Dunn v. Lyman School District 42-1

Filing 56

OPINION AND ORDER granting in part and denying in part 41 Motion for Summary Judgment (denying on Count I but granted on Counts II and III). Signed by U.S. District Judge Roberto A. Lange on 8/4/14. (DJP)

FIIEÐ
AUG 0

LINITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DTVISION

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MARK DTINN,

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CTV 13-3004-RAL

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Plaintiff,

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vs.

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LYMAN SCHOOL DISTRICT 42-1,

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OPINION AND ORDER
GRANTING IN PART AND
DENYING IN PART
DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT

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Defendant.

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I. Introduction
Plaintiff Mark Dunn (Dunn) filed an Amended Complaint against Defendant Lyman
School District (School District) alleging violations of the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. $ 621 et seq., (Covnt I), a breach of fiduciary duty and duty of loyalty
(Count II), and intentional infliction of emotional distress (Count

III).

Doc. 22. T\e School

District moved for summaryjudgment, Doc. 41, which Dunn opposed, Doc. 51. For the reasons
explained below, this Court denies the School District's motion for summaryjudgment on Count

I, but grants the motion on Counts II and III.

II.

Facts

This Court takes the facts in the light most favorable to Dunn as the non-movingparty
and draws the facts primarily from

Plaintiffs Objections to Defendant's Statement ofUndisputed

Material Facts and Counter Statements of Material Facts. Doc. 50. Dunn began working as a
guidance counselor for the School District

in 1995. Doc. 50 at !f 1. He remained in this position

until May 20T0, when he voluntarily retired with the hope of being rehired the following year
so

thathe could collectretirementbenefits and

a

salary. Doc. 50

atl2.

The School Districtpaid

Dunn for his accumulated sick leave and gave him his severance. Doc. 50 at fl 4;Doc.4l-25.
The School District made no guarantee it would rehire Dunn. Doc. 50 at tffl 3, 5. In June 2010,
the School Board (Board) voted to rehire Dunn for the 2010-2011 school year, with only one
Board member voting in opposition. Doc. 50 at fl

6.

Dunn was sixty years old when he was

rehired. Doc.50atfl8. BecauseSouthDakotaregulationsrequiredaninety-daybreakinservice
between Dunn's retirement and his retum to employment, Dunn could not begin working for the

School District until September

1,

2010. Doc. 50 at J[[9-10.

Because ofreduced tax collection caused in part by

a

recession, the state of South Dakota

in201l cut its education funding by approximately fifteen percent. Doc. 50 at J[fl I l,
4l-4 at 5; Doc. 4l-9 at 4; Doc. 4l-10
superintendent at that time, proposed

a

17; Doc.

at2. As aresult, Bruce Carrier, the School District

reduction in force of certain positions to the Board. Doc.

50 at uJ[ 12-14,17. Those identified in the proposed reduction in force-Dunn, Renee Miller,
and Beth

Bacon-were three of the older employees in the School District. Doc. 50 atl2I.l

The proposed reduction in force never occurred, however, and the School District offered Dunn
a new contract

for the 20lI-201,2 school year. Doc. 50 at T1[ 16, 21,25. Dunn's 20ll-20I2

contract did not include compensation for work before or after the school year. Doc. 50 at'1f 25.

Nor did the 2011-2012 contract include the extra-duty assignment of National Honors Society
(NHS) advisor and the corresponding compensation. Doc. 50
advisor for several years, but the position became unpaid

atl25.

Dunn had been the NHS

in20l1. Doc.

50 at J[fl 18, 19. Marsha

rAccording to an affidavit filed by the School District's business manager Renelle Uthe, in
March 2011 when the School District was considering the proposed reduction in force, there were
eleven employees older than Dunn, thirty-seven employees older than Beth Bacon, and five
employees older than Renee Miller. Doc. 55-4.

Hullinger, a School District secretary, assumed the position for the 2011-2012 school year after
agreeing to do so without compensation. Doc. 50 at

!JJ[

18-19. The School District reinstated

pay for the position for the 2012-2013 school year. Doc. 50 at fl 18.

Doug Eppard (Eppard), a School District employee since 1997 who was most recently
the high school principal, became superintendent for the School District in the summer of 201 1.

Doc. 50 at lffl 28, 30; Doc. 4l-12 at

2.

Cooper Garnos (Garnos), another School District

employee, became principal of the high school and elementary school in 2011. Doc. 50 at J[fl

29,30. Duringthe20Il-20l2 schoolyear,DunnworkedwithcollegestudentsAndreaDiehm
(Diehm) and Brittany Reuman, nee Fuhrman, (Brittany) while they completed guidance
counseling intemships with the School District. Doc. 50 at !f!f 31-32. Brittany performed her
internship during the fall semester while Diehm performed apracticum during the fall semester
and an internship during the spring semester. Doc. 50 attffl 31-32. Around Christmas of 2077,

Brittanybecame engaged to DrewReuman (Drew), the son ofBoard PresidentMarlene Reuman

(Reuman). Doc. 50 at tffl 89, 90. Brittany had been dating Drew when she applied for the
internship and once theybecame engaged, she hoped to find permanent employment near Lyman

where Drew worked. Doc. 50 at tjfl 89-90. Both Brittany and Diehm received their masters
degrees in the spring of 2012. Doc. 50 at J[33.

Eppard testified in his deposition that during the20ll-2012 school year, he spoke with

hiswife,PrincipalJulieEppard,andGarnosaboutDunn'sjobperformance. Doc.50atuJ[36-37;

Doc.4l-12

at

4. 'When pressed for specifics, however,

Eppard had trouble recalling the details

ofthe conversations and the exact dates they took place. Doc. 50 atffi36-37; Doc. 41-12 at4-5.
Similarly, although Garnos testified that he spoke with Eppard on several occasions about Dunn's

lack of a connection with students and his level of commitment and community involvement,
Garnos was unable to name anyparticular students with whom Dunn had difficulty connecting.

