### The Honorable Jean C. Hamilton, United States District 1 

### Judge for the Eastern District of Missouri. ___________ No. 95-2643

___________
Irma Barge, * * Plaintiff-Appellant, * * Appeal from the United States

v. * District Court for the Eastern * District of Missouri. Anheuser-Busch, Inc., *

* Defendant-Appellee. * * *

__________________________ Submitted: March 14, 1996 Filed: June 26, 1996

__________________________
Before MAGILL, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges

.

FLOYD R. GIBSON, Circuit Judge.

Irma Barge appeals the district court's summary judgment dismissal 1 of her 42 U.S.C. § 1981 (1994) claims. We affirm.

I. BACKGROUND
Viewing the record in the light most favorable to Barge, th e following facts have been established. Barge began her career wit h Anheuser Busch in 1978 and worked the midnight shift as a bottler in its St. Louis warehouse. Barge, who was a member of Teamsters Local Union No. 1187 ("Union") and covered by the collective bargaining agreement, had a severe absenteeism problem. From 1986

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through 1990, Barge missed 1,310 work days. In other words, she showed up for barely a quarter of the days she had been scheduled to work. Barge wa s terminated in March of 1991 for violation of the company attendance policy

.

After Barge filed a claim with the Equal Employment Opportunit y Commission (EEOC), Barge, Anheuser Busch, and the Union agreed to reinstat e Barge in August 1991 and place her on three months probation. As part of the settlement agreement, Barge agreed to repay any disability overpayment s she had received from the company's insurer. After a brief return, Barge quit coming to work after January 17, 1992. Her subsequent requests for disability leave were granted, and Barge took disability retirement as of August 31, 1992.

Barge instituted this 42 U.S.C. § 1981 action on June 3, 1993 , allegi ng employment discrimination based on: her race (Count I), i n retal iation for filing a prior civil rights claim (Count II), he r disability (manic depressive lupolar/acute paranoid disorder/personalit y disorder) (Count III), and her gender (Count IV). Because gender an d disabi litydiscrimination are not cognizable under § 1981, the distric t court granted Anheuser Busch's motion to dismiss Counts III and IV pursuan t to Fed. R. Civ. P. 12(b)(6). Anheuser Busch then moved for summary judgmen t on the remaining two counts. When Barge failed to respond to the motion, the district court granted summary judgment on the remaining claims. Barg e appeals.

II. DISCUSSION

We re view the district court's grant of summary judgment de novo , applying the same sta ndard as the district court and examining the record in the li ght most favorable to the nonmoving party. Harvey v. Anheuse r Busch, In c. , 38 F.3d 968, 971 (8th Cir. 1994). Summary judgment i s appropriate when "the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any mat erial fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). The moving party will be entitled to judgment as a matte r of law when the nonmoving party has failed to "make a sufficient showing
on an ess ential element of her case with respect to which she has th e burden of proof." Celotex , 477 U.S. at 323. After the moving party has met its burden of production, the nonmoving party may not rely on mer e denial s or allegations in its pleadings, but must "designate 'specifi c facts show ing that there is a genuine issue for trial.'" Id. at 32 4 (quoting Fed. R. Civ. P. 56(e)).

Both Barge's racial discrimination claim and her retaliator y dis charge claim are analyzed under the framework set forth in McDonnel l Douglas v. Green , 411 U.S. 792, 802-03 (1973), and further refined in St. Mary's Honor Center v. Hicks , 113 S. Ct. 2742 (1 993). Ruby v. Springfield R-12 Pub. Sch. Dist. , 76 F.3d 909 (8th Cir. 1996). "To prevail on a § 198 1 claim, a plaintiff mu st prove discriminatory intent." Greenwood v. Ross , 778 F .2d 448, 456 (8th Cir. 1985). In order to establish a prima faci e case of racial discrimination under § 1981, a pl aintiff must show: (1) she is a member of a protected class; (2) she is qualified for the position; (3) adverse employmen t action; and (4) some evidence that would allow the inference of improper motivation. Landon v. Northwest Airlines, Inc. , 72 F.3d 620, 624 (8th Cir. 1995). In this case, Barge's complaint allege s that she was racially discriminated against by: (1) being denied assignmen t to t he "early side" shift; (2) being denied favorable treatment wit h respect to temporary employee layoffs; and (3) b eing denied equal time for restroo mbreaks. In order to prove the fourth prong of her prima faci e case, then, Barge must show that similarly situated white employees were given preference over her with respect to "early side" shift assignments, employee layoffs, and restroom breaks.

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See Jones v. Frank , 973 F.2d 673, 675-76 (8th Cir. 1992).

A pla intiff establishes a prima facie case of retaliation under § 1981 by proving: (1) statutorily protected participation; (2) advers e employment action; and (3) a causal relationship between the two. Ross , 778 F.2d at 456. In this case, Barge claims that her supervisor s retaliated against her for filing the prior EEOC claim by: (1) harassing her on the job; (2) denying her requests for assistance with job-related tasks; and (3) denyin g her disability benefits. To prevail on her claim, Barge must necessarily demonstrate some causal nexus between the prior EEO C claim and the alleged retaliation.

The d efendant may rebut the prima facie presumption by offering a legitimate, nondiscriminatory reason for the adverse action. Hicks , 113 S. Ct. at 2747. Once the defendant has carried its burden, the McDonnell Douglas framework and its attendant presumptions and burdens are no longer relevant. Hicks , 113 S. Ct. at 2749. The ultimate burden of persuasion, however, remains with the plaintiff at all times

. Id. at 2747. With this analytical framework in mind, we turn to the specifics of Barge's appeal.

