United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3492

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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. *

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Submitted: March 27, 2008

Filed: June 16, 2008

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Before RILEY, BEAM, and MELLOY, Circuit Judges.

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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
1

The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska. 

2

The 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.

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Defendants"). The Defendants moved for summary judgment and the district court1

granted their motion. Wingate now appeals. We affirm.

I. BACKGROUND

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

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
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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.
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II. DISCUSSION

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.
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Here, 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).

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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 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
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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 prerequisite–a 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
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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

below.

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
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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

388.

Here, Wingate's claim fails at the threshold question–her 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
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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
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In 2004, Wingate's husband filed both a grievance over his dismissal as

wrestling coach and a professional practices complaint against a school principal.

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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.

III. CONCLUSION

For the foregoing reasons, we affirm the district court's grant of summary

judgment.

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