                            ___________

                            No. 95-2075
                            ___________

Laurina Price,                  *
                                *
     Plaintiff/Appellant,       *
                                *
     v.                         *   Appeal from the United States
                                *   District Court for the
S-B Power Tool, also known as   *   Eastern District of Arkansas
Skil Corporation, a division    *
of Emerson Electric Company,    *
                                *
     Defendant/Appellee.        *
                           ___________

                    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




     1
      On appeal, Price has not presented any specific argument
related to the denial of this motion.
     2
      Skil is incorrectly identified in the caption as a division
of Emerson Electric Company. (Emerson). In fact, Skil is
partially owned by Emerson.
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
      The Honorable George Howard, Jr., United States District
Judge for the Eastern District of Arkansas.

                                2
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

                                3
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


     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
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
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


     5
      Although our court has not modified the typical burden-
shifting 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).
     6
      Skil 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
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

                                7
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.

                                8
