UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


COWARD, EDWARD

v.

ADT SEC SYS INC


98-7230a

D.C. Cir. 1999


*	*	*


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


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


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


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


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


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


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


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


* * * *


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


* * * *


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


So ordered.


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


* * *


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




__________

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


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


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


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


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


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


* * *


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


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


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


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


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




__________

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


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


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


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


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


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


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




__________

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


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


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


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


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


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


* * *


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