The Honorable Donal d H. Stohr, United States District Judge for the Eastern District of 1 Missouri. 

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 97-2699

___________ Jeffrey D. Carter, * * Appellant, * *
v. * Appeal from the United States * District Court for the St. Louis University, a Missouri * Eastern District of Missouri Benevolent Corporation; * Donald L. Kaminski, M.D., * * Appellees. *

___________ Submitted: February 9, 1998 Filed: February 1, 1999

___________ Before McMILLIAN, WOLLMAN and LOKEN, Circuit Judges.

___________ McMILLIAN, Circuit Judge.
Dr. Jeffrey D. Carter, M.D., appeals from a final order entered in the Distric t Court for the Eastern District of Missouri granting summary judgment in favor o f

1 defendants Saint Louis University and Dr. Donald L. Kaminski, M.D., on appellant’s claims that defendants discriminated against him on the basis of race in violation of-2-

Title VII, 42 U.S.C. § 1981 and state law. Carter v. Saint Louis University , No

. 4:95CV1528-DJS (E.D. Mo. Apr. 3, 1997) (order granting summary judgment)

. For revers al, appellant argues that the district court erred in holding that he failed t o create a factual dispute as to whether defen dants’ proffered reasons are pretextual or to present evidence sufficient to support a reasonable inference of unlawfu l discrimination. For the reasons discuss ed below, we affirm the judgment of the district court.

Jurisdicti on in the district court was asserted under 28 U.S.C. §§ 1331, 1337 , 1343( 3), and 1367. The notice of appeal was timely filed under Fed. R. App. P. 4(a), and jurisdiction in the court of appeals is based on 28 U.S.C. § 1291.

The fo llowing statement of facts is based in large part on the district court’ s order. Appellant was one of four doctors and the only African-American in the 1991 genera lsurgical residency program at Saint Louis University Medical School. Dr

. Kaminski is Professor of Surgery and the director of the surgical residency program

. The surgical residency program lasts five years and residents rotate through differen t departments at the medical school and several local hospit als. During each rotation, the resident is supervised and evalua ted by medical school faculty and hospital physicians. Dr. Kami nski reviews the evaluations and communicates concerns to residents

. Residents can be placed on probation for unsatisfactory academic or clinica l performance, and residents are also expected to scorein the 25th percentile or better on annual standardized in-service examinations administered by the American Board o f Surger y (ABSITE exams). Residents who fail to meet these standards may b e dismissed.
During his first year, appellant received mixed clinical evaluations (six of sixteen evaluat ions rated his performance as less than satisfactory) and he scored in the 9t h percent ile on the ABSITE exam. During his rotation at one local hospital, appellan t allegedthat a chief resident physician made racially offensive remarks about him and-3-

patients. This physician was not a medic al school faculty member and did not evaluate appellant for the surgical residency program. Dr. Kaminski cautioned appellant that his low ABSITE exam sc ore and clinical performance could result in his termination from the program and gave him suggestions for improvement.
During his second year, appellant also received mixed clinical evaluations, and the surgical faculty concluded appellan t’s clinical performance was unsatisfactory. Dr. Kaminski pl aced him on probation for three months and removed him from clinica l duties. Appellant conducted laboratory research, presented his research w ork at a major medical conference and wrote an article which was later published in a medical journal. Appellant scored in the 29th percentile on the ABSITE exam.
Appella nt returned to clinical rotations and began his third year with generall y favo rable evaluations during his first rotation; two evaluations noted that hi s perform ance was much improved. However, during his second rotation, tw o supervi sing physicians evaluated his knowledge and clinical performance as “belo w average.” The surgical faculty concluded that appellant should not continue in th e progr am. However, Dr. Kaminski stated that, pursuant to medical school policy , appellant had to be placed on probation before he could be terminated from th e program, there would be a stronger basis for termination if appellant did not score i n the 25th percentile

