1The Honorable Roger L. Wollman succeeded the Honorable Pasco M. Bowman

as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the end

of the day on April 23, 1999.

2The Honorable John R. Tunheim, United States District Judge for the District

of Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2218

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E. Dexter Hughes and *

Sharmell W. Relerford, *

*

Appellants, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

Ortho Pharmaceutical Corporation and *

Johnson & Johnson, Inc., *

*

Appellees. *

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Submitted: January 15, 1999

Filed: May 27, 1999

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Before RICHARD S. ARNOLD, WOLLMAN1, Circuit Judges, and TUNHEIM,2

District Judge

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TUNHEIM, District Judge.
3The Honorable Catherine D. Perry, United States District Judge for the Eastern

District of Missouri.

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E. Dexter Hughes and Sharmell W. Relerford (collectively “plaintiffs”)

appeal from the district court’s3 order granting defendants’ motion for summary

judgment on their race discrimination claims under the Civil Rights Act of 1866

(“Section 1981"), 42 U.S.C. § 1981. We affirm.

I.

Defendant Ortho Pharmaceutical Corporation (“Ortho”), a subsidiary of

defendant Johnson & Johnson, Inc., hired Relerford and Hughes in 1983 and 1993,

respectively. Relerford and Hughes are African American. During their employment

with Ortho, they were the only African American sales representatives in the

company’s St. Louis, Missouri division. At all times relevant to their claims, Kathleen

Brown Carlyon was their district manager and direct supervisor. Carlyon interviewed

and hired Hughes, and she terminated both plaintiffs on December 7, 1994, as part of

a company-wide reduction-in-force (“RIF”). 

During the first quarter of 1994, Hughes’ sales were below the national average

in every category. In July 1994, he received a letter stating that he was ineligible to

participate in Johnson & Johnson’s stock compensation plan because of his inadequate

sales performance. Carlyon placed Hughes on formal probation in August, after

determining that his sales were below the national average in all product categories.

Hughes points out that he was recognized at a district sales meeting for his

strong sales of an Ortho product (Terazol) during the first part of 1994. He also

contends that Carlyon’s realignment of his sales territory in June and July 1994 took

from him over eighty high potential physician customers. Defendants respond,

however, that Hughes’ sales territory was realigned so that he could concentrate his
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efforts on a smaller number of customers. Also, it appears undisputed that sales results

were measured by market share based on the customers in a given territory and not by

gross sales per representative. 

At the end of the third quarter of 1994, Hughes ranked thirty-seventh out of 520

Ortho sales representatives in a company-wide contest known as the “Top Achievers

Contest.” The contest ranked sales representatives on a weighted computation of

market share and market increase, rather than overall sales performance. Forty percent

of the weight attributable to market share increase was for a single product. In

November, Carlyon, who had no knowledge of the contest until after she terminated

Hughes, extended Hughes’ probation because he remained below the national average

in all sales categories except one. He was still on probation when Carlyon terminated

him on December 7. 

Relerford received stock options at the end of 1993 for her sales performance

with Ortho. After the first quarter of 1994, however, Ortho informed her that her

market share was disappointing. Carlyon placed Relerford on formal warning status

in August 1994, after two prior written warnings regarding market share performance

and problems with selling skills. After the second quarter, Relerford ranked near the

bottom of Ortho’s sales representatives with regard to market share for oral

contraceptives, a major product group. In October, Carlyon repeated the formal

warning and told Relerford that if she failed to improve, she would be placed on

probationary status. Relerford’s sales figures with regard to oral contraceptives did

show some improvement in the third quarter, but she remained on formal warning status

until her termination on December 7.

Plaintiffs’ terminations were part of a company-wide RIF that resulted in four

terminations in the St. Louis division. The other two terminated representatives are

Caucasian. All four had received formal warnings or were on probation at the time.

Relerford testified that Carlyon told her at the time of her termination that she was
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being discharged due to overlapping sales territories. In response to Relerford’s

subsequent request for a service letter, Carlyon wrote “You were discharged from

employment with [Ortho] due to a realignment and reduction of sales territories.”

Carlyon went on to state that the “decision regarding which sales representatives to

separate from employment was based primarily upon performance. Due to your poor

past performance, you were one of the individuals discharged in the process.” In her

deposition, Carlyon testified that Relerford was terminated because she was “either on

probation or had received a written warning.”

In January 1995, Carlyon hired an African American as a sales representative,

who assumed at least part of Relerford’s territory. Carlyon initially had recruited this

new representative in August 1994. At that time, however, she had informed the recruit

that there were no openings and that Ortho was interviewing to keep a pool of

applicants available in case openings emerged. Carlyon testified that she did not

become aware that Ortho was planning to downsize until December 1994. 

Plaintiffs filed suit in district court alleging race discrimination in violation of

Section 1981. In a detailed opinion, the district court granted defendants’ motion for

summary judgment, finding that Hughes and Relerford had failed to establish a prima

facie case of discrimination and had failed to offer evidence that would support an

inference that defendants’ proffered reason for terminating them as part of a companywide RIF was pretextual. Plaintiffs appealed, arguing that the district court’s

determination was erroneous.

