                                 ___________

                                 No. 96-1923
                                 ___________

Rosemary Dodd,                        *
                                      *
            Appellant,          *
                                      *   Appeal from the United
     v.                               *   States District Court for
                                      *   the Eastern District of
Marvin Runyon,                        *   Missouri
                                      *
            Appellant.          *

                                 ___________

                         Submitted: December 12, 1996

                            Filed: May 23, 1997
                                 ___________

Before WOLLMAN and MURPHY, Circuit Judges, and TUNHEIM,1 District Judge.
                               ___________

TUNHEIM, District Judge.


     Rosemary Dodd appeals the order of the district court granting
summary judgment for appellee Marvin Runyon, Postmaster General of the
United States Postal Service, on her claims of sex and age discrimination
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq., (Title VII), the Age Discrimination in Employment Act of
1967, 29 U.S.C. §§ 621, et seq., (ADEA), and the Missouri Human Rights Act,
Mo. Rev. Stat. § 213.010 (MHRA).    Dodd alleges the Post Office promoted a
younger man instead of her to the position of carrier on the Auxiliary
Route, despite her seniority, because of discrimination on the basis of sex
and age.   Appellee argues that Dodd was a member of




     1
      The Honorable John R. Tunheim, United States District Judge
for the District of Minnesota, sitting by designation.
the clerk craft and was denied these promotions pursuant to a bona fide
seniority system because she lacked seniority in the carrier craft.      We
reverse and remand.


FACTS


        The United States Post Office in Wellsville, Missouri has two mail
routes.    A full time mail carrier serves City Route I, and the Auxiliary
Route is served by a part-time employee who has also sorted mail.   Rosemary
Dodd began working for the Post Office in Wellsville on March 6, 1978 in
a part-time position.   Her responsibilities included sorting mail, carrying
mail on City Route I on Saturdays, and carrying mail on both routes when
a regular carrier was absent.    She performed her work ably, and she was
commended for her attendance record.
        Dodd states that when she was hired she was told that she would be
a part-time flexible “clerk-carrier” and that her duties would include
carrying mail.      To become eligible for this position, Dodd took an
examination entitled the “Post Office Clerk-Carrier Written Examination.”
On the Notice of Rating sent to Dodd regarding her performance on this
test, her “Job Choice” is identified as “Carrier Only.”       When Dodd was
appointed, the local newspaper reported that she had been “hired as a
substitute city carrier and clerk at the Wellsville post office.”   The same
article describes her predecessor as a “substitute carrier-clerk.”      The
newspaper later featured a photograph of Dodd carrying a mailbag above the
caption: “NEW CARRIER -- Mrs. Rosemary Dodd, newly appointed carrier-clerk
substitute at the Wellsville Post Office, is the first city carrier sub of
the local office.”      These articles reinforced Dodd’s impression and
understanding that she had been hired as a letter carrier as well as a
clerk.




                                    -2-
      Two major unions represent employees of the Postal Service.             These
are the National Association of Letter Carriers (NALC), which represents
carriers, and the American Postal Workers Union (APWU).             In 1980, Dodd
joined the NALC, and she remained a dues paying member at all times until
November 1993.   She served as the shop steward for the Wellsville local of
the NALC during a period of time in the 1980s.             In November 1993, the
Secretary-Treasurer of the NALC sent a letter to the Postal Service
requesting the cancellation of withholding of Dodd’s dues on the grounds
that she had “transferred to the clerk craft and is now a member of the
American Postal Workers Union.”
      Despite the forgoing evidence that Dodd was hired as a carrier, the
Notification of Personnel Action known as the “Form 50” dated March 6,
1978, which records Dodd’s appointment, states that she was a “Distribution
and Window Clerk.”    All of Dodd’s later Notification of Personnel Actions
also state that she was a “Distribution and Window Clerk.”
      In October 1983, the Postal Service provided Dodd with a Duty
Assignment Notice/Confirmation of Assignment, which describes her position
as   “Part Time Flexible Clerk/Carrier.”           In contrast, the 1985 Duty
Assignment Notice/Confirmation of Assignment states that Dodd was a “P.T.
Flexible   Clerk.”    Dodd   signed   both   of    these   contradictory   notices,
indicating that she received them.
      On August 1, 1987, the postmaster at Wellsville hired Paul Johnson,
a man who is thirteen years younger than Dodd, as a substitute carrier.
He was assigned initially to substitute carry on Saturdays on City Route
I and to sort mail.   His duties were identical to those Dodd performed when
she was first hired nine years earlier.           Nonetheless, he was hired as a
carrier, and his Form 50 reflects this designation.
      Dodd claims that she did not see the contents of her personnel file
until 1989, when she was informed that she could not bid on




