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Wingate v. Gage County School District: EMPLOYMENT - no pretext shown; no 1st Amendment. violation, not public concerns; spouse not factor

United States Court of Appeals
No. 07-3492
Nancy J. Wingate, *
Appellant, **
v. * Appeal from the United States
* District Court for the
Gage County School District, No. * District of Nebraska.
34, also known as Freeman Public *
Schools; John T. Brazell, Individually *
and in his capacity as Superintendent *
of Freeman Public Schools, *
Appellees. *
Submitted: March 27, 2008
Filed: June 16, 2008
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
1The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
2The District received a Title I school-improvement grant. This grant provided
short-term limited funding for the District. The District used this grant money to hire
Wingate as a part-time paraeducator. The District discontinued this position when the
Title I grant ended.
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 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
Some time in 2001, Wingate decided to return to a full-time teaching position.
Over the course of approximately three yearsfrom 2001 to 2004Wingate 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 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 (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.
3Here, the parties do not dispute that McDonnell Douglas' tripartite burdenshifting
analysis applies. To establish a prima facie case of age discrimination in a
failure-to-hire case, like this one, the plaintiff must prove the following: (1) that the
plaintiff was in the protected age group (over forty); (2) that the plaintiff was
otherwise qualified for the position; (3) that the plaintiff was not hired; and (4) that
the employer hired a younger person to fill the position. Chambers v. Metro. Prop.
& Cas. Ins. Co., 351 F.3d 848, 856 (8th Cir. 2003).
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
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 reason for not hiring Wingate. To satisfy this burden, they argued
that the four individuals hired were better qualified for the positions, even though they
were significantly younger; Wingate was only an average teacher and they endeavored
to hire above-average teachers; Wingate's work as a Title I paraeducator involved
small groups of students and the jobs Wingate applied for involved classrooms with
many students; and if they hired Wingate, they would be forced to hire a replacement
part-time employee, which is more difficult than hiring a full-time employee. This
shifted the burden of production back to Wingate to produce evidence that the
Defendants' proffered reasons for not hiring her were pretextual.
Where, as here, an employer "contends that the selected candidate was more
qualified . . . than the plaintiff, a comparative analysis of the qualifications is relevant
to determine whether there is reason to disbelieve the employer's proffered reason for
its employment decision." Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848,
857 (8th Cir. 2003) (alteration in original) (internal quotations omitted). If the
comparison "reveals that the plaintiff was only similarly qualified or not as qualified
as the selected candidate," then no inference of age discrimination would arise. Id.
(internal quotations omitted). Conversely, if the "comparison successfully challenges
the employer's articulated reason for the employment decision, it might serve to
support a reasonable inference of discrimination." Id.
Here, Brazell stated the following. He hired Benson for the April 2001 opening
because of her coaching experience, high recommendations, and prior work
experience for the District. He hired Archer for one of the fall 2004 positions because
of her special education endorsement, high recommendations, and experience
handling large numbers of students. He hired Klassen because of her strong
recommendations and experience teaching students with behavioral problems. And
he did not even interview Wingate for the special education position because Wingate
lacked a necessary prerequisitea special education endorsement.
Wingate presented no evidence sufficient to reject the Defendants' proffered
reasons for not hiring her as pretextual. To be sure, Wingate produced evidence
creating a factual question on whether the 2001 job opening included coaching as a
job requirement. Nevertheless, this factual dispute did not create a reasonable
inference that age was the Defendants' determinative factor in not hiring Wingate.
Additionally, Wingate's disagreement with Brazell's assessment of her teaching
abilities should not create a triable issue of fact, as Wingate, herself, produced a
written evaluation conducted by Brazell describing her as merely "proficient," as
opposed to "distinguished." In sum, Wingate did not produce sufficient evidence to
establish that the Defendants' proffered reasons for not hiring her were pretextual.
Wingate also challenges the district's court reliance on the Defendants' use of
subjective criteria to support their hiring decisions. Although we have cautioned
against the advancement of subjective considerations because they are easily
fabricated, we have not outright prohibited their use. Id. at 858. With that said, the
Defendants here did not rely exclusively on subjective criteria; rather, they also relied
on objective criteria and legitimate educational considerations in making their hiring
decisions. Thus, any use by the Defendants of subjective considerations does not give
rise to an inference of age discrimination. Accordingly, the district court did not err
in granting the Defendants' summary-judgment motion.