Doc. 50 at fl 38; Doc. 52-5 at 5, 10. Garnos further testified that he had not communicated his
concerns to Dunn either verbally or in writing and that Dunn had never refused to do something

Gamos asked of him. Doc. 50 at 1[ 38; Doc. 52-5 at 4-5,9.

In January 2012, Eppard and the Board discussed not renewing Dunn's contract. Doc.
50 at fl 53; Doc. 4l-12 at 13. Eppard testified that during these discussions, several Board
members expressed concern that Dunn was not a very good guidance counselor. Doc. 50 at
,lTT

45, 46; Doc. 4l-12 at

I3-I4.

Board member Meta Halverson testified that the Board

discussed looking for someone who would be more helpful to the students. Doc. 50 at J[fl 46-48;

Doc. 41-10 at 4-5. Eppard told the Board that there were two intems in the community who
would be very good candidates. Doc. 50 at 1[ 53; Doc.

4l-I2

at 14. Eppard did not recall any

Board member asking about Dunn's age, his receipt of retirement benefits, or whether he was
going to retire. Doc. 50 at fl 53; 4I-12 at 14; see also Doc. 41-1

I atZ. At some point in either

early 2012 or before, however, the Board did discuss that Dunn had retired in 2010 and was no

longer a tenured employee. Doc. 50 at fl 53; Doc. 4I-10 at 4.

In February 2012, Eppard called Dunn into his office and asked him whether he "was
planning to retire that year or what [his] plans were." Doc. 50 at fl 40; Doc. 4l-4 at3;Doc. 52-2
at 1 8- I 9. Dunn responded that he planned to continue working for the School District rather than

retiring and inquired why Eppard wanted to know. Doc. 50 at fl 40; Doc.47-4 at3;Doo52-2

at 18. Eppard explained that there was a "50/50" chance that Dunn's contract would not be
renewed and reminded Dunn that he had lost his tenure when he retired and was then rehired.

Doc. 50 at fl 40; Doc.4I-4 at 3; Doc. 52-2 at 18. According to Dunn, Eppard also informed

Dunn that the possible nonrenewal of his contract had "nothing to do with [Dunn's] job
performance, that [Dunn] had done everything [he] had always been asked to do and done it well,
but that fEppard] had two good, young counseling interns living in the fD]istrict that [Eppard]
did not want to lose to another district."2 Doc. 50 atlll42,45; Doc.
at

4.

4l-4 at3; see also Doc.4l-4

Eppard never called Dunn "old," mentioned Dunn's age, or told Dunn that the School

District needed someone "much younger," however. Doc. 50 at tffl 41, 42;Doc. 4I-4 at3-4, 12,
17.

Accordingtothe "AgeDiscriminationFact Summary" Dunnfiled, EppardmetwithDunn

in early March 2012 to inform Dunn that he would be recommending nonrenewal of Dunn's
contract at the Board meeting on March Iz,z}lz,because it was "time for a change at Lyman."

Doc.52-18;Doc.50at'lifl 42,74;Doc.4I-4at4.EppardtoldDunnthathecouldresignatthat
time because it "would be better for fDunn] to do that." Doc. 50

atl74; Doc. 52-18. Eppard

in fact recommended at the March 12,2012 meeting that the Board not renew Dunn's contract.

Doc. 50 at

I

431,

Doc. 4l-12 at 15. Although the Board had the ultimate authority to make

staffing decisions, it considered Eppard's recommendations and typically relied on his statements
concerning a teacher's performance. Doc. 50 at J[43; Doc. 4l-10 at2;Doc. 52-2 at2;Doc.52-7

at2,4. Neither Halverson nor Reuman independently investigated Dunn's performance. Doc.
50 at J[45; Doc.

4I-I0 atZ;Doc. 52-7 atZ. The Board

for the following year. Doc. 50

atl44.

then voted not to offer Dunn a contract

Six out of the nine members on the Board in 2010 when

2Eppard has a different version of this conversation, Doc. 52-2 at 18-19, but this Court in
ruling on a motion for summary judgment must take the facts in the light most favorable to Dunn
as the nonmovant. EEOC v. CRST Van Expedited. Inc. , 679 F.3d 657,686 (8th Cir. 2012).

Dunn was rehired were also on the Board in20l2 when Dunn's contract was nonrenewed. Doc.
50 at fl 54. The same Board members who voted to rehire Dunn in 2010 voted to nonrenew his

contract

in20l2.

Doc. 50 at fl 55.

On March 13,2012, Dunn was given written notice that the Board had not renewed his

contract. Doc. 50 at fl 58. The notice did not give any reason for the noffenewal. Doc. 4l-19.
That same day, the School District advertised for the guidance counselor position. Doc. 50 at
J[60. On March 14,2012, Brittany applied for the guidance counselor position. Doc. 50 at]92.

A hiring committee consisting of Eppard, Julie Eppard, Garnos, and School District counselor
Julie Muirhead (Muirhead) interviewed three applicants for the position, including Diehm and

Brittany. Doc. 50 at'1f 61; Doc.4I-I2 at 18. The hiring committee asked standard questions
during each interview and ranked the applicants thereafter. Doc. 50 at J[ 62. OnApril 9, 2012,
the Board voted to offer the position of guidance counselor and assistant girls'basketball coach

to Brittany. Doc. 50 at J[63. Reuman, the future mother-in-law of Brittany, had participated in
the decision to nonrenew Dunn's contract. Doc. 50 at fl 91; Doc. 52-7 at

4.

Reuman removed

herself from the process of hiring a guidance counselor by not discussing the applicants with
other Board members or Brittany, leaving the Board meeting when the applicants were discussed,
and abstaining from the

vote. Doc. 50 atl64.

