UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NANCY N. KATOR,
Plaintiff-Appellant,

v.
                                                               No. 96-2539
DOCTORS BAND, BADWEY,
GOODRIDGE& PEREZ, P.A.,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Marvin J. Garbis, District Judge.
(CA-95-2817-MJG)

Argued October 28, 1997

Decided: January 13, 1998

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Philip J. Simon, KATOR, SCOTT, HELLER & HURON,
Washington, D.C., for Appellant. H. Kenneth Armstrong, ARM-
STRONG, DONOHUE & CEPPOS, CHARTERED, Rockville,
Maryland, for Appellee. ON BRIEF: Joseph B. Scott, KATOR,
SCOTT, HELLER & HURON, Washington, D.C., for Appellant.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Dr. Nancy Kator sued her employer, a doctors' practice group,
alleging that the group discharged her in violation of the Pregnancy
Discrimination Act, 42 U.S.C. § 2000e(k), and retaliated against her
for telling clients of the alleged discrimination, in violation of 42
U.S.C. § 2000e-3. The district court granted the employer's motion
for summary judgment, concluding that Kator failed to produce evi-
dence sufficient to establish a prima facie case of discrimination and
failed to exhaust her administrative remedies in making her retaliation
claim. Because we conclude that the evidence adduced was insuffi-
cient to support the plaintiff's claims as a matter of law, we affirm.

I

Kator was a doctor in the employ of Drs. Band, Badwey, Good-
ridge & Perez, P.A., a medical practice group specializing in obstet-
rics and gynecology. After September 15, 1993, when her contract for
employment expired, Kator continued to work at the group while
negotiating a new contract. On October 19, 1993, Kator submitted a
draft contract to the practice group, which included a new provision
for twelve weeks maternity leave. Though Kator met with the group
to discuss the contract and the maternity leave provision, she was not
at that time pregnant. In accordance with the practice group's existing
maternity leave policy, which was applicable to all employees, the
practice group counter-proposed a six-week maternity leave provi-
sion.

According to Kator, sometime after the contract meeting, when
speaking with some members of the group, she expressed an intent to
have another child. She claims these members questioned her desire
to have a child, one stating, "Two children is enough. Take my word
for it." After this discussion, on December 19, Kator learned that she

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was pregnant, but at no time did she advise any employee or member
of the practice group of this fact.

Kator argues, however, that the group should have known she was
pregnant because events on December 29 pointed to that fact. On that
date, Kator found out that her daughter had contracted chicken pox
and, while at the office, attempted to procure a treatment for exposure
to the virus, an antidote called VZIG. VZIG, she contends, is used on
only two classes of people who have not developed an immunity to
chicken pox: those who are immunocompromised (such as AIDS
patients) and those who are pregnant. Kator had the practice group's
office staff administer the VZIG to her and says that she had informed
a doctor member of the group that she was receiving the VZIG treat-
ment.

In late December, according to Kator, Dr. Goodridge and Dr. Perez
spoke with her and assured her that they liked her work and that she
had a future at the group. She also claims that around the same time,
she had a discussion with Dr. Band. She says that during this discus-
sion, Dr. Band gave her a $15,000 raise retroactive to the anniversary
of her old contract and said that after he returned from a vacation, he
would begin to finalize a new contract with her.

The week after her VZIG treatment, however, when negotiations
for a new contract still were not completed, the members of the prac-
tice group met and voted not to renew Kator's contract. They contend
that Kator's pregnancy played no role in the decision, maintaining
they did not even know of her pregnancy. On January 13, 1994, the
group informed Kator of its decision and canceled her appointments.
After that date, Kator performed no more surgeries or medical duties
for the group, but her employment was to be maintained until March
15, during which time the group agreed to pay her and expected her
to carry out her remaining obligations to the group.

After her discharge, Kator claims that she was called by various
patients, asking why she was no longer working at the practice group.
She says that she informed them that she was unsure why her contract
had not been renewed, but suspected that it was because of her preg-
nancy. She also called up to one hundred other patients and advised
them of her suspicion that she had been discriminated against because

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of her pregnancy. It appears that she told at least some of them that
they could receive obstetric care elsewhere. Because of these con-
tacts, the practice group alleged that Kator violated the terms of her
employment, and on February 9, terminated her pay and relieved her
of any further obligations to the practice.

On March 2, 1994, Kator filed a complaint with the Montgomery
County Human Relations Commission, alleging that she had been dis-
criminated against on the basis of her pregnancy. In this complaint,
she did not allege retaliation. She claims that she only learned on June
16 of the practice group's retaliatory motive in terminating her post-
discharge pay. On July 6, 1994, the EEOC issued a right to sue letter
to Kator, and on September 20, Kator filed this action, alleging preg-
nancy discrimination and retaliation in violation of Title VII of the
Civil Rights Act. On December 2, 1994, Kator asked the Montgomery
County Commission to amend her complaint to add a retaliation
claim.

The district court dismissed Kator's claims on the practice group's
motion for summary judgment. First, the court held that Kator did not
state a claim for discrimination because the facts she alleged were
insufficient to show that the practice group was aware that she was
pregnant at the time of her termination. The court pointed out that,
because Kator was only four to six weeks pregnant when she was dis-
charged, her pregnancy was not physically apparent. It also observed
that she had not told anyone at the group of her pregnancy. It con-
cluded that Kator's proffer of her intent to become pregnant and the
group's awareness of the VZIG shot amounted to mere"speculation"
that the group was aware of her pregnancy, and that therefore Kator
had not met her burden of providing a prima facie case of discrimina-
tion.

Second, the district court held that it did not have jurisdiction over
Kator's retaliation claim because Kator had failed to exhaust her
administrative remedies on that claim. Because Kator had not filed
her amendment until after the time requirements of Title VII had
expired, it concluded that she did not successfully amend her claim
to allege retaliation.

