___________ No. 95-3827

___________
Jan Johnson, * * Appellant, * * v. * Appeal from the United States * District Court for the Western Baptist Medical Center, * District of Missouri. also known as Health Midwest; * Goppert Family Care Center; * and Dr. Lawrence Rues, * * Appellees. *

___________ Submitted: May 17, 1996 Filed: October 7, 1996

___________ Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge.
Dr. Jan Johnson was a member of the residency program at the Goppert Family Care Center of Baptist Medical Center (collectively "BMC"), i n Kansas City, Missouri . Her attending physician was Dr. Lawrence Rues, at that time the associa te director of the family care center. After nearly
a year a nd a half in the program, the faculty of the residency progra m infor med her that she did not meet the minimum standards of acceptabl e performance, and she was given the choice of resigning or being terminated

. She resigned, then sued BMC for gender discrimination under Title VII , Title IX, and Missouri state law, and sued Dr. Rues for defamation. The district court granted BMC's motion for summary judgment on the

### The Honorable Fernando J. Gaitan, Jr., Un ited States District 1 

### Judge for the Western District of Missouri.
-2- di scriminationclaim, and granted defendants' motions to dismiss th e defamation claim for failure to state a claim upon which relief could be granted. We affirm the judgment of the district court. 1

I. Title VII gender discrimination actions have well-established rules for allocating the burdens of production and persuasion to the parties

. The plain tiff must first establish a prima facie case of gende r discriminationby adducing proof that the plaintiff (1) is a member of a protected class, (2) was qualified for the job, (3) was discharged, and (4 )
was replaced by a male (or the position remained open while BMC sought a rep lacement, or the circumstances surrounding the discharge otherwis e
cre ated an inference of unlawful discrimination). See St. Mary's Hono r Ctr. v. H icks , 113 S. Ct. 2742, 2747 (1993); McDonnell Douglas Corp. v

. Green , 411 U.S. 792, 802 (1973); Davenport v. Riverview Gardens Schoo l Dist. , 30 F.3d 940, 945 (8th Cir. 1994); Walker v. St. Anthony's Medical Ctr. , 88 1 F.2d 554, 558 (8th Cir. 1989). If the plaintiff succeeds i n establishing a prima facie case, a rebuttable presumption is created; the defendant must then advance a legitimate, nondis criminatory reason for the discharge. St. Mary's Honor Center , 113 S. Ct. at 2747. If the defendant does so, then the plaintiff must demonstrate tha t the proffered reason was not the true reason for the discharge. Id. "Pl aintiff must ... establish the exis tence of facts which if proven at trial would permit a jury t o conclu de that the defendant's proffered reason is pretextual and tha t intentional discrimination was the true reason for the defendant' s actions." Krenik v. County of Le Sueur , 47 F.3d 953, 958 (8th Cir. 1995) (citing St. Mary's Honor Center , 113 S. Ct. at 2747).

### -3- We note that when a plaintiff complains of discrimination with regard to cond itions of employment in an institution of higher learning, th e method of evaluating Title IX gender discrimination claims is the same as those in a Title VII case. O'Conner v. Peru State College , 781 F.2d 632, 642 n. 8 (8th Cir. 1986); see Preston v. Commonwealth of Va. ex rel. New River Community College , 31 F.3d 203, 206-07 (4th Cir. 1994). Although th e residency program combines features of both empl oyment and academic study, it appears to be primarily an employment setting not unlike apprenticeship

. Dr. Joh nson, more importantly, makes no separate Title IX argument o n appeal. In addition, we note that Missouri courts analyzing gende r discriminationunder state law follow the framework of McDonnell Douglas v. Green , supra . See Midstate Oil Co. v. Missou ri Comm'n on Human Rights , 679 S.W.2d 842, 845-46 (Mo. 1984) (en banc).

We review the district court's summary judgment dismissal de novo

. Once the plaintiff makes her prima facie case and the defendant produces eviden ce of a legitimate reason for termination, the plaintiff face s dismissal of her claim if she fails to make a submissible case on th e question of whether t he defendant's reason for terminating her was merely
a pretext for discrimination. See Ledge-Myrtil v. Deere & Co. , 49 F.3 d 1308, 1311 (8th Cir. 1995). "To survive summary judgment at the thir d stage of the McDonnel l Douglas analysis, a plaintiff must demonstrate the existence of evidence of some additional facts that would allow a jury to find that the defendant's proffered reason is pretext and that the rea l reason for its action was intentional discrimina tion." Krenik , 47 F.3d at 958 (citing St. Mary's Honor Center , 113 S. Ct. at 2747).

We will a ssume, for purposes of analysis, that Dr. Johnson has made out a prima facie case, although the matter is hardly free from doubt. BM C produced evidence that a legitimate, nondiscriminatory motive lay behind Dr. Johnson's termination, namely, that she did not perform according to the reasonable

### -4-

expectations of the faculty of the program. BMC met its burden o f product ionbecause it proffered substantial evidence of the faculty' s displeasure with her performance in the residenc y program. The evaluation forms provide for categories of "Excellent," "Adequate," and "Needs much improvement." Dr. Jo hnson received mostly "Needs much improvement" marks in her emergency, pulmonary, obstetrics, and neonatology rotations, an d manysuch marks in her general medicine, family practice, and cardiology rota tions. The faculty comments often touched on Dr. Johnson's wea k know ledge base and inability to diagnose and manage patients. Othe r residents , both male and female, did not have such a high number o f disappointing evaluations. According to BMC, he r low level of performance led the B MC faculty to conclude that she was not fulfilling the minimu m requirements of the residency program.

