstanding  "mixed"  evaluations   from  Ronayne  and



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



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



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



          have  done a  good job  on client  relations although  there have



          obviously  been some issues  with the Boston  Five relationship."



          Ronayne candidly  noted as  well that  supervision of Byrd  might



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



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



          more than a general knowledge."5  

                              
          ____________________



               3The  record  would  permit an  inference  that  Monahan was

          "demanding" and complained  about other H & M  attorneys as well,

          which resulted in a male associate, Clive  Martin, being relieved

          of  responsibility  for matters  involving  Monahan's department.

          See also infra pp. 13-15. 
          ___ ____ _____



               4Although Byrd  contends that these complaints  pertained to

          bankruptcy matters entrusted to other attorneys, she has included

          no evidentiary support in the appellate record.  See Fed. R. App.
                                                           ___

          P. 11(a) (appellant bears burden of including materials essential

          to her claim); Silva v. Witschen,  19 F.3d 725, 728 n.4, 731  n.9
                         _____    ________

          (1st Cir. 1994); see also Fed. R. Civ. P. 56(e).
                           ___ ____



               5Summarizing, Ronayne noted: 



                    I think you are well motivated and very quick

                    on your feet . .  . and have shown a commend-

                    able  willingness to  accept tasks  which are

                    assigned to you. . . .  On the weakness side,

                    I  have sometimes had  the sense that  you do

                    not  have the  backup for  answers which  are



                                          5



Similarly,  the  1990  review from  Kameron  was mixed.



          Noting that  Byrd had improved  her ability  to communicate  with



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



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



          major client  and although the  difficulties may have  been unre-



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



          situation deteriorated."6  



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



          M's standardized self-evaluation form:  



                    Being an attorney for  ten years my strengths

                    and  weaknesses are  pretty much set  in con-

                    crete.   What they  are is  what most  likely

                    they will remain.  Boredom has always been my

                    biggest  weakness,  causing  procrastination,

                              
          ____________________



                    given with apparent certainty.  This is obvi-

                    ously an  ambiguous area since  you certainly

                    want  to give  the appearance  of confidence,

                    especially  to clients,  but you  want  to be

                    careful about trying to give an impression of

                    certainty  when you  are not  really sure  or

                    can't immediately  back up the  position.  It

                    is  acceptable from time to time to admit you

                    don't know something and will have to look it

                    up  and it is helpful when someone else (i.e.

                    a regulator or another  lawyer) gives you  an

                    answer to a question to understand the ratio-

                    nale for the answer.



               6Kameron summarized:



                    Hopefully,  Susan  can put  some of  the more

                    negative aspects  of 1990 behind her and con-

                    centrate  on  the  positive  and continue  to

                    expand  in those  areas  where  she has  been

                    successful  and to  continue  to serve  those

                    clients who  are very  happy with  her in  an

                    expanded capacity.  However, I reiterate what

                    I  think must change and that is Susan has to

                    be willing to admit that asking questions and

                    researching  issues are part  of being a good

                    lawyer.



                                          6



etc.  My strengths  have never been  utilized

                    in this firm but include management and busi-

                    ness.



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



          M  after  five  years'  specialization  in  bankruptcy  practice,



          bringing  with him  clients  from whom  the  firm generated  fees



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



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



          which he  was responsible.   He  assumed client  responsibilities



          apart from those assigned to Byrd.  



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



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



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



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



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



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



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



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



          concluded that there  were serious problems  with the quality  of



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



          Campanelli altogether unless it took immediate action.  



                    Later  that day, Ronayne and  Maguire met with Byrd and



          informed  her  that  the  firm had  decided  that  the Campanelli



          account should be  reassigned to Davis, with Byrd  to continue   



          at the same salary    handling  Boston Five's consumer bankruptcy



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



          days later,  Byrd filed a  Title VII sexual  discrimination claim


7



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



          informed H & M, which promptly retained outside counsel. 



                    In late April  1991, Katherine Hinderhoffer,  executive



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



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



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



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



          contacted  the firm  to  complain that  Byrd  was not  submitting



          timely and  accurate status reports and that  her cases continued



          to proceed too slowly. 



