           United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                __________

                                 No. 96-3582
                                 ___________

Patricia Jetton,                     *
                                     *
           Appellant,                    *
                                         *       Appeal from the United States
     v.                              *     District Court for the
                                         *       Eastern District of Missouri.
McDonnell Douglas Corporation,       *
                                                    *
           Appellee.                                *

                                 __________

                         Submitted: May 23, 1997

                                                        Filed: August 13, 1997

                                 __________


Before BEAM, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN,
      Circuit Judge.
                               ___________

HENLEY, Senior Circuit Judge.

      Patricia Jetton was employed by McDonnell Douglas for eleven years
before being laid off. She brought this action pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, alleging that
her discharge was the result of sex
discrimination. The district court1 granted summary judgment to McDonnell
Douglas, finding that Jetton had failed to respond to the company's motion
for summary judgment and concluding that Jetton had failed to establish any
genuine issue of fact for trial. We affirm.

STANDARD OF REVIEW
      We review a grant of summary judgment de novo and under the same
standard which governed the district court's decision. Lenhardt v. Basic
Inst. of Technology, 55 F.3d 377, 379 (8th Cir. 1995). The question is
whether the record, when viewed in the light most favorable to the non-
moving party, shows that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); Maitland v. University of Minnesota, 43 F.3d 357, 360 (8th
Cir. 1994).

BACKGROUND
      Jetton was employed by McDonnell Douglas as a clerical worker in its
maintenance garage which serviced the company's own fleet of planes and
cars. She was the only female worker in the maintenance garage which did
not have separate restroom facilities for women.

      Jetton was discharged by McDonnell Douglas in January 1991 as part
of a company-wide reduction in force attributed by McDonnell Douglas to a
general financial crisis including the loss of several government
contracts. A total of 5,000 employees were laid off as part of the same
reduction in force, including eight workers in the maintenance garage --
seven men and Ms. Jetton.

      Jetton filed suit alleging sex discrimination on October 28, 1994.
Jetton's




      1
        The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
                                        -2-
complaint contended that she was singled out for dismissal because she was
a woman rather than because her skills were no longer needed. She alleged
that after her dismissal her job functions were taken over by a male
employee who was transferred in from another area of the company and who
was less qualified for the job. She charged that the company took this
action at least in part to save it the expense of constructing a separate
restroom for women in the maintenance garage and thus that the discharge
was at least in part based on her sex.

      Trial was set for August 26, 1996, and the court ordered all motions
to dismiss or for summary judgment to be filed not later than 60 days prior
to trial. On June 27, 1996, McDonnell Douglas filed a motion for summary
judgment and memorandum and affidavits in support.

      Eastern District of Missouri Local Rule 4.01(B) provided that Jetton
had 20 days from service to file a response to the motion for summary
judgment, but she filed no response. On July 29, 1996, the court granted
McDonnell Douglas' motion for summary judgment. On August 2, 1996, Jetton
filed a motion to set aside the grant of summary judgment and attached
thereto her response to the motion for summary judgment. This document was
returned to her unfiled. The motion to set aside summary judgment was then
denied.

      On appeal, Jetton asserts that (1) the district court's local rules
requiring a response to a motion for summary judgment to be filed within
20 days and providing that motions may be decided without argument are in
conflict with Fed. R. Civ. P. 56; and (2) disputed issues of material fact
exist which preclude the grant of summary judgment.

APPLICABLE LAW
      Under Title VII it is an unlawful employment practice for an employer
to "fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any




                                    -3-
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color,
religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The order
and allocation of proof in this type of case are governed by the familiar
three-stage, burden-shifting test as set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). See also St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).2 At bottom, we must determine whether Ms. Jetton
presented sufficient evidence of intentional discrimination by the company
to create a genuine issue of fact for trial. Rothmeier v. Investment
Advisers, Inc., 85 F.3d 1328, 1337 (8th Cir. 1996).