On May 17,2012, the day for staff to tum in their keys, Dunn asked Eppard for copies

of all his performance evaluations from his personnel file. Doc. 50 at fl 86; Doc. 52-16 at 3.
Although Dunn was entitled to his performance evaluations under School District policy, Eppard
was unable to locate them. Doc. 50 at jifl 85, 87; Doc. 52-2

at12. Later thatday, Garnos came

to Dunn's office and stated that he wanted to review Dunn's performance evaluation with him.

Doc. 50

atllï7;Doc.

52-16 at 3; Doc. 55-3 at

4.

Dunn refused to sign the performance

evaluation because he believed that it was not on the appropriate form and did not comply with
the Negotiated Agreement. Doc. 50 at fl 80; Doc. 52-16 at

3. Garnos observed that Dunn

was

visibly upset. Doc. 50 at fl 1 03; Doc. 52-5 at6. Thereafter, Dunn met with Garnos, Eppard, and
School District business manager Renelle Uthe. Doc. 50 at fl 82. Uthe was there as a witness
and she signed Dunn's performance evaluation attesting that he had refused to sign

it himself.

Doc. 50 atl92;Doc.52-25; Doc. 55-1.

In June 2012, Dunn filed a complaint with the Equal Employment Opportunity
Commission (EEOC) alleging age discrimination against the School District. Doc. 4l-22.
Eppard responded with a letter to the EEOC explaining the reasons he felt were pertinent to the

nonrenewal of Dunn's contract. Doc. 50 at t[ 109; Doo

complaint, stating that although

it

4l-23. The EEOC dismissed Dunn's

was "unable to conclude that the information obtained

establishefd] violations of the statutes[,]" it was "not certiff[ing] that the fSchool District was]

in compliance with the statutes." Doc. 4I-24.

III. Standard of Review
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper
when "the movant shows that there is no genuine dispute as to any mateÅal fact and the movant
is entitled to judgment as a matter of law." Summary judgment is not "a disfavored procedural
shortcut, but rather . . . an integral part of the Federal Rules as a whole, which are designed'to
securethejust, speedyandinexpensivedeterminationofeveryaction."'

Celotex Corp. v. Catrett,

47111.5.317,327 (1936) (quoting Fed. R. Civ. P. 1). On summaryjudgment, courts view "the
evidence and the inferences that may be reasonably drawn from the evidence in the light most

7

favorable to the nonmoving party. " EEOC v. CRST Van Expedited. Inc. , 679 F .3d 657, 686 (8th

Cir.2012) (quoting Mayer v. Countrywide Home Loans ,647

F

.3d789,791(8th Cir.

1). A

201

parfy opposing a properly made and supported motion for summary judgment must cite to
particular materials in the record supporting the assertion that a fact is genuinely disputed. Fed.
R. Civ. P. 56(cXl); Gacekv. Owens

&MinorDistrib..Inc. ,666F.3d1142,1145 (8th Cir.20t2).

Although Dunn asserts that there is a "long-standing Eighth Circuit rule that summaryjudgment
should seldom be used in employment-discrimination cases[,]" Doc. 51 at9,the United States

Court

of

Appeals for the Eighth Circuit held

in an en banc decision that

there

is

no

"'discrimination case'exception to the application of summary judgment[.]" Torgerson v. City
of Rochester,643F.3d 1031, 1043 (8th Cir.

20ll) (enbanc).

summary judgment standard to discrimination cases as

IV.

it

Thus, this Court applies the same

does to all others.

Discussion

A. ADEA
The ADEA forbids discrimination against employees, age forty and over, because
age. 29 U.S.C. g$ 623(aX1),631(a).
a preponderance

oftheir

ToprovehisclaimundertheADEA,Dunnmustshowby

of the evidence that

age was

the "but-for" cause of the adverse employment

action. Gross v. FBL Fin. Servs.. Inc., 557 U.S. 167,177 (2009) ("[T]he plaintiff fin an ADEA
case] retains the burden of persuasion

to establish that age was the 'but-for' cause of the

employer's adverse action."); Buehrle v. City of O'Fallon, 695 F.3d 807, 813 (8th Cir. 2012)

("Under the ADEA standard, a plaintiff must'establish that age was the "but-for" cause of the
employer'sadverseaction."'(quotingGross,557U.S.

atl77)). DunnmayhavehisADEAclaim

survive summary judgment "either by providing direct evidence of discrimination or by creating

an inference of unlawful discrimination through the McDonnell Douglas lCorp. v. Green, 411

U.S.792(1973)lanalysis."3 Bonev.G4SYouthServs..LLC,686F.3d948,953(8thCir.2012).
Dunn contends that he has direct evidence of discrimination and, alternatively, that he can satisff
the McDonnell Douglas test.

1. Direct Evidence
The Eighth Circuit has explained that direct evidence in this context "is not the converse

of circumstantial evidence . . . tbut] is evidence showing a specific link befween the alleged
discriminatory animus and the challenged decision, sufficient to support a finding by

a

reasonable fact finder that an illegitimate criterion actually motivated the adverse employment
action.

" Bone, 686 F.3d at953 (quoting

Torgerson , 643

F

.3d at 1044) (internal quotation marks

omitted). This evidence "must be 'strong' and must 'clearly pointf] to the presence of an illegal
motive' for the adverse action." Id. (quoting Griffith v. City of Des Moines, 387 F.3d 133,736
(8th Cir. 2004)). Direct evidence "may include evidence of actions or remarks of the employer
that reflect a discriminatory attitude, comments which demonstrate a discriminatory animus in

the decisional process, or coÍrments uttered by individuals closely involved in employment

decisions." King v. United States,553 F.3d 1156, 1161 (8th Cir. 2009) (quoting King v.
Hardesty, 517 F.3d 1049, 1058 (8th Cir. 2008) (internal quotation marks omitted). However,

"stray remarks

in the worþlace,

statements

by nondecisionmakers, and

statements by

decisionmakers unrelated to the decisional process do not constitute direct evidence." Id. at

3The Supreme Court explained in Gross that it has not definitively decided whether the
McDonnell Douglas framework applies in ADEA cases. Gross, 557 U.S. atl75 n.2. Nevertheless,
the Eighth Circuit has continued to apply the framework in ADEA cases. See Tusing v. Des Moines
Indep. Cmty. Sch. Dist., 639 F.3d 507 , 515 (8th Cir. 20ll) (upholding the continued applicability
of McDonnell Douglas after Gross).

