UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CAROLA T. HIBSCHMAN,

Plaintiff-Appellant,

v.

REGENTS OF THE UNIVERSITY OF

MARYLAND SYSTEMS; COPPIN STATE

COLLEGE, a Constituent Institution;

CALVIN W. BURNETT, Doctor,

individually and in his capacity as

president; SIDNEY KROME, Doctor,

individually and as Vice-President;

T. J. BRYAN, Doctor, individually

No. 98-1870

and as Dean of the Division of Arts

and Sciences; MARY C. CLAWSEY,

Doctor, individually and as Chair of

the Department of Languages,

Literatures, and Philosophy; FRED

MACFADDEN, Doctor, individually

and as Chair of the Peer Evaluation

Committee for the Department of

Languages, Literatures, and

Philosophy,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CA-94-3511-S)

Argued: September 23, 1999

Decided: March 1, 2000
Before MURNAGHAN and MOTZ, Circuit Judges, and

Joseph R. GOODWIN, United States District Judge for the

Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Tracy Ellsworth Mulligan, Jr., Rockville, Maryland, for

Appellant. Anne Love Donahue, Assistant Attorney General, OFFICE

OF THE ATTORNEY GENERAL, Baltimore, Maryland, for Appellees. ON BRIEF: J. Joseph Curran, Jr., Attorney General, OFFICE

OF THE ATTORNEY GENERAL, Baltimore, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

We affirm summary judgment to the Defendant University in this

Title VII, Equal Pay Act, and section 1983 employment case.

I.

Plaintiff-Appellant, Professor Carola Throm Hibschman, is a Caucasian woman of German nationality who teaches at Coppin State

College, a constituent institution of the University of Maryland system. The College has denied her promotion to both Associate and Full

Professor on multiple occasions, and she has filed suit contesting the

College's repeated refusal to promote her.

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The College vests complete discretion over promotion decisions in

the President, Dr. Calvin Burnett. While Dr. Burnett's decisions are

appealable to a Committee, he is not obligated to defer to their recommendations. The College's criteria for promotion require candidates

to have an "earned doctorate, or other appropriate terminal degree

from a[n] internationally reputable foreign institution." Prof. Hibschman does not hold a Ph.D. degree, but claims that her German Staatsexamen II degree in Classical Philology from the University of Heidelberg is functionally equivalent to a doctorate degree and meets the

College's stated criteria for promotions. Hibschman assembled testimonials from various academics, along with Coppin State's own

Appeals Committee, to support her claim that her Staatsexamen

degree is the equivalent of a terminal doctorate degree qualifying her

for promotion.

There was competing evidence, however, that the Staatsexamen

degree did not meet the University's standards for promotion. In

1982, both Hibschman and Coppin State President Calvin Burnett

agreed to submit the issue concerning the status of Hibschman's

degree to an independent consulting firm called International Consultants of Delaware. Their report concluded that "Ms. Hibschman does

not have the equivalent of the American ABD (all but dissertation).

The Doktorat is the next step in the German system of education and

there is no indication that Ms. Hibschman has undertaken doctorallevel work." Hibschman has not contested that determination.

Since the report's findings in 1982, Hibschman has completed five

years of doctoral-level course work, but her studies have not resulted

in any additional degree that would change the conclusion of the earlier report, given that she must still undergo an oral exam and publish

her dissertation before receiving her doctorate.

Hibschman filed a five count complaint, alleging national origin

discrimination in violation of Title VII (Count 1); violations of the

Equal Pay Act (Count II); retaliation in violation of Title VII (Count

III); a 42 U.S.C. § 1983 claim for deprivation of her Title VII and

Equal Pay Act rights (Count IV); and a 42 U.S.C.§ 1981 claim for

racial discrimination (Count V).

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The district court granted summary judgment for the Defendant

(University of Maryland and Coppin State College) on all counts.

Hibschman has appealed.

II.

