FILED
NOT FOR PUBLICATION
OCT 19 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAURA S. BELLINGER, No. 14-36003
Plaintiff-Appellant, D.C. No. 6:13-cv-01443-AA
v.
MEMORANDUM*
COOS BAY SCHOOL DISTRICT,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted October 4, 2017**
Portland, Oregon
Before: PAEZ and BEA, Circuit Judges, and LAMBERTH,*** District Judge.
Laura Bellinger filed suit against Coos Bay School District (“CBSD”),
alleging violation of the Age Discrimination in Employment Act (“ADEA”), 29
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Royce C. Lamberth, United States District Judge for
the District of Columbia, sitting by designation.
U.S.C. § 621 et seq. Bellinger appeals the district court’s order granting CBSD’s
motion for summary judgment on the ground that Bellinger failed to establish a
prima facie case of age discrimination. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
Where there is no direct evidence of discrimination, ADEA claims are
governed by the burden-shifting framework described in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973). Diaz v. Eagle Produce Ltd. P’ship,
521 F.3d 1201, 1207 (9th Cir. 2008). Pursuant to this framework, a plaintiff first
must establish a prima facie case to create a presumption of unlawful
discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). If the
plaintiff establishes a prima facie case, the burden of production shifts to the
defendant to articulate a legitimate, non-discriminatory reason for the adverse
employment action. Diaz, 521 F.3d at 1207. “If defendant meets this burden,
plaintiff[] must then raise a triable issue of material fact as to whether the
defendant’s proffered reasons for [the adverse employment action] are mere pretext
for unlawful discrimination.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155
(9th Cir. 2010).
At the time Bellinger applied for the two permanent teaching positions at
Millicoma, she was a substitute teacher who worked intermittently for various
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school districts, including CBSD. Bellinger was not a permanent teacher applying
for a promotion. When a substitute teacher applies for a permanent teaching
position, but is not hired, we apply a “failure to hire” standard to determine
whether the plaintiff has established a prima facie case of discrimination. See
Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1188, 1193 n.6 (9th
Cir. 2003).
Under the failure to hire standard, “[a] plaintiff makes out a prima facie case
of intentional discrimination under the ADEA if he demonstrates that he was
within the protected class of individuals between forty and seventy years of age,
that he applied for a position for which he was qualified, and that a younger person
with similar qualifications received the position.” Cotton v. City of Alameda, 812
F.2d 1245, 1248 (9th Cir. 1987) (emphasis added). “A plaintiff’s failure to offer
evidence establishing a necessary element of his prima facie case will ordinarily be
fatal to his claim.” Lyons v. England, 307 F.3d 1092, 1113 (9th Cir. 2002).
It is undisputed that Bellinger was over the age of 40, she met the minimum
requirements for the Millicoma teaching positions, and she was not hired for the
positions. Bellinger did not argue at the district court, nor does she argue on
appeal, that she was similarly situated to the successful applicants, and indeed she
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wasn’t. The teachers hired had advanced degrees, which Bellinger lacked.
Accordingly, Bellinger failed to establish a prima facie case of age discrimination.
AFFIRMED.
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