The Honorable Donald 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 District

Court for the Eastern District of Missouri granting summary judgment in favor of

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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
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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 reversal, appellant argues that the district court erred in holding that he failed to

create a factual dispute as to whether defendants’ proffered reasons are pretextual or to

present evidence sufficient to support a reasonable inference of unlawful

discrimination. For the reasons discussed below, we affirm the judgment of the district

court. 

Jurisdiction 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 following 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

general surgical 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 different

departments at the medical school and several local hospitals. During each rotation, the

resident is supervised and evaluated by medical school faculty and hospital physicians.

Dr. Kaminski reviews the evaluations and communicates concerns to residents.

Residents can be placed on probation for unsatisfactory academic or clinical

performance, and residents are also expected to score in the 25th percentile or better on

annual standardized in-service examinations administered by the American Board of

Surgery (ABSITE exams). Residents who fail to meet these standards may be

dismissed. 

During his first year, appellant received mixed clinical evaluations (six of sixteen

evaluations rated his performance as less than satisfactory) and he scored in the 9th

percentile on the ABSITE exam. During his rotation at one local hospital, appellant

alleged that a chief resident physician made racially offensive remarks about him and
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patients. This physician was not a medical school faculty member and did not evaluate

appellant for the surgical residency program. Dr. Kaminski cautioned appellant that his

low ABSITE exam score 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 appellant’s clinical performance was unsatisfactory. Dr.

Kaminski placed him on probation for three months and removed him from clinical

duties. Appellant conducted laboratory research, presented his research work 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.

Appellant returned to clinical rotations and began his third year with generally

favorable evaluations during his first rotation; two evaluations noted that his

performance was much improved. However, during his second rotation, two

supervising physicians evaluated his knowledge and clinical performance as “below

average.” The surgical faculty concluded that appellant should not continue in the

program. However, Dr. Kaminski stated that, pursuant to medical school policy,

appellant had to be placed on probation before he could be terminated from the

program, there would be a stronger basis for termination if appellant did not score in

the 25th percentile on the upcoming ABSITE exam, and his performance on probation

should be thoroughly documented. The surgical faculty agreed with Dr. Kaminski’s

recommendation to place appellant on probation. Appellant alleged that this is

evidence that in fact he was terminated from the program 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 notified appellant that he was again on probation.

Also in January 1994 Dr. Kaminski performed two operations with appellant’s

assistance. Dr. Kaminski concluded that appellant lacked an understanding of certain
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basic surgical concepts and that his performance was below that expected of a

third-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 other 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 poor

performance.

In August 1995 appellant filed this action against defendants, alleging that during

his employment as a surgical resident defendants discriminated against him and

terminated him from the program on the basis of race in violation of Title VII, 42

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 the

remaining claims. The district court deemed that, for purposes of the motion for

summary judgment, appellant established a prima 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 indicating

unsatisfactory 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 reasonable

inference of unlawful discrimination. Id. at 16. The district court specifically rejected

appellant’s arguments about the subjective nature of the evaluations, procedural

irregularities, and statistical evidence concerning the university’s historical record for

training and employment of African-American surgeons. Id. at 8-15. This appeal

followed.

For reversal, appellant argues that the district court erred in granting summary

judgment in favor of defendants because the evidence was sufficient to create a fact

issue on pretext and to support a reasonable inference of unlawful discrimination. 
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Appellant challenges defendants’ reliance on his low ABSITE exam scores because

defendants decided to terminate him on the basis of his first and second scores and the

second-year score was satisfactory (29th percentile). Appellant also challenges

defendants’ reliance on the evaluations. He argues that his evaluations were in fact

mixed, that is, he received what he describes as mostly satisfactory to exceptional

evaluations, although admittedly some were less than average. Appellant also argues

that there was statistical and anecdotal evidence showing racial discrimination,

amounting to a racially hostile work environment, in the administration of the surgical

residency program.

We review a grant of summary judgment de novo. The question before the

district court, and this court on appeal, is whether the record, when viewed in the light

most favorable to the non-moving party shows that there is no genuine issue as to any

material fact and that the 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 “those

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)

(quoting Fed. R. Civ. P. 56(c)). Once the moving party has met this burden, the

non-moving party cannot simply rest on mere denials or the allegations in the

pleadings; rather, the non-moving party “must set forth specific facts showing that there

is a genuine 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

judgment, the non-moving party cannot simply create a factual dispute; rather, there

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
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forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The plaintiff

must first establish a prima facie case of discrimination, which has the effect of creating

a legal presumption of unlawful discrimination; the burden of production then shifts to

the employer to articulate a legitimate, non-discriminatory reason for the adverse

employment action. If the employer meets this burden, the presumption created by the

prima facie case is rebutted and drops from the case. The burden of production then

shifts back to the plaintiff to show that the proffered reason was a pretext for unlawful

discrimination. This is really a two-part showing-- the plaintiff must show that the

employer’s proffered reason is pretextual and that the employer discriminated against

the plaintiff. In this circuit, a discrimination “plaintiff can avoid summary judgment

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

[race] 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-Jenkinson Co., 152 F.3d 1018, 1022 (8th Cir. 1998);

Ghane v. West, 148 F.3d at 981. The ultimate question of law remains whether the

evidence is sufficient to create a genuine issue of fact as to whether the employer

intentionally discriminated against the plaintiff. Rothmeier v. Investment Advisers,

Inc., 85 F.3d at 1336-37.

Appellant made serious charges against defendants and we do not reach our

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 surgical

residency program were pretexts for racial discrimination. The record shows that two

of appellant’s ABSITE exam scores were below the level defendants considered to be

satisfactory (25th percentile). It is not disputed that appellant scored in the 9th, 29th

and 9th percentile on his first, second and third ABSITE exams. According to the

record, defendants placed appellant on probation in January 1994 and terminated him

from the program in March 1994. See slip op. at 6. The record does not support

appellant’s argument that defendants effectively terminated him from the program in
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December 1993 and therefore could not have considered his third (and admittedly low)

score in deciding whether to terminate him (the score was reported during

January-March 1994). Even assuming the termination decision had been made in

December 1993 and then deferred to March 1994, the delay was arguably 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 clinical

performance during his first two years.

It is also undisputed that appellant received unsatisfactory evaluations of his

clinical performance. It is true that he also received satisfactory to exceptional

evaluations. Appellant’s argument that the evaluations were “at best subjective” does

not establish that the unsatisfactory evaluations were the result of discriminatory

animus. The present case is not one in which the plaintiff has produced evidence

indicating that the employer’s proffered reasons were false, carelessly inaccurate or

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 work environment. Assuming for purposes of analysis that appellant raised a

racially hostile work environment claim in the district court, we agree with the district

court that the statistical evidence was incomplete and inconclusive and did not involve

similarly situated persons and that the anecdotal evidence was conclusory. See slip op.

at 13-15. In particular, we note that, with respect to the racially offensive remarks

allegedly made by a chief resident, such evidence did not raise a genuine issue of

material fact because that individual did not evaluate appellant's clinical performance

and was not involved 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.
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A true copy.

Attest:

 U.S. COURT OF APPEALS, EIGHTH CIRCUIT.