We affirm the district court's grant of summary judgment on all

counts. Summary judgment is appropriate "if 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 the moving party is entitled to judgment as a matter

of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248-49 (1986). A court should grant summary

judgment "unless there is sufficient evidence favoring the nonmoving

party for a jury to return a verdict for that party." Id. at 249. To defeat

a summary judgment motion on this basis, however, the nonmoving

party has to make more than a minimal evidentiary showing. Instead,

the evidence suggesting that a jury could rule in the nonmoving

party's favor must be "significantly probative." Id. at 249-50.

Of Hibschman's five claims, the only one that presents a colorable

argument is her Title VII national origin discrimination claim (Count

1). We will therefore confine our discussion to that Count alone.

III.

Because Hibschman's Title VII claim arises in an academic setting,

we must proceed cautiously. This Court has previously noted that,

"while Title VII is available to aggrieved professors, we review professorial employment decisions with great trepidation." Jiminez v.

Mary Washington College, 57 F.3d 369, 376 (4th Cir. 1995). "We

must be ever vigilant in observing that we do not sit as a super personnel council to review tenure decisions . . . always cognizant of the

fact that professorial appointments necessarily involve subjective and

scholarly judgments, with which we have been reluctant to interfere."

Id. (internal quotations and citations omitted). We have noted that,

especially in the academic setting, "Title VII is not a vehicle for substituting the judgment of a court for that of the employer." Id. at 377.

Our review of professorial employment decisions therefore "operate[s] with reticence and restraint," id., being limited to the question

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of "whether the appointment or promotion was denied because of a

discriminatory reason." Id. (citing Smith v. University of North

Carolina, 632 F.2d 316, 345-47 (4th Cir. 1980)).

With these principles in hand, we turn to the framework for stating

a Title VII claim. A Title VII plaintiff may prove intentional discrimination by two routes: (1) by direct evidence of discrimination, or (2)

by circumstantial evidence using the shifting burdens of proof scheme

established by the Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). Within the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence, showing (1) that she is a

member of a protected class; (2) that she suffered an adverse employment action; (3) that she was qualified for the position; and (4) that

the position remained open to or was filled by similarly qualified

applicants outside the protected class. See id . at 802. The "burden of

establishing a prima facie case of disparate treatment is not onerous."

Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981). In the instant case, Hibschman successfully met her burden. She is a member of a protected class (Germans); she suffered an

adverse employment action (denial of promotion to Full Professor);

and there is at least some evidence she was qualified for the promotion (the testimonials from multiple academics and from Coppin

State's Appeals Committee).

Once a plaintiff like Hibschman successfully states a prima facie

case of discrimination, the burden shifts to the employer, who must

produce (but not prove) a legitimate, non-discriminatory reason for

the adverse employment action. See Burdine, 450 U.S. at 254. If the

employer meets its burden of production, the presumption of discrimination raised by the prima facie case is rebutted and "drops from the

case." Id. at 255, n.10.

At this point, the plaintiff must come back and show, by a preponderance of the evidence, that the legitimate reason offered by the

defendant was not the real reason for the adverse employment act but

was merely a pretext for intentional discrimination. See id. at 253. It

is important to stress that the plaintiff must prove both that the

employer's reason was false and that discrimination was the real rea-

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son for the adverse employment action. See St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 507-08 (1993).

In the instant case, the Defendant University successfully rebutted

the inference of discrimination by producing a legitimate, nondiscriminatory reason for Hibschman's non-promotion: namely, that

she lacked the academic credentials (a doctorate degree or its equivalent) required for advancement to Full Professor. Because the University's burden is one of production, rather than proof, it "need not

persuade the court that it was actually motivated by the proffered reasons." Burdine, 450 U.S. at 254. Likewise, the question of whether

Hibschman actually possessed the requisite credentials is irrelevant at

this stage of the analysis. All that matters is whether lacking the right

credentials is, as a general matter, a legitimate, non-discriminatory

basis for denying someone a promotion, which it undoubtedly is. See

id. at 255 ("The explanation provided [need only] be legally sufficient

to justify a judgment for the defendant").

