UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-2379

ANDREA C. WEATHERS,

Plaintiff – Appellant,

v.

UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL; HERBERT B. 

PETERSON, in his individual and official capacity; JONATHAN 

KOTCH, in his individual and official capacity; BARBARA K. 

RIMER, in her individual and official capacity; EDWARD M. 

FOSTER, in his individual and official capacity; SANDRA L. 

MARTIN, in her individual and official capacity,

Defendants – Appellees.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., District Judge. (1:08-cv-00847-WO-PTS)

Submitted: August 31, 2011 Decided: September 29, 2011

Before MOTZ, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gregory S. Connor, WALKER LAMBE RHUDY COSTLEY & GILL, PLLC, 

Durham, North Carolina, for Appellant. Thomas J. Ziko, 

Assistant Attorney General, Raleigh, North Carolina, for 

Appellees.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Andrea C. Weathers appeals the district court’s 

opinion and order granting summary judgment for the University 

of North Carolina at Chapel Hill, Herbert B. Peterson, Jonathan 

Kotch, Barbara K. Rimer, Edward M. Foster, and Sandra L. Martin 

in Weathers’s employment discrimination action. On appeal, 

Weathers contends that she established a prima facie case that 

the Defendants denied her promotion and tenure on the basis of 

her race, in violation of Title VII of the Civil Rights Act of 

1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2003 & 

Supp. 2011) (“Title VII”), and 42 U.S.C. §§ 1981 and 1983 

(2006). Finding no error, we affirm. 

We review de novo a district court’s grant of summary 

judgment, “viewing the facts and the reasonable inferences drawn 

therefrom in the light most favorable to the nonmoving party.” 

Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 

Summary judgment is proper “if the movant shows that there is no 

genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). If the moving party sufficiently supports its motion for 

summary judgment, the nonmoving party must demonstrate “that 

there are genuine issues of material fact.” Emmett, 532 F.3d at 

297. 
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Title VII prohibits employers from “discriminat[ing]

against any individual with respect to [her] compensation, 

terms, conditions, or privileges of employment, because of such 

individual’s race. . . .” 42 U.S.C.A. § 2000e-2(a)(1). Where, 

as here, there is no direct evidence of discrimination, “a 

plaintiff may proceed under the McDonnell Douglas[*

In order for Weathers to establish a prima facie case 

that she was denied promotion and tenure because of her race, 

she must present evidence that she: (1) is a member of a 

protected class; (2) applied for promotion and tenure; (3) was 

qualified for the position of associate professor with tenure; 

and (4) “was rejected for the position in favor of someone not a 

] ‘pretext’ 

framework, under which the employee, after establishing a prima 

facie case of discrimination, demonstrates that the employer’s 

proffered permissible reason for taking an adverse employment 

action is actually a pretext for discrimination.” Diamond v. 

Colonial Life & Accident Ins. Co., 416 F.3d 310, 318 (4th Cir. 

2005) (internal quotation marks and brackets omitted). It is 

well established that, even under the McDonnell Douglas burdenshifting scheme, the ultimate burden of persuasion remains on 

the plaintiff at all times. Tex. Dep’t of Cmty. Affairs v. 

Burdine, 450 U.S. 248, 253 (1981). 

 * McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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member of the protected group under circumstances giving rise to 

an inference of unlawful discrimination.” Alvarado v. Bd. of 

Trs., 928 F.2d 118, 121 (4th Cir. 1991); see also St. Mary’s 

Honor Ctr. v. Hicks, 509 U.S. 502, 506 n.1 (1993) (applying 

McDonnell Douglas framework to § 1983 employment discrimination 

claims); Gairola v. Va. Dep’t of Gen. Servs., 753 F.2d 1281, 

1285 (4th Cir. 1985) (noting that McDonnell Douglas framework 

applies to § 1981 and § 1983 employment discrimination claims). 

While there is no dispute that Weathers is a member of a 

protected class, our review of the record leads us to conclude 

that Weathers failed to establish the remaining elements of a 

prima facie case that Defendants denied her promotion and tenure 

on the basis of her race. 

We first note that Weathers failed to submit an 

application for promotion and tenure by the required deadline. 

Weathers attempts to excuse that failure by arguing that 

submission of the promotion package would have been a futile 

gesture. See Pinchback v. Armistead Homes Corp., 907 F.2d 1447, 

1451 (4th Cir. 1990) (“[T]he failure to apply for a job does not 

preclude recovery if a claimant can demonstrate that [s]he would 

have applied but for accurate knowledge of an employer’s 

discrimination and that [s]he would have been discriminatorily 

rejected had [s]he actually applied.”). However, Weathers 

failed to provide any evidence, beyond her own assertions, 
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showing that her application would have been rejected for 

discriminatory reasons. 

Nonetheless, even assuming that Weathers had timely 

applied for promotion and tenure or that doing so would have 

been futile for discriminatory reasons, she failed to 

demonstrate that she possessed the necessary qualifications for 

promotion and tenure despite receiving assistance from several 

faculty members. Finally, Weathers failed to identify a faculty 

member outside her protected class who had attained promotion 

and tenure with an academic record similar to hers. We 

therefore conclude that Weathers failed to establish a prima 

facie case of discrimination.

Accordingly, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process.

AFFIRMED