                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                      FOR THE ELEVENTH CIRCUIT
                                               U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            February 14, 2006
                               No. 05-14198                THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 04-60931-CV-WPD

CAROLE F. SLATTERY,


                                                             Plaintiff-Appellant,

                                    versus

PRECISION RESPONSE CORPORATION,
a Florida corporation,

                                                            Defendant-Appellee.

                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                             (February 14, 2006)

Before ANDERSON, BIRCH and CARNES, Circuit Judges.

PER CURIAM:

     Carole Slattery appeals the district court’s grant of summary judgment in
favor of Precision Response Corporation on her claim under the Equal Pay Act, 29

U.S.C. § 206(d). We affirm.

                                          I.

        Precision is a Florida corporation that manages outsourced customer contact

centers. Companies hire Precision to communicate with their customers via

telephone, email, and the Internet. The contact centers are located in Florida and

some foreign countries.

        In November of 1993, Precision hired Slattery, a female, as an account

manager at an annual salary of $37,000. She was assigned to the British Airways

account and initially oversaw thirteen employees, including one supervisor and

twelve telephone service representatives (“TSRs”). The number of employees she

supervised eventually rose to eighteen. Although the average monthly revenues

generated on the account were “small,” Slattery received regular pay increases.

Her salary was raised to $38,500 in 1995, to $43,000 in 1996, and to $48,315 in

1998.

        In April of 1999, Precision promoted Slattery to senior account manager.

Shortly thereafter, British Airways outsourced its United States Reservations

Program to Precision, and the work was assigned to Slattery. The program was

initially scheduled to run only six weeks. Slattery oversaw a total of 12

                                          2
supervisors and between 325 and 360 TSRs in three different facilities. Average

annual revenues from the British Airways account rose to between $2,400,000 and

$3,600,000. In September of 1999, Slattery’s salary increased to $55,494.

      In July of 2000, Slattery was promoted to account director, and her annual

salary rose to $68,000. In her new position, she supervised two program

managers. She claims that her duties expanded to include financial

responsibilities and direct responsibility for growth of the British Airways

account.

      In mid-2001, the United States Reservations Program was phased out. As a

result, the British Airways account become less demanding and profitable.

Slattery’s job responsibilities decreased to overseeing fewer than fifty employees

and managing programs that generated $2,004,000 in annual revenue.

Nonetheless, Slattery’s salary continued to rise. It increased to $69,373.73 in

2001, and to $71,397.74 in 2002.

      In mid-2002, Precision underwent a reorganization, and Slattery was one of

four account directors who were removed from their positions. Her title changed

to program manager. In mid-2003, British Airways eliminated two programs that

Precision was handling. From June of 2003 to March of 2004, the British Airways

account generated about $1,368,000 in annual revenues. In June of 2003,

                                          3
Slattery’s salary was increased to $73,539.67.

      As a program manager, Slattery began reporting to Account Director Harold

Dukenik. Because she was now supervising only twenty-five employees on the

British Airways account, Precision assigned Slattery the Reader’s Digest account,

which had twenty employees. In November of 2003, Dukenik presented Slattery

with a written overview of various problems with her performance and asked her

to prepare a plan to address them. In January of 2004, Dukenik informed Slattery

that she was not meeting requirements and fired her.

      On June 18, 2004, Slattery filed a complaint against Precision in state court,

alleging violations of the Equal Pay Act, 29 U.S.C. § 206(d). She did not claim

that she was fired because of her gender, only that she did not receive equal pay

before being fired. Precision removed the action to federal court. On April 22,

2005, Precision filed a motion for summary judgment. Slattery subsequently filed

a motion for adverse inferences based upon Precision’s alleged failure to produce

certain documents during discovery.

      On June 29, 2005, the district court entered an order denying Slattery’s

motion for adverse inferences and granting Precision’s motion for summary

judgment. The court found that Slattery had not established a prima facie case

because she had not raised a genuine issue of material fact that her jobs were

                                         4
substantially similar to those of her male comparators. The court also found that

Precision had set forth a valid affirmative defense because it had demonstrated that

factors other than sex were responsible for the disparity in pay between Slattery

and her comparators.

                                        II.

      On appeal, Slattery contends that the district court erred in denying her

motion for adverse inferences based on Precision’s alleged bad faith in failing to

produce six types of documents. We review for abuse of discretion a district

court’s denial of a party’s motion for adverse inferences. Johnson v. Ready Mixed

Concrete Co., 424 F.3d 806, 811 (8th Cir. 2005).

