1

On appeal, Price has not presented any specific argument

related to the denial of this motion. 

 2Skil is incorrectly identified in the caption as a division

of Emerson Electric Company. (Emerson). In fact, Skil is

partially owned by Emerson.

___________

No. 95-2075

___________

Laurina Price, *

*

Plaintiff/Appellant, *

*

v. *

*

S-B Power Tool, also known as *

Skil Corporation, a division *

of Emerson Electric Company, ** Defendant/Appellee. *

Appeal from the United States

District Court for the

Eastern District of Arkansas

___________

Submitted: December 15, 1995

Filed: January 30, 1996 ___________

Before MAGILL, BRIGHT, and MURPHY, Circuit Judges. ___________

MURPHY, Circuit Judge.

Laurina Price appeals from a judgment dismissing her

employment discrimination claim brought under the Americans with

Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 - 12213, and from

the denial of her motion for reconsideration.1 Her complaint

alleged that S-B Power Tool (Skil)2 terminated her employment
 3

The Honorable George Howard, Jr., United States District

Judge for the Eastern District of Arkansas.

2

because she suffers from epilepsy. The district court3 granted

summary judgement to Skil after determining that Price had failed

to establish a prima facie case and had not shown that Skil's

proffered legitimate nondiscriminatory reason was pretextual. We

affirm. 

The background facts are not in dispute. In 1984 Price was

hired as an assembler by Skil, which manufactures handheld power

tools. She continued working at that job for more than eight

years, except for a brief period of time when she was classified as

a line inspector. The record indicates that Price suffers from

epilepsy or a seizure disorder and that Skil was aware of her

condition. Skil does not dispute that Price was able to perform

her assembly job well on the days that she reported to work.

Price had attendance problems throughout her employment at

Skil and had received a number of verbal and written warnings as a

result. She was discharged on April 19, 1993, after failing to

report to work on April 12 and 13 after she had been given formal

written warnings on March 1 and January 11. At the time of her

termination she was informed that the reason for the action was her

excessive absences.

Skil's attendance policy requires that an employee's absentee

rate not exceed three percent. Generally, an employee who violates

the policy receives a verbal warning for the first offense, a

written warning for the second offense, and termination for the

third offense, but the policy provides that discharge is

permissible after an initial verbal warning. 

Skil determines an employee's absentee rate by dividing the

number of unscheuled job absences by the number of days worked in
3

a rolling twelve month period. The calculation does not include

long term absences after the first four days, declared bad weather

days, scheduled absence for vacation, scheduled absence for

holidays, approved leaves of absence, or absences of less than a

full day. 

Skil has a practice of granting leaves of absence, including

medical leaves of absence, to any employee who requests them. Skil

had encouraged Price to take leaves of absence when necessary and

had never denied her request for one. Price was aware of this

policy and had taken leaves of absence for medical, personal, and

pregnancy reasons. During the year prior to her dismissal, she

took maternity leave from November 11, 1991 to June 28, 1992,

personal leave unrelated to her epilepsy from September 16 to 21,

1992, and medical leave (presumably for her epilepsy) from October

6 to 27, 1992 and from November 30, 1992 to January 4, 1993. These

approved leaves were not counted against her in the calculation of

her absentee rate. The plant was also shut down several times

during the year prior to her termination: June 29 to July 10,

October 1 to 2, November 23 to 27, December 28, 1992 to January 4,

1993, January 20 to 29, February 15 to 26, and March 22 to 26,

1993. 

During the twelve month period before her termination, Price's

attendance record was poor and she received a series of warnings.

After her return from a seven month pregnancy leave, and not

counting scheduled absences, she was absent from work without

approval on July 30, August 11, August 24, August 25, and September

11. At this point her absentee rate exceeded three percent, and

Price was given a verbal warning. After she missed work on

November 9 and 16, 1992, she was given another verbal warning about

her attendance. In spite of the verbal warnings, Price missed work

on January 11, 1993, raising her absentee rate from 3.7 percent to

4.6 percent. At that time she was issued a written warning that

her attendance level was unacceptable. She missed another day of
 4

Although Price asserts that her stomach problems arose from

pressures at work, she does not claim that she was pressured

because of her epilepsy.

4

work on February 1, 1993, and a second written warning was issued

on March 1, warning her that she would be terminated if her

absenteeism rate did not fall below three percent. 

At the time of the second written warning on March 1, Price's

supervisor instructed her to call in to arrange for a leave of

absence if she was going to miss any more days because she would be

terminated unless her absenteeism rate decreased. The next month

Price failed to report to work on April 13 and 14, 1993, and she

did not contact her supervisor to arrange for a leave of absence.

She was terminated shortly thereafter. 

Many of Price's absences were not attributable to her seizure

disorder. For example, her absences on April 13 and 14 were caused

by stomach cramps unrelated to her disability.4 Price concedes

that at least two of the remaining ten absences were for care of

her infant and one was for attending a funeral. Presumably the

remaining absences were related to her epilepsy. 

On appeal Price claims that summary judgment was inappropriate

because there was sufficient evidence to establish a prima facie

case of employment discrimination and create an issue of fact

whether Skil's claim that she was fired for absenteeism was

pretext. 

Summary judgment is appropriate if there are no disputed

issues of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). All evidence

and inferences must be viewed in the light most favorable to the

non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986). The non-moving party, however, may not rest upon mere
5

denials or allegations in the pleadings, but must set forth

specific facts sufficient to raise a genuine issue for trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). We review a

grant of summary judgment de novo. Crawford v. Runyon, 37 F.3d

1338, 1340 (8th Cir. 1994).