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



          mined that Byrd's professional judgment and client-communications



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



          dards.    After  consulting with  outside  counsel,  the partners



          unanimously  voted  to  terminate Byrd's  employment.   Defendant



          Ronayne so informed Byrd on July 11, 1991.  



                    Byrd  brought  suit   against  defendants-appellees  in



          Massachusetts  Superior  Court,  asserting  various claims  under



          state law, Title VII sexual discrimination and retaliation claims



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



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



          district court granted summary judgment for all defendants on all



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



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


II
                                          II



                                      DISCUSSION
                                      DISCUSSION
                                      __________



                                          8



We  examine  the  grant of  summary  judgment  de novo,
                                                                   __ ____



          viewing all competent evidence in genuine dispute, and reasonable



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



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



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



          "the  pleadings,  depositions,  answers  to interrogatories,  and



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



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



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



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



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



          "summary judgment may  be appropriate" where the  party resisting



          judgment relies  "upon conclusory allegations,  improbable infer-



          ences, and unsupported  speculation" as to any  essential element



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



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


A.   Employment Discrimination Claim 
          A.   Employment Discrimination Claim
               _______________________________



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



                    The three-stage, burden-shifting framework announced in



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



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



          and  order the  presentation of evidence  in Title  VII disparate



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



          inquiry into the elusive factual question of intentional discrim-



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



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



                                          9



Ct. 2742, 2746 (1993).



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



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



          possessed  the  necessary  qualifications  for,  "and  adequately



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



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



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



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



          A prima  facie case gives  rise to a rebuttable  presumption that



          the  employer  unlawfully  discriminated against  the  Title  VII



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



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



                    At the second  stage, the employer must  produce suffi-



          cient competent evidence, "taken  as true," to permit a  rational
                                     _____  __ ____      ______



          factfinder  to  conclude  that  there  was  a  "nondiscriminatory



          reason" for the challenged  employment action, thereby displacing



          the presumption  of intentional  discrimination generated  by the



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



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



                    At  the third and final stage  in the McDonnell Douglas
                                                          _________________



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



          of  persuasion  remains  throughout,"  must  proffer  "sufficient
              __________



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



          the evidence  each essential  element in a  prima facie  case and
                                                      _____ _____



          that the employer's  justification for the challenged  employment



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


10



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



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



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



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



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



          nation  required to enable  the plaintiff-employee to  prevail on



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



                    a)   Prima Facie Case
                    a)   Prima Facie Case
                         ________________



                    Although  "the  required  prima facie  showing  is  not



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



          Byrd had not established the second essential element    that she



          possessed  the  requisite  qualifications   for,  and  adequately



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



          believe  it advisable, nonetheless,  to assume that  Byrd managed



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



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



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



          where the shortcomings in her claim are more clear. 



