Susan R. Gustin v. West Virginia University

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 SUSAN R. GUSTIN,
Plaintiff-Appellant,
v.
WEST VIRGINIA UNIVERSITY; WEST
VIRGINIA UNIVERSITY COLLEGE OF
BUSINESS AND ECONOMICS; WEST
VIRGINIA HIGHER EDUCATION INTERIM No. 02-1659  GOVERNING BOARD; WEST VIRGINIA
HIGHER EDUCATION POLICY
COMMISSION; WEST VIRGINIA
UNIVERSITY BOARD OF ADVISORS,
successors in interest to the WEST
VIRGINIA BOARD OF TRUSTEES (state
agencies),
Defendants-Appellees. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CA-01-104-2)
Argued: February 27, 2003
Decided: May 16, 2003
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.

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COUNSEL
ARGUED: Robert Quentin Sayre, Jr., Charleston, West Virginia, for
Appellant. Barbara Gale Arnold, MACCORKLE, LAVENDER,
CASEY & SWEENEY, P.L.L.C., Charleston, West Virginia, for
Appellees. ON BRIEF: Gary W. Rich, Morgantown, West Virginia,
for Appellant. P. Gregory Haddad, MACCORKLE, LAVENDER,
CASEY & SWEENEY, P.L.L.C., Morgantown, West Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Susan Gustin, Assistant Dean for Student Affairs at the West Vir-
ginia University College of Business and Economics, brought suit
against her employer and other affiliated entities, seeking recovery for
unequal pay in violation of federal and state law. The action com-
menced in state court and was removed to federal district court. Gus-
tin filed a motion to remand, which the court denied. The defendants
filed a motion for summary judgment, which was granted. Gustin now
appeals. For the reasons that follow, we affirm the district court.
I.
Susan Gustin is the Assistant Dean for Student Affairs at the West
Virginia University College of Business and Economics ("the Col-
lege"). She was appointed to this position in 1995, and is the first
female to hold an assistant dean position at the College. At the time
of her appointment, Gustin earned a salary of $50,016. Richard Gard-
ner, a male assistant dean in the College, was being paid $70,152. The
disparity was attributed to Gardner’s "decades of service as the Uni-
versity’s budget director." The school noted that Gardner’s "current
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salary [was] well above the rate the College would pay to fill his posi-
tion with someone lacking that extraordinary experience."
When Gardner retired in 1999, his successor, Jesse Mancini,
received a salary almost identical to that of Gardner, allegedly
because Mancini assumed additional responsibilities for the physical
facilities of the College. Since Mancini’s promotion to the position of
assistant dean, Gustin has made several attempts to have her salary
raised to a comparable level, none of which have been successful.
Gustin filed a complaint in the Circuit Court of Kanawha County,
West Virginia, alleging violations of the Equal Pay Act, 29 U.S.C.
§ 206(d) (1998), Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000, et seq., and the West Virginia Human Rights Act, W. Va.
Code § 5-11-1-20.1 The complaint also alleged retaliation. The suit
was filed against West Virginia University ("the University"), West
Virginia University College of Business and Economics, West Vir-
ginia Higher Education Policy Commission, West Virginia University
Board of Advisors, successors-in-interest to the West Virginia Board
of Trustees, and state agencies (collectively, "Defendants"). Defen-
dants removed the case to the United States District Court for the
Southern District of West Virginia at Charleston. Gustin filed a
motion for remand, which was denied. Defendants filed a motion for
summary judgment, which the district court granted. Gustin timely
filed this appeal.
II.
This Court reviews de novo questions of subject matter jurisdiction,
including those related to the propriety of removal. Mayes v. Rapo-
port, 198 F.3d 457, 460 (4th Cir. 1999). This Court also reviews a dis-
trict court’s award of summary judgment de novo. Canal Ins. Co. v.
Distribution Servs., Inc., 320 F.3d 488, 491 (4th Cir. 2003). Summary
judgment is appropriate when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
1Prior to filing this suit, Gustin filed a complaint with the West Vir-
ginia Human Rights Commission, which determined that there was no
probable cause for Gustin’s claim that she was paid on an unequal basis
due to her sex.
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any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c); In re Celotex Corp., 123 F.3d 619 (4th Cir.
1997).
III.
On appeal, Gustin contends that the district court erred in: (1)
denying her motion to remand; (2) granting summary judgment in
favor of Defendants on her claims premised upon the Equal Pay Act
and other related statutes; and (3) granting summary judgment in
favor of Defendants on her claims of retaliation. We address these
arguments in turn.
A.
Gustin argues that the Defendants are immune to suit in federal
court under the Equal Pay Act and, therefore, remand to state court
is appropriate. The problem with Gustin’s argument is that she
attempts to assert Eleventh Amendment immunity on behalf of the
Defendants, and there is no precedent to support such an assertion.