B. Wingate's First Amendment Claims
Wingate also challenges the district court's decision granting the Defendants
summary judgment on her First Amendment claims. More specifically, Wingate
argues that she produced sufficient evidence to avoid summary judgment on both her
freedom-of-speech and freedom-of-association claims. Both claims are addressed
1. Freedom of Speech
The First Amendment guarantees every citizen a right to engage in free speech.
See Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir.), cert. denied by
Memorial Day Weekend Salute to Veterans Corp. v. Wickersham, 128 S. Ct. 387
(2007). This constitutional guarantee, however, only extends to protect citizens from
government actions. Id. This freedom also applies in the work place. Rankin v.
McPherson, 483 U.S. 378, 383 (1987). Accordingly, a public employer, "may not
discharge an employee on a basis that infringes that employee's constitutionally
protected interest in freedom of speech." Id. This is so despite the fact that a public
employer could discharge an employee for any reason or for no reason at all. Tautfest
v. City of Lincoln, Neb., 742 F.2d 477, 480 (8th Cir. 1984) (applying Nebraska law).
As a result, an employee that is discharged in violation of his freedom of speech may
be reinstated. Rankin, 483 U.S. at 383-84.
To determine whether a public employer's discharge infringed on an employee's
freedom of speech, we must balance the "interests [of the employee], as a citizen, in
commenting upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it performs through its
employees." Id. at 384 (alteration in original) (internal quotations omitted).
The threshold question in applying this balancing test is whether the employee's
speech may be "'fairly characterized as constituting speech on a matter of public
concern,'" id. (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)), as only matters
of public concern are protected. Cox v. Dardanelle Pub. Sch. Dist., 790 F.2d 668, 672
(8th Cir. 1986). In contrast, where a public employee speaks out in public or in
private on matters that relate solely to the employee's parochial concerns as an
employee, no First Amendment interests are at stake. Id. Whether an employee's
speech addresses a matter of public concern must be determined by the content, form,
and context of a given statement, as revealed by the whole record. Id. The manner,
time, and place of the employee's expression are also relevant. Rankin, 483 U.S. at
Here, Wingate's claim fails at the threshold questionher statements did not
involve a matter of public concern. Wingate's speech, as found by the district court,
involved the following: (1) complaints that she made to Brazell about the part-time
Title I paraeducator position and not being paid as a full-time teacher; (2) her
unsuccessful applications for the four full-time teacher positions; (3) her request for
an explanation from Brazell as to why she was not interviewed for those positions;
and (4) a meeting with a school board member in the fall of 2001 to request that she
be made a full-time Title I teacher.
All four of these actions dealt with Wingate's own personal interests. She was
not speaking as a concerned public citizen, but merely as an employee concerned with
the District's internal policies and practices. Accordingly, her freedom-of-speech
claim fails.
2. Freedom of Association
Like freedom of speech, the freedom of association is a basic constitutional
freedom that "lies at the foundation of a free society." Buckley v. Valeo, 424 U.S. 1,
25 (1976) (internal quotations omitted). This right extends to protect certain intimate
human relationships, such as the husband-wife relationship, from state intrusion.
Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984). This freedom, however, is not
absolute. Norbeck v. Davenport Cmty. Sch. Dist., 545 F.2d 63, 67 (8th Cir. 1976).
Indeed, even a significant interference with an individual's freedom of association may
be sustained if there exists a sufficiently important state interest, and the means
employed are narrowly drawn to avoid unnecessary abridgement of associational
freedoms. Id.
To establish a prima facie case of a freedom-of-association violation, a plaintiff
must allege and prove, inter alia, that her "protected conduct was a substantial or
motivating factor in the defendant's decision" not to hire her. Davison v. City of
Minneapolis, Minn., 490 F.3d 648, 654-55 (8th Cir. 2007).
Below, Wingate claimed the Defendants violated her freedom of association
when they based their decision not to hire her full-time on her relationship with her
4In 2004, Wingate's husband filed both a grievance over his dismissal as
wrestling coach and a professional practices complaint against a school principal.
husband, a former teacher for the District.4 No one disputes that the Constitution
extends protection to this relationship. Nevertheless, Wingate produced no evidence
proving that her relationship to her husband was a substantial and motivating factor
in the Defendants' failure to hire her. Accordingly, Wingate's freedom-of-association
claim fails.
For the foregoing reasons, we affirm the district court's grant of summary


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