                         Nebraska Advance Sheets
	                             CARTWRIGHT v. STATE	431
	                               Cite as 286 Neb. 431

             Sandra Cartwright, appellant, v. State                     of
                    Nebraska et al., appellees.
                                    ___ N.W.2d ___

                        Filed August 9, 2013.    No. S-12-749.

 1.	 Summary Judgment: Appeal and Error. An appellate court will affirm a lower
     court’s grant of summary judgment if the pleadings and admitted evidence show
     that there is no genuine issue as to any material facts or as to the ultimate infer-
     ences that may be drawn from the facts and that the moving party is entitled to
     judgment as a matter of law.
 2.	 ____: ____. In reviewing a summary judgment, an appellate court views the
     evidence in the light most favorable to the party against whom the judgment was
     granted, and gives that party the benefit of all reasonable inferences deducible
     from the evidence.
 3.	 Summary Judgment: Proof. The party moving for summary judgment has the
     burden to show that no genuine issue of material fact exists and must produce
     sufficient evidence to demonstrate that the moving party is entitled to judgment
     as a matter of law.
 4.	 Summary Judgment: Evidence: Proof. After the movant for summary judg-
     ment makes a prima facie case by producing enough evidence to demonstrate
     that the movant is entitled to judgment if the evidence was uncontroverted at
     trial, the burden to produce evidence showing the existence of a material issue
     of fact that prevents judgment as a matter of law shifts to the party opposing
     the motion.
 5.	 Summary Judgment. Conclusions based upon guess, speculation, conjecture, or
     a choice of possibilities do not create material issues of fact for purposes of sum-
     mary judgment.
 6.	 ____. If a genuine issue of fact exists, summary judgment may not properly
     be entered.
 7.	 Civil Rights. Title VII of the Civil Rights Act of 1964, as amended, prohib-
     its employment discrimination on the basis of race, color, religion, sex, or
     national origin.
 8.	 ____. Title VII of the Civil Rights Act of 1964 prohibits both intentional dis-
     crimination, known as disparate treatment, as well as practices that, although
     they are not intentional discrimination, have a disproportionately adverse effect
     on minorities, which is known as disparate impact.
 9.	 Employer and Employee: Discrimination. Disparate impact occurs when an
     employer uses an employment practice that has a disproportionately adverse
     effect on protected groups.
10.	 Employer and Employee: Discrimination: Proof. To prove a prima facie case
     of disparate impact, the plaintiff must show (1) the existence of a statistically
     significant disparity among members of different groups affected by employment
     decisions; (2) the existence of a specific, facially neutral employment practice;
     and (3) a causal nexus between the specific, facially neutral employment practice
     and the statistical disparity.
    Nebraska Advance Sheets
432	286 NEBRASKA REPORTS


11.	 Discrimination: Proof. To recover under the disparate impact theory, plaintiffs
     must do more than merely prove circumstances raising an inference of a discrimi-
     natory impact; they must prove the discriminatory impact at issue.
12.	 ____: ____. To recover under the disparate impact theory, plaintiffs must point to
     a clearly identifiable practice and prove its impact.

   Appeal from the District Court for Lancaster County: Paul
D. Merritt, Jr., Judge. Affirmed.
  Kathleen M. Neary, of Vincent M. Powers & Associates, for
appellant.
  Jon Bruning, Attorney General, and Stephanie Caldwell for
appellees.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
      McCormack, J.
                      NATURE OF CASE
   Sandra Cartwright filed suit against the State of Nebraska
and Dave Heineman, Gerry Oligmueller, and Randy Palmer,
in their individual capacities, in the Lancaster County District
Court, alleging racial discrimination and a denial of equal pro-
tection under 42 U.S.C. §§ 1981 and 1983 (2006) and title VII
of the Civil Rights Act of 1964 (Title VII).1 The district court
granted the motion for summary judgment on all counts in
favor of all defendants. Cartwright now appeals.
                       BACKGROUND
   Cartwright, who is African-American, was employed by the
Nebraska Department of Health and Human Services from 1990
until her retirement in 2009. At all relevant times, Cartwright
resided in Omaha, ZIP code 68111.
   The State is self-insuring as to state employee health care
coverage. Contracts for the administration of health care cov-
erage are awarded every 2 years to one or more successful
bidders. In 2006, the State health care coverage plan contracts
were open for bids for the 2007 and 2008 benefit years. In