on the upcoming ABSITE exam, and his performance on probation should b e thoroughly documented. The surgical faculty agreed with Dr. Kaminski’ s recommend ation to place appellant on probation. Appellant alleged that this i s evidence that in fact he was terminated from the progra m at this time (December 1993), his second probation was a sham, and the surgical faculty had decided to manufacture a paper trail to support the decision to terminate him.
In January 1994 Dr. Kaminski notif ied appellant that he was again on probation. Also in January 1994 Dr. Kaminski performed two operations with appellant’ s assist ance. Dr. Kaminski concluded that appellant lacked an understanding of certain-4-

basic surgical concepts and that his performance was below that expected of a th ird-year surgical resident. Two surgical faculty members criticized appellant’ s clinical performance. Appellant alleged that he was assigned significantly more on-call or overnight duty assignments than oth er residents, which made it very difficult for him to prepare for the ABSITE exam, and that, as a result, he scored in the 9th percentile.

In March 1994 Dr. Kaminski terminated appellant from the program for poo r performance.
In August 1995 appellant filed this action against d efendants, alleging that during his emplo yment as a surgical resident defendants discriminated against him an d terminated him from the program on the basis of race in violation of Title VII, 4 2 U.S.C. § 1981 and state law. Defendants filed motions to dismiss. The district court dismissed the Title VII and state law claims against Dr. Kaminski individually but not the § 1981 claim and then granted summary judgment in favor of defendants on th e remaining claims. The district court deemed that, for purposes of the motion fo r summary judgment, appellant established a p rima facie case of race discrimination, slip op. at 5, and found that defendants articulated legitimate, nondiscriminatory reasons for their actions, that is, poor ABSITE exam scores and various evaluations indicatin g
unsa tisfactory clinical performance. Id. The district court then found that appellant’s evidence failed to create a factual dispute as to pretext or to support a reasonabl e inference of unlawful

discrimination. Id. at 16. The district court specifically rejected ap pellant’s arguments about the subjective nature of the evaluations, procedura l irregularities, and statistical evidence concerning the university’s historical record for training and employment of African-American surgeons. Id. at 8-15. This appea l followed.

For revers al, appellant argues that the district court erred in granting summar y judgment in favor of defendants because the evidence was sufficient to create a fac t issue on pretext and to support a reasonable inference of unlawful discrimination.-5-

Appella nt challenges defendants’ reliance on his low ABSITE exam scores becaus e defendants decided to ter

minate him on the basis of his first and second scores and the second -year

score was satisfactory (29th percentile). Appellant also challenge s defendan ts’ reliance on the evaluations. He argues that his evaluations were in fac t mixed, tha t is, he received what he describes as mostly satisfactory to exceptiona l evaluations, although admittedly some were less than average. Appellant also argues that th ere was statistical and anecdotal evidence showing racial discrimination , amounti ng to a racially hostile work environment, in the administration of the surgical residency program.

We revi ew a grant of summary judgment de novo. The question before th e district court, and

this court on appeal, is whether the record, when viewed in the light most f avorable to the non-moving party shows that there is no genuine issue as to any material fact and that th e moving party is entitled to judgment as a matter of law. Fed. R. Civ . P. 56(c). The moving party bears the initial burden of identifying “thos e portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (quo ting Fed. R. Civ. P. 56(c)). Once the moving party has met this burden, th e non-moving party cannot simply rest on mere denials or the allegations in th e pleadings; rather, the non-moving party “must set forth specific facts showing that there is a genui ne issue for trial.” Fed. R. Civ. P. 56(e). Although we view the facts in a light most favorable to the non-moving party, in order to defeat a motion for summary jud gment, the non-moving party cannot simply create a factual dispute; rather, ther e must be a genuine dispute over those facts that could actually affect the outcome of the lawsuit. See, e.g., Ghane v. West , 148 F.3d 979, 981 (8th Cir. 1998); Rothmeier v

