United States Court of Appeals For the First Circuit ____________________

No. 99-2031

HILDA RODRIGUEZ, ET AL.,

Plaintiffs, Appellants,

v.

SMITHKLINE BEECHAM, THEIR AGENTS, OFFICERS, EMPLOYEES AND SUCCESSORS IN INTEREST,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

____________________

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Schwarzer,* Senior District Judge.

_____________________

José Enrique Colón-Santana for appellants. Gregory T. Usera, with whom Mariela Rexach-Rexach and Schuster Usera Aguilo & Santiago were on brief, for appellee.

____________________

* Of the Northern District of California, sitting by designation. August 16, 2000 ____________________

-2- TORRUELLA, Chief Judge. Before the Court is an appeal from

the district court's entry of summary judgment. The district court

held that appellant's sex discrimination claims under the Equal Pay Act

and Title VII of the Civil Rights Act of 1964 failed as a matter of law

and entered judgment in favor of the appellee. We affirm.

I. BACKGROUND

A. Appellant's Employment at Smithkline

Appellant Hilda Rodríguez began employment at appellee

Smithkline Beecham Pharmaceutical, P.R., Inc. ("Smithkline") in 1979 as

an Analytical Chemist, a grade level C position within Smithkline's

compensation structure. She was promoted in 1985 to the position of

Senior Analyst, with a grade level of E.

In 1986, appellant applied for a lateral transfer to

Smithkline's Documentation Department as a Senior Document Monitor; she

received the transfer, although initially as a "temporary" assignment.

In November of 1986, the Senior Document Monitor position was

reevaluated and reclassified as a grade level F position, pursuant to

Smithkline's Job Evaluation Program.1 Appellant's appointment as Senior

Documentation Monitor was made permanent in June of 1987. In March of

1988, the title of that position was changed to Senior Monitor. In

February 1989, appellant was promoted to Master Records Specialist, a

1 The Job Evaluation Program provides for the regular evaluation of positions to ensure that compensation is commensurate with the duties of the position, relative to other positions in the company.

-3- grade level H position. In January 1991, she was again promoted, to

the position of Quality Assurance Administrator in the Process

Operations Management System project, with a job grade level of 5E.

B. Alleged Wage Discrimination with Regard to the Document Leader Position

When appellant first joined the Documentation Department in

1986, the position of Documentation Manager was held by Gloria Vales.

Vales was compensated at level 7. In September 1989, Vales was

transferred to another department and was replaced by Manuel Llivina.

Llivina was transferred in from a grade level 7 position in another

department as part of Smithkline's Management Development Program, and

he maintained his grade level while serving as Documentation Manager.2

In August of 1992, Llivina was transferred out of the Documentation

Department, again as part of the Management Development Program, and

the Documentation Manager position became vacant.

Meanwhile, in July 1991, a new position called Records

Management Leader was created in the Documentation Department, at grade

level 6. Rodoberto Feo was transferred to that position from another

2 The Management Development Program, also called the Leadership Planning Program, protects an employee's grade level as he or she is rotated through different positions with the company for developmental purposes.

-4- position within the company, and he maintained his previous grade level

of 8 pursuant to Smithkline's Personal to Holder policy.3

After reassessing departmental needs in 1992, Smithkline

decided to eliminate the Documentation Manager and Records Management

Leader positions. A new position entitled Documentation Leader was

created in January of 1993, and appellant was identified as the

candidate to fill the new position. When the new position was

evaluated pursuant to the Job Evaluation Program, it was designated a

level 6 position. Appellant claims that the difference in grade level

(and thus in compensation) compared to that of Llivina and Feo

constituted gender-based wage discrimination.

C. Alleged Discriminatory Failure to Hire or Promote

On January 16, 1995, Edwin López was hired as an Analytical

Services Leader or Laboratory Manager, with a grade level of 8, to

manage and direct the Quality Control section's analytical laboratories

(which included all chemistry laboratories at the facility). As

required by the job description, López had a masters degree and

significant previous work experience managing an analytical laboratory.

