## Facts

- Suzanne Nivette, age 50, applied for and was hired by Aspen School District #1 as a special-education inclusion facilitator at a public high school.
- Nivette held a special-education license, but she had not taught special education for seven years and had never worked in an inclusion setting.
- Lisa Halverson, the assistant principal responsible for special education, hired Nivette and served as her supervisor.
- During the school year, coworkers raised complaints to Halverson about Nivette’s communication style and difficulty learning the job.
- Halverson issued Nivette two critical performance evaluations.
- Halverson later told Nivette she would not recommend renewal of Nivette’s contract and offered Nivette the option to resign before the nonrenewal recommendation was issued.
- Nivette submitted a letter of resignation and also filed a challenge with the district to Halverson’s nonrenewal recommendation.
- Halverson hired a 51-year-old special-education teacher to replace Nivette.
- Nivette filed suit in federal district court under the Age Discrimination in Employment Act (ADEA), alleging the nonrenewal decision was based on age.
- The district court granted summary judgment to the school district, concluding Nivette did not establish a prima facie case of age discrimination, and she appealed.

## Issues

1. Whether the plaintiff produced sufficient evidence to establish a prima facie case of age discrimination under the ADEA arising from the district’s decision not to renew her contract.
2. Whether, on the summary-judgment record, a reasonable jury could find that the district’s stated performance-based reasons for nonrenewal were a pretext for age discrimination.

## Decision

- The Tenth Circuit affirmed the grant of summary judgment to Aspen School District #1.
- The court agreed that the record did not support an inference that age motivated the nonrenewal decision, including because the plaintiff was replaced by a 51-year-old.
- The court concluded the district’s evidence of performance-related concerns was not met with enough probative evidence from the plaintiff to permit a reasonable finding of age discrimination.

## Legal Principles

- ADEA disparate-treatment claims based on circumstantial evidence are commonly analyzed under the McDonnell Douglas burden-shifting method at summary judgment.
- To make a prima facie showing of age discrimination in a nonrenewal or termination setting, a plaintiff must present evidence that permits an inference that the adverse decision occurred because of age (often shown by replacement by a sufficiently younger person or other facts indicating age-based motive).
- Replacement by a person close in age (and still within the protected group) generally weakens, and may defeat, an inference that age was the reason for the employment decision unless other evidence points to age bias.
- Once an employer articulates legitimate, nondiscriminatory reasons for its action (such as documented performance problems), the plaintiff must present evidence from which a reasonable jury could find those reasons were a pretext for age discrimination.

## Conclusion

The Tenth Circuit upheld summary judgment for Aspen School District #1 on the plaintiff’s ADEA claim, reasoning that the summary-judgment record—marked by documented workplace and performance concerns and a replacement who was essentially the same age—did not allow a reasonable jury to infer that age was the reason the district chose not to renew her contract.


Dirusso v. Aspen School District #1, 123 F. App’x 826 (2004)