                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-2379


ANDREA C. WEATHERS,

                Plaintiff – Appellant,

          v.

UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL; HERBERT B.
PETERSON, in his individual and official capacity; JONATHAN
KOTCH, in his individual and official capacity; BARBARA K.
RIMER, in her individual and official capacity; EDWARD M.
FOSTER, in his individual and official capacity; SANDRA L.
MARTIN, in her individual and official capacity,

                Defendants – Appellees.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.  William L. Osteen,
Jr., District Judge. (1:08-cv-00847-WO-PTS)


Submitted:   August 31, 2011            Decided:   September 29, 2011


Before MOTZ, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gregory S. Connor, WALKER LAMBE RHUDY COSTLEY & GILL, PLLC,
Durham, North Carolina, for Appellant.      Thomas J. Ziko,
Assistant Attorney  General,  Raleigh, North   Carolina, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Andrea     C.     Weathers     appeals    the      district        court’s

opinion and order granting summary judgment for the University

of North Carolina at Chapel Hill, Herbert B. Peterson, Jonathan

Kotch, Barbara K. Rimer, Edward M. Foster, and Sandra L. Martin

in   Weathers’s    employment       discrimination     action.           On    appeal,

Weathers contends that she established a prima facie case that

the Defendants denied her promotion and tenure on the basis of

her race, in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2003 &

Supp.    2011)   (“Title    VII”),      and   42   U.S.C.     §§   1981       and   1983

(2006).    Finding no error, we affirm.

            We review de novo a district court’s grant of summary

judgment, “viewing the facts and the reasonable inferences drawn

therefrom in the light most favorable to the nonmoving party.”

Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008); see also

Anderson    v.   Liberty    Lobby,      Inc.,   477   U.S.    242,   255       (1986).

Summary judgment is proper “if the movant shows that there is no

genuine    dispute   as     to    any   material   fact      and   the    movant      is

entitled to judgment as a matter of law.”                      Fed. R. Civ. P.

56(a).     If the moving party sufficiently supports its motion for

summary    judgment,    the      nonmoving    party   must    demonstrate           “that

there are genuine issues of material fact.”                  Emmett, 532 F.3d at

297.

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               Title VII prohibits employers from “discriminat[ing]

against       any   individual     with    respect    to    [her]    compensation,

terms, conditions, or privileges of employment, because of such

individual’s race. . . .”              42 U.S.C.A. § 2000e-2(a)(1).           Where,

as    here,    there   is    no   direct   evidence    of    discrimination,        “a

plaintiff may proceed under the McDonnell Douglas[ *] ‘pretext’

framework, under which the employee, after establishing a prima

facie case of discrimination, demonstrates that the employer’s

proffered permissible reason for taking an adverse employment

action is actually a pretext for discrimination.”                      Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 318 (4th Cir.

2005) (internal quotation marks and brackets omitted).                        It is

well established that, even under the McDonnell Douglas burden-

shifting scheme, the ultimate burden of persuasion remains on

the plaintiff at all times.                Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1981).

               In order for Weathers to establish a prima facie case

that she was denied promotion and tenure because of her race,

she    must    present      evidence    that   she:   (1)   is   a   member    of   a

protected class; (2) applied for promotion and tenure; (3) was

qualified for the position of associate professor with tenure;

and (4) “was rejected for the position in favor of someone not a

       *
           McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).



                                           3
member of the protected group under circumstances giving rise to

an inference of unlawful discrimination.”                      Alvarado v. Bd. of

Trs., 928 F.2d 118, 121 (4th Cir. 1991); see also St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 506 n.1 (1993) (applying

McDonnell Douglas framework to § 1983 employment discrimination

claims); Gairola v. Va. Dep’t of Gen. Servs., 753 F.2d 1281,

1285 (4th Cir. 1985) (noting that McDonnell Douglas framework

applies to § 1981 and § 1983 employment discrimination claims).

While    there       is   no    dispute    that   Weathers     is    a     member   of   a

protected class, our review of the record leads us to conclude

that Weathers failed to establish the remaining elements of a

prima facie case that Defendants denied her promotion and tenure

on the basis of her race.

               We    first     note    that   Weathers     failed        to   submit     an

application for promotion and tenure by the required deadline.

Weathers       attempts        to    excuse   that   failure        by    arguing   that

submission of the promotion package would have been a futile

gesture.       See Pinchback v. Armistead Homes Corp., 907 F.2d 1447,

1451 (4th Cir. 1990) (“[T]he failure to apply for a job does not

preclude recovery if a claimant can demonstrate that [s]he would

have     applied      but      for    accurate    knowledge     of       an   employer’s

discrimination and that [s]he would have been discriminatorily

rejected       had    [s]he     actually      applied.”).       However,         Weathers

failed    to    provide        any    evidence,   beyond     her     own      assertions,

                                              4
showing    that    her    application       would       have    been       rejected    for

discriminatory reasons.

            Nonetheless,         even   assuming       that    Weathers       had   timely

applied for promotion and tenure or that doing so would have

been     futile     for        discriminatory      reasons,          she      failed    to

demonstrate that she possessed the necessary qualifications for

promotion and tenure despite receiving assistance from several

faculty members.         Finally, Weathers failed to identify a faculty

member outside her protected class who had attained promotion

and    tenure     with    an    academic    record       similar       to    hers.      We

therefore conclude that Weathers failed to establish a prima

facie case of discrimination.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions      are     adequately     presented       in     the    materials

before    the   court     and    argument      would    not    aid     the    decisional

process.

                                                                                AFFIRMED




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