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



                    As  nondiscriminatory  grounds   for  their  challenged



          actions, defendants  proffered competent  evidence of  continuing



          client  complaints  relating  to  the  timeliness,  quality,  and



          reliability  of  Byrd's  legal  services.    Whether  "ultimately



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



          rebutted  any  presumption of  unlawful sexual  discrimination in



          employment  generated by  the prima  facie  showing attempted  by


11



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



          her  to produce  competent  evidence  that the  nondiscriminatory



          reasons proffered by  defendants were a mere pretext for unlawful



          discrimination.  Id.  
                           ___



                    Byrd  has never  denied that  two large  H &  M clients



          lodged serious complaints concerning  her professional competence



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



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



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



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



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



          the  uncontroverted evidence  that H  & M,  despite  its numerous



          appeals to  Byrd, continued  to receive  similar complaints  from



          clients relating to  the untimeliness and  unsatisfactory quality



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



          despite its numerous  unsuccessful attempts to encourage  Byrd to



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



          any  adverse  employment  action  until  Campanelli's  complaints
          ___



          raised  serious concerns  that the  firm  would lose  one of  its



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



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



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



          charge her for failing to meet its professional standards.7  

                              
          ____________________



               7There is  no evidentiary basis  for inferring that H  & M's

          professional standards  were  met by  Byrd,  nor that  any  other

          associate remained with the  firm notwithstanding such  deficien-

          cies in performance.   And though it is undisputed that no female

          associate  had ever  been considered  for  partnership at  H &  M



                                          12



Byrd relies on the favorable performance evaluation she



          received from  the firm  in January  1990, approximately  fifteen



          months  before her client responsibilities were realigned, and on



          the  mixed  performance  evaluations  received from  Ronayne  and



          Kameron in late 1990,  as evidence that the principal  defendants



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



          She  points as  well  to  the undisputed  evidence  that she  was



          rewarded with two bonuses in 1990.  



                    We think these proffers fall well short of generating a



          trialworthy dispute  as to whether the  nondiscriminatory reasons



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



          based  discrimination in employment.   For one thing, the January



          1990  evaluation was  the  only  altogether  favorable  one  Byrd
                                     ____



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



          received  in  late  1990 presaged  the  declining  trajectory her



          professional  performance  thereafter  reflected as  reported  by
                                                           __  ________  __


____________________



          before  Byrd's termination,  Byrd has  not shown  that any  other
                                                                 ___  _____

          associate    male  or female     who failed to  conform with  the
          _________    ____  __ ______

          firm's  professional  standards,  had  ever  been  considered for

          partnership.  See  Stratus, 40 F.3d at  17 ("[F]or us  to compare
                        ___  _______

          [female plaintiff's] treatment with that of . . . male executives

          in a meaningful way, [plaintiff] would have  to show that she was

          similarly situated to those men in terms of performance, qualifi-

          cations and conduct, 'without such differentiating  or mitigating

          circumstances that would distinguish' their situations.")  (cita-

          tion omitted);  cf. LeBlanc, 6  F.3d at 348 (statistical  data on
                          __  _______

          general hiring  patterns, though  relevant, carry  less probative

          weight  in disparate  treatment cases  than  in disparate  impact

          cases: "[A] company's  overall employment statistics will,  in at

          least  many cases,  have little  direct bearing  on  the specific

          intentions of the employer when dismissing a particular individu-

          al."). 



                                          13



clients and projected in Byrd's self-evaluation.8
          _______ ___ _________ __ ______ _______________



                    Byrd  further  notes  that  Monahan  complained   about



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



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



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



          plaints from Campanelli  and renewed complaints from  Boston Five



          representatives  other than  Monahan.   In  fact, throughout  her
                           _____ ____  _______              __________  ___



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



          consumer bankruptcy services  for Boston Five.  It  was not until



          Boston  Five  executive   vice-president  Katherine  Hinderhoffer



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



          plained    following  the Campanelli complaint     that Byrd  was



          terminated.



                    A  disparate  treatment claimant  bears  the burden  of



          proving  that she  was  subjected  to  different  treatment  than



          persons similarly situated "`in all relevant aspects.'"  Stratus,
                  _________ ________   __ ___ ________ _______     _______



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



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



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



          were similarly situated "in terms of performance,  qualifications



          and  conduct, `without such differentiating or mitigating circum-



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

                              
          ____________________



               8Although  Byrd  proffered   undisputed  evidence  that  her

          efforts in a complex commercial  loan workout had won high praise

          from Michelle Dowd, head of Boston Five's loan review department,

          and  that Dowd was especially impressed with Byrd's background in

          commercial  lending, the Dowd affidavit  in no sense gainsays the

          numerous  complaints relating to  Byrd's other professional legal
                                                                      _____

          services.



                                          14



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



          1992)).  She proffered no such evidence.  



                    Although there is competent evidence that Susan Monahan



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



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



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



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



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



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



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



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



          there  evidence  that Martin  had  been the  subject  of repeated
                                                                   ________



          complaints  by Monahan or continuous complaints from other Boston
                                                               _____



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



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



          repeated  lapses  in   professional  performance  after  numerous



          appeals to improve his performance. 



