*

The HONORABLE THOMAS M. REAVLEY, United States Circuit

Judge

for the Fifth Circuit, sitting by designation.

_____________

No. 95-2926

_____________

Salena G. Garner, *

*

Plaintiff-Appellant, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

Arvin Industries Inc./Arvin *

North American Automotive, ** Defendant-Appellee. *

_____________

Submitted: January 11, 1996

 Filed: February 26, 1996 _____________

Before LOKEN, REAVLEY,* and HANSEN, Circuit Judges. _____________

HANSEN, Circuit Judge.

Salena Garner brought this action against Arvin

Industries/Arvin North American Automotive (Arvin), alleging that

she had been terminated in connection with a reduction in force

(RIF) on the basis of her age, in violation of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and

the Missouri Human Rights Act (MHRA), Mo. Ann. Stat. § 213 (Vernon

1996). Arvin moved for summary judgment, contending that Garner

had failed to set forth sufficient facts to establish either a

prima facie case or that Arvin's proffered reasons for the adverse
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The Honorable Stephen N. Limbaugh, United States District

Judge for the Eastern and Western Districts of Missouri.

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employment action were pretextual. The district court1 granted

Arvin summary judgment on both bases. Garner v. Arvin Indus.,

Inc., 885 F. Supp. 1254 (E.D. Mo. 1995). We affirm.

I.

Arvin Industries Inc. consists of several divisions, including

the Arvin North American Automotive division. The Arvin North

American Automotive division has a production facility in Dexter,

Missouri, which produces automobile exhaust systems to be installed

in new cars. 

Salena Garner began working for Arvin at the Dexter facility

in 1975. Initially, she worked in bargaining unit positions (union

jobs), first as a unit operator and subsequently as a

clerk/dispatcher. In May of 1981, Garner began working in the

engineering department as a maintenance clerk, which was classified

as a non-union salaried position. Garner performed a variety of

tasks in this position, including: recording work-order records,

reading air compressor meters, general office filing, running

errands, issuing return goods notices, making copies, running

maintenance work orders, and answering the phone. Her primary duty

consisted of reading and extracting pertinent data from maintenance

work orders and entering the data into a computer. Garner worked

in this position until her termination from Arvin.

In 1991, Arvin determined that conditions in the automobile

industry necessitated a RIF. The Dexter plant manager, Phil Davis,

was instructed to eliminate 20 non-union salaried employees to

reduce costs. Davis was not provided with specific instructions or
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criteria for selecting individuals to be included in the RIF but he

was aware that the positions held by employees in the RIF were

being permanently eliminated. Davis met with the Dexter plant's

six department heads and informed them that a RIF was to be

implemented, that the layoffs were permanent in nature, and

accordingly, the department heads should select individuals whose

departure would impact plant operations the least. Davis left to

the department heads the responsibility of selecting employees for

the RIF because the department heads were more familiar with the

capabilities of the individual employees and the responsibilities

required for each position. Garner's department head at the time

of the RIF was Robert Willis; Tom Holt, the maintenance general

foreman of the Dexter plant and Garner's immediate supervisor,

reported directly to Willis.

Garner and 18 other non-union salaried employees were selected

for the RIF. Of this group, 5 employees were able to acquire union

positions in the Dexter plant, and the remaining 14, including

Garner, were terminated. At the time of the RIF, Garner was 58

years of age. Garner's various clerical duties in the engineering

department were absorbed by a number of remaining employees. Resa

Foushee, a clerk in Garner's department who was 28 years of age at

the time of the RIF, assumed Garner's responsibility for processing

maintenance work orders.

Garner brought this action alleging that she was terminated

because of her age. After extensive discovery, the district court

granted summary judgment to Arvin and denied Garner's various

motions to strike portions of Arvin's summary judgment briefs and

exhibits. The district court later denied Garner's Federal Rule of

Civil Procedure 59(e) motion to alter or amend the judgment.

