Dibble v. Regents of the Univ ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GISELA VORSPRECHER DIBBLE,
Plaintiff-Appellant,
v.
REGENTS OF THE UNIVERSITY OF
MARYLAND SYSTEM; FREEMAN A.
HRABOWSKI, Dr., in his official
capacity as President of The
University of Maryland; MICHAEL K.
HOOKER, individually and as former
president of The University of
Maryland; ARTHUR O. PITTENGER,
individually and as Dean of Arts
and Humanities, University of
No. 95-2317
Maryland Baltimore Campus;
ROBERT A. SLOANE, individually and
as Chair of the Modern Languages
and Linguistics Department,
University of Maryland Baltimore
Campus; RENATE M. FISCHETTI;
JOHN H. SINNIGEN, individually and
as Associate Professor and Former
Chair of the Modern Languages and
Linguistics Department, University
of Maryland Baltimore Campus,
Defendants-Appellees,
and
ANGELA B. MOORJANI, individually
and as Associate Professor and
Former Chair of the Modern
Languages and Linguistics
Department, University of Maryland
Baltimore Campus,
Defendant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-93-1792-JFM)
Submitted: June 11, 1996
Decided: June 26, 1996
Before HALL and WILLIAMS, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Tracy E. Mulligan, Rockville, Maryland, for Appellant. J. Joseph
Curran, Jr., Attorney General, Anne L. Donahue, Assistant Attorney
General, Baltimore, Maryland, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
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OPINION
PER CURIAM:
Appellant Gisela V. Dibble appeals the district court's order grant-
ing summary judgment to the Appellees in this action alleging
employment discrimination. Finding no reversible error, we affirm.
Dibble, a former part-time German professor at the University of
Maryland, Baltimore County ("UMBC"), filed a complaint pursuant
to Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e
(West 1994), alleging that the Defendants discriminated against her
in various respects. Dibble named as Defendants The Regents of the
University of Maryland System, the current and immediate past presi-
dents of the University, the Dean of Arts and Humanities, the Chair
of Modern Languages and Linguistics Department, and a tenured
associate professor and coordinator of the German language area in
that department.
Dibble asserted claims under Title VII, the Equal Pay Act of 1963
(29 U.S.C. § 206(d)(1) (1988)), and 42 U.S.C.§ 1983 (1988). Specifi-
cally, Dibble asserted that the Defendants violated those statutes by
(1) failing to place her in a tenure-track position, (2) failing to pay her
the salary of a full-time professor to compensate her for extra work
that she performed, and (3) not renewing her part-time contract in
retaliation for having filed discrimination complaints with various
university officials. Finding that Dibble failed to offer evidence of
any triable issues, the district court granted summary judgment to the
Defendants on all claims.
Dibble is a German-born, Protestant woman. She held various posi-
tions at the University teaching German. From 1979 to 1984, Dibble
worked as a teaching assistant (a faculty position) and taught college
level courses at the University's College Park Campus. From 1983 to
1984, she also taught part-time at UMBC while completing her Ph.D
dissertation. In the fall of 1984, UMBC hired Dibble as a part-time
instructor in the Department of Modern languages and Linguistics.
Dibble remained a part-time instructor until 1988. During the 1988-
1989 academic year, she was hired as a full-time lecturer to replace
Dr. Brigitte May who was on leave for one year. In 1989, UMBC
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returned Dibble to part-time instructor status, a position she held until
the 1991-1992 academic year.
Sometime at the end of her year appointment as a full-time profes-
sor in 1989, Dibble began complaining to Dr. Fischetti about her
course assignments and failure to be assigned upper level courses.
She made additional complaints to Dr. Sloane and Dean Pittenger in
December 1990. In the fall of 1991, Sloane informed Dibble that he
had decided not to recommend renewal of her employment contract
for the following fall semester. In December 1991, Dibble com-
plained to University President Hooker of sexual discrimination. On
May 15, 1992, UMBC formally declined to renew Dibble's employ-
ment contract for the fall 1992 semester.
