                            _____________

                             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

     *
      The HONORABLE THOMAS M. REAVLEY, United States Circuit
Judge
     for the Fifth Circuit, sitting by designation.
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


     1
      The Honorable Stephen N. Limbaugh, United States District
Judge for the Eastern and Western Districts of Missouri.

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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.




                               -3-
                               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), three-
step 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

     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).

                               -4-
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


     3
      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.

                               -5-
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

                               -6-
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

                               -7-
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


     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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                              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.




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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