 1	
      See title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
      (2006 & Supp. V 2011).
                  Nebraska Advance Sheets
	                     CARTWRIGHT v. STATE	433
	                       Cite as 286 Neb. 431

May 2006, the State issued a “Request for Proposal Number
1270Z1,” which sought proposals for the administration of the
State’s group health insurance plans. After receiving and scor-
ing proposals, contracts were awarded to Mutual of Omaha
(later purchased by Coventry HealthCare of Nebraska) and
Blue Cross Blue Shield of Nebraska.
   In 2007 and 2008, the State began using ZIP code coverage
areas for the employee health care coverage plans to com-
bat significant increases in health care costs. The State was
informed by a contract actuary consultant that the presence of
a viable health maintenance organization (HMO) network in
the metropolitan ZIP codes, located primarily in the Omaha
and Lincoln, Nebraska, metropolitan areas, could allow for a
more cost-efficient plan in those areas. The ZIP code approach
was a convenient way to define the geographical areas where
the provider networks existed. By implementing the ZIP code
approach, the State was able to minimize cost increases to both
employees and the State.
   The two state employee health care coverage plans offered
under the Mutual of Omaha contract to the employees who
resided in areas with ZIP codes starting with 680, 681, and
685 were an HMO plan and a point-of-service (POS) plan.
According to Palmer, the employee benefits administrator for
the State at the time, these plans were designed to be the
equivalent of the HMO and POS plans offered under the Blue
Cross Blue Shield of Nebraska contract to state employees who
resided in all of the other ZIP codes of Nebraska. The differ-
ence was that the Mutual of Omaha plans were true HMO and
POS plans, whereas the Blue Cross Blue Shield plans were
not considered to be true HMO and POS plans because they
were not administered with a true HMO and POS network,
but, rather, a preferred provider organization (PPO) network.
This distinction, according to Palmer, allowed the State and its
employees to save on premiums in their network.
   In the end, four health coverage plan designs were avail-
able for each state employee regardless of the ZIP code of the
employee’s residence. Two plans were administered by Mutual
of Omaha in the metropolitan Omaha and Lincoln areas, with
ZIP codes starting with 680, 681, and 685. In all other ZIP
    Nebraska Advance Sheets
434	286 NEBRASKA REPORTS



code areas, Blue Cross Blue Shield offered all four health care
coverage plans. During the open enrollment process for ben-
efit year 2007, all State employees residing in the ZIP codes
starting with 680, 681, and 685, including Cartwright, had the
option to select one of the following medical plans: Mutual of
Omaha POS, Mutual of Omaha HMO, Blue Cross Blue Shield
PPO, and Blue Cross Blue Shield “High Deductible” PPO.
The PPO plans administered by Blue Cross Blue Shield were
available to all employees regardless of where they resided.
However, employees who resided in ZIP codes starting with
680, 681, and 685 were excluded from Blue Cross Blue
Shield “BlueSelect” HMO plan and the Blue Cross Blue Shield
“BlueChoice” POS plan.
   During open enrollment for benefit year 2007, Cartwright
selected the Blue Cross Blue Shield PPO health insurance plan.
For the 2008 benefit year, Cartwright selected the Blue Cross
Blue Shield “High Deductible” PPO health insurance plan. For
the benefit year 2009 and beyond, the ZIP code method was
discontinued.
   Cartwright filed the instant lawsuit because she was denied
the opportunity to enroll with the health insurance carrier that
had insured her prior to 2007 due to the ZIP code exclusion
plan. Cartwright alleges that she was discriminated against on
the basis of her race because most African-American employ-
ees resided in the three excluded ZIP codes and they were
offered substandard health insurance based upon the ZIP codes
associated with their residential addresses.
   In her complaint, Cartwright alleged that approximately 450
African-American citizens are employed by the State and that
96 percent of the 450 African-American employees resided
in the ZIP codes starting with 680, 681, and 685. She further
alleged that the “health insurance coverage offered through the
Mutual of Omaha Insurance was less satisfactory, less compre-
hensive, provided fewer services, fewer providers, less cover-
age and less treatment options than the health insurance plan
offered in all other zip codes.” In her deposition, Cartwright
stated that as a result of this discriminatory practice, she suf-
fered an increase in blood pressure, had to increase her insulin
and blood pressure medication, suffered headaches, and had to
                        Nebraska Advance Sheets
	                           CARTWRIGHT v. STATE	435
	                             Cite as 286 Neb. 431