What is arguable is whether a reasonable jury could conclude that

President Burnett's professed explanation for Hibschman's nonpromotion was (a) pretextual and (b) a specific pretext for intentional

discrimination against Hibschman on the basis of her German nationality. Hibschman's best argument is that Burnett's decision to elevate

the consulting firm's negative recommendation over those of the multiple experts attesting to her academic qualifications is so unreasonable that a rational juror could conclude that other discriminatory

motives must have been in play.

The University's stated non-discriminatory reason for denying the

promotion to Hibschman (her lack of a doctorate degree) may have

been a pretext. Given that President Burnett completely disregarded

the testimonials of multiple experts who vouched for Hibschman's

academic qualifications, a reasonable juror could conclude that Burnett's reasons for not hiring her may have gone beyond a concern

over her lack of a doctorate degree. Hibschman has at least created

a genuine issue of material fact on this point, given the conflicting

testimony of the various experts, many of whom attested that she had

the requisite qualifications. The fact that Hibschman spent five years

pursuing an American Ph.D. tends to cut the other way, suggesting

that Hibschman's Staatsexamen II degree may not be the doctoral-

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equivalent she alleges and that Burnett was sincere when he denied

her promotion on this basis. Ultimately, however, reasonable jurors

could conclude that Burnett's stated rationale was pretextual.

No reasonable jury, however, could conclude that the University's

stated rationale was a pretext for intentional discrimination against

Hibschman on the basis of her German nationality. To survive summary judgment, Hibschman has to do more than create an issue of

material fact on whether Burnett's professed reason for not hiring her

was pretextual. She must also create a genuine issue of material fact

on whether the stated reason was a pretext for intentional discrimination against her on the basis of her German national origin. See Hicks,

509 U.S. at 508. Hibschman has failed to do so. Rather than harboring

animus against Germans, Burnett may have thought Hibschman was

not energetic in completing her American Ph.D. more promptly; or

perhaps he simply did not like her scholarship. The record, however,

simply does not bear out Hibschman's claim that he penalized her for

being German.

Hibschman's only plausible argument is that Burnett refused to

promote her because he disrespected the German University System

in which she was educated and that his animus towards German Universities equates with animus against Germans as a people. It is a creative argument and one that might have merit in a non-academic

context. But because academic promotional decisions are so complex,

subjective, and multi-factored, see Jiminez, 57 F.3d at 376-77, we

decline to equate prejudice against a nation's educational institutions

with prejudice against its people -- at least in the academic employment setting. As the district court noted below,"Plaintiff has certainly

produced evidence that calls her failure to be promoted into question,

as a matter of wisdom. But this Court does not review employment

decisions for wisdom; rather, the only concern of the Court is whether

there is evidence of intentional, prohibited discrimination." And in the

special context of academic promotional decisions, where the standards for hiring are often esoteric and involve so much subjectivity,

we are reluctant to impute discriminatory animus to University

employers absent more compelling evidence than Hibschman has

offered. Courts always run some risk of mistaking benign employer

behavior for impermissible discrimination in the Title VII context,

especially when reviewing professorial employment decisions. This is

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why the third stage of the McDonnell Douglas framework imposes

such cumbersome proof requirements on Title VII plaintiffs --

requirements that courts must strictly enforce in the academic

employment context. As we put the matter in Jiminez, "Determinations about such matters as teaching ability, research scholarship, and

professional stature are subjective, and unless they can be shown to

have been used as the mechanism to obscure discrimination, they

must be left for evaluation by the professional, particularly since they

often involve inquiry into aspects of arcane scholarship beyond the

competence of individual judges." 57 F.3d at 377 (quoting Khunda v.

Muhlenberg College, 621 F.2d 532, 548 (3d Cir. 1980)).

We therefore uphold the district court's grant of summary judgment on Count 1, along with the remaining four counts, none of

which present any meritorious arguments.

AFFIRMED

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