1160-61 (quotinsSchierhoffv.GlaxoSmithKlineConsumerHealthcare.LP,444F.3d96l,966

(8th Cir. 2006)) (internal quotation marks omitted).
Dunn argues that Reuman's testimony concerninga2}l0 Board meeting constitutes direct
evidence that age discrimination motivated the Board's decision to nonrenew his contract in

2012. Specifrcally, he points to the following deposition testimony from Reuman:

Reuman: At that time when [Dunnl retired we accepted

his

retirement. Ancl then we discussed whether we were going to
rehire him back. And that was not all in the same meeting.
Dunn's Counsel: Okay. So maybe you could just help me
understand when those meetings occurred. And what was
discussed at each meeting.
Reuman: Well, the first meeting he retired. And then we
discussecl--and he wanted to clo the retire rehire. So we discussecl
whether we wanted to do that. And that is when we decided that
we would advertise f-or the p.osition. Then the next meeting and
I can't tell you if it was the next month or two months later that
we had--we had advertised tbr the position, and like I told you,
the one applicant that we were interested withclrew her
application. So then we cliscussed when we woulcl--then the next
meeting we discussed we would hire him back.
Dunn's Counsel: Okay. And in that first meeting which board
members said what regarding Mr. Dunn's retirement?
Reuman: I don't remember.
Dunn's Counsel: Do you remember what you said regarding Mr.
Dunn's retirement?
Reuman: No, I don't.
Dunn's Counsel: What was the overall gist olthe discussion
regarding Mr. Dunn's retirement?
Reuman: I would say that the overall gist was that it was time
for him to retire.
Doe.52-7 at 3. Because "retire" is not synonymous with "uge," the Board's general consensus
during the 2010 meeting that it was "time for [Dunn] to retire" is not, standing alone, direct
evidence of age discrimination. See Scott v. Potter, 182 F. App'x 521,526 (6th Cir.2006)

(explaining that "retire" is not synonymous with "age," and holding that without more,
10

employer's statement that plaintiff should "retire and make everybody happy" was not direct
evidence of age discrimination); Erickson v. Farmland [ndus.. Inc. ,271 F.3d718,725 (8th Cir.

2001) (employer's statement that "[t]wenty years is too long. You should have moved five years

ago[,]" was not direct evidence of age discrimination absent showing that length of tenure was

beingusedasaproxytoaccomplishagediscrimination). Rather,fortheBoard's2010discussion
to constitute direct evidence ofage discrimination, Dunn would need to show that the Board used

the term "retire" as a proxy for age to articulate a discriminatory attitude. Scott, 182 F. App'x

at 526; Erickson, 27lF.3d at725. Dunn has made no such showing, but is asking for this Court
to speculate and thereby to infer the existence of direct evidence based on the term "retire." The
Board's discussion does not directlyreflect a discriminatory attitude. Erickson, 27lF.3dat725

(holding that employer's statement was not direct evidence where accepting statement

as

evidence of age animus depended on an inference).
Even

if the Board had expressed a discriminatory attitude during the 2010 discussion,

Dunn has failed to show a specific link between the Board's attitude and its decision to nomenew

his contract. After all, not only was there an almost two-year gap between the Board's 2010
discussion andthe2}l2nonrenewal, butthe Boardrehired Dunn twice during this period despite

him being at least sixty years old. Given these circumstances, any link between the 2010
discussion and the 2012 nonrenewal is too attenuated to constitute direct evidence. See Bone,

686 F.3d at 954 (holding that supervisors' reactions to comments did not constitute direct
evidence

of age discrimination where comments were made six months prior to plaintiffs

discharge and wereunconnected to the discharge decision); Haigtrv. GelitaUSA. Inc.,632F.3d

464, 410 (8th Cir.

20ll)

("'We have noted

it is unlikely a supervisor would hire an older
11

employee and then discriminate on the basis of age, and such evidence creates a presumption
against discrimination." (quoting Fitzgerald v. Action. Inc. ,521F.3d867,877 (8th Cir. 2008)));

Ramlet v. E.F. Johnson Co., 507 F.3d 1149,1153 (8th Cir.2007) (holding that comments made
at least four months before the adverse employment action were not connected to the decision-

making process and thus were not direct evidence of age discrimination).

Dunn also argues that some of Eppard's statements constitute direct evidence of
discriminatory animus. The School Dishict disagrees, contending that Eppard's statements are
not direct evidence because he is not

a

decisionmaker. See Elam v. Regions Fin. Corp., 601 F.3d

873, 878 (8th Cir. 2010) (explaining that statements by nondecisionmakers are not direct
evidence). Although Dunn does not dispute that the Board has the ultimate authority to make
staffing decisions, he argues that Eppard played such a significant role in the nonrenewal that his
statements can be considered direct evidence of discrimination.a See King, 553 F.3d at