This appeal followed.

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II

On appeal, Kator contends that the district court erred in granting
summary judgment on her pregnancy discrimination claim because
she had made out a prima facie case of pregnancy discrimination
under Title VII on the basis that she had expressed an intent to
become pregnant and the group had discharged her for having this
intent. Alternatively, she argues that she produced evidence that the
group had knowledge of her pregnancy and discharged her for it.

In order to survive summary judgment, when making a disparate
treatment claim of discrimination under Title VII, a plaintiff must sat-
isfy the test articulated in the line of Supreme Court cases following
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This test
requires the court to allocate the burdens of proof according to a
three-step analysis. First, the plaintiff must establish a prima facie
case of discrimination. The employer must then respond by providing
a legitimate, nondiscriminatory reason for its employment action. And
finally, the employee must rebut this response by producing evidence
that the employer's reason was mere pretext. See McDonnell
Douglas, 411 U.S. at 802-04. Under this schema, if the plaintiff can-
not establish a prima facie case by direct evidence of discrimination,
she may do so by circumstantial evidence that she: 1) is a member
of a protected class; (2) was performing his or her work satisfactorily
at the time of discharge; (3) was actually discharged; and (4) was
treated more harshly than others outside the class or has produced
other evidence that would support a reasonable inference of discrimi-
nation. See Lawrence v. Mars, Inc., 955 F.2d 902, 905-06 (4th Cir.
1992); see also Moore v. City of Charlotte, 754 F.2d 1100, 1105-06
(4th Cir. 1985) (noting that plaintiff may use pattern of discrimination
to meet burden); cf. Halperin v. Abacus Tech. Corp., 128 F.3d 191,
201 (4th Cir. 1997) (ADEA context). Thus, even if a plaintiff from
a protected class is able to show that she was discharged while per-
forming satisfactorily, she must still produce evidence from which
discrimination may reasonably be inferred.

Because Kator failed to present any evidence from which discrimi-
nation could reasonably be inferred, we hold that, regardless of
whether discrimination on the basis of intent to become pregnant is
actionable under Title VII, Kator failed to establish a prima facie case

                    5
of discrimination. Kator produced the following evidence in support
of her claim for discrimination: first, when she was fired, she was in
the process of negotiating a contract in which a dispute over maternity
leave had arisen; second, practice group members had, on one occa-
sion, informally attempted to discourage her from having another
baby before she was pregnant; third, shortly before her firing, she
received a raise and assurances of her future at the group; and fourth,
the timing of her discharge closely followed the date of her VZIG
treatment.

Taken as a whole, this evidence puts forth only the most specula-
tive of cases. A factfinder could at best conjecture that Kator had
experienced discrimination. The requirement that a plaintiff adduce
evidence from which discrimination could fairly be inferred is
designed to bring the actual discriminatory conduct into relief. By
providing such a sparse series of facts, Kator has not done so suffi-
ciently.

Furthermore, Kator has not alleged that she was treated differently
with respect to her pregnancy from other employees of the practice
group, nor has she alleged that all pregnant women at the group have
been subject to a pattern of discrimination. In fact, the record indi-
cates that the group provides a six-week maternity leave policy to all
its employees, and that other employees have availed themselves of
this policy without any negative repercussions.

Because the facts that Kator has brought forth are insufficient to
establish a prima facie case of discrimination, summary judgment was
appropriately entered in favor of the practice group on her discrimina-
tion claim.

III

Kator also contends that the district court improperly granted sum-
mary judgment on her retaliation claim. She contends that her retalia-
tion claim is valid because the amendment of her claim that added
retaliation met the time-frame of Montgomery County's statute of
limitations, that the statute began to run as of the date she became
aware of the retaliatory motive, and that, in any case, the practice
group had waived its right to allege the affirmative defense of exhaus-
tion because it had admitted that the retaliation claim was properly
exhausted in its answer.

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Before we consider the procedural status of the retaliation claim,
we note that the substance of any retaliation claim must also be ana-
lyzed under the McDonnell Douglas standard. The elements of a
prima facie case of retaliation, however, are somewhat different from
those used in the disparate treatment context. To make out a prima
facie case of retaliation, a plaintiff must demonstrate that: "1) the
employee engaged in protected activity; 2) the employer took adverse
employment action against the employee; and 3) a causal connection
existed between the protected activity and the adverse action." Ross
v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985).
In order for conduct to be "protected," it must not be excessively
inimical to the employer's interest, consciously aimed at hampering
the employer's business, or detached from the plaintiff's complaints
of discrimination. See, e.g., Armstrong v. Index Journal Co., 647 F.2d
441, 448 (4th Cir. 1981); Hochstadt v. Worcester Found. for Experi-
mental Biology, 545 F.2d 222, 230-31 (1st Cir. 1976).

Kator's claim for retaliation is based on the claim that the group
accelerated the effective date of her discharge in response to her con-
tacts with patients about the termination of her employment. These
contacts entailed compiling a list of about one hundred patients, sys-
tematically calling them to inform them of her suspicions that the
group had discriminated against her, and recommending to at least
some of these patients the names of other doctors from which they
could receive care. Such conduct bears no clear connection with
Kator's attempts to oppose discrimination or vindicate her rights, and,
even taken in the most favorable light, appears to be actively aimed
towards damaging the business of the practice group. This conduct is
not protected by Title VII. Because Kator has failed to demonstrate
that the activities for which her discharge was accelerated were pro-
tected conduct, she has failed to make out the first prong of a prima
facie case.

Because we hold that Kator's retaliation claim is insufficient as a
matter of law, we need not reach the question of whether it was proce-
durally barred.

AFFIRMED

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