Eleventh Amendment immunity is a defense reserved only for a state
actor; it may not be invoked by a plaintiff to control the forum. Even
if Gustin could assert Eleventh Amendment immunity on behalf of
Defendants, she would be barred from doing so here because, by
removing the case to federal court, Defendants waived any Eleventh
Amendment immunity defense to which they may have been entitled.
Lapides v. Bd. of Regents of the Univ. Sys. of Georgia, 535 U.S. 613,
122 S. Ct. 1640 (2002) ("The State’s action joining the removing of
this case to federal court waived its Eleventh Amendment immu-
nity."). Thus, we affirm the district court’s denial of Gustin’s motion
to remand this action.
B.
Next, Gustin argues that the district court erred in granting sum-
mary judgment in favor of Defendants on her claims of wage discrim-
ination. For the reasons that follow, we find that Gustin failed to
establish a prima facie case under the Equal Pay Act, Title VII, or the
WVRHA.
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1.
To establish a prima facie case under the Equal Pay Act, Gustin
must prove: "(1) that her employer has paid different wages to
employees of opposite sexes; (2) that said employees hold jobs that
require equal skill, effort, and responsibility; and (3) that such jobs
are performed under similar working conditions." Brinkley v. Har-
bour Recreation Club, 180 F.3d 598, 613 (4th Cir. 1999) (citing Cor-
ning Glass Works v. Brennan, 417 U.S. 1888, 1895 (1974)). Neither
party disputes that Gustin was compensated approximately $20,000
less than her counterpart, Assistant Dean Jesse Mancini, and his pre-
decessor, Assistant Dean Richard Gardner. Therefore, our analysis
begins with the second prong of the prima facie test.
Under the second prong of this test, Gustin must show that she and
her comparator, Mancini, held jobs requiring equal skill, effort, and
responsibility.2 Although Gustin and Mancini both hold the title of
Assistant Dean, we must evaluate their actual job requirements and
performance; job titles are not dispositive. Brennan v. Prince William
Hosp. Corp., 503 F.2d 282, 288 (4th Cir. 1974) (citing 29 C.F.R.
§ 800.121 (1973); Hodgson v. Brookhaven General Hosp., 436 F.2d
719, 724 (5th Cir. 1970)). Gustin argues that her job need only be
substantially similar to that of Mancini. See Mulhall v. Advance
Security, Inc., 19 F.3d 586 (11th Cir. 1994) (finding that, where one
vice-president managed money primarily and people secondarily, and
the other managed people primarily and money secondarily, the posi-
tions were substantially similar such as to support a claim under the
Equal Pay Act). In Mulhall, however, both comparators reported
directly to the president of the company. In the instant case, in per-
forming some of her job duties, Gustin reports to Mancini. Gustin tes-
tified that, before exercising her authority to hire student workers, she
must obtain permission from Mancini, who oversees all budgets
within the College, before hiring an additional person. Thus, we con-
clude that the salary differential is justified because Mancini’s posi-
tion and duties are in fact superior to Gustin’s.
2Although Gustin was compensated less than Gardner, she does not
argue that this disparity is a part of her wage discrimination claims.
Therefore, our analysis focuses on the disparity between the salaries of
Gustin and Mancini.
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Further, the responsibilities of Gustin and Mancini are not equal.
While both Gustin and Mancini supervise and direct staff and manage
summer school offerings, the similarities in their job responsibilities
end there. As Assistant Dean for Student Affairs, Gustin’s job is to
direct undergraduate student advising and to oversee other services
provided to undergraduate students at the College. She also provides
input on the implementation of policies affecting undergraduate stu-
dents at the College. By contrast, Mancini controls the College’s
financial policies and procedures and oversees the College’s budget
and spending practices. With the approval of the Dean, it is Mancini
who is responsible for the development and implementation of poli-
cies for the College, some of which Gustin may have recommended.
It is clear from the evidence in the record that, while Gustin may have
some involvement in activities that Mancini oversees (i.e., policy
planning) it is Mancini who makes the final decisions (with, of
course, the approval of the Dean of the College). Based on the evi-
dence proffered, the only logical conclusion is that Mancini holds a
position that requires a higher level of responsibility than Gustin’s
job, and thus, the salary difference is justified. Accordingly, we find
that Gustin has failed to establish a prima facie case under the Equal
Pay Act.
2.
Gustin next argues that the district court erred in finding that she
failed to establish a prima facie case under Title VII. A prima facie
case under Title VII is established if Gustin demonstrates that she is
a member of a protected class and that the job she occupied was simi-
lar to higher paying jobs occupied by males. Brinkley-Obu v. Hughes
Training, Inc., 36 F.3d 336, 343 (4th Cir. 1994) (citing Miranda v. B
& B Cash Grocery Store, Inc., 975 F.2d 1518, 1529 (11th Cir. 1992)).
Ultimately, in setting forth a prima facie case under Title VII, Gustin
bears the burden of proving an intent to discriminate on the basis of
sex. Id.