Anheuser Busch argued in its motion for summary judgment that Barge had failed to state a prima facie case of racial discrimination. It also offere d the collective bargaining agreement and its own company polic y regarding habitual re stroom break abusers as legitimate nondiscriminatory
reason s for the alleged adverse employment action. Anheuser Busc h suppor ted its motion with an affidavit from Robert Vierling, Anheuse r Busch's supervisor of warehouse and shipping. Vierling stated in hi s affidavit that the company allocated its "early side" shift assignments to whi tes and blacks equally, under the terms of the collective bargainin g agreement, according to seniority and the employees' ability to perform th e work. Vierling also stated that the company's allocation of restroo m breaks was nondiscriminatorily

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gove rned by the terms of the collective bargaining agreement and th e company's policy of counting an employee's exces sive nonscheduled restroom breaks against scheduled breaks where that employee abused his or her brea k times. He went on to state that Barge had been identified as a habitual abuser.
Anheuser Busch also submitted the affidavit of Cheryl Adler, Anheuser Busch's assistant manager of employee relations, who testified that Barge' s excessive absences were in violation of the comp any attendance policy, and that Barge had expressly relinquished her right to the disputed disability payments under the terms of her settlement agree ment. Anheuser Busch also argued in its motion that Barge had been unable to point to any similarly situated white employees who were given preference over her with respect to shift assignments, layoffs, or restroom breaks during the time period in question.

Anheuser Busch also moved for summary judgment on the retaliatio n claim. I t asserted that Barge had failed to state a prima facie cas e because Barge had offered no evidence connecting the filing of her EEO C charge to either her alleged harassment, denial of assistance, or denial of disability benefit s. Anheuser Busch pointed out that Barge had failed to show that the individuals responsible for the alleged harassment an d denial of assistance were even aware of the EEOC charge. Barge made n o reply to Anheuser Busch's motion.

The di strict court granted Anheuser Busch's motion for summar y judgment, concluding that Barge had failed to es tablish a prima facie case of racial discriminat ion. Even if she had, the district court found that Barge had failed to offer any evidence of pretext to rebut Anheuser Busch' s legi timate nondiscriminatory reason for the alleged adverse employmen t action. We agree. Anheuser Busch's uncontroverted evidence demonstrates that B arge was not treated differently than similarly situated whit e employees during the

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relevant time frame with respect to either "earl y side" shift assignments, layoffs, or restroom breaks, leaving the district court with no evidence whatsoever that would allow it to infer discriminatory intent. Even i f Barge had been able to state a prima facie case, she failed to rebu t Anheu ser Busch's legitimate nondiscriminatory reason for the challenge d emp loyment action with any evidence of pretext. Ruby , 76 F.3d at 91 2 (affir ming summary judgment where Title VII plaintiff failed to rebu t defendant's legitimat e nondiscriminatory reason for challenged employment action); Harvey , 38 F.3d at 972-73 (affirming summary judgment where Title VII plaintiff failed to rebut defendant's legitimate nondiscriminator y
reason for challenged employment action and failed to show similarl y situated whites were treated differently). Finally, the district court found th at Barge had failed to establish
a pri ma facie case of retaliation because she had produced no evidenc e connecting her prior EEOC claim to the alleged r etaliatory acts. We agree again. Th ere is no evidence that the supervisors who perpetrated th e alleged indignities on Barge mentioned, or were even aware of, her EEO C claim. The record is also clear that Barge waived her right to th e disputed disability payments in the settlement agreement.
Although she failed to respond to Anheuser Busch's motion for s ummary judgment, Barge argues that her pleadings and deposition testimon y contained facts sufficient to raise genuine issu es of material fact. This argument assumes the district court has an affir mative obligation to plumb the record in order to find a genuine issue of material fact. It does not

. White v. McDonnell Douglas Corp. , 904 F.2d 456 (8th Cir. 1990) (pe r curiam). "A district court is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wad e throughand search the entire record for some specific facts that migh t support the nonmoving party's claim." Id. at 458 (quotation omitted)

. Once Anheuser Busch met its burden of demonstrating a

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lack of genuine issues of material fact, Barge was required to designate specific facts creati ng a triable controversy. Celotex , 477 U.S. at 324. Even considering the entirety of the record for the sake of argument, we
see no ev idence establishing a prima facie case on either claim, o r ind icating that Anheuser Busch's offered legitimate nondiscriminator y
reas on for its handling of shift assignments and restroom breaks wa s pretextual.

Barge argues that summary judgment was inappropriate because th e credibility of Anheuser Busch's legitimate nondiscriminatory reason for th e adverse em ployment action posed a genuine issue of material fact. W e disagree. "Once the movant has supported his or her motion, however, the opponent must affirma tively show that a material issue of fact remains in dispute and may not simply rest on the hope of discrediting the movant's evidence at trial." Matter of Citizens Loan & S av. Co. , 621 F.2d 911, 913 (8th Cir. 1980). Barge may not manufacture a genuine issue of materia l fact by merely hoping, without coming forward with any evidence of pretext , that t he trier of fact may disbelieve Anheuser Busch's unchallenge d legitimate nondiscriminatory reason. Id. Barge finally makes the misdirected argument that the district court abused its discretionby dismissing her suit as a sanction for failure to respond to Anheuser Busch's motion for summary judgment. This was not a Fed eral Rule 37 or 41(b) sanction. See Fed. R. Civ. P. 37, 41(b). Th e district court made i t clear that it was granting summary judgment on the merits under Rule 56 due to the lack of a genuine issue of material fact.

III. CONCLUSION

For the aforementioned reasons, we a ffirm the district court's order dismissing Barge's complaint.

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Attest:

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