take time off work due to health-related matters. Cartwright
also had to make additional visits to her physician, purchase
more prescription medications and diabetes test equipment, and
suffered from back spasms as a result of the stress related to
the discriminatory practice.
   The State and the individual defendants filed a motion for
summary judgment on the three causes of action found in the
final amended complaint. The first cause of action was based
upon 42 U.S.C. § 1981 and alleged that the ZIP code-based
health insurance coverage plan discriminated on the basis of
race. The second cause of action was under 42 U.S.C. § 1983
and alleged that Cartwright was denied equal protection of the
law. The third claim was brought under Title VII, and it alleged
that there was a disparate impact upon her as an African-
American employee of the State.
   The district court granted the motion for summary judg-
ment on all causes of action. Regarding the Title VII dispar­
ate impact claim, the district court found that the State and
the individual defendants had presented prima facie evidence
that neither Cartwright nor any other State employee was
truly harmed or adversely impacted by the ZIP code-based
health insurance coverage because the evidence is that all of
those health insurance coverage plans were designed to be
equivalent. The district court further noted that other than
Cartwright’s own deposition testimony, she provided virtually
no evidence that any State employee was harmed or adversely
impacted. The district court rejected her testimony and stated
that “‘[c]onclusions based on guess, speculation, conjecture,
or a choice of possibilities do not create material issues of fact
for purposes of summary judgment.’”2 Therefore, the district
court concluded that Cartwright did not adduce any credible
evidence of adverse impact.

                 ASSIGNMENT OF ERROR
   Cartwright argues that the district court erred in granting the
motion for summary judgment on her claim of disparate impact
arising under Title VII, because there were genuine issues of

 2	
      See Recio v. Evers, 278 Neb. 405, 771 N.W.2d 121 (2009).
    Nebraska Advance Sheets
436	286 NEBRASKA REPORTS



material fact and the State and individual defendants were not
entitled to judgment as a matter of law. Cartwright does not
appeal the district court’s granting of summary judgment on
the 42 U.S.C. §§ 1981 and 1983 claims.
                  STANDARD OF REVIEW
   [1,2] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from the
facts and that the moving party is entitled to judgment as a
matter of law.3 In reviewing a summary judgment, an appel-
late court views the evidence in the light most favorable to the
party against whom the judgment was granted, and gives that
party the benefit of all reasonable inferences deducible from
the evidence.4
                           ANALYSIS
   [3-6] The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists
and must produce sufficient evidence to demonstrate that the
moving party is entitled to judgment as a matter of law.5 After
the movant for summary judgment makes a prima facie case
by producing enough evidence to demonstrate that the movant
is entitled to judgment if the evidence was uncontroverted at
trial, the burden to produce evidence showing the existence of
a material issue of fact that prevents judgment as a matter of
law shifts to the party opposing the motion.6 Conclusions based
upon guess, speculation, conjecture, or a choice of possibilities
do not create material issues of fact for purposes of summary
judgment.7 If a genuine issue of fact exists, summary judgment
may not properly be entered.8

 3	
      Jeremiah J. v. Dakota D., 285 Neb. 211, 826 N.W.2d 242 (2013).
 4	
      Id.
 5	
      Id.
 6	
      Id.
 7	
      Darrah v. Bryan Memorial Hosp., 253 Neb. 710, 571 N.W.2d 783 (1998).
 8	
      Jeremiah J. v. Dakota D., supra note 3.
                         Nebraska Advance Sheets
	                            CARTWRIGHT v. STATE	437
	                              Cite as 286 Neb. 431

   [7,8] Cartwright’s only remaining cause of action is brought
under Title VII, which, as amended, prohibits employment
discrimination on the basis of race, color, religion, sex, or
national origin.9 Title VII prohibits both intentional discrimina-
tion, known as disparate treatment, as well as practices that,
although they are not intentional discrimination, have a dispro-
portionately adverse effect on minorities, which is known as
disparate impact.10
   [9,10] Disparate impact occurs when an employer uses an
employment practice that has a disproportionately adverse
effect on protected groups.11 Thus, to prove a prima facie case
of disparate impact, the plaintiff must show (1) the existence
of a statistically significant disparity among members of differ-
ent groups affected by employment decisions; (2) the existence
of a specific, facially neutral employment practice; and (3) a
causal nexus between the specific, facially neutral employment
practice and the statistical disparity.12
   [11,12] We have held that in order to recover under the
disparate impact theory, plaintiffs must do more than merely
prove circumstances raising an inference of a discriminatory
impact; they must prove the discriminatory impact at issue.13
That is, they must point to a clearly identifiable practice and
prove its impact.14
   In Allen v. AT&T Technologies,15 we affirmed the district
court’s dismissal of a disparate impact case under Title VII
because the plaintiffs failed to prove how they were negatively