Gustin argues that she established intent to discriminate in her affi-
davit, which states that in 1993, 1994, and 1995, the College paid
equal or substantially equal salaries3 to assistant deans who, while
3Where the salaries were not equal, they differed, at most, by three per-
cent.
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doing different jobs, functioned at the same level. However, this evi-
dence does not demonstrate an intent to discriminate, it only shows
that there was a time when assistant deans were paid equally. As we
noted earlier, Mancini’s job entails more responsibility than Gustin’s
job. Accordingly, his higher salary is justified. Gustin does not pro-
vide any further evidence in the record that would prove intent to dis-
criminate. Therefore, we conclude that Gustin failed to satisfy her
burden to present a prima facie case in her Title VII claim.
3.
Gustin’s final claim is based on the WVRHA. Plaintiffs filing
claims under WVRHA must satisfy the same evidentiary burden as
plaintiffs filing Title VII claims. Heston v. Marion County Parks and
Recreation Comm’n, 381 S.E.2d 253 (W. Va. 1989). Accordingly, for
the same reasons that her Title VII claim fails, we conclude that Gus-
tin’s WVRHA claim also fails.
C.
Finally, Gustin contends that the district court erred in granting
summary judgment in favor of Defendants on her claim of retaliation.
To establish a prima facie case of retaliation under West Virginia law,
Gustin must prove: (1) that she engaged in a protected activity; (2)
that Defendants were aware of the protected activity; (3) that she was
discharged or suffered adverse employment action; and (4) that the
discharge or adverse action followed the protected activity within
such a time span that retaliatory motivation can be inferred. Frank’s
Shoe Store v. West Virginia Human Rights Comm’n, 365 S.E.2d 251,
259 (W. Va. 1986). To satisfy her burden, Gustin contends that retali-
ation against her occurred in the form of her removal from a commit-
tee, the removal of a key person from a committee Gustin chairs, the
establishment of a committee to review Gustin’s performance, and a
cut in Gustin’s undergraduate advising budget.
Gustin first claims that her removal from the Senior Management
Team of the College, of which she had been a member for twenty
years, was a retaliatory action. However, the testimony of Lee Dahr-
inger, Dean of the College, indicates that Gustin was not removed
from the committee. Dean Dahringer made a proposal to all College
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management about the reorganization of the committee, and that pro-
posal did not include Gustin as a committee member. After receiving
Gustin’s feedback about her removal, Dean Dahringer decided to
reinstate Gustin to the committee. Even construing the evidence in the
light most favorable to Gustin, the evidence does not lead us to con-
clude that this was an adverse employment action. Thus, we find that
Gustin’s temporary removal from the Senior Management Team was
not a retaliatory action.
Next, Gustin claims that retaliation took place in the form of the
removal of a key person from a committee she chairs. This claim is
frivolous. There is no evidence in the record that demonstrates how
this person’s absence adversely affected Gustin or her ability to chair
the committee. Accordingly, we find that this was not a retaliatory
action.
Third, Gustin contends that a committee was formed to review her
performance in retaliation for her filing suit against the Defendants.
However, Dean Dahringer testified that the purpose of the committee
was to evaluate Gustin’s performance to see whether a merit raise was
justified, and this committee was only formed after Dahringer met
with Gustin to discuss the salary disparity between her and Mancini.
Dahringer’s testimony is further supported by a copy of an e-mail he
sent that outlined his purpose for establishing the committee and indi-
cated that Gustin was asked to submit names of individuals she
thought would be appropriate members of the committee. Even view-
ing the evidence in the light most favorable to Gustin, the only logical
conclusion is that the formation of the committee was the College’s
attempt to resolve Gustin’s salary complaints. Thus, we find that the
formation of the committee was not a retaliatory action.4
Finally, Gustin claims that a twenty-five percent reduction in her
undergraduate advising budget was a retaliatory action. The only evi-
dence in the record to support this contention is Gustin’s affidavit,
where she states: "The 2001-2002 budget for Undergraduate Advising
4Moreover, the committee never became a functioning entity. Even if
the formation of the committee could be deemed the initiation of a retal-
iatory action, the fact that the committee never functioned negates the
retaliatory nature of that action.
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[ ] was cut by a significant percentage. This was one of the largest
percentage cuts in the College [ ] while other budgets within the Col-
lege [ ] received substantial increases." Gustin fails to proffer evi-
dence to show how she was adversely affected by the budget cut.
Without such evidence, Gustin cannot meet the third prong of the
prima facie test for retaliation. See Frank’s Shoe Store, 365 S.E.2d at
259. Accordingly, we find that the budget cut was not a retaliatory
action.
Because we do not find any of Gustin’s claims of retaliation to be
valid, we affirm the district court’s grant of summary judgment in
favor of the Defendants.
IV.
For the foregoing reasons, we affirm the district court.
AFFIRMED
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