UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT H. CAMPBELL,
Plaintiff-Appellant,

v.
                                                                  No. 96-1638
SANDOZ PHARMACEUTICALS
CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-95-883-A)

Submitted: June 24, 1997

Decided: July 28, 1997

Before HALL and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Sol Z. Rosen, Washington, D.C., for Appellant. Peter O. Hughes,
STANTON, HUGHES, DIANA & ZUCKER, P.C., Florham Park,
New Jersey; Stephen W. Robinson, Karen T. McWilliams,
MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., McLean, Vir-
ginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Robert H. Campbell appeals the district court's grant of summary
judgment in favor of the Defendant on his 42 U.S.C.§ 1981 (1994),
claim alleging racial discrimination. We affirm.

From 1988 to 1993, Campbell was employed by the Defendant
pharmaceutical corporation as a Military Hospital Representative
(MHR). Campbell, the only African American male holding such a
position, was assigned to the Washington, D.C., area where he was
responsible for accounts at ten military hospitals. In 1993, the man-
ager of Defendant's Military Hospital Division (MHD) convinced his
superiors to limit the number of military bases for which an MHR was
responsible to no more than five per MHR. As a result, all of the
MHR's, including Campbell, lost accounts. Most of the remaining
accounts were assigned to other sales divisions of the company, but
given the high concentration of military personnel and retirees, and
hence military accounts, in the D.C. area, the company deemed that
this area merited the attention of two MHR's. The second individual
hired to service half of Campbell's previous area was a white male.
Although this individual assumed responsibility for one of the three
major hospitals in the area, Campbell was still given the responsibility
of servicing the remaining two.

In 1994, the Defendant corporation underwent a national reorgani-
zation in which it completely restructured the manner in which it mar-
keted its product. Pursuant to this reorganization, the marketing
structure was divided into six regions around the country and the
MHD, along with other "specialty" sales forces, was eliminated along
with all MHR positions. All previous MHR's, including Campbell,
were offered positions in the new regions. These offers required the
Defendant to terminate the employment of many regular sales repre-
sentatives. As a result of the reorganization and simultaneous down-

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sizing, approximately 140 employees were terminated and another
137 were demoted.

Shortly after the reorganization, the regional managers in charge of
the Southeastern Region determined that one representative would
service all major military accounts in the D.C. area. Based upon per-
formance evaluations, the managers chose the same white male who
had previously been assigned half of Campbell's D.C. accounts.
Meanwhile, Campbell was forced to accept a lower position as a Ter-
ritory Representative if he wished to remain in the company.1

As a result of these actions, Campbell filed an employment dis-
crimination claim against the company alleging that both the 1993
and 1994 actions constituted racial discrimination in violation of 42
U.S.C. § 1981. The district court granted summary judgment in favor
of the Defendant. On appeal, Campbell argues that because he was
the only African-American MHR, and because he was displaced by
both actions, the restructuring and reorganization had a disparate
impact on him on account of his race. He also argues that the fact that
several white employees lost their positions as well was a subterfuge
to disguise the ultimate goal of the Defendant company, which was
to replace him with a white employee. Thus, he appears to be advanc-
ing both a disparate treatment theory and a disparate impact theory.

We begin by noting, as did the district court, that the framework
necessary to establish a claim of discrimination via the disparate
impact theory underscores the inappropriateness of an application of
that theory to a situation in which only one individual of a protected
class is affected by a given employment practice. Simply put, the fact
that one individual among several affected by an employment deci-
sion happened to fall into a protected class is not of sufficient statisti-
cal significance to establish a prima facie case of race discrimination
under a disparate impact theory.

We thus turn to the question of whether Campbell has demon-
strated racial discrimination via a disparate treatment theory and
_________________________________________________________________
1 In order to create this position for Campbell, the company discharged
a white employee with a higher performance rating, but with apparently
less seniority.

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determine that he has not. The district court relied on Mitchell v. Data
General Corp., 12 F.3d 1310 (4th Cir. 1993), 2 in its determination
that Campbell could not prevail under a theory of disparate treatment.
Under Mitchell, a plaintiff must establish that: (1) he is in a protected
class; (2) he was selected for demotion or reassignment from a larger
group of candidates; (3) he was performing at a level equivalent to the
lowest level of those retained; and (4) the process of selection pro-
duced a residual work force containing some unprotected persons
who were performing at a level lower than that at which he per-
formed. Id. at 1315.

As to the 1993 action, Campbell alleges that use of the Mitchell test
is inappropriate as Mitchell is a reduction in workforce case while the
1993 action was a division of territories. Even assuming the validity
of this argument, we note that regardless of what prima facie test is
proper for the employment action at issue, Campbell is unable to
demonstrate that the Defendant's legitimate, non-discriminatory rea-
son for the action--a desire to reduce MHR responsibility with the
aim of increasing effectiveness--was pretextual. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishing burden-
shifting scheme in employment discrimination actions). Accordingly,
we affirm the grant of summary judgment as it applies to the 1993
division of territories.

Turning to the 1994 reorganization and reduction in workforce,
which resulted in Campbell's demotion, we agree with the district
court that Campbell is unable to establish his prima facie case under
Mitchell because he cannot demonstrate that he was at least as quali-
fied as the white employee allowed to continue servicing military
accounts.3 Accordingly, we affirm the district court's grant of sum-
mary judgment in favor of the Defendant.
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2 Although Mitchell involves a claim under the Age Discrimination in
Employment Act, the application of its established prima facie case to a
claim of race discrimination presents no impropriety.
3 Campbell also argues that the use of performance ratings to determine
his qualifications relevant to the aforementioned white employees is
improper because these performance ratings are both artificial and a
reflection of the bias and prejudice of the supervising officer who pre-

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We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED
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pared them. In support of this argument, he cites Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989). We note that in Price-Waterhouse the
plaintiff was denied promotion based upon evaluations which contained
clear statements of sexual bias. Such is not the case in Campbell's evalu-
ations. Rather, Campbell's evaluations were based solely on his ability
to obtain formulary approval of the Defendant's pharmaceuticals. While
obtaining formulary approval may hinge upon a variety of factors as
Campbell claims, there is no showing that it hinges upon a representa-
tive's race. Further, Campbell himself stated in deposition that the man-
ager responsible for his evaluation, the individual also responsible for his
hire, never evidenced any racial discrimination against him. Accordingly,
we find this argument to be unconvincing.

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