DISCUSSION
      Jetton's principal contention on appeal is that it was unjust for the
district court to grant summary judgment based only on the company's
motion, supporting




      2
       We have recently explained the McDonnell Douglas test as follows:

      At the first stage, the plaintiff bears the initial burden of establishing a
      prima facie case of discrimination. The prima facie case, in the absence
      of an explanation from the employer, creates a presumption that the
      employer unlawfully discriminated against the employee. If the plaintiff
      establishes a prima facie case, the burden of production shifts at the
      second stage to the defendant, who must articulate some legitimate,
      nondiscriminatory reason for the adverse employment action. If the
      defendant carries this burden of production, the presumption raised by the
      prima facie case is rebutted and drops from the case. The burden then
      shifts back at the third and final stage to the plaintiff, who is given the
      opportunity to show that the employer's proffered reason was merely a
      pretext for discrimination. The plaintiff retains at all times the ultimate
      burden of persuading the trier of fact that the adverse employment action
      was motivated by intentional discrimination.

Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir. 1996) (citations
omitted). See also Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir.) (en banc), cert.
denied, 1997 WL 181004 (1997).
                                          -4-
memorandum, and affidavits without first obtaining a response from Jetton.
Jetton contends that the ultimate sanction of summary judgment should not
be granted for mere failure to comply with a local procedural rule, such
as the rule setting 20 days for response to the motion for summary
judgment.

      Jetton's attorney apparently (and mistakenly) believed that summary
judgment would not be granted by the court without first holding a hearing,
and counsel was caught off guard when summary judgment was granted on the
papers with no hearing ever scheduled. Jetton asserts that to apply the
local rules in such a way as to cut off her chance to respond to the
summary judgment motion puts them in conflict with the language and purpose
of Federal Rule of Civil Procedure 56 which sets forth the general
parameters for motions for summary judgment.

      Federal Rule of Civil Procedure 56(b) provides in relevant part: "A
party against whom a claim . . . is asserted . . . may, at any time, move
with or without supporting affidavits for a summary judgment in the party's
favor as to all or any part thereof." Fed. R. Civ. P. 56(b). Fed. R. Civ.
P. 56 (c) goes on to specify that:

       The motion [for summary judgment] shall be served at least 10
       days before the time fixed for the hearing. The adverse party
       prior to the day of hearing may serve opposing affidavits. The
       judgment shall be rendered forthwith if the pleadings,
       depositions, answers to interrogatories, and admissions on
       file, together with the affidavits, if any, show that there is
       no genuine issue as to any material fact and that the moving
       party is entitled to a judgment as a matter of law.

Fed.   R. Civ. P. 56(c) (emphasis supplied).

      Eastern District of Missouri Local Rule 4.01(B) sets forth the
relevant time period for a response to a motion for summary judgment:    "A
party opposing a motion for summary judgment under Fed. R. Civ. P. 56 shall
file a memorandum and any




                                    -5-
appropriate documentary evidence twenty (20) days after being served with
the motion."   E. D. Mo. L. R. 4.01(B). Eastern District of Missouri Local
Rule 4.02(A) also specifically provides that a motion -- such as one for
summary judgment -- shall be decided on the papers without oral argument
unless the court in its discretion chooses to order oral argument: "Motions
in civil cases shall be submitted and determined upon the memoranda without
oral argument. The Court may in its discretion order oral argument on any
motion." E. D. Mo. L. R. 4.02(A). And Rule 4.02 further provides with
respect to oral argument on motions: "A party requesting the presentation
of oral argument or testimony in connection with a motion shall file such
request with its motion or memorandum briefly setting forth the reasons
which warrant the hearing of oral argument or testimony." E.D. Mo. L. R.
4.02(B).

      Jetton   contends that the language of Rule 56(c) providing that
responses to summary judgment motions must be filed "prior to the day of
hearing" means that Rule 56 contemplates that summary judgment will not be
granted unless a hearing on the motion is held first. Jetton contends that
to the extent local rules 4.01 and 4.02 operate to dispense with a hearing
on the motion for summary judgment they are in conflict with Rule 56.

RULE 4.01
      We believe that, contrary to Jetton's contention, Local Rule 4.01 is
not in conflict with Federal Rule 56 but merely supplements the Federal
Rule by setting forth the specific time (20 days) for a response to a
motion for summary judgment to be filed in the        Eastern District of
Missouri. Such local rules in aid of federal procedural rules and laws of
Congress are specifically authorized by Federal Rule of Civil Procedure
83(a)(1).3   See also 28 U.S.C. § 2071; McKee v. Bi-State Development
Agency, 801




      3
       Rule 83 provides in relevant part:

      (a) Local Rules. (1) Each district court, acting by a majority of its district
      judges, may, after giving appropriate public notice and an opportunity for
      comment, make and amend rules governing its practice. A local rule shall
      be consistent with -- but not duplicative of -- Acts of Congress and rules
      adopted under 28 U.S.C. §§ 2072 and 2075 . . . .