116l

aDunn

actually argues that the School District has "cat's-paw liability" for Eppard's statements
but then cites a string of cases concerning employees who are closely involved in the decision
making process. The cat's-paw theory describes "a situation in which a biased subordinate, who
lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to

triggeradiscriminatoryemploymentaction." Diazv.TysonFreshMeats.Inc.,643F.3dll49,lI5l52 (8th Cir.20ll) (quoting Oamhiyah v. Iowa State Univ. of Science & Tech., 566 F.3d 733,742
(8th Cir. 2009)); see also Staub v. Proctor Hosp., 131 S. Ct. 1186, lI94 (2011) (if a nondecisionmaker performs an act motivated by a discriminatorybias that is intended to cause, and that
does proximately cause, an adverse employment action, then the employerhas cat's-paw liability);
Richardson v. Sugg ,448F .3d 1046,1060 (8th Cir. 2006) (explaining that the Eighth Circuit's cat'spaw rule "provides that'an employer cannot shield itself from liability for unlawful termination by
using apurportedlyindependentperson or committee as the decisionmakerwhere the decisionmaker
merely serves as the conduit, vehicle, or rubber stamp by which another achieves his or her unlawful
design."' (quoting Dedmon v. Staley, 315 F.3d 948,949 n.2 (8th Cir. 2003))). The situation with
Eppard is not so much a "cat's-paw liability" as a situation where Eppard, though not a direct
decisionmaker, was so close to the process that his statements and actions may be considered as if
being made by a decisionmaker. See Torgerson, 643 F.3d at 1044-45. Further, some courts have
rejected or questioned application of the cat's-paw theory in ADEA cases after the Supreme Court's
decision in Gross.' See Sims v. MVM. Inc. ,704 F.3d 1,327, 1,336 (1 lth Cir. 2013) ("Because the
T2

(explaining that direct evidence may include comments by individuals closely involved with
employment decisions); Mohr v. Dustrol. lnc., 306 F.3d 636,641(8th Cir. 2002) (finding that
comments by supervisor not "officially responsible" for hiring were direct evidence where
supervisorplayed a "pivotalrole" inhiring and officials deferredto hishiringdecision) abrogated

on other grounds by Desert Palace. lnc. v. Costa, 539 U.S. 90,95 (2003). There is enough
evidence to create a question of fact as to whether Eppard was closely involved with and played
a

pivotal role in the nonrenewal decision. Eppard discussed with the Board whether it should

continue employing Dunn, recommended that

it nonrenew Dunn's contract, and ultimately

informed Dunn that the District did not renew his employment. Doc. 50 at lifl 43, 53; Doc. 4l-12

at 13, 16.

Further, the Board generally relied on Eppard's statements about a teacher's

performance, and Halverson and Reuman testified that theyhad never independently investigated
a superintendent's report on such issues.

Doc. 50 at !f'1f 43, 45; Doc.

52-ll at2;Doc.

52-7 at2.

Finally, Eppard drafted on behalf of the School District a response to the EEOC setting forth the
reasons he felt were pertinent to the nonrenewal. Doc. 41-12 at 9; Doc. 4l-23. Eppard's
statements asserted by Dunn to be direct evidence

of age discrimination occurred during the

February 2012meeting when Eppard asked Dunn whether he "was planning to retire thatyeat
or what [Dunn's] plans were" and told Dunn that the possible nonrenewal of his contract had
"nothing to do with [his]job performance, that [he] had done everything [he] had always been

ADEA requires a'but-for'link between the discriminatory animus and the adverse employment
action as opposed to showing that the animus was a'motivating factor' in the adverse employment
decision, we hold that Staub's 'proximate causation' standard does not apply to cat's paw cases
involving age discrimination."); Simmons v. Sykes Enters.. Inc. ,647 F.3ð943,949-950 (1Oth Cir.
20ll) (dìscussing application of Staub to the ADEA); Wojtanek v. Dist. No. 8. Int'l Ass'n of
'workers
Machinists & Aerospace
, 435 F. App'x 545, 549 (7th Cir. 2011).
t3

asked to do and done

it well, but that fEppard] had two good, young counseling interns living

in the [D]istrict that fEppard] did not want to lose to another district." Doc. 50 at'lffl 40, 42,45;

Doc.4l-4at3;Doc.52-2atl8-19. DunnalsopointstoEppard'sstatementinearlyMarch2}l?
that he would be recommending nonrenewal ofDunn's contractbecause it was "time for a change

at Lyman." Doc. 50

atll42,74;Doc.4l-4 at4; Doc. 52-18.

Whether considered individually or

in conjunction, these statements are not direct

evidence of age discrimination. When Eppard asked Dunn about his retirement plans, the School

District had a legitimate interest in knowing how long Dunn planned to work. At that time,
Dunn had already retired once and was in the second half ofhis one-year contract. Dunn has not

offered any evidence that Eppard's one-time inquiry was uffeasonable or constitutes direct
evidenceof agediscrimination. See Clarkv. Matthews Intern. Corp. ,628F.3d462,470 (8thCir.

2010) ("We have held that isolated inquires into the retirement plans of an employee that are
reasonable and not unduly excessive are insufficient to establish age discrimination.") vacated

in part on other grounds by Clark v. Matthews Intern.

Corp.

,

639 F.3d 391 (8th Cir. 2011);

Montgomerv v. John Deere & Co., 169 F.3d 556, 560 (8th Cir. 1999) ("We have stated before
that an employer may make reasonable inquiries into the retirement plans of its employees and

thataplaintiffshould notbe ableto relyonthose inquiries to prove intentional discrimination.")'
Nor, as Dunn argues, do Eppard's statements that there were "two good, young" counseling
interns living in the District and that it was "time for a change" show that Eppard was using the
term "retire" as a proxy for age. Eppard simply used the term "young" to describe Brittany and

Diehm. When, as here, employers use the word "young" to describe a person but not

as a

comparative or evaluative term, courts have declined to find direct evidence of discrimination.

t4

See Buchholz v.

