UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT H. CAMPBELL,

Plaintiff-Appellant,

v.

No. 96-1638

SANDOZ PHARMACEUTICALS

CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CA-95-883-A)

Submitted: June 24, 1997

Decided: July 28, 1997

Before HALL and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Sol Z. Rosen, Washington, D.C., for Appellant. Peter O. Hughes,

STANTON, HUGHES, DIANA & ZUCKER, P.C., Florham Park,

New Jersey; Stephen W. Robinson, Karen T. McWilliams,

MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., McLean, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Robert H. Campbell appeals the district court's grant of summary

judgment in favor of the Defendant on his 42 U.S.C.§ 1981 (1994),

claim alleging racial discrimination. We affirm.

From 1988 to 1993, Campbell was employed by the Defendant

pharmaceutical corporation as a Military Hospital Representative

(MHR). Campbell, the only African American male holding such a

position, was assigned to the Washington, D.C., area where he was

responsible for accounts at ten military hospitals. In 1993, the manager of Defendant's Military Hospital Division (MHD) convinced his

superiors to limit the number of military bases for which an MHR was

responsible to no more than five per MHR. As a result, all of the

MHR's, including Campbell, lost accounts. Most of the remaining

accounts were assigned to other sales divisions of the company, but

given the high concentration of military personnel and retirees, and

hence military accounts, in the D.C. area, the company deemed that

this area merited the attention of two MHR's. The second individual

hired to service half of Campbell's previous area was a white male.

Although this individual assumed responsibility for one of the three

major hospitals in the area, Campbell was still given the responsibility

of servicing the remaining two.

In 1994, the Defendant corporation underwent a national reorganization in which it completely restructured the manner in which it marketed its product. Pursuant to this reorganization, the marketing

structure was divided into six regions around the country and the

MHD, along with other "specialty" sales forces, was eliminated along

with all MHR positions. All previous MHR's, including Campbell,

were offered positions in the new regions. These offers required the

Defendant to terminate the employment of many regular sales representatives. As a result of the reorganization and simultaneous down-

 2
sizing, approximately 140 employees were terminated and another

137 were demoted.

Shortly after the reorganization, the regional managers in charge of

the Southeastern Region determined that one representative would

service all major military accounts in the D.C. area. Based upon performance evaluations, the managers chose the same white male who

had previously been assigned half of Campbell's D.C. accounts.

Meanwhile, Campbell was forced to accept a lower position as a Territory Representative if he wished to remain in the company.1

As a result of these actions, Campbell filed an employment discrimination claim against the company alleging that both the 1993

and 1994 actions constituted racial discrimination in violation of 42

U.S.C. § 1981. The district court granted summary judgment in favor

of the Defendant. On appeal, Campbell argues that because he was

the only African-American MHR, and because he was displaced by

both actions, the restructuring and reorganization had a disparate

impact on him on account of his race. He also argues that the fact that

several white employees lost their positions as well was a subterfuge

to disguise the ultimate goal of the Defendant company, which was

to replace him with a white employee. Thus, he appears to be advancing both a disparate treatment theory and a disparate impact theory.

We begin by noting, as did the district court, that the framework

necessary to establish a claim of discrimination via the disparate

impact theory underscores the inappropriateness of an application of

that theory to a situation in which only one individual of a protected

class is affected by a given employment practice. Simply put, the fact

that one individual among several affected by an employment decision happened to fall into a protected class is not of sufficient statistical significance to establish a prima facie case of race discrimination

under a disparate impact theory.

We thus turn to the question of whether Campbell has demonstrated racial discrimination via a disparate treatment theory and

_________________________________________________________________

1 In order to create this position for Campbell, the company discharged

a white employee with a higher performance rating, but with apparently

less seniority.

 3
determine that he has not. The district court relied on Mitchell v. Data

General Corp., 12 F.3d 1310 (4th Cir. 1993), 2 in its determination

that Campbell could not prevail under a theory of disparate treatment.

Under Mitchell, a plaintiff must establish that: (1) he is in a protected

class; (2) he was selected for demotion or reassignment from a larger

group of candidates; (3) he was performing at a level equivalent to the

lowest level of those retained; and (4) the process of selection produced a residual work force containing some unprotected persons

who were performing at a level lower than that at which he performed. Id. at 1315.

As to the 1993 action, Campbell alleges that use of the Mitchell test

is inappropriate as Mitchell is a reduction in workforce case while the

1993 action was a division of territories. Even assuming the validity

of this argument, we note that regardless of what prima facie test is

proper for the employment action at issue, Campbell is unable to

demonstrate that the Defendant's legitimate, non-discriminatory reason for the action--a desire to reduce MHR responsibility with the

aim of increasing effectiveness--was pretextual. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishing burdenshifting scheme in employment discrimination actions). Accordingly,

we affirm the grant of summary judgment as it applies to the 1993

division of territories.

Turning to the 1994 reorganization and reduction in workforce,

which resulted in Campbell's demotion, we agree with the district

court that Campbell is unable to establish his prima facie case under

Mitchell because he cannot demonstrate that he was at least as qualified as the white employee allowed to continue servicing military

accounts.3 Accordingly, we affirm the district court's grant of summary judgment in favor of the Defendant.

_________________________________________________________________

2 Although Mitchell involves a claim under the Age Discrimination in

Employment Act, the application of its established prima facie case to a

claim of race discrimination presents no impropriety.

3 Campbell also argues that the use of performance ratings to determine

his qualifications relevant to the aforementioned white employees is

improper because these performance ratings are both artificial and a

reflection of the bias and prejudice of the supervising officer who pre-

 4
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

_________________________________________________________________

pared them. In support of this argument, he cites Price Waterhouse v.

Hopkins, 490 U.S. 228 (1989). We note that in Price-Waterhouse the

plaintiff was denied promotion based upon evaluations which contained

clear statements of sexual bias. Such is not the case in Campbell's evaluations. Rather, Campbell's evaluations were based solely on his ability

to obtain formulary approval of the Defendant's pharmaceuticals. While

obtaining formulary approval may hinge upon a variety of factors as

Campbell claims, there is no showing that it hinges upon a representative's race. Further, Campbell himself stated in deposition that the manager responsible for his evaluation, the individual also responsible for his

hire, never evidenced any racial discrimination against him. Accordingly,

we find this argument to be unconvincing.

 5