UNPUBLISHED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Affirmed by unpublished per curiam opinion.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 Appel-
lees. ON BRIEF: J. Joseph Curran, Jr., Attorney General, OFFICE
OF THE ATTORNEY GENERAL, Baltimore, Maryland, for Appel-
lees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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 Cau-
casian woman of German nationality who teaches at Coppin State
College, a constituent institution of the University of Maryland sys-
tem. 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 recom-
mendations. 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. Hibsch-
man does not hold a Ph.D. degree, but claims that her German Staats-
examen II degree in Classical Philology from the University of Hei-
delberg is functionally equivalent to a doctorate degree and meets the
College's stated criteria for promotions. Hibschman assembled testi-
monials 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 Consul-
tants 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 doctoral-
level 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 ear-
lier 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, deposi-
tions, 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 pro-
fessorial 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 per-
sonnel 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 sub-
stituting the judgment of a court for that of the employer." Id. at 377.
Our review of professorial employment decisions therefore "oper-
ate[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 discrimi-
nation 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 frame-
work, a plaintiff must first establish a prima facie case of discrimina-
tion by a preponderance of the evidence, showing (1) that she is a
member of a protected class; (2) that she suffered an adverse employ-
ment 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 bur-
den. 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 promo-
tion (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 discrimi-
nation 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 prepon-
derance 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, non-
discriminatory reason for Hibschman's non-promotion: namely, that
she lacked the academic credentials (a doctorate degree or its equiva-
lent) required for advancement to Full Professor. Because the Univer-
sity's burden is one of production, rather than proof, it "need not
persuade the court that it was actually motivated by the proffered rea-
sons." 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 non-
promotion was (a) pretextual and (b) a specific pretext for intentional
discrimination against Hibschman on the basis of her German nation-
ality. Hibschman's best argument is that Burnett's decision to elevate
the consulting firm's negative recommendation over those of the mul-
tiple experts attesting to her academic qualifications is so unreason-
able 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 Bur-
nett'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 sum-
mary 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 discrimina-
tion 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 Uni-
versities equates with animus against Germans as a people. It is a cre-
ative 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 employ-
ment 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 stan-
dards 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

                    7
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, "Determina-
tions 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 judg-
ment on Count 1, along with the remaining four counts, none of
which present any meritorious arguments.

AFFIRMED

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