 9	
      See Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct. 2658, 174 L. Ed. 2d 490
      (2009).
10	
      Id.
11	
      Id.
12	
      Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L.
      Ed. 2d 733 (1989); Bennett v. Nucor Corp., 656 F.3d 802 (8th Cir. 2011),
      cert. denied ___ U.S. ___, 132 S. Ct. 1807, 182 L. Ed. 2d 619 (2012), and
      ___ U.S. ___, 132 S. Ct. 1861, 182 L. Ed. 2d 644 (2012); E.E.O.C. v. Joe’s
      Stone Crab, Inc., 220 F.3d 1263 (11th Cir. 2000).
13	
      See Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).
14	
      See id.
15	
      Id.
    Nebraska Advance Sheets
438	286 NEBRASKA REPORTS



impacted.16 The plaintiffs asserted that the emphasis AT&T
Technologies places on education had a disparate impact upon
them, because persons 40 years of age and older are less
likely to possess post-high-school educations than are younger
persons.17 In the opinion, we noted that the plaintiffs must be
able to isolate clearly identifiable employment requirements
or criteria which results in a less favorable impact on the pro-
tected group.18 Although education was clearly an identifiable
employment requirement, the plaintiffs failed to present evi-
dence from which any fact finder could conclude that but for
the lack of a higher education, any plaintiff would have been
promoted.19 We held that such a failure to show a causal con-
nection between the factor at issue and the lack of promotion
defeats recovery under the disparate impact theory.20
   Here, Cartwright properly pleaded that the ZIP code exclu-
sion had an unfavorable impact on those excluded. She alleged
that nonexcluded ZIP code employees were “offered a prefer­
able and significantly better health insurance plan.” She alleged
that the Mutual of Omaha health insurance she was offered was
“less satisfactory, less comprehensive, provided fewer services,
fewer providers, less coverage and less treatment options than
the health insurance plan offered in all other zip codes.” She
further alleged that the offered insurance
      failed to provide an in-plan rate coverage to employees’
      children who attended college out-of-state, failed to pro-
      vide a nationwide provider network, failed to provide
      in-plan rates for specific health issues that required exper-
      tise not readily available in Nebraska and other adverse
      components and/of [sic] coverage and/or costs that are not
      specifically set forth herein.
She alleged such differences resulted in negative consequences
to her health and finances.

16	
      Id.
17	
      Id.
18	
      Id.
19	
      Id.
20	
      Id.
                  Nebraska Advance Sheets
	                     CARTWRIGHT v. STATE	439
	                       Cite as 286 Neb. 431

   However, in response, the State and the individual defend­
ants filed a motion for summary judgment. In support of their
motion, they offered substantial evidence that the Mutual of
Omaha plans and the Blue Cross Blue Shield plans were equiv-
alent in terms of coverage and benefits.
   The State and the individual defendants offered the affidavit
of Palmer. Palmer averred that the contract requirements for
Mutual of Omaha and Blue Cross Blue Shield mandated equiv-
alency of coverage in an effort to maintain equality of benefits
and to avoid any negative coverage impact for State employees
based on their residential ZIP codes. Subsequent to the award-
ing of the contracts to Mutual of Omaha and Blue Cross Blue
Shield, Palmer convened meetings with representatives of each
contractor and members of his staff. At these meetings, the
HMO and POS coverage plans offered by each contractor were
reviewed, point by point, to ensure to the greatest extent pos-
sible that these plans would be equivalent, regardless of which
contractor administered the respective health coverage plans
and regardless of the residential ZIP codes of the employees.
Palmer avers in his affidavit that no potential discriminatory
impact for any particular group of State employees was ever
identified as a part of the contract award process or in the
design of the health plans.
   Additionally, the State and the individual defendants offered
the affidavit of Paula Fankhauser, the employee benefits admin-
istrator for the State. According to Fankhauser, the Mutual of
Omaha HMO and the Blue Cross Blue Shield “BlueSelect”
HMO plans had identical benefit designs. Likewise, the Mutual
of Omaha POS and the Blue Cross Blue Shield “BlueChoice”
POS plans had identical benefits. In support of her testimony,
Fankhauser prepared a spread sheet comparing State employee
health plan options for 2007 and 2008.
   The spread sheet compares the “BlueChoice” plan not
offered in ZIP codes starting with 680, 681, and 685 with
the Mutual of Omaha POS, which was available in those ZIP
codes. For the in-network plans, both offer identical cover-
age and benefits. Neither plan requires a deductible, and both
set an out-of-pocket maximum at $1,500 for individuals and
$3,000 for the family. Both plans have identical copay and
    Nebraska Advance Sheets
440	286 NEBRASKA REPORTS



