UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DEBORAH J. ARRINDELL,
Plaintiff-Appellant,

v.

KAISER HEALTH PLAN OF THE
                                                                  No. 96-2209
MID-ATLANTIC STATES,
INCORPORATED; KAISER PERMANENTE,
a/k/a Capital Area Permanente
Medical Group, P.C.,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-94-1145-DKC)

Submitted: June 10, 1997

Decided: August 5, 1997

Before HALL, WILKINS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Eric E. Vickers, VICKERS & ASSOCIATES, P.C., St. Louis, Mis-
souri, for Appellant. Squire Padgett, LAW OFFICE OF SQUIRE
PADGETT, Washington, D.C.; Isaac Joe, Jr., Baltimore, Maryland,
for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Deborah J. Arrindell, an anesthesiologist, sued her employer alleg-
ing that she was harassed and terminated because of her race (she is
African-American) and retaliated against because she complained of
discrimination. See 42 U.S.C. §§ 2000e et seq. (1994); 42 U.S.C.
§ 1981 (1994). The district court granted summary judgment to her
employer. For the reasons that follow, we affirm.

Arrindell worked for the Capital Area Permanente Medical Group,
P.C. (CAPMG), which recruits, employs, supervises, and compen-
sates physicians for the purpose of providing physicians, under con-
tract, to Kaiser Foundation Health Plan of the Mid-Atlantic States,
Inc. Each eligible physician is allowed to purchase two shares of
CAPMG stock after twenty-four months of service, a third share after
thirty-six months, and a fourth share after forty-eight months of ser-
vice. The bylaws of CAPMG provide that in making the determina-
tion of whether to recommend a physician for shares, the Board of
Directors (Board) considers a physician's written performance
appraisal.

Arrindell, as she had in previous years, received a satisfactory per-
formance appraisal in June 1992 from her supervisor Dr. Nancy
Jones, Chief of Anesthesiology. The appraisal noted, however, in the
growth/improvement section that "airway management and difficult
intubations continue to present a challenge." (J.A. at 145, 150).
Although the parties dispute the Board's motivation, it is uncontested
that at a September 1992 Board meeting it was decided that Arrin-
dell's third share of stock would be delayed for six months so that
Arrindell could remedy her perceived shortcomings.

Arrindell rejected Jones' proposed training and monitoring plan
designed to improve her skills in airway management and difficult

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intubations. Accordingly, Arrindell was given two weeks to present
her own proposal for training.1 Rather than recommend any training
plan, Arrindell stated by letter, dated November 10, that she thought
any training was unnecessary because she felt that Jones' assessment
of her was unfounded and that she would only submit to training if
and when she received an "unsatisfactory rating." Thereafter, Arrin-
dell was told to report to work for the purpose of identifying an
appropriate fellowship program in which she could enroll. She
reported in to work but refused to cooperate in any training; she
memorialized this refusal by letter dated December 4. She was termi-
nated on December 7.

On appeal, Arrindell alleges that the district court erred by granting
CAPMG's motion for summary judgment. Specifically, she alleges
that (1) she established a prima facie case of discrimination and (2)
CAPMG's reasons for terminating her were patently pretextual
because her performance was satisfactory.2 Summary judgment orders
are reviewed de novo on appeal; if there is no genuine dispute as to
a material fact, the moving party is entitled to judgment as a matter
of law. See Hinson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir.
1995). An employer is entitled to summary judgment if the plaintiff
fails to establish a prima facie case of discrimination or fails to raise
a factual dispute regarding the employer's proffered reasons for the
alleged discriminatory act. Id. "[T]he mere existence of a scintilla of
evidence in support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably find for
the plaintiff." EEOC v. Clay Printing Co., 955 F.2d 936, 943 (4th Cir.
1992) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252
(1986)).

In order to establish a prima facie case3 of a racially motivated dis-
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1 During this time she was excused from her normal duties but received
her salary.
2 Arrindell does not allege, on appeal, that the district court erred with
respect to her racial harassment or retaliation claims.
3 In her brief, Arrindell admits there is no direct evidence of discrimi-
nation; therefore, the district court properly analyzed her claims under
the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-
shifting method of proof.

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charge, Arrindell must show that: (1) she is a member of a protected
class; (2) she was qualified for the job and performed the job satisfac-
torily; (3) in spite of her qualifications and performance, she was
demoted and ultimately discharged; and (4) the position remained
open to similarly qualified applicants after plaintiff's dismissal. See
Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994). The inference of dis-
crimination arising from plaintiff's prima facie case may be rebutted
by evidence of the employer's legitimate, non discriminatory reasons
for the dismissal. The burden then shifts to the plaintiff to prove that
the employer's stated reasons are pretextual. The plaintiff retains the
ultimate burden of persuasion throughout the process. Id.

The district court found that Arrindell failed to establish a prima
facie case of discrimination because she was not performing her job
satisfactorily. Arrindell argues that this prong is established because
she received a satisfactory rating on each of her annual performance
appraisals--notwithstanding that her June 1992 appraisal noted that
she needed improvement in "airway management" and "difficult intu-
bations." In essence, Arrindell argues that her"satisfactory" rating is
per se proof of meeting the second prong of the prima facie case and
that her employer's termination of her on the basis of her job perfor-
mance is therefore pretextual. As noted by the district court, however,
CAPMG's reason for terminating her was because she steadfastly
refused training her employer considered necessary to her fully satis-
factory performance.4

The record is uncontroverted that Jones' assessment that Arrindell
needed improvement in airway management and difficult intubations
was accurate. At least eight other physicians had reported an instance
in which Arrindell had difficulty with an intubation or some problem
in airway management. Some of these situations were of a serious
nature and required the intervention of another anesthesiologist or
physician. Arrindell provides no evidence that these problems were
exaggerated or that her supervisor, Jones, overreacted. Indeed, Jones,
herself, is African-American.
_________________________________________________________________

4 Arrindell does not dispute, nor could she, that she refused training.
Rather, she maintains the training was not "warranted."

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In any event, even if Arrindell established a prima facie case of dis-
crimination, she provided no evidence that CAPMG's stated reasons
for her termination were merely a pretext for discriminatory treat-
ment. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07
(1993). The record establishes that at least two other physicians, out-
side Arrindell's protected class, also had their shares deferred and
were required to undergo training--thereby cutting against any infer-
ence that CAPMG's actions were merely a pretext for discriminatory
treatment.5 Arrindell provided no evidence that she was discharged
because of her race. Her unsubstantiated allegations and assertions
concerning her own performance simply "do not have sufficient `pro-
bative force to reflect a genuine issue of material fact.'" Evans v.
Technologies Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir.
1996) (quoting Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th
Cir. 1988)). Accordingly, met with a record lacking in evidence of
discriminatory animus or treatment, the district court properly granted
summary judgment to CAPMG.6 Thus, we affirm.

We deny Arrindell's motion for oral argument because the facts
and legal contentions are adequately presented before the court and
argument would not aid the decisional process.

AFFIRMED
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5 To the extent Arrindell alleges discriminatory treatment, this claim
also fails. See Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4th Cir.
1985).
6 Because the record is devoid of discriminatory animus by CAPMG,
Arrindell's claim of discrimination under 42 U.S.C.§ 1981 (1994), was
also properly dismissed by the district court on summary judgment. See
Theard v. Glaxo, Inc., 47 F.3d 676, 680 (4th Cir. 1995).

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