Rockwell Int'l Corp., 120 F.3d 146,149-50 (8th Cir. 1997);Merrick v. Farmers

Ins. Grp., 892F.2d 1434,1438-39 (9th Cir. 1990). The Eigþth Circuit in Buchholz held that a

hiring supervisor's comment that the "young kids" he had hired instead ofthe plaintiff "sure were
sharp" did not show a specific link between a discriminatory animus and the supervisor's

decisionnottohiretheplaintiff. 120F.3datl49-50.lnstead,thecommentwasaneutralremark
about the capabilities of the new hires whom the "sixty-two-year-old supervisor simply described
as young

kids." Id. at 150 (citing Merrick,

892 F.2d at 1438-39). Similarly, the Ninth Circuit

in Merrick held that an employer's comment that he chose a different applicant because the
applicant was a "bright, intelligent, knowledgeable young mffi[,] " was a stray remark insufficient

to defeat summary judgment. 892 F.2d at 1438-39.
Although Dunn points to three cases where employers used the term "young" and courts
found direct evidence of discrimination, each ofthose cases involved statements bythe employer
about wanting or needing

a

younger employee, thereby demonstrating that age was a motivating

factor in the employment decision. See Kneibert v. Thomson Newspapers. Mich.. Inc. ,129

F

.3d

444,452-53 (8th Ck. 1997) (decisionmaker's statement that he "had no use for a senior editor"
and instead needed "three young editors" was direct evidence of age discrimination); Lindseyv.

Am. Cast Iron Pipe Co.,772F.2d 799, 801-02
would be looking for
age discrimination

a

(llth Cir. 1985) (employer's

person "younger than [plaintiff]" to

in failure to promote

Supp. 2d 1291, 1297-98 (M.D. Ala.

case); Newsome

20Il)

statement that he

fill position was direct evidence of
v. KwangSung Am. Corp., 798 F.

(decisionmaker's statement that he was going to

replace employee with a "younger Korean" was direct evidence of discrimination). Here, it is
undisputed that Eppard never called Dunn "old," never mentioned Dunn's age, and never told

15

him that the School District wanted someone younger to fill his position. Doc. 50 atJ[fl 41,42;
Doc. 4l-4 at3-4,12,17 . Eppard's calling Brittany and Diehm young is more like the statements

in Buchholz and Merrick than the statements in Kneibert, Lindsey, and Newsome.

As for Eppard's telling Dunn that it was "time for a change," the Eighth Circuit in
Erickson held that similar statements were "legitimate business concems" rather than direct
evidence of age discriminati on. 271F.3d at 725 (holdin gthatemployer's statements to
that he was "stale," "set in his ways," and that the company "needed

a

plaintiff

new focus" were not direct

evidence). ln sum, although the statements from Eppard and Reuman maybe relevant to whether
the School District's reasons for nonrenewing Durur were pretexts for age discrimination, they
do not constitute direct evidence of age discrimination.

2. McDonnell Douglas Standard
Under the burden-shifting framework set forth in McDonnell Douglas, Dunn has the

initial burden of establishing

a

prima facie case of age discrimination by showing he: "(1) was

at least forty years old, (2) suffered an adverse employment action, (3) was meeting his
employer's legitimate expectations at the time of the adverse employment action, and (4) was

replacedbySomeonesubstantiallyyounger.'',670F.3d844,856
(8th Cir. 2012) (quoting Morgan v. A.G. Edwards & Sons. lnc., 486 F.3d 1034, 1039 (8th Cir.
2007)). IfDunn establishes aprima facie case, then theburden ofproduction shifts to the School
District to proffer legitimate, nondiscriminatory reasons for its actions. Onyiah v. St. Cloud State

Univ., 684 F.3d

7lt,7l9

(8th Cir. 2012). If the School Dishict meets this burden, Dunn must

show that the proffered reasons \ilere a pretext for age discrimination.

Id. Dunn

at all times

retains the "ultimate burden of persuasion that 'age was the "but-for" cause"' of the School

t6

District's adverse action. Id. (quoting Rahlf v. Mo-Tech Corp., 642 F.3d 633, 637 (8th Cir.
201 I )). The School District agrees for the purpose of considering its summary judgment motion

that Dunn is at least forty years old and that he was meeting its legitimate expectations, but
disputes that Dunn suffered an adverse employment action or was replaced by someone
substantially younger.

a. Adverse Employment Action
The parties'main dispute under this element concerns whether the Board's nonrenewal

of Dunn's contract constitutes an adverse employment action. The School District argues that
the nonrenewal was not an adverse employment action because once Dunn retired he became a

nontenured employee with no expectation of a continuing contract and could therefore be
nonrenewed without cause. See S.D. Codified Laws (SDCL) $ 13-43-6.3 (stating thata school
is not required to give a reason for nonrenewal to a nontenured teacher);

Wirt v. Parker Sch. Dist.

No. 60-4, 689 N.W.2d 901, 905-07 (S.D. 2004) (holding that teacher who voluntarily resigned,
cashed out her sick leave, and was then rehired on a one-year contract no longer had tenure). The

School District argues further that because it had only hired Dunn for one year, he could not have

suffered an adverse employment action when it did not renew his contract. Dunn disagrees,
arguing that this Court and several others have rejected the same arguments the School District
offers here.
"An adverse employment action is a tangible change in working conditions that produces

amatenal employment disadvantage." Thomas Corwin, 483 F.3d 516,528-29 (8th Cir.2007)
(quoting Wedow v. City of Kan. City. Mo.,442F.3d 661,671 (8th Cir. 2006)). Although it
appears that the Eighth Circuit has yet to address whether the noffenewal of a plaintiffs contract

T7

can constitute an adverse employment action, this Court in Sloat v. Rapid Ciqv Area School

District No. 51-4, 393 F. Supp. 2d922 (D.S.D. 2005), held that the nonrenewal of
one-year contract was an adverse employment action under the

a teacher's

ADEA. Id. at 930. Like

Sloat,

several circuits and multþle district courts have held that the nonrenewal of an employment
contract may constitute an adverse employment action. Giles v. Daytona State Coll.. Inc., 542

F. App'x 869,873

(llth Cir. 2013) þer

curiam) (deeming the "2010 noffenewal of [the

plaintiffs] annual contract [to be] an adverse employment action"); Bleeker v. Vilsack, 468 F.
App'x 731,732 (9th Cir. 2012) ("Even inaction-a failure to renew or extend an employment
contract---can count as an adverse employment action in some circumstances."); Leibowitz v.