                                      -3-
the Auxiliary Route assignment.      She alleges that she did not know that she
was a clerk until August 1987, after Paul Johnson was hired.                  To the
contrary, she had always believed that her job had been classified as a
clerk/carrier.       She does not concede the authenticity of her personnel
forms.
      In 1989, the carrier for the Auxiliary Route announced he would
retire in 1990.       It had been the practice in Wellsville that the most
senior substitute carrier would be awarded this job when it became vacant.
Dodd was the most senior employee carrying mail in Wellsville in 1990.             She
was the first female to reach this position.            The tasks required for the
Auxiliary Route position were identical to those which Dodd had previously
performed, but it offered the opportunity to work many more hours per week.
         The postmaster in Wellsville told Dodd that she would not be
permitted to bid on the Auxiliary Route job because it was a carrier
position.    The postmaster called the personnel officer in Saint Louis, who
advised that if Dodd were to change her craft status and become a carrier,
she would begin with no seniority in that craft, so that Paul Johnson would
obtain the Auxiliary Route assignment regardless of whether Dodd became a
carrier.      The    Postal   Service    took    this   position   pursuant   to   its
understanding of its joint collective bargaining agreement with the NALC
and   the    APWU,    which   provides    that    “craft   employees   meeting     the
qualifications for [a posted] position shall be given first consideration.”
Nonetheless, in small post offices such as Wellsville, it is the usual
practice for employees in one craft to perform the duties of another craft,
as needed.
      On May 1, 1990, Dodd filed a complaint with the Equal Employment
Opportunity Commission (EEOC) alleging discrimination on the basis of age
and sex seeking assignment to the Auxiliary Route position.              She did so
without legal representation by completing a




                                         -4-
form provided by the Postal Service.     She explained the situation resulting
in her allegations as follows:


     I was hired as a clerk/carrier and am being denied a carrier
     position that is coming open. Everyone before me was hired as
     clerk carrier and moved up to carrier jobs with more hours.
     When I was hired I was told that it would be for carrying city
     mail.


The administrative complaint identifies February 2, 1990 as the date of the
most recent alleged act of discrimination.        The form does not provide an
opportunity to state when the discrimination began.               Dodd pursued her
administrative remedies without success.           Dodd    then    initiated    this
proceeding in the Eastern District of Missouri.      The Complaint alleges the
elements of the claims of age and sex discrimination without a recitation
of the specific facts.   It alleges that Dodd “was denied the opportunity
to advance herself in the postal service,” and it asserts that “Defendant’s
conduct” was based upon improper motivation and that it caused damages.
     Defendant moved for summary judgment.        The district court found that
Dodd was not qualified for the promotions because she had no seniority in
the carrier craft, regardless of when she learned of her clerk craft
status.   It consequently found that Dodd had failed to establish an
essential element of her prima facie case and granted summary judgment for
defendant.    The   district   court   rejected    the    contention   that    female
employees are discriminatorily relegated to clerk craft positions because
it found that Dodd did not make any such claim in the administrative
proceedings or in her complaint.
     On appeal, Dodd argues that she presented a prima facie case for sex
and age discrimination as there are genuine issues of fact regarding
whether she was qualified for the Auxiliary Route position and whether the
Postal Service denied her promotion




                                       -5-
pursuant to a bona fide seniority system.     Dodd also assigns error to the
district court’s decision that she had failed to bring any claim that women
were discriminatorily relegated to clerk craft positions.