There is a hierarchy of faculty positions at UMBC. The tenured or
tenure-track jobs are titled full professors, associate professors, and
assistance professors. The associate and full professor jobs typically
are tenured positions. An assistant professor is not tenured, but is enti-
tled to tenure consideration no later than six years after commencing
university employment. All other categories, such as lecturer and
instructor, are non-tenure track positions: they are not tenured nor do
they lead to consideration for tenure.
Part-time faculty members at UMBC are hired on a contractual
basis for specific instructional duties for a specific period time, gener-
ally one semester. In Dibble's case, she received an appointment letter
each semester beginning in the fall of 1984 through the spring of
1992. The appointment letters contained the following language:
It should be understood that this appointment implies no
commitment on the apart of the University beyond the
[Spring][Fall] semester, although circumstances may lead to
its renewal.
The letters were signed by the University and counter-signed by Dib-
ble. The agreement for the 1988-1989 academic year for which Dib-
ble was hired as a full-time lecturer contained a similar term
limitation.
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We review the district court's award of summary judgment de
novo. Higgins v. E.I. Du Pont de Nemours & Co. , 863 F.2d 1162,
1167 (4th Cir. 1988). Summary judgment is appropriate when the
record taken as a whole could not lead a rational trier of fact to find
for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986). In ruling on a motion for summary judgment, a
court must assess the evidence in the light most favorable to the non-
moving party. Charbonnages de France v. Smith , 597 F.2d 406, 414
(4th Cir. 1979). Although summary judgment disposition should be
used sparingly in employment discrimination cases, it is appropriate
where there is no genuine dispute of material fact. Ballinger v. North
Carolina Agric. Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir.),
cert. denied, 484 U.S. 897 (1987).
A. Denial of Tenure-Track Position
Dibble's first claim is that the Defendants violated Title VII and 42
U.S.C. § 1983 by denying her appointment and opportunity for a full-
time tenure-track position. Dibble alleges discrimination under Title
VII on the basis of her gender, religion, and national origin. Dibble's
claim under § 1983 appears to be premised on underlying violations
of the First and Fourteenth Amendments to the Constitution. More
specifically, Dibble seems to assert that the Defendants refused to
grant her a tenure-track position based upon her non-Marxist world
view, with which the Defendants disagreed. See generally Ollman v.
Toll, 518 F. Supp. 1196, 1201-02 (D. Md. 1981), aff'd, 704 F.2d 139(4th Cir. 1983) (state may not exclude person from employment based
upon political beliefs).
As the district court correctly noted, however, this claim suffers
from a fundamental factual flaw. The record contains absolutely no
evidence that there was a tenure-track position available in the Ger-
man department at UMBC during any relevant time frame to which
Dibble could have been appointed. Dibble herself does not dispute
this fact. Rather, she contends that a tenure-track position should have
been opened for her in 1992. In that year, Dr. May, who had held such
a position, withdrew from the tenure track because she was unable to
meet certain requirements for tenure. After that occurred, UMBC
decided that instead of continuing the tenure-track position in Ger-
man, the position that had been held by Dr. May should be divided
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into a number of half-time instructor positions among the French,
Russian, Spanish, and German departments because of budget con-
straints.
Nonetheless, Dibble asserts that if she had not held the "world
view" that she does, UMBC would have retained the tenure-track
position in German and appointed her to it. However, the record bears
no evidence to support such a claim. Dibble failed to present any facts
to show that UMBC was not facing budget constraints or that the
number of students enrolled in its French, Russian, and Spanish
classes did not justify creating half-time instructor positions in those
departments. Since Dibble bears the burden to prove her claim, the
absence of any evidence entitled the Defendants to summary judg-
ment, and the district court correctly so held. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S.
317 (1986).
B. Equal Pay Act Claim
Dibble's second claim is brought under the Equal Pay Act. Dibble
alleged that she was paid one-third the salary of her "male counter-
part," Dr. Edward Larkey, even though she was carrying an equiva-
lent teaching load and performing essentially the same tasks. To
establish a prima facie case under the Equal Pay Act, Dibble must
show that (1) an employer is paying different wages to employees, (2)
of opposite sex, (3) "for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are per-
formed under similar working conditions." 29 U.S.C. § 206(d)(1);
Houck v. Virginia Polytechnic Inst., 10 F.3d 204, 206 (4th Cir. 1993).