Garner appeals. 
 2

Garner also claimed in the district court that she had

direct evidence of age discrimination and that the "mixed

motives" analysis under Price Waterhouse v. Hopkins, 490 U.S. 228

(1989), applied. She has abandoned that legal theory before this

court. Additionally, although Garner filed her age

discrimination claim under the MHRA along with the ADEA, the

district court analyzed her claim only under the ADEA and that is

the way the parties have presented the issues to this court;

hence we too will analyze Garner's claims under the ADEA. In any

event, we observe that the same analysis applies under both

statutes. See Bradford v. Norfolk Southern Corp., 54 F.3d 1412,

1416 (8th Cir. 1995).

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II.

In reviewing a district court's grant of summary judgment, we

apply the same standards as the district court. McLaughlin v.

Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir. 1995). Summary

judgment is appropriate when the record, viewed in the light most

favorable to the nonmoving party, shows that there is no genuine

issue of material fact and that the moving party is entitled to a

judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c). We

review the district court's grant of summary judgment de novo.

Seltzer-Bey v. Delo, 66 F.3d 961, 963 (8th Cir. 1995).

Garner relies on indirect evidence to support her age

discrimination claim, and accordingly our analysis is governed by

the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), threestep burden shifting method of proof.2

 Garner must first satisfy

the elements of a prima facie case applicable in the RIF context.

Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir. 1994). If

she satisfies this standard, the burden of production shifts to

Arvin "to articulate a legitimate, non-discriminatory reason for

the adverse employment action," i.e., Garner's termination. Hutson

v. McDonnell Douglas Corp., 63 F.3d 771, 776-77 (8th Cir. 1995).

If Arvin proffers a legitimate reason, the burden shifts back to

Garner to demonstrate that Arvin's proffered reason is merely a

pretext for age discrimination. Id. at 777. Finally, Garner at
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We decline to follow Arvin's suggestion that Garner failed

to raise the issue of pretext in her resistance to Arvin's

summary judgment motion, thereby waiving the issue, and address

the merits of Garner's pretext arguments as outlined in her

briefs. We recognize, however, that the district court observed

that Garner did not "explicitly argue that Arvin['s] reasons for

selecting her for termination are pretextual," Garner, 885 F.

Supp. at 1262, and we likewise note that Garner's brief in

opposition to Arvin's motion for summary judgment does not

mention pretext or appear to otherwise argue the issue.

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all times carries the burden of persuasion to show that the adverse

employment action was motivated by intentional discrimination. Id.

(citing St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2749

(1993)).

In this case, the district court granted summary judgment to

Arvin on the basis that Garner failed to set forth sufficient facts

to establish a prima facie case of age discrimination. Garner, 885

F. Supp. at 1262. In the alternative, the court held that Garner

had not come forth with sufficient evidence to create a jury issue

on whether Arvin's proffered reasons were pretextual. Id. at 1264.

We will assume for the purposes of this appeal that Garner has

established a prima facie case, because even granting her this

assumption, the district court properly granted summary judgment to

Arvin on the issue of pretext.3

Arvin submits that it terminated Garner pursuant to a RIF

caused by an economic downturn in the automobile industry which

necessitated the termination of 19 non-union salaried employees at

the Dexter plant. The department heads were informed that the

positions held by employees selected for the RIF were being

permanently eliminated. Accordingly, the department heads were to

select employees for the RIF whose departure would affect plant

operations the least in the long run. Garner's superiors, Willis

and Holt, stated that they selected individuals for the RIF whose

positions could be eliminated or combined with others and still
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leave the department operational. Other factors Willis and Holt

considered were the employee's existing work skills and capacity to

absorb new and additional responsibilities. 

Willis and Holt determined that Garner's various clerical

duties could be easily assumed by other employees. Willis selected

Garner for the RIF rather than Foushee, another engineering

department clerk who was responsible for the tool order and

purchase process, because he believed that the computer system

Foushee operated for purchase orders was more complex than the

menu-driven computer system Garner used to process maintenance work

orders. Thus, Willis thought that Foushee could learn Garner's

computer responsibilities more quickly than vice-versa. Along the

same lines, around the time of the RIF, Arvin decided to

decentralize its purchasing process from its Indiana headquarters

to each of its seven manufacturing plants, and Willis and Holt

believed that this development would dramatically increase the

workload involving the purchase order process at the Dexter plant,

which was a process that Foushee was familiar with while Garner was

not. Finally, in selecting Garner for the RIF, Willis and Holt

placed some weight on the fact that Garner had accumulated

seniority time in the union as a result of her earlier union jobs

at the Dexter plant, which they believed would enable her to obtain

a union job rather than be separated from employment; Foushee,

however, had no union experience or seniority.