Appellant claims, however, that appellee's failure to hire or promote

her to the position of Analytical Services Leader, instead of López,

3 The Personal to Holder policy allows the company to utilize a current employee in a lower grade position without negatively impacting the employee's compensation.

-5- constituted sex discrimination.4 Although she does not hold a masters

or doctoral degree, nor had she ever managed an analytical laboratory,

appellant claims that her prior experience at Smithkline qualified her

for the position.

D. Alleged Wage Discrimination with Regard to Compliance Process Improver Position

As Analytical Services Leader, López's responsibilities

included (1) managerial and supervisory responsibility for all of

Quality Control's5 analytical laboratory operations; (2) monitoring of

all analytical data for submission to regulatory agencies; (3) approval

of all analytical reports, Annual Product Review reports, and Water

Systems reports; (4) improvement, validation, and automation of current

methodology and technology; (5) provision of analytical and technical

support for complaints, internal investigations, product development

activities, and product transfer areas; (6) development of new and

improved analytical methodology, including review of pertinent

literature and formulation of recommendations; and (7) extensive

budgetary responsibilities for the analytical laboratories.

4 Nowhere does appellant indicate that she applied for this position. However, appellee seems to concede that she was in the pool of potential candidates, apparently pursuant to the company's practice of looking first at current employees when filling vacancies. 5 Smithkline's Compliance Department is divided into two primary functional areas: Quality Control and Quality Assurance. According to the company, the functions and processes of each are different from those of the other.

-6- Approximately sixty-two employees were under López's supervision as

Analytical Services Leader.

In 1995, Smithkline began to implement a new organic

structure in the Compliance Department, as part of a facility-wide

restructuring. During implementation of the new structure, López was

informed that his title would eventually change to that of Compliance

Process Improver for the Quality Control section, although his duties

would not be affected.6 The Compliance Process Improver position was

reviewed under the Job Evaluation Program and designated a level 6

position. Before the transition was complete, however, Smithkline

reassessed its needs and determined that López should retain his duties

as head of the laboratories under the title of Compliance Laboratory

Strategist. Because this position entailed most of the functions of

the Analytical Services Leader position, plus some aspects of the

Compliance Process Improver job, the Laboratory Strategist position was

designated a level 8 position.7

During the implementation of the new organic structure,

appellant was also informed that her title would change to Compliance

6 López continued, and still continues, to perform the duties of Analytical Services Leader, although he currently holds the title of Compliance Laboratory Strategist. 7 In his new position, López has supervisory capacity over seventy-four employees, as well as additional quality control and budgetary duties beyond those described above in relation to the Analytical Services Leader position. Later in 1997, Smithkline's microbiology laboratory was added to the chemistry labs already under López's supervision.

-7- Process Improver, in her case for the Quality Assurance section.

Throughout the transitional period, appellant continued to perform her

duties as Documentation Leader. On January 1, 1997, appellant's change

in position became effective, and she assumed her duties as Compliance

Process Improver.8 As such, appellant's duties included primarily the

identification of potential improvement areas and the formulation and

implementation of projects to make such improvements. She does not

currently have, nor has she ever had, managerial responsibility for any

of the laboratories, nor does she supervise any employees or control

any budgetary decisions.

E. Procedural History

On October 1, 1996, appellant sent a letter to Smithkline

complaining of discriminatory treatment. She filed a discrimination

charge with the Antidiscrimination Unit of the Puerto Rico Department

of Labor and Human Resources on June 13, 1997. Appellant received her

notice of right to sue from the Equal Employment Opportunity

Commission on March 25, 1998, and she subsequently filed this action in

the United States District Court for the District of Puerto Rico,

stating claims under the Equal Pay Act and Title VII of the Civil

Rights Act of 1964.

8 This was the same date upon which López became a Laboratory Strategist. The parties dispute whether López was ever actually a Compliance Process Improver.

-8- On July 8, 1999, the district court granted summary judgment

in favor of Smithkline, rejecting all of appellant's claims.