Cornell Univ., 584 F.3d 487, 501 (2nd Cir. 2009) ("An employee seeking a renewal of an
employment contract, just like a ne\ry applicant or a rehire after a layoff, suffers an adverse

employment action when an employment opporlunity

is

denied and

is

protected from

discrimination in connection with such decisions under Title VII and the ADEA.") superseded
b)¡statute onother grounds

as

recognizedbyMihalikv. CreditAgricole CheuvreuxN. Am.. [nc.,

715 F.3d 102, 108-09 (2nd Cir. 2013);

'Wilkerson

v. New Media Tech. Charter Sch.. Inc., 522

F.3d 315,320 (3rd Cir. 2008) ("The failure to renew an employment arrangement, whether at-

will or for a limited period of time, is an employment action, and an employer violates Title VII
if it takes

an adverse employment action for a reason prohibited by Title

VII . . . ."); Jadwin v.

Cnty. of Kern, 610 F. Supp. 2d 1129, 1171 (8.D. Cal.2009) ("The non-renewal of Plaintiffs
contract can qualiff as an adverse employment action."); Hernandez-Mejias v. Gen. Elec.,428
F. Supp. 2d4,8 (D.P.R. 2005) (holding that failure to renew contract was adverse employment

action); Kabes v. Sch. Dist. of River Falls, 387 F. Supp. 2d 955,975 (W.D. Wis. 2005)

18

("Defendant's noffenewal of fplaintiffs] contract constitutes an adverse employment action.");

but see Ewald v. Royal Norwegian Embassy, No. I l-CY-2116 (SRN/SER), 2014 WL896726,

at*14 (D. Minn. Mar. 6, 2014) (holding that nonrenewal of three-year contract that did not
contain any provision for renewal was not a material employment disadvantage). In addition,
at least one circuit has rejected the School District's argument that the discretionary nonrenewal

of an employment contract cannot constitute an adverse employment action. See Leibowitz, 584
F.3d at 501 ("The mere fact that the employer's decision not to renew is completely discretionary
does not mean that

it is not an'adverse' employment decision.").

The School District fails to address Sloat. and argues only that the other cases Dunn relies

on are not from the Eighth Circuit. However, this Court finds persuasive the reasoning in
Liebowitz and other cases that, because both the failure to hire

a

prospective employee and the

termination of an at-will employee can constitute an adverse employment action under the

ADEA, so can the nonrenewal of a contract like Dunn's.

See

Liebowitz, 584 F.3d at 500 ("Were

we to accept defendants' argument fthat the nonrenewal of a contract cannot constitute an adverse

employment action], we would effectively rule that cunent employees seeking a renewal of an
employment contract are not entitled to the same statutoryprotections under the discrimination

laws

as

prospectíve employees."); Hemandez-Mejias, 428 F. Supp. 2d at 8 ("As even at-will

employees and

job applicants are entitled to Title VII protection, we

agree

with

the

overwhelming majority of courts that non-renewal of an employment contract constitutes an
adverse employment action.") (internal citations omitted); Walker v. Bd. of Regents of Univ.

Wis. Sys., 300 F. Supp. 2d836,851-52 (W.D. V/is. 2004) (explaining that plaintiff with

a

of

term

contract who could be dismissed at any time was little different from an at-will employee and

19

holding that the nonrenewal of the plaintiffs contract was an adverse employment action under

Title VII). Construing the evidence in Dunn's favor, the School District was aware that Dunn
was seeking renewal of his contract when he told Eppard in February 2012thathe planned on

continuing to work for the School District rather than retiring. Doc. 50 at Jf 40; Doc. 4l-4 at3;

Doc.52-2 at 18. As such, the School District's nonrenewal of Dunn's contract was an adverse
employment action under the ADEA.S

b. Replaced by Someone Substantially Younger
At the time the Board nonrenewed Dunn's contract and hired Brittany, Dunn was sixtytwo and Brittany was twenty-four or twenty-five. Doc. 50 at fl 95. The School District does not
seriouslydispute that Brittanywas Dunn's replacement. lnstead, the School District cites several
cases

fromthe Eighth Circuit and argues that ayoungerteacherbecomingthe guidance counselor

after Dunn's nonrenewal does not create a reasonable inference of age discrimination. See Doc.

42 at 13-14 (citing Otto v. Citv of Victoria, 685 F.3d 755 (8th Cir.2012); Tusing v. Des Moines
Indep. Cmty. Sch. Dist., 639 F.3d 507 (8th

Cir.20ll);

