                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1417
                                    ___________

Badralsadat Madani,                    *
                                       *
             Appellant,                *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
University of Nebraska Board of        *
Regents, Acting by and through the     *      [UNPUBLISHED]
University of Nebraska Medical         *
Center,                                *
                                       *
             Appellee.                 *
                                  ___________

                          Submitted: November 20, 2000
                              Filed: November 28, 2000
                                  ___________

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

PER CURIAM.

       Badralsadat Madani, M.D., an Iranian citizen, was placed on probation and then
terminated from her position as a resident in the University of Nebraska Medical Center
(UNMC) pediatric residency program. She filed suit against the University of
Nebraska Board of Regents (Board) asserting sexual harassment, disparate treatment
based on gender and national origin, and wrongful discharge based on her national
origin and her rejection of advances by the director of the residency program. She
claimed violations of Title VII, the Nebraska Fair Employment Act, and Neb. Rev.
Stat. § 20-148 (1997).

       Dr. Madani now appeals the District Court’s1 adverse grant of summary
judgment. For reversal, she argues that the District Court failed to construe the
evidence most favorably to her, that she established a genuine issue concerning pretext,
and that a mixed-motives analysis should have been applied because she submitted
direct evidence of discrimination. Having carefully considered the record, and viewing
the evidence in a light most favorable to Dr. Madani, see Lynn v. Deaconess Med. Ctr.-
West Campus, 160 F.3d 484, 486-87 (8th Cir. 1998), we conclude that summary
judgment was proper.

       Dr. Madani is not entitled to a mixed-motives analysis for her gender and
national-origin claims, because we cannot say that her proffered direct evidence—the
program director’s alleged statement (made at some unknown point in time during Dr.
Madani’s tenure at UNMC) that he would send Dr. Madani back where she came from
if she was not nice—constituted a statement by an employer that reflected a
discriminatory attitude or a discriminatory animus in the decisional process. See
Kneibert v. Thomson Newspapers, Mich. Inc., 129 F.3d 444, 452 (8th Cir. 1997).
Thus, application of the burden-shifting analysis under McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-03 (1973), was proper. See Euerle-Wehle v. United Parcel
Serv., Inc., 181 F.3d 898, 900 (8th Cir. 1999) (finding McDonnell Douglas burden-
shifting analysis applicable where there is no direct evidence of discrimination).

      We also agree with the District Court that the discrimination claims do not
survive the burden-shifting analysis, because Dr. Madani did not present evidence
which, if proven at trial, would permit a jury to conclude that the Board’s legitimate


      1
        The Honorable William G. Cambridge, United States District Judge for the
District of Nebraska, now retired.
                                          -2-
non-discriminatory reason for the adverse employment decisions—Dr. Madani’s
inability to perform at the expected level—was pretextual. See Johnson v. Baptist
Med. Ctr., 97 F.3d 1070, 1072 (8th Cir. 1996). Not only did she fail to identify any
male resident who received the same ratings as she but was allowed to complete the
program, but she conceded that she was unsure if male residents were treated
differently; and although she testified as to a derogatory comment UNMC employees
made about another Iranian doctor (they referred to him as a “black head”) and as to
what a friend had told her about UNMC’s treatment of other Iranian doctors, this was
insufficient to overcome the summary judgment motion. See id. at 1073 (holding that
hearsay cannot defeat summary judgment); cf. Frieze v. Boatmen’s Bank of Belton, 950
F.2d 538, 541-42 (8th Cir. 1991) (holding that statements by non-decisionmakers that
employee was too old and had too little rank to become president did not create
reasonable inference of age discrimination).

       Summary judgment was also properly granted on Dr. Madani’s quid-pro-quo
sexual harassment claim for lack of a genuine issue as to whether submission to the
program director’s alleged advances was an express or implied condition for receiving
job benefits, or whether her refusal to submit resulted in a tangible job detriment. See
Cram v. Lamson & Sessions Co., 49 F.3d 466, 473 (8th Cir. 1995); Kneibert, 129 F.3d
at 455 (requiring that party “must provide sufficient, probative evidence which would
permit a fact finder to rule in his favor as opposed to engaging in %mere speculation,
conjecture, or fantasy’” in order to survive summary judgment motion) (citation
omitted).

       Accordingly, we affirm. We clarify that the dismissal of Dr. Madani’s pendent
state-law claims was without prejudice. See Labickas v. Arkansas State Univ., 78 F.3d
333, 334-35 (8th Cir.) (per curiam), cert. denied, 519 U.S. 968 (1996).




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A true copy.

      Attest:

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




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