Tusing v. Des Moines Indep. Cmty. Sch. Dist.
| Decision Date | 12 April 2011 |
| Docket Number | No. 10–1004.,10–1004. |
| Citation | 639 F.3d 507 |
| Parties | Deana TUSING, Appellant,v.DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT, dba Des Moines Public Schools; Celeste Keeling; Dee Culp, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
Richard Gittins Book, argued, West Des Moines, IA, for appellant.Patrick D. Smith, argued, Bradley M. Beaman, on the brief, Des Moines, IA, for appellee.Before LOKEN, SMITH, and COLLOTON, Circuit Judges.SMITH, Circuit Judge.
Deana Tusing sued the Des Moines Independent Community School District, Celeste Kelling, and Dee Culp (collectively, “School District”), challenging the School District's failure to hire her for two positions and its transfer of her to a different teaching position at another school. Tusing alleged age and disability discrimination, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Iowa Civil Rights Act (ICRA), Iowa Code § 216 et seq. The district court 1 granted the School District's motion for summary judgment on all claims. For the reasons set forth below, we affirm.
Tusing, age 52, began working for the School District as an elementary school teacher in August 2001, when she was 41 years old. She held several teaching positions within the School District during the relevant time period. Throughout this time, Kelling worked as the deputy director of human resources for the School District. Culp worked as the assistant principal at Wright Elementary when Tusing taught there.
In April 2007, the School District advertised available counseling positions. To apply for an open position, a current employee of the School District only needed to submit a letter of interest. Tusing sent letters to Kelling in April and June 2007 expressing her interest. In all, the School District received over 30 applications in response to its advertisement.
The School District did not interview Tusing for the counselor position. The School District stated that it only interviewed applicants who were licensed or certified. The record shows that the candidates considered for interviews all had licenses prior to June 2007. It is undisputed that, at that time, Tusing did not have a conditional license and had not applied for one. Tusing never received any response to her letters of interest in the counselor positions. Kelling stated that Tusing was not interviewed because she was not licensed to be a counselor at that time.
The School District ultimately hired five counselors in July and August 2007. At that time, Tusing was 47 years old. The School District hired five counselors who were 27, 29, 32, 40, and 46 years old. Kelling testified that all five had counseling licenses (conditional or otherwise). One of those five, Sarah Walljasper,2 the 27–year–old, had not completed her internship requirements or attained her master's degree. She had, however, obtained a conditional license. In November 2007, the School District hired another counselor, who was 37 years old. In all of 2006, the School District hired seven counselors, who were 25, 27, 31, 35, 48, 53, and 57 years old.
In July 2004 and again in April 2006, Tusing sent Kelling letters expressing her interest in a literacy leader position. She was not interviewed or hired for a literacy leader position either time.
On July 16, 2007, Tusing sent Kelling an e-mail expressing her interest in available literacy leader positions. Because she was also interested in a counselor position, she informed Kelling that she would be willing to accept a half-time position as a literacy leader and a half-time position as a counselor. Tusing was not hired or interviewed as a literacy leader at this time. A document listing the School District's new employees shows that two literacy leaders, who were 31 and 40 years old, were hired in 2006, but the document also shows that their “hire date” was August 2007. The record does not indicate whether either of these people had a disability. Similarly, the record contains nothing about the ages or disability status of any other applicants for the literacy leader position.
In the 2006–2007 school year, Tusing worked as a full-time kindergarten and reading recovery teacher at Wright Elementary. In April 2007, she renewed her contract for full-time employment with the School District.
At this time, Tusing needed to complete 350 internship hours in order to finish the requirements for her master's degree in counseling at Drake University. Tusing wanted to keep her full-time teaching position at Wright while completing her counseling internship at the same time. Specifically, she hoped to conduct counseling activities before and after school and during lunch. Culp, the vice principal at Wright, did not believe it was feasible to teach full-time and log counseling internship hours simultaneously. Culp testified that she had spoken with the School District's head of counseling about the matter, who agreed that it was not feasible to complete 350 hours of a counseling internship while teaching full-time. In her deposition, Tusing agreed that she did not have enough time to teach full-time and log hours toward her internship.
Culp further testified that she discussed four options with Tusing for completing her internship requirements. Among those, Tusing could transfer to Studebaker Elementary for an open “0.8” teaching position (teaching at 80 percent of full-time and receiving 80 percent of full pay). This option would allow her to keep her benefits with the School District and use the remaining 20 percent of her time to log hours toward her counseling internship.
On May 2, 2007, Tusing requested a transfer to the 0.8 position at Studebaker. On June 12, 2007, she signed a contract for the position. In her deposition, she agreed that she signed the contract “of [her] own free will” but also stated that she was “strongly persuaded” to sign it. She then testified, however, that she knew that she could have stayed at Wright if she wanted, but she wanted to transfer to Studebaker to complete her degree requirements. Tusing also testified that her transfer to Studebaker did not result from any unlawful discrimination.
On appeal, Tusing argues that the district court erred in granting summary judgment. Tusing alleged that the School District discriminated against her on the basis of her age and disability when they (1) failed to hire her for an elementary school counselor position, (2) failed to hire her for a literacy leader position, and (3) “forced” her to transfer to a 0.8 teaching position at another school. On each claim, she argues that genuine issues of material fact existed, precluding summary judgment.
We review a district court's decision to grant a motion for summary judgment de novo, applying the same standards for summary judgment as the district court. Wingate v. Gage Cnty. Sch. Dist., No. 34, 528 F.3d 1074, 1078 (8th Cir.2008) (citation omitted). Summary judgment is appropriate where the evidence, viewed in the light most favorable to the nonmovant, shows that no genuine issue of material fact exists, such that the movant is entitled to judgment as a matter of law. Id. “Although the burden of demonstrating the absence of any genuine issue of material fact rests on the movant, a nonmovant may not rest upon mere denials or allegations, but must instead set forth specific facts sufficient to raise a genuine issue for trial.” Id. at 1078–79. However, “[t]he mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Tusing first argues that genuine issues of material fact exist on her claim of age discrimination with respect to the elementary school counselor position. She maintains, with little elaboration, that she presented sufficient evidence to establish a prima facie case of age discrimination. Tusing notes she was older than all the counselors hired in the summer of 2007.
Further, Tusing argues that the School District's stated reason for not hiring her—that she did not have a counseling license, conditional or otherwise—was a pretext for age discrimination. Tusing argues that there is a genuine fact issue whether the stated reason was false.
Tusing alleged age discrimination in violation of the federal ADEA and the state ICRA. Normally, we apply the same analysis to age discrimination claims under the ADEA and the ICRA. King v. United States, 553 F.3d 1156, 1160 n. 3 (8th Cir.2009). Recent developments in the interpretations of both statutes suggest one exception to this general rule. The ADEA prohibits employers from failing or refusing to hire an employee because of that employee's age. 29 U.S.C. § 623(a)(1). Similarly, the ICRA prohibits employers from refusing to hire an employee “because of the age ... of such applicant or employee.” Iowa Code § 216.6(1)(a). The Supreme Court recently held that the ADEA requires a plaintiff “to establish that age was the ‘but-for’ cause of the employer's adverse action.” Gross v. FBL Fin. Servs., Inc., ––– U.S. ––––, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009). Shortly after Gross was decided, however, the Supreme Court of Iowa interpreted the ICRA as requiring the plaintiff to prove only that age was a “motivating factor” in—and not necessarily “the only reason” for—the employer's decision. DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 12–13 (Iowa 2009). In a “pretext...
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