      This Court draws an adverse inference from a party’s failure to preserve

evidence “only when the absence of that evidence is predicated on bad faith,” such

as where the party tampers with the evidence. Bashir v. Amtrak, 119 F.3d 929,

931 (11th Cir. 1997). “Mere negligence in losing or destroying the records is not

enough for an adverse inference.” Id. (internal marks omitted).

      Assuming arguendo that Slattery’s requests for production included the six

types of documents she claims were withheld and that Precision did in fact

withhold them, she is not entitled to the adverse inferences she requested. Slattery

has shown no evidence that Precision withheld or tampered with any of the

                                         5
documents in bad faith. Accordingly, the district court did not abuse its discretion

in declining to grant her motion for adverse inferences.

                                        III.

      Slattery also contends that the district court erred in granting Precision’s

motion for summary judgment on the ground that she had failed to demonstrate a

prima facie case under the Equal Pay Act. Slattery argues that she raised a

genuine issue of material fact that the jobs of her and her comparators required

equal skill, effort, and responsibility, and were therefore “substantially equal.”

      We review de novo a district court’s decision to grant summary judgment.

Maynard v. Bd. of Regents, 342 F.3d 1281, 1288 (11th Cir. 2003). “A party

seeking summary judgment must demonstrate 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.” Rice-Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 840 (11th Cir. 2000)

(citation and internal marks omitted). “In determining whether genuine issues of

material fact exist, we resolve all ambiguities and draw all justifiable inferences in

favor of the non-moving party.” Id.

      A plaintiff demonstrates a prima facie case of a violation of the Equal Pay

Act if an employer pays different wages to employees of different sexes for equal

work on jobs requiring equal skill, effort, and responsibility. Irby v. Bittick, 44

                                          6
F.3d 949, 954 (11th Cir. 1995). “A plaintiff establishes a prima facie case by

comparing the jobs held by the female and male employees, and by showing that

those jobs are substantially equal.” Miranda v. B&B Cash Grocery Store, Inc.,

975 F.2d 1518, 1533 (11th Cir. 1992) (internal marks omitted). If the plaintiff

does not perform significant duties that the other employees engage in, their jobs

are not substantially equal. See Waters v. Turner, Wood & Smith Ins. Agency,

Inc., 874 F.2d 797, 799–800 (11th Cir. 1989).

      After a plaintiff establishes a prima facie case, an employer must prove by a

preponderance of the evidence that the differential is justified by one of four

exceptions set forth in the Act. Corning Glass Works v. Brennan, 417 U.S. 188,

196, 94 S. Ct. 2223, 2229 (1974). The exceptions are: (1) a seniority system; (2)

a merit system; (3) a system which measures earnings by quantity or quality; and

(4) a differential based on any factor other than sex. Id.; Price v. Lockheed Space

Operations Co., 856 F.2d 1503, 1505 (11th Cir. 1988). A defendant must show

that gender provided no basis for the wage differential. Mulhall v. Advance Sec.,

Inc., 19 F.3d 586, 590 (11th Cir. 1995). If the defendant fails to meet this burden,

the court must enter judgment for the plaintiff. Irby, 44 F.3d at 954. “When the

defendant overcomes the burden, the plaintiff must rebut the explanation by

showing with affirmative evidence that it is pretextual or offered as a post-event

                                          7
justification for a gender-based differential.” Id. (citation omitted). “If the

plaintiff is able to create the inference of pretext, there is an issue which should be

reserved for trial.” Id.

        Because Slattery contends that two male colleagues, Dukenik and Scott

Ryan, earned more than her even though their jobs were substantially equal, we

must consider their work histories.1 We begin with Ryan. In October of 1996,

Precision hired Ryan as an account manager at an annual salary of $67,000. He

was assigned to the Pizza Hut account and initially supervised about forty-four

employees, including an operations manager, an account manager, two

supervisors, and approximately forty TSRs. The Pizza Hut account generated

annual revenues of approximately $1,200,000.

        In October of 1997, Precision promoted Ryan to senior account services

manager, increased his salary to $71,020, and assigned him to additional accounts.

