* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 23 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

ROSIE DIANE THOMAS,

Plaintiff-Appellant,

v. BOARD OF EDUCATION, UNIFIED SCHOOL DISTRICT NO. 501, TOPEKA, KANSAS,

Defendant-Appellee. No. 97-3351 (D.C. No. 95-CV-4218-SAC)

(D. Kan.)

ORDER AND JUDGMENT *

Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a) (2); 10th Cir. R. 34.1.9. T he case is therefore ordered submitted without oral argument.-2-

Plaintiff Rosie Diane Thomas brought this action ag ainst her former employer, the Board of Education of Unified School District No. 501, asserting claims for violation of the Equal Pay Act, 29 U.S.C . § 206(d); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; and 42 U.S.C. § 1983. The district court granted summary judgment in defendant’s favoron all claims, and Ms. Thomas appeals. We review the district court’s gra nt of summary judgment de novo, applying the same standard as the district co urt under Fed. R. Civ. P. 56(c).
See Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995). Ms. Thomas began working for defendant in 1984 as atransportation clerk and was eventually promoted to transportation supervisor in 1992, a position she held until her termination in 1994. As transportat ion supervisor, she supervised and scheduled eight full-time and six part-time sch ool bus drivers and oversaw the contractor who provided the bulk of defendant’s student transportation services. The transportation department Ms. Thomas supervised was located within defendant’s service center, and the service center contained seven other departments: five maintenance departments (carpent ry and painting, grounds and buildings, electrical systems, plumbing systems and custodial), the printing department, and the warehouse and distribution depa rtment. Defendant employed the same salary range for all supervisors of each o f the departments within the service center for the period 1992 to 1995. All of the other supervisors were1 To provide some context for Ms. Thomas’s claims, fo r the 1993-94 period,

the salary range was $25,305 to 37,555. Her salarywas $26,802. One of the other supervisors, who was hired after Ms. Thomas b ecame transportation supervisor, made $29,000. All of the others made m ore than $30,000, except for the custodial supervisor, who, because of extenuati ng circumstances, was paid on an hourly basis and, excluding overtime, made less. -3- male, and except for the custodial supervisor, thei r salaries all exceeded Ms. Thomas’s during the 1992 to 1994 period. 1 The gist of Ms. Thomas’s claims is that all of the supervisors performed substantially equal work, but that she was paid les s because of her gender. The primary evidence she offers to support her contenti on regarding the equality of the work is her opinion concerning what the various supervisors did, and the facts that they performed similar common, primarily admin istrative-type functions and were subject to the same salary schedule. Addressing her Equal Pay Act claim first, the distr ict court found that she had not made her prima facie showing that she was p erforming work that was substantially equal to that of the male employees, see Sprague v. Thorn Americas,
Inc. , 129 F.3d 1355, 1364 (10th Cir. 1997), primarily b ecause beyond the common supervisory duties, she offered no evidence of how the work was substantially equal. The court assumed that she could establish her prima facie case under Title VII, which requires only a showing that the w ork be similar rather than substantially equal, see id. at 1363. The court concluded, however, that her T itle-4-

VII claim failed because she did not rebut defendan t’s proffered legitimate business reasons for paying the male supervisors mo re--the differences in skill, effort, and responsibility required by the position s. Ms. Thomas based her § 1983 claim on her right to equal protection. The distri ct court concluded that because she had to prove the same intentional discriminatio n to support this claim as she was required to prove for her Title VII claim, see Randle v. City of Aurora , 69 F.3d 441, 450 (10th Cir. 1995); Lewis v. City of Fort Collins , 903 F.2d 752, 755 & n.1 (10th Cir. 1990), this claim failed for the s ame reason as her Title VII claim. The court also found that Ms. Thomas did no t show that defendant could be subject to § 1983 liability on the basis that ithad a policy or custom encouraging gender discrimination or could be held liable for any improper decisions of its policymaking officials. See Randle , 69 F.3d at 447-48. Finding all of Ms. Thomas’s claims without merit, the courtgranted summary judgment in favor of defendant. On appeal, Ms. Thomas challenges the district court ’s decision dismissing each of her claims. We have considered her argumen ts and reviewed the record, and conclude that the district court correctly reje cted her claims. Thus, for substantially the same reasons as stated in the dis trict court’s October 31, 1997 memorandum and order, we affirm its grant of summary judgment in favor of-5-

defendant on all of Ms. Thomas’s claims.
AFFIRMED.

Entered for the Court
Wade Brorby Circuit Judge