Be cause BMC has advanced a legitimate nondiscriminatory reason fo r its ad verse employment actions, Dr. Johnson must produce some evidenc e creating a genuine issue of fact as to whether BMC's explanation i s pretextual and whether BMC harbored a discriminatory intent. See LedgeMyrti l , 49 F.3d at 1311; Davenport , 30 F.3d at 945 & n.8. Dr. Johnson , however, has not done so. Her proffered evidence seems to be twofold

. First, sh e maintains that Dr. Rues and other faculty harbored a discrim inatoryanimus toward women. While she worked in rotations i n various practice areas under a number of different physicians, Dr. Rues wa s her at tending physician (in other words, her supervisor). Plaintif f portrays Dr. Rues as the prime mover in undermining her career at BMC. Dr

. Johnson characterizes Dr. Rues as "intimidating, abusive, and judgmental" toward her and other female residents, but patient and understanding with male residents. She also avers that another female resident requested an attending physician other than Dr. Rues because she felt "put down" by him

. Dr. Joh nson's anecdotal "proof" of such disparate treatment, however , appears to consist entirely of hearsay, which cannot defeat a motion for summary judgment. Se e Davidson & Schaaf, Inc. v. Liberty Nat'l Fire Ins.

### -5-

Co. , 69 F.3d 868, 871 (8th Cir. 1995). She also claims that Dr. Rue s criticized a female r esident's procedures in delivering a baby. But this episode cannot support a finding of a discriminatory mindset, else every criticismof a woman would carry a presumption of unlawful animus. I n additi on, she points to the fact that another male doctor onc e inappropriately spray ed a female resident with sterile saline solution as a joke and on another occasion made apparently disparaging comments about that resident. We believe that these incidents are insufficiently serious to raise an inference of animus on the part of BMC generally.

Second, Dr. Johnson identifies various male residents who she a sserts
were similarly situated with respect to her in terms of performance, but who were not asked to leave the program. These male residents, however, had fewer unfavorable evaluations than Dr. Johnson, and hence they cannot be considered similarly situated. We find that the proof of discriminator y intent is insufficient to support a jury verdict in Dr. Johnson's favor, and we therefore findthat the district court's grant of summary judgment for BMC was appropriate.

II. We now turn to Dr Johnson's defamation claim. Dr. Johnson allege d that Dr. Ru es told employees of BMC (1) that she had done poorly i n cardiology, (2) that she had had problems in various areas of the residenc y program, a nd (3) that she had voluntarily resigned her position. Th e district court dismissed for failure to state a claim, Fed. R. Civ. P

. 12(b)( 6), finding that Dr. Rues's remarks were merely opinion, wer e privil eged by Dr. Johnson's implicit consent, and were not "published " under the intra-corporate immunity doctrine. We review the distric t court's determinations of state law de novo, giving its decision n o deference. Salve Regina College v. Russell , 499 U.S. 225, 231 (1991).

### -6- The district court did not err in concluding that Dr. Johnso n consented to critical evaluation by the faculty of the residency program. Missouri follows the Restatement of Torts and its position that consent ca n make p rivileged otherwise potentially defamatory statements. Se e Restatement of Torts Second § 583; Johnson v. City of Buckner , 610 S.W.2d 406, 411-12 (Mo. App. 1980).

Dr. Johnson appears to concede that the first two of Dr. Rues' s stat ements alleged above were made to other faculty in the residenc y program. Because Dr. Johnson was a resident seeking Board Certification in Family Practice, it was necessary that the faculty supervise an d eval uate her work. Dr. Johnson received from BMC a booklet entitle d "Special Requirements for Residency Training in Family Practice," whic h stated : "There must be adequate, on-going evaluation of the knowledge , competency, and performance of the residents. Entry evaluation assessment , interim testing and periodic reassessment, as we ll as other modalities for evaluation, should be utilized." Under these circumstances, it is no t
erro r to find that Dr. Johnson consented to the allegedly defamator y remark s, because consent to evaluation reasonably implies a consent t o intra- facultydiscussion of an employee's progress. The district cour t therefore correctly concluded that Dr. Rues's alleged remarks wer e privileged.

As to the third statement, a statement apparently made to residents
as well as faculty, that Dr. Johnson had voluntarily resigned, the distric t court concluded that the statement was not defamatory. Dr. Johnson made no argument in her br iefs with respect to this question, and we therefore decline to address it.

III. Fo r the foregoing reasons, the judgment of the district court i s affirmed. Dr. Johnson's motion to supplement the record on appeal i s granted, and BMC's motion to strike portions of the appellant's appendix and supplemental appendix on appeal is denied.

### -7- A true copy.

Attest:

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