STANDARD


     We review a grant of summary judgment de novo.       Hardin v. Hussman
Corp., 45 F.3d 262, 264 (8th Cir. 1995).    Rule 56(c) of the Federal Rules
of Civil Procedure provides that summary 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.”    Only disputes over facts that
might affect the outcome of the suit under the governing substantive law
will properly preclude the entry of summary judgment.    Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
     Summary judgment is not appropriate if the dispute about a material
fact is genuine, that is, if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.    Id.   Summary judgment is
mandated when, after adequate time for discovery and upon motion, the
nonmoving party fails to make a showing sufficient to establish the
existence of an element essential to its case, on which that party would
bear the burden of proof at trial.   Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
     In reviewing a grant of summary judgment, we are required to view the
facts in a light most favorable to the nonmoving party, and the movant has
the burden of establishing that no genuine issue of material fact remains
and that the case may be decided as a matter of law.     Buller v. Buechler,
706 F.2d 844, 846 (8th Cir.




                                     -6-
1983).     The nonmoving party is entitled to the benefit of all reasonable
inferences to be drawn from the underlying facts in the record.   Vette Co.
v. Aetna Casualty & Surety Co., 612 F.2d 1076 (8th Cir. 1980).     However,
the nonmoving party may not merely rest upon allegations or denials in its
pleadings, but it must set forth specific facts by affidavits or otherwise
showing that there is a genuine issue for trial.      Burst v. Adolph Coors
Co., 650 F.2d 930, 932 (8th Cir. 1981).


ANALYSIS


     Under the familiar burden-shifting analysis set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff bringing claims
of employment discrimination first must satisfy the burden of production
by making a prima facie case.     To do so, Dodd must show that (1) she was
a member of a protected group; (2) she applied and was qualified for an
open position; (3) she was denied the promotion despite her qualifications;
and (4) a male or younger person was hired to fill the vacancy.   See Texas
Dep’t of Comm. Affairs v. Burdine, 248 U.S. 248, 253-54, n.6 (1981) (sex
discrimination under Title VII); Rhinehart v. City of Independence, Mo.,
35 F.2d 1263, 1264-66 (8th Cir. 1994), cert. denied, 115 S.Ct. 1822 (1995)
(age discrimination under the ADEA and MHRA).
     The only dispute regarding the prima facie case is whether Dodd has
raised a genuine issue that she was qualified for the carrier position.
The district court found that the undisputed facts showed that Dodd was not
qualified for the promotion because she lacked seniority in the carrier
craft.   However, this critical fact is in dispute.   We cannot assume that
the Postal Service’s Form 50s are the only relevant evidence determining
the craft to which Dodd was assigned.      There is evidence that the Postal
Service informed Dodd that she was a carrier or a clerk/carrier.     This




                                     -7-
includes documentary evidence in the form of the October 1983 Duty
Assignment Notice/Confirmation of Assignment, which identifies Dodd as a
“Part Time Flexible Clerk/Carrier.” There is evidence that the local
newspaper reported that Dodd was a carrier or clerk/carrier.       The Postal
Service also participated in furthering Dodd’s impression she was a carrier
by withholding her dues to the NALC, which represents carriers.         It is
undisputed that Dodd performed the tasks of both clerks and carriers, and
that a younger man who was hired to perform the same work was designated
a carrier and promoted accordingly.
     Viewing the facts in the record in the light most favorable to Dodd,
we conclude that there is a genuine factual dispute as to whether the
Postal Service hired Dodd as a carrier.     It follows that there is a genuine
issue of fact regarding whether Dodd was qualified for the promotion she
sought.   Thus, summary judgment should not have been granted on the basis
that Dodd had failed to make a prima facie case of discrimination on the
basis of sex and age.
     Once a plaintiff makes a prima facie case, the burden then shifts to
the employer to offer a legitimate, nondiscriminatory reason for the
adverse employment action.     Texas Dep’t of Comm. Affairs v. Burdine, 450
               2
U.S. at 254.       If the employer does so, the burden shifts back to the
plaintiff to demonstrate that the stated reason is actually a pretext for
discrimination.     Id. at 255-56.   The burden of persuasion remains at all
times on the plaintiff.    Id. at 256.




