Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.bernice L. Dalbec, Plaintiff-appellant, v. Electronic Data Systems Corp., Defendant-appellee, 104 F.3d 363 (8th Cir. 1996)

In May 1993, Electronic Data Systems Corporation terminated Bernice L. Dalbec as EDS's computer Operations Supervisor at its Plymouth, Minnesota, site. Dalbec commenced this action in state court alleging gender and age discrimination in violation of the Minnesota Human Rights Act, Minn.Stat. §§ 363.01 et seq., and EDS removed the action to federal court. Following extensive discovery, the district court¹  granted summary judgment in favor of EDS, and Dalbec appeals.

The district court found undisputed evidence that Dalbec was terminated as part of a bona fide corporate-wide reduction in force, even though hers was the only position eliminated at the Plymouth site. Applying the Minnesota Supreme Court's standards for reduction-in-force cases, see Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 324-25 (Minn.1995), the court concluded that Dalbec has not made the "additional showing" required to establish a prima facie case of employment discrimination in such cases, and alternatively that Dalbec has failed to present evidence which, if believed, would establish that EDS's profferred nondiscriminatory reason for termination--that it selected Dalbec for inclusion in the reduction in force because of her on-going job performance problems--was a pretext for gender or age discrimination.

On appeal, Dalbec argues that the district court improperly granted summary judgment by ignoring Dalbec's evidence of pretext, particularly her favorable performance reviews and other evidence she was qualified for the position; by improperly crediting evidence of her performance problems and insubordination that was not part of her personnel file; and by concluding that the reduction in force was bona fide despite evidence that, at least as applied to Dalbec, it was pretextual. After careful review of the record and the parties' briefs on appeal, we conclude that summary judgment was properly granted in favor of EDS for the reasons stated in the district court's thorough Memorandum and Order dated December 15, 1995. Accordingly, we affirm. See 8th Cir. Rule 47B.

EDS's motions to strike portions of the joint appendix and Dalbec's reply brief are denied.