The ADA prohibits employment discrimination "against a

qualified individual with a disability because of the disability of

such individual." 42 U.S.C. § 12112(a). A plaintiff may use the

burden-shifting framework identified in McDonnell Douglas v. Green,

411 U.S. 792 (1973), and St. Mary's Honor Center v. Hicks, 113 S.

Ct. 2742 (1993), to prove a claim of intentional discrimination.

This method of proof requires a plaintiff to establish her ability

to prove a prima facie case. In the absence of an explanation from

the employer, this creates a rebuttable presumption of

discrimination. Texas Dept. of Community Affairs v. Burdine, 450

U.S. 248, 254 (1981). The burden of production then shifts to the

employer to come forward with a legitimate, nondiscriminatory

reason for its actions. Id. Finally, the burden shifts back to

the plaintiff to prove that the defendant's proffered reason is

pretextual and that intentional discrimination was the true reason

for the defendant's actions. See Hicks, 113 S. Ct. at 2747.

To establish a prima facie case under the ADA, a plaintiff

must show that she is a disabled person within the meaning of the

ADA, that she is qualified to perform the essential functions of

the job (either with or without reasonable accommodation), and that

she has suffered an adverse employment action under circumstances

from which an inference of unlawful discrimination arises. Benson

v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995);

Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995); Johnson

v. Legal Services of Arkansas, Inc., 813 F.2d 893, 896 (8th Cir.

1987) (Rehabilitation Act of 1973). An inference of discrimination

may be raised by evidence that a plaintiff was replaced by or

treated less favorably than similarly situated employees who are
 5

Although our court has not modified the typical burdenshifting framework to fit disability cases, the Fourth Circuit

has held that other types of evidence may also create an

inference of discrimination in these cases since it may not

always be possible to determine whether another employee is a

member of the protected class. See Ennis v. National Ass'n of

Bus. & Educ. Radio, Inc., 53 F.3d 55, 58-59 (4th Cir. 1995). But

see Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir.

1995).

 6Skil also claims that Price was not a "qualified

individual" under the ADA because regular attendance was an

essential function of her job. Because there is insufficient

evidence to suggest that Price was dismissed because of her

epilepsy, we do not reach this issue.

6

not in the plaintiff's protected class.5 Johnson, 813 F.2d at 896.

Price did not meet her burden of establishing a prima facie

case because the record does not show that Price's termination

occurred under circumstances that would permit an inference of

discrimination.6 Price has not presented any facts tending to

suggest that she was terminated because of her disability. She

asserts that she was treated differently from other similarly

situated nondisabled employees, but her claim is not supported by

her own evidence. She identifies two non-disabled employees with

similar attendance problems, but does not show that they were

treated any differently. Both had received oral and written

warnings in response to their attendance rates rising above three

percent. Neither was actually terminated, but that was because

both quit voluntarily soon after receiving the written warning. 

The evidence in the record, when viewed in a light most

favorable to Price, shows only that she was terminated for being

absent from work on April 12 and 13 without calling to arrange for

leave time after being instructed specifically to do so. Her

absences on those days were not related to her epilepsy, and she

does not claim that her epilepsy prevented her from calling in to

make arrangements for leave time. Her supervisor had warned her in
7

March that she must call in to arrange for leave time if she was

going to be absent for any reason. The record is insufficient to

create a prima facie case of discrimination.

Summary judgment would have been appropriate even if Price had

established a prima facie case of discrimination because Skil

offered a legitimate nondiscriminatory reason for her dismissal and

Price failed to come forward with any evidence of pretext. St.

Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2747 (1993). Skil

asserted that Price was dismissed because she had violated the

company's attendance policy and that enforcement of the attendance

policy was necessary because of the nature of the work; each

person on the assembly line is assigned certain duties to perform

and without advance notice of absences it is difficult to obtain a

replacement worker, particularly one with the necessary skills.

Price has not shown the existence of any facts which would permit

a jury to conclude that this reason was pretextual or that

intentional discrimination was the true reason for her termination.

See Krenick v. County of LeSueur, 47 F.3d 953, 958 (8th Cir. 1995)

(ADEA). 

Price claims that there is evidence in the record to suggest

that Skil's asserted reasons were pretextual, but she relies

primarily on speculation to support her claim. She suggests that

Skil may have been influenced by her many leaves of absence because

it has acknowledged that they created some burden on the company.

It is undisputed, however, that leaves of absence were excused and

encouraged by Skil and were not counted against her in the

calculation of her absentee rate. 

Price also suggests that after the company's ownership

partially changed in 1992, Skil changed its attitude toward her

because of her epilepsy. She asserts that until 1992 Skil had

accommodated her disability by not firing her even though she had

poor attendance, but that after 1992 it refused to accommodate her
8

by ultimately firing her. The evidence shows that Price had

received numerous warnings about her excessive absenteeism

throughout her employment with the company, however. Price points

to no evidence to suggest that she ever asked for an accommodation

or that the new partial owner had discriminatory motives or even

influenced the decision to terminate her. 

Finally, Price says that Skil fired her even though her

absences on April 13 and 14 should not have been counted against

her absentee rate. She argues that the two days should have been

converted to excused absences when she provided Skil with a

doctor's note confirming her stomach disorder. She does not

dispute that she had been specifically instructed to call her

supervisor if she was going to be absent, however, or that the

record shows no attempt by her to notify the company that she would

be absent at the time of her illness. She did not provide the note

from her doctor until April 19, 1993, the day that she was

terminated. Price has not met her burden of showing that Skil's

reason for terminating her was pretextual.

After a careful examination of the record we conclude that the

district court did not err in granting summary judgment in favor of

Skil. Price failed to present a prima facie case of discrimination

and, even if she had done so, she failed to come forward with

evidence that Skil's proffered legitimate nondiscriminatory reason

was a pretext. 

For these reasons the judgment of the district court and its

order denying reconsideration are affirmed. 

A true copy.

Attest:

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