See Rodríguez v. Smithkline Beecham Pharmaceutical, Puerto Rico, Inc.,

(D.P.R. 1999).9 The court first rejected appellant's

failure to hire or promote claim as untimely. See

. The

court then proceeded to examine the Title VII wage discrimination

claims. Following the majority of federal courts of appeals to have

addressed the interplay of the Equal Pay Act ("EPA") and Title VII, the

district court held that the Bennett Amendment to Title VII

incorporated the EPA statutory defenses to wage discrimination claims

but did not otherwise alter the Title VII analysis, including the

burden-shifting aspects. See

. Applying existing First

Circuit law, the court determined that appellant had failed to make out

a prima facie case of discrimination, see

, and further

that appellant had not shown Smithkline's proffered reasons to be

pretextual, see

. Finally, the district court rejected

appellant's EPA claims, concluding as a matter of law that appellant's

job was not substantially similar to that of López nor to that of

Llivina or Feo. See

9 The court had previously denied a motion by appellant to add an expert to her witness list. See Rodríguez v. Smithkline Beecham Pharmaceutical, P.R., Inc., Civil No. 98-1649(JP) (D.P.R. filed Mar. 25, 1999);

(D.P.R. filed Apr. 5, 1999) (denying motion for reconsideration).

-9- This appeal followed. In addition to claiming that the

district court erred in entering summary judgment against her on all

claims, appellant also argues that the court erred in denying her

motion to add an expert to her witness list.

II. LAW AND APPLICATION

A. Standard of Review

We review orders granting summary judgment de novo,

construing the record in the light most favorable to the nonmovant and

resolving all reasonable inferences in her favor. See GE Supply v. C

& G Enters., Inc.,

(1st Cir. 2000). We are not limited

to accepting or rejecting the district court's rationale; rather, we

may affirm the entry of summary judgment on any sufficient ground

revealed by the record. See

The district court's exclusion of expert testimony is

reviewed under an "abuse of discretion" standard. See General Elec.

Co. v. Joiner,

(1997).

B. Equal Pay Act Claims

The Equal Pay Act ("EPA"), codified at

(d)(1),

states:

No employer . . . shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages . . . at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal

-10- skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (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 any other factor other than sex . . . .

An EPA claimant must make a prima facie showing that the employer paid

different wages to a member of the opposite sex for substantially equal

work. See Byrd v. Ronayne,

(1st Cir. 1995) (citing

Corning Glass Works v. Brennan,

(1974)). Once a

prima facie case has been made, the employer then must establish one of

the four statutory affirmative defenses to avoid liability. See

Appellant claims that she suffered gender-based wage

discrimination in violation of the EPA with respect to two positions --

that of Document Leader, and that of Compliance Process Improver.

Neither claim has merit.

1. Document Leader Position

Appellant claims that she was discriminated against on the

basis of her gender when the Document Leader position was classified as

a level 6 position. She bases this contention on the fact that the

previous Document Manager was paid at level 7 and the previous Records

Management Leader was paid at level 8. However, appellant has failed

to make a prima facie showing that the Document Manager and Records

Management Leader positions were substantially equal to the Document

-11- Leader position, and Smithkline has also established that the different

pay levels were based on a "factor other than sex."

As the district court properly concluded, the position of

Document Leader created in 1993 entailed a substantially different set

of responsibilities from those of the Document Manager and Records

Management Leader positions. For instance, although there was

certainly overlap between the duties of the new position and those of

the former positions, several important functions of the Document

Manager position were omitted from the role of Document Leader,

including responsibility for the microfilming program, the handling of

new drug applications, and the preparation of annual reviews. The

Document Manager was also responsible for evaluating abnormalities in

the manufacturing process and recommending solutions when problems

arose, as well as informing the management of significant deviations

from standard operating procedures and making sensitive decisions

regarding drug recalls. We cannot conclude that these uncontested

differences in responsibility were insubstantial, and we agree with the

district court that appellant failed to make a prima facie showing of

discrimination.