Because Arvin has articulated a legitimate, nondiscriminatory

reason for Garner's termination, the burden shifts to Garner to

demonstrate the existence of a fact issue as to whether these

explanations are a pretext for age-based discrimination. In an

effort to meet this burden, Garner has submitted evidence which she

claims creates a dispute as to whether Foushee, rather than she,

should have been selected for the RIF. This evidence consists of

affidavits from Garner and one Nora Hardin, who in the past
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purportedly worked with Foushee and who states that at the time of

the RIF, Foushee possessed no computer skills. This in turn,

according to Garner, casts considerable doubt on the validity of

Arvin's proffered rationale that it would be easier to teach

Foushee the computer skills required for Garner's clerk position

than vice-versa.

However, this argument suffers from an elementary infirmity:

the affidavits which purportedly serve to create the disputed fact

issue were not in the record when the district court ruled on

Arvin's summary judgment motion. After the district court rendered

its summary judgment ruling in favor of Arvin, Garner filed a

motion to alter or amend the judgment under Rule 59(e) and attached

the two affidavits, which the district court denied. We have

repeatedly stressed that "[a] Rule 59(e) motion cannot be used to

raise arguments which could, and should, have been made before the

trial court entered final judgment." Bannister v. Armontrout, 4

F.3d 1434, 1440 (8th Cir. 1993) (internal quotations omitted),

cert. denied, 115 S. Ct. 418 (1994). Garner has advanced no reason

why these affidavits were not submitted with her opposition to

Arvin's motion for summary judgment, and we therefore decline to

consider them. As the experienced district judge more fully

outlined in his well-reasoned order, Garner, 885 F. Supp. at 1263,

Garner has offered no other evidence which would create a material

fact issue concerning whether Foushee, rather than she, should have

been selected for the RIF.

Garner also argues that a fact dispute remains concerning the

validity of Willis's and Holt's claims that, in selecting Garner

for the RIF, they considered that she had union seniority and

presumably could obtain a union position at the Dexter plant.

Garner contends that when Holt and Willis informed her that she had

been selected for the RIF, they mentioned to her the possibility of

returning to a union job, and she in turn immediately informed them
 4

Garner also made various motions in the district court to

strike portions of Arvin's briefs and exhibits, which the

district court denied. Although Garner does not explicitly raise

as separate legal points in her brief that the district court's

denial of these motions was erroneous, she does devote a major

portion of her brief to the argument that the court erred in

failing to strike these items. To the extent that Garner does

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that she could not work in such a position because she had varicose

veins which prevented her from being on her feet the amount of time

required for a union job. Garner suggests that at that point the

RIF process was still in the early stages and Willis and Holt could

have made adjustments on who to include in the RIF based on this

information.

However, the record is clear that at the time that Willis and

Holt selected Garner for the RIF, they were not aware that she

possessed any medical condition that precluded her from returning

to a union job. As the district court observed, any contention to

the contrary is flatly contradicted by Garner's own deposition

testimony. Garner, 885 F. Supp. at 1263-65. Garner's statement to

Willis and Holt that she could not work in a union job after they

informed her that she had been selected for the RIF does not alter

the fact that when the decision was made to include her in the RIF,

the decisionmakers were unaware of any purported medical condition.

Finally, Garner's claim that the RIF was still in the early stages

when she informed Willis and Holt of her medical condition is also

undermined by her deposition testimony: she stated that she was

informed that she was selected for the RIF at the end of her shift

on September 24, 1991, and Arvin had been "laying people off" that

whole day. (Appellant's App. at 45.)

Accordingly, we agree with the district court that Garner has

not presented sufficient evidence to create a genuine issue of

material fact that Arvin's proffered reasons for terminating her

were merely a pretext for age discrimination.4
appeal the district court's rulings on the motions to strike,

after carefully reviewing the record, we conclude that the

district court committed no error by denying the motions.

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III.

For the reasons enumerated above, we affirm the judgment of

the district court.

A true copy.

Attest:

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