                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 23 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    ROSIE DIANE THOMAS,

                Plaintiff-Appellant,

    v.                                                  No. 97-3351
                                                 (D.C. No. 95-CV-4218-SAC)
    BOARD OF EDUCATION, UNIFIED                           (D. Kan.)
    SCHOOL DISTRICT NO. 501,
    TOPEKA, KANSAS,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this 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. The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Rosie Diane Thomas brought this action against 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 favor on all claims, and Ms.

Thomas appeals. We review the district court’s grant of summary judgment de

novo, applying the same standard as the district court 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 a transportation clerk

and was eventually promoted to transportation supervisor in 1992, a position she

held until her termination in 1994. As transportation supervisor, she supervised

and scheduled eight full-time and six part-time school 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 (carpentry and painting, grounds and

buildings, electrical systems, plumbing systems and custodial), the printing

department, and the warehouse and distribution department. Defendant employed

the same salary range for all supervisors of each of the departments within the

service center for the period 1992 to 1995. All of the other supervisors were


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male, and except for the custodial supervisor, their 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 less because of her gender. The

primary evidence she offers to support her contention regarding the equality of

the work is her opinion concerning what the various supervisors did, and the facts

that they performed similar common, primarily administrative-type functions and

were subject to the same salary schedule.

       Addressing her Equal Pay Act claim first, the district court found that she

had not made her prima facie showing that she was performing 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 because 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 work be similar rather than

substantially equal,   see id. at 1363. The court concluded, however, that her Title



1
       To provide some context for Ms. Thomas’s claims, for the 1993-94 period,
the salary range was $25,305 to 37,555. Her salary was $26,802. One of the
other supervisors, who was hired after Ms. Thomas became transportation
supervisor, made $29,000. All of the others made more than $30,000, except for
the custodial supervisor, who, because of extenuating circumstances, was paid on
an hourly basis and, excluding overtime, made less.

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VII claim failed because she did not rebut defendant’s proffered legitimate

business reasons for paying the male supervisors more--the differences in skill,

effort, and responsibility required by the positions. Ms. Thomas based her § 1983

claim on her right to equal protection. The district court concluded that because

she had to prove the same intentional discrimination 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 same reason as her Title VII

claim. The court also found that Ms. Thomas did not show that defendant could

be subject to § 1983 liability on the basis that it had 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 court granted 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 arguments and reviewed the record,

and conclude that the district court correctly rejected her claims. Thus, for

substantially the same reasons as stated in the district court’s October 31, 1997

memorandum and order, we affirm its grant of summary judgment in favor of




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defendant on all of Ms. Thomas’s claims.

      AFFIRMED.



                                             Entered for the Court


                                             Wade Brorby
                                             Circuit Judge




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