coinsurance benefits for every medical service provided. This
includes: office visits; annual examinations; annual eye exami-
nations; surgery, radiology, laboratory, and chemotherapy;
inpatient hospitalization; outpatient surgery; outpatient surgical
center; “Well baby” examinations; mammograms; Pap smears;
maternity services; allergy testing and shots; child immuniza-
tions (through age 6); ambulance; urgent care center; hospi-
tal emergency room; skilled nursing facility; durable medical
equipment; rehabilitation services (physical therapy, chiroprac-
tic services, occupational therapy, and speech therapy); home
health care and hospice; inpatient mental illness and substance
abuse treatment; outpatient mental illness and substance abuse
treatment; serious inpatient mental illness; and serious outpa-
tient mental illness.
   The same holds true when comparing the “BlueChoice” out-
of-network plan and the Mutual of Omaha POS out-of-network
plan. Each of the above categories is identical for the out-of-
network plans. Likewise, the “BlueSelect” plan, not available
in ZIP codes starting with 680, 681, and 685, is identical to
the Mutual of Omaha HMO. The only difference on the spread
sheet is the premiums paid. However, across the board, the pre-
miums paid in ZIP codes starting with 680, 681, and 685 were
cheaper than the Blue Cross Blue Shield counterparts.
   Presented with this evidence, the district court concluded
that the burden shifted to Cartwright to show the existence
of a material issue of fact. We agree. The evidence presented
by the State and the individual defendants established that
the plans offered in the excluded ZIP codes were equivalent
to the plans offered statewide. This entitled the State and
the individual defendants to judgment as a matter of law.
However, before the district court could enter judgment,
the burden shifted to Cartwright to produce evidence show-
ing the existence of a material issue of fact that would pre-
vent judgment.21
   In response, Cartwright produced as evidence her deposi-
tion testimony and relied on deposition statements made by

21	
      See Professional Mgmt. Midwest v. Lund Co., 284 Neb. 777, 826 N.W.2d
      225 (2012).
                         Nebraska Advance Sheets
	                             CARTWRIGHT v. STATE	441
	                               Cite as 286 Neb. 431

Palmer and Mike McCrory, who was the director of person-
nel for the State. Cartwright alleges in her deposition that the
plans offered to her were less comprehensive, provided smaller
networks, did not cover medical care for dependents received
out-of-network, offered fewer and inferior specialists, and cov-
ered less of her medical expenses. Cartwright attempts to use
the deposition testimony of Palmer and McCrory to support
her conclusion.
    We first note, as an overview, that Cartwright offered very
little evidence demonstrating the inferiority of the plans avail-
able to her. Her own deposition testimony is largely conclu-
sory, based on her own opinions and speculation.
    Second, in her deposition and brief, Cartwright repeatedly
makes the mistake of comparing the wrong insurance plans.
For instance, Cartwright states in her brief that “[t]he Mutual
of Omaha and Coventry plans offered to . . . Cartwright in
2007 and 2008 did not have the comprehensive in and out of
network providers and paid fewer benefits than the plan previ-
ously held by Cartwright.”22 Such a comparison is irrelevant.
Only the plans offered in 2007 and 2008 are relevant to the
determination of whether the excluded ZIP codes received
inferior plans. Further, she often compares the wrong Blue
Cross Blue Shield plan with the wrong Mutual of Omaha plan.
Doing so creates an incorrect impression that the plans she
was offered were inferior. For purposes of this summary judg-
ment, the appropriate comparison is to contrast “BlueChoice”
with Mutual of Omaha POS and “BlueSelect” with Mutual of
Omaha HMO.
    With this in mind, we will now address Cartwright’s evi-
dence that the plans she was offered were inferior. In her
deposition, Cartwright repeatedly testified that the insurance
coverage offered by Mutual of Omaha was inferior to the
plans offered statewide. Her testimony was that the plans
offered were less comprehensive and had inferior access to
specialists. But, in her deposition and in her brief, Cartwright
failed to give evidence establishing such allegations as true.
There was no reference to the insurance plans or use of expert

