UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 granting 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 presidents 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). Specifically, 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 positions 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 professor 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 complained to University President Hooker of sexual discrimination. On

May 15, 1992, UMBC formally declined to renew Dibble's employment 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 entitled 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, generally 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 Dibble. The agreement for the 1988-1989 academic year for which Dibble 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 nonmoving 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 fulltime 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 German 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 German, 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 constraints.

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 judgment, 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 counterpart," Dr. Edward Larkey, even though she was carrying an equivalent 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 performed 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. Dibble, 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, participate 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, participating 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, university, 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-

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tion existed between the protected activity and the adverse employment 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 proffered 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 nonrenewal 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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