Fed. R. Civ. P. 83(a)(1).
                                            -6-
F.2d 1014, 1017 (8th Cir. 1986). One of the most common types of local
rules -- such as Rule 4.01 here -- are rules on when and how motions are
to be presented and heard, 12 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 3154, at 235 (1973), and such rules have
routinely been upheld, id. See Ivy v. Kimbrough, 115 F.3d 550, 551-52 (8th
Cir. 1997). A local rule of a district court has the force of law, Somlyo
v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043, 1046 (2d Cir. 1991); see
also 14 James Wm. Moore, Moore's Federal Practice § 83.20 (3d ed. 1997),
and the parties are charged with knowledge of the district court's rules
the same as with knowledge of the Federal Rules and all federal law. Id.
at § 83.34. Fed. R. Civ. P. 83(b).

RULE 4.02
      When Federal Rule 56(c) states that "[t]he adverse party prior to the
day of hearing may serve opposing affidavits," we believe that this
language merely sets forth the latest time when the motion can be opposed
-- the day of hearing; it does not mandate a hearing. Thus, the provision
in Local Rule 4.02 stating explicitly that a motion may be decided on the
papers without oral argument does not conflict with Rule 56.        Indeed,
Federal Rule 78 specifically provides that "[t]o expedite its business, the
[district] court may make provision by rule or order for the submission and
determination of motions without oral hearing upon brief written statements
of reasons in support and opposition." Fed. R. Civ. P. 78. Moreover, we
have on at least three prior occasions upheld local district court rules
which provided that oral argument on summary judgment motions could be
deemed waived unless affirmatively requested as provided by the local rule.
Ivy v. Kimbrough, 115 F.3d at 551-52; Parish v. Howard,




                                    -7-
459 F.2d 616, 619-20 (8th Cir. 1972);    Bagby v. United States, 199 F.2d
233, 235-37 (8th Cir. 1952).

      This interpretation of Rule 56(c) is explicitly reinforced by the
language of Rule 56(e), which provides in relevant part:

     When a motion for summary judgment is made and supported as
     provided in this rule, an adverse party may not rest upon the
     mere allegations or denials of the adverse party's pleading,
     but the adverse party's response, by affidavits or as otherwise
     provided in this rule, must set forth specific facts showing
     that there is a genuine issue for trial. If the adverse party
     does not so respond, summary judgment, if appropriate, shall be
     entered against the adverse party.

Fed. R. Civ. P. 56(e). Thus, a party in Ms. Jetton's position may not rest
on her complaint alone but must introduce affidavits or other evidence to
avoid summary judgment. As the Supreme Court has made clear, Rule 56

     mandates the entry of summary judgment, after adequate time for
     discovery and upon motion, against a party who fails to make a
     showing sufficient to establish the existence of an element
     essential to that party's case, and on which that party will
     bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

      Even assuming that Jetton's complaint made out a prima facie case of
sex discrimination,     McDonnell Douglas' motion for summary judgment,
memorandum in support, and supporting affidavits set forth a legitimate
nondiscriminatory explanation for the company's discharge of Ms. Jetton
as part of a larger reduction in force. It was then up to Ms. Jetton to
offer   or   point   to   evidence   which  would   rebut  the   company's
nondiscriminatory rationale for her discharge and to show that the
nondiscriminatory rationale was merely a pretext for discrimination.
Rothmeier, 85 F.3d at 1332.




                                   -8-
      Ms. Jetton's counsel, however, failed to follow the local rule
requiring the submission of opposing memoranda and affidavits within 20
days. Thus, the district court was faced with ruling on the company's
motion   for   summary   judgment   with   substantial  evidence   of  a
nondiscriminatory reason for the discharge on one hand and only the bare
averments of the complaint on the other.       Based on this record, the
district court was correct to find that there were simply no disputed
issues of material fact to be resolved at a trial. See Ivy v. Kimbrough,
115 F.3d at 551-52.

CONCLUSION
      We agree with the ruling of the district court that on this record
McDonnell Douglas was entitled to judgment as a matter of law.

      For the reasons stated herein, the judgment of the district court is
in all respects affirmed.4

      A true copy.

             Attest:

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




      4
      Appellee's motion to strike a portion of appellant's appendix is hereby overruled
as moot.
                                          -9-