. Investment Advisers, Inc. , 85 F.3d 1328, 1331 (8th Cir. 1996).
Because appellant’s discrimination claim is based on inferences to be drawn from circumstantial evidence, it is governed by the familiar burden-shifting analysis set-6-

fort h in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). The plaintif f must first establish a prima facie case of discrimina tion, which has the effect of creating a legal presumpt

ion of unlawful discrimination; the burden of production then shifts to the em ployer to articulate a legitimate, non-discriminatory reason for the advers e employment action. If the emp loyer meets this burden, the presumption created by the prima facie case is rebutted and drops from the case. The burden of production the n shifts back to the

plaintiff to show that the proffered reason was a pretext for unlawful disc rimination. This is really a two-part showing-- the plaintiff must show that th e employer’s proffered reason is pretextual and that the employer discriminated against the plaintiff. In this circuit, a discrimination “plaintiff can avoid summary judgmen t only if the evidence considered in its entirety (1) creates a fact issue as to whether the employer’s proffered reasons are pretextual and (2) creates a reasonable inference that [ra ce] was a determinative factor in the adverse employment decision.” Rothmeier v. Investment Advisers, Inc. , 85 F.3d at 1336-37 (noting additional evidence may not be necessary); see Young v. Warner-Jenk inson Co. , 152 F.3d 1018, 1022 (8th Cir. 1998); Ghane v. West , 148 F.3d at 981. The ultimate question of law remains whether th e evidence is sufficient to create a genuine issue of fact as to whether the employe r intenti onally discriminated against the plaintiff. Rothmeier v. Investment Advisers , Inc. , 85 F.3d at 1336-37.
Ap pellant made serious charges against defendants and we do not reach ou r decision lightly. We hold that appellant failed to create a genuine issue of material fact
as to whether defendants’ proffered reasons for terminating him from the surgica l residency prog ram were pretexts for racial discrimination. The record shows that two of appellant’s AB SITE exam scores were below the level defendants considered to be sat isfactory (25th percentile). It is not disputed that appellant scored in the 9th, 29t h and 9t h percentile on his first, second and third ABSITE exams. According to th e record, defendants placed appellant on probation in January 1994 and terminated him from the prog ram in March 1994. See slip op. at 6. The record does not suppor t appellant’s argument that defendants effectively terminated him from the program in-7-

December 1993 and therefore could not h ave considered his third (and admittedly low)
score in deciding whether to terminate him (the score was reported durin g Ja nuary-March 1994). Even assuming the termination decision had been made i n December 1993 and then deferred to March 1994, the delay was argu ably to appellant’s advantage because it gave him an additional opportunity to demonstrate improvement. In any event, defendants also relied upon the evaluations of appellant’s clinica l performance during his first two years.

It is also undisputed that appellant received unsatisfactory evaluations of hi s clinica lperformance. It is true that he also received satisfactory to exceptiona l evaluations. A

ppellant’s argument that the evaluations were “at best subjective” does not es tablish that the unsatisfactory evaluations were the result of discriminator y animus. The present case is not one in which the plaintiff has produced evidenc e indicating that the employer’s proffered reasons were false, carelessly inaccurate o r willfully exaggerated. See, e.g., Young v. Warner-Jenkinson Co. , 152 F.3d at 1023-24 (employer offered different explanations and evidence that would allow reasonable trier of fact to disbelieve each explanation).
Appellant also argues the district court erred in rejecting his claim of a racially hostile w ork environment. Assuming for purposes of analysis that appellant raised a racially h ostile work environment claim in the district court, we agree with the district court that the statist

ical evidence was incomplete and inconclusive and did not involve similarly situated persons and that the anecd otal evidence was conclusory. See slip op. at 13-15. In particular, we note that, with respect to the racially offensive remark s allegedly made by a chief resident, such evidence did not raise a genuine issue o f material fact because that individual did not evaluate appellant's clinical performanc e and was not inv olved in the decision-making process. See Kehoe v. Anheuser-Busch, Inc. , 96 F.3d 1095, 1105-06 (8th Cir. 1996).
Accordingly, we affirm the judgment of the district court.-8-

A true copy.
Attest: U.S. COURT OF APPEALS, EIGHTH CIRCUIT.