22	
      Brief for appellant at 15 (emphasis supplied).
    Nebraska Advance Sheets
442	286 NEBRASKA REPORTS



testimony. The only probative evidence presented on this issue,
which includes the testimony of Palmer and Fankhauser, estab-
lished that the benefits were designed to be, and were in fact,
equivalent. Cartwright never directly challenged this evidence.
Therefore, in light of the State’s evidence, Cartwright’s tes-
timony amounts to nothing more than speculation, which is
insufficient to create a genuine issue of material fact.
   In addition, Cartwright attempted to use the deposition tes-
timony of Palmer and McCrory to establish that the Mutual
of Omaha plans did not cover medical care for dependents
received out of network. In her brief, Cartwright stated that
“McCrory admitted that the Mutual HMO lacked provider
networks in greater Nebraska.”23 Cartwright also stated that
Palmer “admitted that the HMOs offered in Zip Codes 680,
681 and 685 in 2007-2008 did not provide out of service or
out of network benefits to their insureds.”24 Although these
statements in a vacuum are true, Cartwright fails to take into
account that the equivalent “BlueSelect” plan offered by Blue
Cross Blue Shield was also limited to “In-Network” only and
that both plans did not have out-of-network coverage. In her
brief, she also states that the Mutual of Omaha POS plan
does not provide out-of-network benefits. This is wrong; the
Mutual of Omaha POS plan specifically provided for out-of-
network coverage. This out-of-network coverage was identical,
according to Palmer and Fankhauser, as the coverage provided
by “BlueChoice.”
   Cartwright failed to provide evidence, other than conclu-
sions from her own testimony, on why “BlueSelect’s” in-
network plan was superior to Mutual of Omaha’s in-network
HMO plan or on why “BlueChoice’s” out-of-network coverage
was preferable to Mutual of Omaha’s POS coverage. In fact,
the only evidence in the record is from Palmer and Fankhauser,
which established that the benefits and coverage are the same.
Cartwright has failed to meet her burden, after it had shifted
to her, of establishing a material issue of fact on whether the
plans she was offered were inferior.

23	
      Id. at 12.
24	
      Id.
                  Nebraska Advance Sheets
	                     CARTWRIGHT v. STATE	443
	                       Cite as 286 Neb. 431

   Cartwright has also failed to establish that the alleged
inferiorities of the plans she was offered resulted in any
adverse impact to her. Cartwright alleged that her post-2006
health insurance did not cover her mammogram or Pap smear,
did not allow access to some specialists, did not cover her
insulin prescriptions, and classified the doctor treating her
back condition as an “out-of-network provider.” Cartwright’s
allegations fail because she never provided evidence that
the plans she was excluded from would have provided these
services. Rather, she repeatedly referenced that these were
covered under her previous Blue Cross Blue Shield policy,
which is irrelevant. Her failure to provide evidence that the
plans she was excluded from would have covered the above-
mentioned medical services is fatal to her claim. Cartwright
failed to establish, with evidence, any adverse impact to
being excluded.
   In sum, we find that the State and the individual defendants
presented sufficient evidence to shift the burden to Cartwright.
After it shifted, Cartwright failed to meet her burden to
show the existence of a material issue of fact on the issues
of whether the plans offered in ZIP codes starting with 680,
681, and 685 were inferior and whether the alleged inferi-
orities resulted in an adverse impact. The evidence provided
in the record, even when viewed in the light most favorable
to Cartwright, established that the State and the individual
defend­ nts were entitled to judgment as a matter of law under
       a
a Title VII disparate impact claim.
                       CONCLUSION
   For the foregoing reasons, we affirm the judgment of the
district court.
                                                Affirmed.
