The Honorable John D. Kelly died on October 21, 1998, before the draft of this 1 opinionwas circulated. The opinion is fully consistent with the views Judge Kell y expressed during the panel's conference following the oral argument of the case o n 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. Jeanet te Flannery appeals from the denial by the District Court of Flannery' s 2 Federal Rule of Civi l Procedure 59(e) motion requesting that the court reconsider and-2-

set aside its grant of summa ry 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 Flye r Bonu s Department in St. Louis, Missouri. On November 14, 1994, Flannery wa s speaking with Ann Crotzer, another TWA employee, when Jim Tucker, a supervisor in another department, approached Flannery and C rotzer. Crotzer introduced Flannery to Tucker as "the lady who always helps me with my problems." Flannery v. Tran s World Airlines, Inc. , No. 4:96CV01412 at 1 (E.D. M o. Nov. 17, 1997) (order granting
summ ary judgment). Pointing to Flannery, Tucker responded, "This is the lady tha t sleeps wit h [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.
Flann ery reported Tucker's statement to a TWA manager, but TWA took n o actio n regarding her complaint. On November 16, 1994, Flannery filed a grievanc e with TW A pursuant to her union's collective bargaining agreement. After Flannery filed her grievance, TWA engaged in several actions which Flannery contends wer e taken in retaliation for her grievance. On undisclosed dates in late 1994 and earl y 1995, Flannery was ordered to remove a fan from her desk, her work hours wer e changed, she was reprimanded for a dress code violation, her parking space was moved further f rom her work station, and she was admonished for liberally awarding o r 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 a s a result of this
rea ssignment. Finally, TWA removed approximately 300 complimentary letters an d commendations from Flannery's personnel file.
On July 15, 1996, Flannery filed suit against TWA alleging, inter alia , se x discrimination, sex harassment, and retaliation in violation of Title VII, 42 U.S.C.Flann ery did not timely file an appeal of the District Court's November 17 , 3 1997, gr ant 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. -3- § 2000e to 2000e-17 and the comparab le Missouri employment discrimination statute, the Missouri Human Rights Act, Mo. Rev. Stat. § 213.010-.126. Fla nnery also brought st ate tort law claims for intentional and negligent infliction of emotional distress. On No vember

17, 1997, the District Court granted summary judgment in favor of TW A
on Flannery's sexual harassment and retaliation claims and declined to exercis e juris diction over Flannery's state law claims for emotional distress. Flannery timel y m o ved the District Court to reconsider and set aside the summary judgment pursuant to Fe deral Rule of Civil Procedure 59(e). On January 7, 1998, the District Cour t de niedthe motion. Flannery filed her notice of appeal to this Court on February 5 , 1998.
For he

r only issue on appeal, Flannery argues the District Court's refusal to set asi de its grant of summary judgment on Flannery's Title VII retaliation claim was a n 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 clear ly erroneous factual findings
or erron eous legal conclusions." Mathenia v. Delo , 99 F.3d 1476, 1480 (8th Cir

. 1996) , cert. denied , 117 S.Ct. 2518 (1997). Our determination whether the Distric t Court abused its discretion in denying the Rul e 59(e) motion necessarily depends upon an examination of the correctness of the earlier grant of summar y judgment. Therefore, we begin our analysis with the District Court's grant of summary judgment.
Th e District Court properly determined that Flannery had not established a genuine issue of material f

act 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-4-

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 pa rty is entitled to judgment as a matter of law) (citing Celotex Corp. v

. Catret t , 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 engag ed in protected activity, (b) TWA took adverse employment action against her, and (c) a causa l 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) (citin g McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973)). The District Cour t determin ed that although TWA's actions could be viewed as amounting to changes in working conditions, there was no sh owing 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 e vidence to support her claim that she was s hunned 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 o r 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 ab le to establish the third element of a prima facie case of retaliation. Th e only evidence of a causal conn ection 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 Hel fter 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 canno t conclude that the District Court abused its discretion in declining to set aside that judgment.-5-

Fur ther, the District Court did not abuse its discretion in refusing to conside r evidence offered by Flannery for the first time in the context of her Rule 59(e) motion. Flannery gav e no explanation for her failure to present such evidence prior to th e District Court's grant of summary judgment. We have held that a Rule 59(e) motion
cann ot be used to present evidence that could have been tendered prior to summar y 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.