Although the failure to establish a prima facie case is fatal

to appellant's claim, we also mention our agreement with the district

court that the different wages paid to appellant and the prior Document

Manager and Record Management Leader were based on a factor other than

-12- sex. See 29 U.S.C § 206(d)(1)(iv). Smithkline established that both

Llivina and Feo were being paid at the level of a prior position

pursuant to standing company policies designed, in one instance, to

protect employees' salary and grade levels during developmental

placements and, in the other, to allow the company to utilize employees

at lower level positions without detriment to the employee's

compensation. Such programs are "factors other than sex" within the

meaning of the EPA and therefore constitute a legitimate basis for wage

differentials. Cf. Handy v. New Orleans Hilton Hotel,

(E.D. La. 1982) (noting that wage differential was lawful because,

inter alia, higher-paid employee's wage was set pursuant to defendant's

Personnel Development Program).

2. The Compliance Process Improver Position

Appellant next argues that she was discriminated against

because she was compensated at level 6 while Edwin López was

compensated at level 8, although it appears that the two may have had

the same job title. Here again, appellant has failed to make out a

prima facie case.

Although job titles may be given some weight in determining

whether two employees hold substantially equal positions, the EPA's

emphasis is on the responsibilities and functions of the position. See

Miranda v. B & B Cash Grocery Store,

(11th Cir.

1992) ("Although job titles are entitled to some weight in this

-13- evaluation [of whether jobs are substantially equal], 'the controlling

factor under the Equal Pay Act is job content' -- the actual duties

that the respective employees are called upon to perform."). Here,

there exists a genuine dispute of fact over whether López at one time

held the position of Compliance Process Improver;10 however, that

dispute is not material, because appellant has failed as a matter of

law to establish that her responsibilities were substantially equal to

those of López. López has had managerial and supervisory

responsibility for all of Smithkline's Quality Control analytical

laboratories since he became Analytical Services Leader, and he now has

responsibility for the microbiology and external compliance labs as

well. He oversees the performance of scores of employees and also

controls a budget of nearly three million dollars. Appellant has not

shown that she ever had comparable responsibility. In sum, we are

persuaded that the two positions were in fact substantially dissimilar,

and we agree with the district court that appellant has failed to make

a prima facie showing of disparate compensation for comparable work.

Her EPA claim therefore fails as a matter of law.

C. Title VII Claims

Appellant also makes two allegations under Title VII of the

Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e-2(a). She

10 It is not contested that his title was changed to Laboratory Strategist on January 1, 1997, the same date that appellant became a Compliance Process Improver.

-14- first alleges that Smithkline discriminatorily failed to hire or

promote her to the position of Analytical Service Leader, the position

for which López was hired in 1995, and she also claims that she

suffered wage discrimination in violation of Title VII with respect to

the Document Leader and Compliance Process Improver positions.

1. Failure to Hire or Promote Claim

Appellant alleges that, when Smithkline hired López to fill

the position of Analytical Service Leader in 1995, its failure to hire

or promote her to that position constituted sex discrimination

prohibited by Title VII. However, as the district court correctly

noted, any person seeking relief under Title VII must file a charge

with the EEOC "within one hundred and eighty days after the alleged

employment practice occurred," 42 U.S.C. § 2000e-5(e)(1), or if a claim

is filed with a state or local agency "within three hundred days after

the alleged unlawful employment practice occurred," id. López was

hired on January 16, 1995. Appellant's charge was not filed until June

of 1997. Her cause of action is therefore barred.

Appellant argues that the 300-day limitations period was

tolled in her case because the discriminatory actions of the appellee

were ongoing and systemic and subject to the continuing violation

exception to the limitations period. See Provencher v. CVS Pharmacy,

, 14 (1st Cir. 1998). However, the only evidence offered by

appellant to support her contention of a discriminatory policy or

-15- practice by Smithkline is what she optimistically refers to as

"statistical" evidence. Although the figures admitted by appellant

undeniably demonstrate that more males than females held higher paying

positions at Smithkline's facility, the numbers are not provided in a

context which would lend them probative value in a statistical sense.

