Wingate v. Gage County School Dist., No. 34, 07-3492.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation528 F.3d 1074
Docket NumberNo. 07-3492.,07-3492.
PartiesNancy J. WINGATE, Appellant, v. GAGE COUNTY SCHOOL DISTRICT, NO. 34, also known as Freeman Public Schools; John T. Brazell, Individually and in his capacity as Superintendent of Freeman Public Schools, Appellees.
Decision Date16 June 2008
528 F.3d 1074
Nancy J. WINGATE, Appellant,
GAGE COUNTY SCHOOL DISTRICT, NO. 34, also known as Freeman Public Schools; John T. Brazell, Individually and in his capacity as Superintendent of Freeman Public Schools, Appellees.
No. 07-3492.
United States Court of Appeals, Eighth Circuit.
Submitted: March 27, 2008.
Filed: June 16, 2008.

[528 F.3d 1077]

Joy Shiffermiller, argued, Lincoln, NE, for appellant.

Karen Ann Haase, argued, Adam J. Prohaska, on the brief, Lincoln, NE, for appellee.

Before RILEY, BEAM, and MELLOY, Circuit Judges.

BEAM, Circuit Judge.

Nancy J. Wingate, a part-time teacher for the Gage County School District No. 34 (the "District"), brought an age-discrimination action under the Age Discrimination in Employment Act (ADEA) and two First Amendment claims pursuant to § 1983, against the District and its superintendent, John T. Brazell (together "the Defendants"). The Defendants moved for summary judgment and the district court1 granted their motion. Wingate now appeals. We affirm.


Wingate is currently sixty years old. She has a master's degree in education and started working for the District in 1969, as a full-time teacher. Some time in either 1976 or 1977, Wingate switched to a part-time schedule. As a part-time teacher, Wingate worked eight hours a day, three times a week.

In July 2000, the District hired Brazell. Soon after, Brazell switched Wingate's schedule to five hours a day, five days a week. He also offered Wingate an additional part-time position as a Title I paraeducator.2 Brazell offered Wingate this position

528 F.3d 1078

in an attempt to accommodate her request for additional work. Wingate accepted the paraeducator position, and began working as both a part-time teacher and part-time paraeducator.

Some time in 2001, Wingate decided to return to a full-time teaching position. Over the course of approximately three years-from 2001 to 2004-Wingate applied for four different teaching positions with the District. Wingate first applied for a full-time elementary teaching position in April 2001. According to Brazell, a successful job candidate had to perform coaching duties. Wingate, however, contends that she does not remember the job advertisements mentioning coaching. The District filled this position with Karla Benson, a thirty-three-year-old female. Benson had a coaching endorsement, had worked previously with the District as a paraeducator, and had strong recommendations.

In the fall of 2004, Wingate applied for two more full-time teaching positions. The District did not interview Wingate for either position. Brazell contends that he did not interview Wingate for either of these positions because she was only an average teacher, had trouble handling large groups of students, and the District would have had to hire a replacement to fill Wingate's part-time position. For one of the two positions, the District hired Kary Archer, a twenty-eight-year-old female. Like Wingate, Archer had a master's degree in education; however, she also had an endorsement in special education. Additionally, Archer had taught special education for several years and had experience in an elementary classroom in a district that promoted high student numbers per classroom (i.e., she had a proven ability to handle a large class of students). Archer also had strong recommendations. The District filled the second position with Stephanie Klassen, a thirty-one-year-old female. Klassen had experience teaching in an inner-city school in California. She also had experience teaching students with behavioral problems, which many first-grade students in the District demonstrated.

The last position Wingate applied for consisted of a half-time elementary position and a half-time special education position. The District only interviewed applicants with (or who would soon hold) a special education endorsement. Wingate neither had such an endorsement nor was in the process of obtaining one, and was therefore not interviewed.

After the District rejected Wingate's four applications for full-time employment, she filed suit. She alleged that the Defendants refused to hire her because of her age and the exercise of her First Amendment rights of free speech and free association. The Defendants moved for summary judgment on each of Wingate's claims. The district court granted their motion; Wingate now appeals that judgment.


Wingate claims that the district court erred in granting the Defendants' motion for summary judgment on each of her claims. We review a grant of summary judgment de novo, applying the same standard as the district court. Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1107 (8th Cir.1998). We will affirm if the evidence, viewed in the light most favorable to the nonmovant, shows that no genuine issue of material fact exists and 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

528 F.3d 1079

genuine issue for trial. Id. But "[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).

Each of Wingate's claims is discussed below.

A. Wingate's Age Discrimination in Employment Act Claim

Wingate first argues that the district court erred in granting summary judgment to the Defendants on her ADEA claim. The ADEA prohibits an employer from failing or refusing to hire an individual who is at least forty years old because of the individual's age. Lee v. Rheem Mfg. Co., 432 F.3d 849, 852 (8th Cir.2005) (citing 29 U.S.C. §§ 623(a)(1), 631(a)). In age-discrimination cases, the plaintiff has the burden to present a prima facie case. Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir.1997) (en banc).3 Once a plaintiff establishes a prima facie case, a legal presumption arises that the employer unlawfully discriminated. Id. This shifts the burden to the employer to produce evidence of a legitimate, nondiscriminatory reason for the defendant's failure to hire the plaintiff. Id. at 836-37. If the employer carries this burden, the plaintiff has an opportunity to demonstrate that the employer's proffered nondiscriminatory reason was pretextual. Id. To do this, the plaintiff must present evidence, that "considered in its entirety (1) create[s] a fact issue as to whether [the defendant's] proffered reasons are pretextual and (2) create[s] a reasonable inference that age was a determinative factor in the adverse employment decision." Thomas v. Corwin, 483 F.3d 516, 529 (8th Cir.2007) (emphasis in original) (internal quotations omitted).

Here, the Defendants conceded, for purposes of their summary-judgment motion, that Wingate established a prima facie case of discrimination. As a result, a legal presumption arose that the Defendants discriminated against Wingate. Accordingly, the Defendants had the burden to produce evidence of a legitimate, nondiscriminatory...

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