                    In  sum, there  is no competent  evidence from  which a



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



          tion for its adverse employment action was a pretext for unlawful



          employment discrimination.  See id. at 16.
                                      ___ ___


B.   Retaliation Claim
          B.   Retaliation Claim
               _________________



                    Byrd asserts that the summary judgment order dismissing



          her retaliatory discharge claim must be vacated because  a ratio-



          nal  factfinder reasonably  could  conclude  that  she  had  been



          discharged for filing a discrimination  claim with the EEOC.  See
                                                                        ___



                                          15



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



          (plaintiff  must  show  that articulated  reason  for  employer's



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



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



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



          rests on the identical inferences of pretext found wanting above.



          See supra pp. 13-15.
          ___ _____



                    The only  other evidentiary support for her retaliation



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



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



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



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



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



          which  provides  critically  important context.    The  full text



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



          pened if [Byrd]  hadn't filed a complaint.   I'm not saying  that
          _____ __         ______ _____ _ _________



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



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



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



          reasonably be  considered an admission  that the firm  harbored a



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



          ment on the retaliation claim was proper as well. 


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



                    The  Equal Pay  Act prohibits wage  discrimination "be-



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



          the  performance of  which  requires  equal  skill,  effort,  and



                                          16



responsibility,  and which  are performed  under  similar working



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



          must make a prima facie  showing that the employer paid different



          wages to an employee of  the opposite sex for substantially equal



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



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



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



          of  the following  affirmative defenses:    the wage  discrepancy



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



          a system measuring earnings by quantity or quality of production,



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



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



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



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



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



          of  generated fees, even though her senior associate position was



          substantially equivalent  to the  "of counsel"  position held  by



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



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



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



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

                              
          ____________________



               9For  present  purposes,  we  simply  assume  arguendo  that
                                                             ________

          competent evidence of comparable  bankruptcy law experience might

          provide indirect support for Byrd's  claim that the two positions
                  ________                                        _________

          required substantially equal  skills.  We note,  nonetheless, the

          agency  position that  skill "must  be measured  in terms  of the

          performance  requirements of  the job. .  . ."   Possession  of a

          skill  not needed  to  meet  requirements of  the  job cannot  be

          considered  in  making  a  determination  regarding  equality  of

          skill."  29 C.F.R.   1620.15(a).



                                          17



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



          executive vice-president of Commercial  National Bank, who merely



          states  that one of the  responsibilities assigned to Byrd during
                       ___



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



          farm debtor) matters    doubtless not a relevant qualification at



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



                    For  additional  support, Byrd  points  to the  Ronayne



          deposition, which she characterizes as  an admission that she and



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



          the Ronayne  deposition evinces no  more than that Davis  did not



          supervise Byrd, an undisputed fact which plainly affords insuffi-
          _________



          cient support  for  a  reasonable inference  that  the  two  held



          positions  requiring  substantially   equal  skill,  effort,  and



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



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



          where female professor was paid less than male professors of same



          academic rank who performed work requiring greater skill, effort,



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



          respective professional  responsibilities  with H  &  M  required



          substantially equal skill, effort and responsibility,  foredoomed



          Byrd's Equal Pay Act claim.  



                    Finally, on a more conclusive note, the record includes



                              
          ____________________



               10Byrd  simply  concludes  that she  "had  a  great deal  of

          bankruptcy experience" at  the time Davis came  to H & M.   More-

          over, though surely in a  position to provide greater detail, she

          has provided no evidentiary support for the claim that she had as
                                                                         __

          much bankruptcy law  experience when she joined  H & M,  as Davis
          ____

          had when he came to the firm. 



                                          18



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



          aggregate  annual billings  approached $200,000.   These  clients



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



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



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



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



          Thus,  the substantially greater revenues Davis generated for the



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



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



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



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



          Cir. 1994)  (gender-neutral differences  between responsibilities



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



          included  the more  substantial public relations  and promotional



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



          greater than women's team).


III
                                         III



                                      CONCLUSION
                                      CONCLUSION
                                      __________



                    As  defendants were entitled  to summary judgment  as a



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



          affirmed.
          ________


19