Dibble must properly select a specific male comparator, Strag v.
Board of Trustees, 55 F.3d 943, 950 (4th Cir. 1995), looking to see
if they share a common core of tasks in their jobs. Hassman v. Valley
Motors, Inc., 790 F. Supp. 564, 567 (D. Md. 1992). If the jobs to be
compared have a common core of tasks, the inquiry turns on whether
the differing or additional tasks require greater skill or responsibility.
Cherrey v. Thompson Steel Co., 805 F. Supp. 1257, 1262 (D. Md.
1992).
The undisputed evidence in the record reveals that the duties of a
part-time professor are far less demanding than those of an assistant
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professor or another full-time faculty member. In other words, Dibble
is unable to show that Larkey is an appropriate male comparator. Dib-
ble, as a part-time teacher, was required only to teach the course and
have an office hour for that course so that students could have access
to the instructor. In contrast, Larkey, as an assistant professor, was
required to publish and engage actively in research in addition to
teaching. He was required to advise students in their major, partici-
pate in curriculum development, oversee the curriculum, participate
in departmental, university, and community activities, and attend
departmental meetings. Larkey's additional duties constituted fifty
percent of his job responsibilities.
Nonetheless, Dibble asserts that she performed equal work to
Larkey because she voluntarily took on the additional responsibilities
of teaching a full course lead, designing and developing courses, par-
ticipating in curriculum development, researching and publishing, and
participating in departmental meetings and student activities. Dibble
contends that she and the University had a parol agreement regarding
her employment.
The district court properly found Dibble's Equal Pay Act claim to
be meritless. First, she produced no evidence of a parol agreement.
Second, Dibble could not unilaterally modify her written employment
contract by voluntarily performing work not required of her. Third,
the additional duties that Dibble performed did not equal Larkey's
work. Dibble offered no evidence that she advised students in their
major, oversaw the curriculum, or participated in departmental, uni-
versity, and community activities to the same extent as is required of
assistant professors. The fact that Dibble chose to assume additional
duties does not entitle her to more pay. Therefore, the district court
properly granted summary judgment to the Defendants on her Equal
Pay Act claim.
C. Retaliation Claim
Dibble's final claim asserts that the Defendants retaliated against
her for filing complaints of discriminatory treatment by not renewing
her part-time contract. To prevail on her retaliation claim, Dibble
must show that she engaged in protected activity, that UMBC took
adverse employment action against her, and (3) that a causal connec-
7
tion existed between the protected activity and the adverse employ-
ment action. Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th
Cir. 1989); Ross v. Communications Satellite Corp., 759 F.2d 355,
365 (4th Cir. 1985). Once Dibble establishes her prima facie case, the
Defendants can rebut it with proof of some legitimate, non-retaliatory
reason for the adverse action. Id. The burden of proof then shifts to
Dibble to establish by a preponderance of the evidence that the prof-
fered reasons are pretextual. Id.The district court properly found that Dibble failed to establish a
prima facie case of retaliation. The only evidence Dibble offered to
support her claim is that the decision not to renew was not formalized
until after she complained to certain University officials. However,
the record establishes that the non-renewal decision was made in the
fall of 1991. Dr. Sloane informed Dibble in September or October of
1991 that he was not going to recommend the renewal of her contract.
Dibble acknowledged that Sloane had the power to make appointment
decisions. Dibble did not complain to President Hooker of Sloane's
decision until December 1991. Dibble received written notification of
her non-renewal in May 1992.
Thus, while it is true that Dibble did not receive formal notification
of her non-renewal until May 1992, she was aware as early as the fall
of 1991 that her contract likely would not be renewed. Thus, the non-
renewal decision was made before her complaints to the University
president. Accordingly, absent some evidence of a causal connection
between her complaints and the adverse employment decision, Dibble
cannot establish a prima facie case of retaliation. Dibble offered no
evidence suggesting that if the complaints had not been made, UMBC
would have rescinded the decision to terminate her part-time contract.
We find nothing in the record to suggest that the district court erred
in concluding that Dibble failed to prove a causal nexus between her
complaints to University officials and the decision to terminate her
contract.
Accordingly, we affirm the district court's order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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