To give just one example, no showing has been made of how many females

applied for higher-paying positions, nor of how many qualified females

there may have been in any relevant pool of potential employees. See

Blizard v. Frechette,

(1st Cir. 1979) (upholding

exclusion of statistical evidence because, inter alia, "appellant's

offer was in no way related to the available pool of qualified female

applicants for the positions filled predominantly by males"). Although

we recognize that statistical evidence can be a valid, and often

powerful, means of proving discriminatory practices, the numbers

offered by appellant fall far short of establishing any such

discrimination by Smithkline. The continuing violation doctrine has no

application to appellant's case, and her failure to hire or promote

claim is time-barred.

-16- 2. Wage Discrimination

Appellant's Title VII wage discrimination claim fails for the

same reason that her EPA wage discrimination contention failed -- she

has not made a prima facie showing that she was paid less than a male

employee for substantially equal work.

While noting that the federal courts of appeals have

disagreed over the effect of the Bennett Amendment to Title VII,11 the

district court analyzed appellant's wage discrimination claim under the

burden-shifting evidentiary framework generally applied to Title VII

allegations.12 See Rodríguez,

. In doing so, the

11 The Bennett Amendment states:

It shall not be an unlawful employment practice under [Title VII] for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiating is authorized by the provisions of [the EPA].

42 U.S.C. § 2000e-2(h). The disagreement among the courts of appeals has been over whether the Amendment merely incorporates the EPA's statutory affirmative defenses or whether the Amendment alters the actual evidentiary framework and analysis of Title VII wage discrimination claims to incorporate the liability standards of the EPA. See Rodríguez,

(discussing the circuit split). We need not resolve that question in this case, because appellant failed to make a prima facie case under either the EPA or the general Title VII framework. 12 We note the United States Supreme Court's recent decision in Reeves v. Sanderson Plumbing Prods., Inc.,

(2000), in which the Court held that, under the McDonnell Douglas burden-shifting analysis, a plaintiff may rely on her prima facie case, together with a showing that the defendant's proffered reasons for the adverse

-17- court properly found that appellant had failed to make a prima facie

showing of gender-based wage discrimination. See id. at 383-84.

As we set forth above, the uncontested facts before the

district court indicate that appellant's job functions and

responsibilities were not substantially similar or comparable to those

of Document Manager Llivina or Records Management Leader Feo, nor to

those of Edwin López. Absent such a showing, plaintiff's Title VII

claim fails as a matter of law for lack of a prima facie case.

D. Exclusion of Expert Testimony

Finally, appellant argues, almost in passing, that the

district court erred in excluding the testimony of her proposed expert.

We hold that the district court did not abuse its discretion. See

General Elec. Co. v. Joiner,

(1997) (abuse of

discretion standard of review applies to admission or exclusion of

expert testimony).

The district court's orders make clear that appellant had

failed to comply with the court's scheduling orders and was attempting

to add an expert a mere two weeks before the deadline for filing

employment action were false, without further demonstrating that the defendant's stated reasons were motivated by a discriminatory animus. Although the district court's reference to the so-called "pretext-plus" standard, see Rodríguez,

, was therefore in error, such error does not require reversal because Smithkline is entitled to judgment as a matter of law on the basis that appellant failed to make out a prima facie case of wage discrimination (thus never reaching the subsequent stages of the burden-shifting analysis).

-18- dispositive motions. Such noncompliance with court orders, together

with the fact that appellant failed to even specify the area of the

witness's expertise except to say that he would testify with respect to

her EPA and Title VII claims, persuades us that the district court was

well justified in excluding the proposed testimony. See Atlas Truck

Leasing, Inc. v. First NH Banks, Inc.,

(1st Cir.

1987) (district court has wide latitude in formulating pretrial orders

and imposing sanctions for noncompliance and will be reversed only when

ruling results in clear injustice).

III. CONCLUSION

For the reasons set forth above, we hold that the district

court properly granted summary judgment in favor of Smithkline and

against appellant on all of her EPA and Title VII claims.

Affirmed.

-19-