II.

We review the district court’s grant of defendants’ motion for summary judgment

de novo. See, e.g., Roxas v. Presentation College, 90 F.3d 310, 315 (8th Cir. 1996).

We will affirm a grant of a summary judgment motion if the evidence, viewed in the

light most favorable to the nonmoving party, shows that no genuine issue of material
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fact exists and that the moving party is entitled to judgment as a matter of law. See,

e.g., Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir. 1994).

The order and allocation of proof in cases in which there is no direct evidence

of discrimination is governed by the three-step burden shifting analysis set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and St. Mary’s

Honor Center v. Hicks, 509 U.S. 502, 505-11 (1993). This framework applies to

claims brought under Section 1981. See Roxas, 90 F.3d at 315. A Section 1981

plaintiff has the initial burden of establishing a prima facie case of race discrimination.

See id. Once the plaintiff has established a prima facie case, the burden of production

shifts to the defendant employer, who must articulate a legitimate, non-discriminatory

reason for the adverse employment action. See id. at 316. Once the employer

articulates such a reason, the plaintiff bears the burden of proving that the proffered

reason is merely a pretext for discriminatory animus. See id. At all times, the plaintiff

retains the ultimate burden of proving discrimination on the basis of race. See id.

(quoting Garner v. Arvin Indus., Inc., 77 F.3d 255, 257 (8th Cir. 1996)).

Here, the district court concluded that Hughes and Relerford had failed to meet

their initial burden of establishing a prima facie case of discrimination. There is no

dispute that this is a RIF case. To establish a prima facie case of discrimination in the

RIF context under Section 1981, plaintiffs must 1) show that they were within a

protected group, 2) show that they met applicable job qualifications, 3) show that they

were discharged, and 4) produce some additional evidence that race was a factor in

their termination. See, e.g., Herrero v. St. Louis Univ. Hosp., 109 F.3d 481, 483-84

(8th Cir. 1997) (citing cases). 

While the district court assumed that Hughes and Relerford had satisfied the first

three elements of their prima facie case, it found that they failed to satisfy the fourth

element because they produced no additional evidence that race played a role in
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Carlyon’s decision to terminate them. We agree with the district court’s conclusion for

the reasons set forth in its opinion. 

Defendants offered uncontroverted evidence that all four sales representatives

Ortho terminated as part of the RIF were on formal warning or probationary status.

Although Hughes offered evidence that his sales performance improved or was strong

with regard to certain products, he has produced no evidence that his overall sales

performance warranted his removal from probation. On the contrary, defendants’

evidence that his overall performance was problematic remains uncontroverted.

Furthermore, there is no evidence that Carlyon knew about his standing in the “Top

Achiever Contest,” or that, even if she had known, this would have altered her

decision, which was based on different performance criteria. Likewise, while Relerford

showed some improvement in her sales of oral contraceptives, she has offered no

evidence to refute defendants' contention that her overall performance was deficient.

Plaintiffs therefore have not raised a fact dispute with regard to whether their

performance justified their remaining on formal warning or probationary status, and

supported their selection for the RIF.

The district court also correctly concluded, in the particular circumstances of this

case, that the fact that plaintiffs were the only African American sales representatives

in the district at the time they were terminated cannot serve as additional evidence that

race was a factor in their termination. Ortho treated them the same as the two

Caucasian salespersons that were on formal warning or probationary status, and they

have offered no evidence of other, similarly situated salespersons who were treated

better or differently. Moreover, there is no dispute that Carlyon hired another African

American sales representative shortly after she discharged Hughes and Relerford.

Plaintiffs have offered no evidence to support their theory that Carlyon hired this

employee to cover up her discriminatory animus, and such a scheme is implausible,

particularly because Carlyon had taken initial steps to recruit the employee prior to the
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RIF. Thus, plaintiffs have not offered additional evidence that race was a factor in their

termination and therefore have not established a prima facie case of discrimination.

Moreover, even if plaintiffs could establish a prima facie case of discrimination,

the district court correctly concluded that they have not offered evidence that would

support an inference that defendants’ proffered reason for terminating them -- as part

of a company-wide RIF – was pretextual. Although they argue that Carlyon used the

RIF as an opportunity to discharge them, plaintiffs have come forward with no evidence

that the RIF itself was pretextual. Their contention that Carlyon’s allegedly changing

explanation for terminating Relerford creates a fact dispute with regard to pretext is

unpersuasive. The Court finds Carlyon’s different articulations of why she terminated

Relerford are not in conflict. All of her explanations are consistent with her written

statement that after Ortho had decided to reduce its sales territories, she used

performance criteria -- formal warning or probationary status -- to determine who

should be terminated. Likewise, as set forth above, plaintiffs have not raised a genuine

fact dispute as to whether Carlyon legitimately placed them on, and then did not

remove them from, formal notice or probationary status. Accordingly, plaintiffs have

failed to meet their burden of creating a genuine issue of material fact on the question

of pretext and on the ultimate issue of whether racial animus motivated their

termination. 

III.

For the reasons enumerated above, we affirm the judgment of the district court.

A true copy.

 ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.