He handled the Pitney Bowes account during five months a year for two

consecutive years, overseeing 150 TSRs. He also handled the Shared


        1
          Slattery also compares her salary to that of Alberto Pardo, a male. We have stated that an
Equal Pay Act claimant may only recover for the discriminatory pay received within the statute of
limitations period. Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169, 1180 n.15 (11th Cir.
2005). A claim based on a willful violation of the Act must be filed within three years of the accrual of
the cause of action. See 29 U.S.C. § 255. Before July 9, 2000, Pardo earned more than Slattery, however
from that date forward, Slattery earned more than Pardo. Because Slattery filed this lawsuit in June of
2004, nearly four years after Pardo’s salary last exceeded Slattery’s salary, her comparison to Pardo is
time-barred.

                                                   8
Environment account, overseeing a supervisor and about fifteen TSRs. During

this time, Ryan also had invoicing, forecasting, and budgeting responsibilities for

the entire division, including the British Airways account.

      Precision later promoted Ryan to director and assigned him the Mellon

account. He supervised 50 employees year-round, and an additional 300

employees for four to five large projects each year. He continued to perform the

invoicing, forecasting, and budgeting work for the entire division. From 2001 to

June of 2002, Ryan handled the Mellon account with fifty employees; the Pizza

Hut account with sixty employees; the Shared Environment account with forty

employees; and the College Board account with forty-five employees. In other

words, during that period he supervised a total of 195 employees on four different

accounts. Precision promoted him to senior director and increased his salary to

$89,179.81 in 2001, and to $94,536.17 in 2002.

      After May of 2002, Ryan’s responsibilities changed. He stopped working

on the Pizza Hut, Shared Environment, and College Board accounts but continued

to handle the Mellon account. He was also assigned to the eBay and Priceline.com

accounts, which together had fifty-five to sixty-five employees. He left Precision

in July of 2003.

      Slattery has not created a genuine issue of material fact that her job was

                                         9
substantially equal to Ryan’s job. For the first several years of her employment,

Slattery oversaw no more than eighteen employees. When Ryan was hired, he

oversaw forty-four employees. When the United States Reservations Program was

operating, Slattery supervised more employees than Ryan, but during that period

Ryan performed important duties that Slattery did not. He handled the invoicing,

forecasting, and budgeting responsibilities of an entire division, which included

Slattery’s British Airways account. Also, for all but the first year of his

employment, Ryan was assigned to three or more accounts. Slattery, by contrast,

was assigned to only one account for all but the last year-and-a-half of her

employment, during which she was assigned to only two accounts. Supervising

more employees, performing additional, significant duties, and managing more

accounts requires greater skill, effort, and responsibility. See Irby, 44 F.3d at 954;

Waters, 874 F.2d at 799–800.

      Next, we must consider whether Slattery’s job was substantially equal to

Dukenik’s job. In January of 1997, Precision hired Dukenik as an account

manager at an annual salary of $78,000. He was assigned to the Phillip Morris

account and initially supervised between thirty and forty employees. In January of

1998, Precision promoted Dukenik to senior account manager and his salary was

increased to $84,000. In April of 2000, Precision promoted Dukenik to account

                                          10
director and raised his salary to $94,371.59. He was assigned an additional

account, Census. He supervised between 300 and 500 employees on the Phillip

Morris account and 600 employees on the Census account. The Phillip Morris

account generated annual revenue in excess of $31 million.

      Slattery does not raise a genuine issue of material fact that her job was

substantially equal to Dukenik’s job. When Dukenik was hired, he oversaw

between thirty to forty employees, about double the number that Slattery initially

supervised. During the first year of the United States Reservations Program,

Slattery supervised about the same number of employees as Dukenik, however the

Phillip Morris account was generating significantly greater annual revenues (more

than $31 million for Phillip Morris compared to no more than $3,600,000 for

British Airways). After April of 2000, Dukenik supervised between 900 and 1100

employees. Slattery, by contrast, oversaw between 300 and 400 employees until

mid-2001, and no more than 50 thereafter. Supervising more employees and

handling accounts with greater revenues requires greater skill, effort, and

responsibility. See Irby, 44 F.3d at 954.

      Because Slattery has failed to raise a genuine issue of material fact that her

job required the same skill, effort, and responsibility as the jobs of her

comparators, the district court did not err in granting Precision’s motion for

                                            11
summary judgment for her failure to establish a prima facie case under the Equal

Pay Act.2

       AFFIRMED.




       2
          Because the district court properly granted Precision’s motion for summary judgment on the
ground of the prima facie case, we do not need to consider Slattery’s final argument as to whether
Precision demonstrated a valid affirmative defense.

                                                  12