     2
       The district court did not reach the issue of whether
appellee articulated a legitimate reason for promoting Johnson
instead of Dodd. However, we address the issue because appellee
raised it below and continues to maintain that summary judgment
should be affirmed because the challenged decision was required by
the collective bargaining agreement.




                                      -8-
      Dodd argues that a defendant has a higher burden where its reason for
the adverse employment action involves an affirmative defense, and that
reliance upon a bona fide seniority system is such an affirmative defense
under §703(h) of Title VII, 42 U.S.C. § 2000e-2 (h).    See Firefighters for
Racial Equality v. Bach, 611 F. Supp. 166, 172 (D. Col. 1985).        However,
the   Supreme Court has held that this provision does not create an
affirmative defense; rather, it “delineates which employment practices are
illegal and thereby prohibited and which are not.”            Lorance v. AT&T
Technologies, Inc., 490 U.S. 900, 908 (1989).
      The effect of § 703(h) is that a plaintiff challenging an employment
practice based upon a bona fide seniority system must prove discriminatory
intent; proof of a disparate impact is insufficient.        Id. at 908-09.   To
prove that an employment practice pursuant to a seniority system is not
bona fide, a plaintiff must show either 1) that it was adopted or
negotiated with a discriminiatory motive or purpose; or 2) that it was
administered in an irregular or arbitrary way with intent to harm members
of a protected class.    N.A.A.C.P. v. Detroit Police Officers Ass’n, 900
F.2d 903, 909-10 (6th Cir. 1990).
      Under the particular facts of this case, the issue of whether the
seniority system was administered with discriminatory intent can be
subjected to a traditional burden-shifting analysis.    We caution that this
may not always be true, and that the burden-shifting approach is not an
inflexible standard applicable in all factual situations.      Texas Dep’t of
Comm. Affairs v. Burdine, 450 U.S. at 253-54 n.6.
      Appellee argues that Dodd was not promoted because she lacked
seniority in the carrier craft and the collective bargaining agreement
required the promotion of Johnson, who had seniority as a carrier.
Appellee   satisfied    its   burden    of   articulating   this   legitimate,
nondiscriminatory reason for its decision, a reason




                                       -9-
which is grounded in a seniority system.   To avoid summary judgment, Dodd
must raise a genuine issue of fact that this asserted reason for denying
her promotion is a pretext for intentional discrimination.
     We find she has done so.   Given the conflicting messages the Postal
Service sent regarding Dodd’s craft assignment, a reasonable jury could
infer that the Postal Service in Wellsville administered its seniority
system in an irregular and arbitrary manner as a pretext for intentional
discrimination.     One could reasonably infer that it is irregular and
arbitrary to tell an employee she is a carrier or a clerk/carrier, pay her
dues to the NALC, complete paperwork describing her as a carrier, a clerk,
and a clerk/carrier, assign her work performed by both clerks and carriers,
and then deny her a promotion on the grounds that she is not a carrier.
It follows that a reasonable jury could find that the Postal Service
promoted a younger man not because of the operation of a bona fide
seniority system, but because of an intent to discriminate based upon sex
or age.   This genuine issue of pretext precludes summary judgment.
     Finally, we agree with the district court that Dodd has not properly
raised the question of whether the Postal Service discriminated against her
when it assigned her to the clerk craft, assuming arguendo that it did so
when she was first hired.    See United Air Lines v. Evans, 431 U.S. 553
(1977).
     The judgment is reversed and the matter is remanded to the district
court for further proceedings consistent with this opinion.


     A true copy.


            Attest:




                                   -10-
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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