The Honorable John D. Kelly died on October 21, 1998, before the draft of this 1

opinion was circulated. The opinion is fully consistent with the views Judge Kelly

expressed during the panel's conference following the oral argument of the case on

September 24, 1998.

 The Honorable George F. Gunn, Jr., late a United States District Judge for the 2

Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 98-1414

_____________

Jeanette Flannery, *

*

Appellant, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

Trans World Airlines, Inc., *

*

Appellee. *

_____________

Submitted: September 24, 1998

Filed: November 4, 1998

_____________

Before BOWMAN, Chief Judge, LOKEN, and KELLY, Circuit Judges. 1

_____________

BOWMAN, Chief Judge.

Jeanette Flannery appeals from the denial by the District Court of Flannery's

2

Federal Rule of Civil Procedure 59(e) motion requesting that the court reconsider and
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set aside its grant of summary judgment in favor of Trans World Airlines, Inc. (TWA)

on Flannery's Title VII retaliation claim. We affirm.

Flannery began working for TWA in October 1969. During the period relevant

to her lawsuit, she worked as a Reservation Sales Agent in TWA's Frequent Flyer

Bonus Department in St. Louis, Missouri. On November 14, 1994, Flannery was

speaking with Ann Crotzer, another TWA employee, when Jim Tucker, a supervisor

in another department, approached Flannery and Crotzer. Crotzer introduced Flannery

to Tucker as "the lady who always helps me with my problems." Flannery v. Trans

World Airlines, Inc., No. 4:96CV01412 at 1 (E.D. Mo. Nov. 17, 1997) (order granting

summary judgment). Pointing to Flannery, Tucker responded, "This is the lady that

sleeps with [a male TWA employee] and helps him with his upgrades." Id. at 1-2.

When Flannery objected to Tucker's statement, Tucker apologized and stated he had

mistaken Flannery for someone else.

Flannery reported Tucker's statement to a TWA manager, but TWA took no

action regarding her complaint. On November 16, 1994, Flannery filed a grievance

with TWA pursuant to her union's collective bargaining agreement. After Flannery

filed her grievance, TWA engaged in several actions which Flannery contends were

taken in retaliation for her grievance. On undisclosed dates in late 1994 and early

1995, Flannery was ordered to remove a fan from her desk, her work hours were

changed, she was reprimanded for a dress code violation, her parking space was moved

further from her work station, and she was admonished for liberally awarding or

refunding frequent flyer miles to customers. In March 1995, Flannery was reassigned

to another work station, but did not lose any pay, seniority, or benefits as a result of this

reassignment. Finally, TWA removed approximately 300 complimentary letters and

commendations from Flannery's personnel file.

On July 15, 1996, Flannery filed suit against TWA alleging, inter alia, sex

discrimination, sex harassment, and retaliation in violation of Title VII, 42 U.S.C.
Flannery did not timely file an appeal of the District Court's November 17,

3

1997, grant of summary judgment and therefore appealed only the January 7, 1998,

denial of her Rule 59(e) motion to reconsider and set aside the summary judgment. 

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§ 2000e to 2000e-17 and the comparable Missouri employment discrimination statute,

the Missouri Human Rights Act, Mo. Rev. Stat. § 213.010-.126. Flannery also brought

state tort law claims for intentional and negligent infliction of emotional distress. On

November 17, 1997, the District Court granted summary judgment in favor of TWA

on Flannery's sexual harassment and retaliation claims and declined to exercise

jurisdiction over Flannery's state law claims for emotional distress. Flannery timely

moved the District Court to reconsider and set aside the summary judgment pursuant

to Federal Rule of Civil Procedure 59(e). On January 7, 1998, the District Court

denied the motion. Flannery filed her notice of appeal to this Court on February 5,

1998.

For her only issue on appeal, Flannery argues the District Court's refusal to set

aside its grant of summary judgment on Flannery's Title VII retaliation claim was an

abuse of discretion. See Davidson & Schaaff, Inc. v. Liberty Nat'l Fire Ins., 69 F.3d 3

868, 871 (8th Cir. 1995) (noting abuse of discretion is standard for reviewing district

court's denial of Rule 59(e) motion to reconsider). "An abuse of discretion will only

be found if the district court's judgment was based on clearly erroneous factual findings

or erroneous legal conclusions." Mathenia v. Delo, 99 F.3d 1476, 1480 (8th Cir.

1996), cert. denied, 117 S.Ct. 2518 (1997). Our determination whether the District

Court abused its discretion in denying the Rule 59(e) motion necessarily depends upon

an examination of the correctness of the earlier grant of summary judgment. Therefore,

we begin our analysis with the District Court's grant of summary judgment.

The District Court properly determined that Flannery had not established a

genuine issue of material fact regarding two elements necessary for a prima facie case

of retaliation. See, e.g., Ghane v. West, 148 F.3d 979, 981 (8th Cir. 1998) (noting
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summary judgment is proper when the record, viewed in the light most favorable to the

non-moving party, shows that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law) (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986)). To establish a prima facie case of retaliation,

Flannery was required to introduce probative evidence that (a) she engaged in protected

activity, (b) TWA took adverse employment action against her, and (c) a causal

connection existed between the adverse employment action and the protected activity.

See Stevens v. St. Louis Univ. Med. Ctr., 97 F.3d 268, 270 (8th Cir. 1996) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). The District Court

determined that although TWA's actions could be viewed as amounting to changes in

working conditions, there was no showing they caused any significant disadvantage to

Flannery. Flannery did not allege TWA's actions resulted in reduced salary, benefits,

seniority, or responsibilities, nor did she provide any evidence to support her claim that

she was shunned in the position to which TWA transferred her. Therefore, Flannery

did not show adverse employment action on the part of TWA. See Harlston v.

McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994) ("Changes in duties or

working conditions that cause no materially significant disadvantage . . . are insufficient

to establish the adverse conduct required to make a prima facie case."). Neither was

Flannery able to establish the third element of a prima facie case of retaliation. The

only evidence of a causal connection between any adverse employment action and the

filing of Flannery's grievance was Flannery's own conclusory affidavit, which is devoid

of any specific factual allegations that, if credited by a trial jury, could support a finding

of causal connection. See Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 616 (8th

Cir. 1997) (holding conclusory statements in affidavit, standing alone, are insufficient

to withstand properly supported motion for summary judgment). Therefore, the District

Court correctly granted summary judgment in favor of TWA.

Having determined that summary judgment was appropriate, we cannot conclude

that the District Court abused its discretion in declining to set aside that judgment.
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Further, the District Court did not abuse its discretion in refusing to consider

evidence offered by Flannery for the first time in the context of her Rule 59(e) motion.

Flannery gave no explanation for her failure to present such evidence prior to the

District Court's grant of summary judgment. We have held that a Rule 59(e) motion

cannot be used to present evidence that could have been tendered prior to summary

judgment. See Concordia College Corp. v. W.R. Grace & Co., 999 F.2d 326, 330 (8th

Cir. 1993), cert. denied, 510 U.S. 1093 (1994).

The judgment of the District Court is affirmed.

A true copy.

Attest:

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