Carraher v. Target Corp. ,503 F.3d714

(8th Cir. 2007)). These cases had all progressed beyond the fourth prong of a plaintiffs prima
facie test for age discrimination, however, and they therefore add little to the School District's

argument. See Otto, 685 F.3d at 759-60 (proceeding "directly to the ultimate question of
discrimination" and finding the fact that younger workers assumed the duties of the plaintiff after

he was terminated could not, standing alone, support a reasonable inference of

age

5Dunn also argues that such things as the NHS advisor position becoming unfunded and the

proposed reduction in force that never occurred constifute adverse employment actions. The
nonrenewal of Dunn's contract is an adverse employment action, but the other matters asserted by
Dunn are not.
20

discrimination);Tusing,639F.3d at515-17 (assumingtheplaintiffhadestablishedaprimafacie
case of age

discrimination and holding that the defendant's decision to hire employees that were

younger than the plaintiff did not create an inference of discrimination); Carraher, 503 F.3d at
717-719 (concluding that the plaintiff had established a prima facie case of age discrimination

but holding that defendant's decision to replace the plaintiff with someone twenty-eight years
younger was insufficient to persuade jury that the plaintiff was discriminated against). The

approximatelythirty-seven year age differencebetween Dunn and Brittanyis significant enough
to satisfothe fourth element of Dunn's prima facie case. SeeRileyv. Lance. Inc., 518 F.3d 996,
1000 (8th Cir. 2008) ("As to part four of the prima facie case, Lance does not dispute Riley's

contention that he was replaced with a substantially younger person. That fact alone gives rise

tothenecessaryinferenceofagediscrimination.");Keathleyv.AmeritechCorp., 187F.3d915,
920-21 (8th

Cir. 1999) (holding that fourteen-year

age difference

is sufficient to infer

discrimination) abrogated on other grounds by Torgerson, 643 F.3d 1031.

c. The School Districtts Reasons for Nonrenewing Dunn's Contract
Because Dunn has established

a

prima facie case of age discrimination, the burden shifts

to the School District to articulate a legitimate, nondiscriminatory reason for nonrenewing
Dunn's contract. Onviah, 684 F.3d

at7l9.

The burden to articulate a nondiscriminatory reason

is not onerous. Buchholz, 120 F.3d at 1 50; see also Krenik v. Cntv. of Le Sueur , 47 F .3d 953 ,
958 (8th Cir. 1995) ("This is aburden of production not proof. The defendant need not persuade

the court, it must simplyprovide evidence sufficient to sustain

a

judgment in its favor.").

As evidence that it had a legitimate reason for the nonrenewal, the School District points

to the Board's concerns about Dunn's performance, including:

2t

l)

Halverson's testimony that,

based on statements from her daughter and other parents about Dunn being unhelpful with
scholarships, Halverson believed the Board needed to find someone more helpful to students,
Doc.

4 1-10

aI4-5;2) Reuman's testimony that she drew on her own experiences with Dunn when

deciding whether to renew his contract, including Dunn calling one ofher children by the wrong
name when presenting him with a scholarship at an awards banquet and Dunn not knowing that

her other child played football, Doc.52-7 at4-5; and 3) testimony from Uthe and Eppard that,
when discussing whether to renew Dunn's contract, the Board had expressed a belief that Dunn
was not a very good counselor, Doc. 41-1 1

at2,Doc.

41-12 at 14.

The parties dispute whether this Court should consider Eppard's response to the EEOC
as

part of the School District's rationale for nonrenewing Dunn's contract. Dunn focuses heavily

on undermining the statements in Eppard's response while the School District argues that the
response is irrelevant because Eppard was not a decisionmaker and only created the document
at the EEOC's request.

As noted earlier, althougþ Eppard was not the ultimate decisionmaker, there is sufficient

evidence to create a question of fact concerning whether Eppard was closely and significantly

involved in the noffenewal decision. This same evidence--including Eppard's discussion with
the Board aboutDunn's employment, Eppard's nonrenewal recommendation, theBoard's general

reliance on Eppard's recommendations and statements about a teacher's performance, and
Eppard's drafting

a response

to the EEOC on the School District's behalf-demonstrates enough

of a link between the matters Eppard

chose to include

in the response to the EEOC and the

Board's decision to nonrenew Dunn's contract for consideration of the response to the EEOC in

determining whether to grant summary judgment. See Loeb v. Best Buy Co. , 537 F .3d 867 ,873

22

(8th Cir. 2008) (rejecting plaintiffs argument that statements from nondecisionmakers should
be considered as reasons for

plaintiffs termination because plaintiffhad failed to "establish some

causal relationship to show the significance of . . . statements made by persons other than the

relevant decision-maker to the resolution of the ultimate issue of intentional discrimination"
(quoting Carraher, 503 F.3d at 718)); see also Carraher, 503 F.3d at7l8 (explaining that one

of

the factors considered when determining the existence of a causal relationship is whether the
statements in question "were made by employees who took part in the decision or influenced the

decision to terminate the plaintiff' (quoting V/ittenburg v. Am. Express Fin. Advisors. Inc., 464
F.3d 83 1,837 (8th Cir. 2006))). As such, the matters contained in Eppard's EEOC response have
at least some relevance to the School District's rationale for nonrenewing Dunn's contract.

Without waiving its argument that Eppard's response is irrelevant, the School District
asserts that

the response provides legitimate, nondiscriminatory reasons for

Eppard's

recommendation that Dunn not be renewed. Eppard wrote in the response that he had concerns
about Dunn's job performance, his personality, and his lack of connection to students, staff, and

parents in the School District. Doc.

4I-23. Eppard wrote that Dunn was unhelpful to staff

at

times, that students \ryere hesitant to approach Dunn for guidance on scholarships and personal
problems, that Dunn had a minimal connection to younger students, that Dunn was unaware

of

students' backgrounds because of the minimal counseling he provided, that Dunn rarely attended

the School District's events, and that Diehm and Brittany did things with scholarships that Dunn
had never considered. Doc.

4I-23. Eppard explained some of these issues more fully in his

deposition. Doc.4I-23; Doc. 4I-12 at l0-11,20-22.

23

Regardless ofwhether Eppard's response to the EEOC is considered, the School District's

justifications for nonrenewing Dunn's contract are sufficient to meet its burden at this stage.
Buchholz, 120 F.3d at 150; Krenik, 47 F.3d at 958. In any event, Dunn does not appear to
dispute that the School District has satisfied its burden and instead proceeds directly to arguing
that the School District's proffered justifications are pretext for discrimination. Doc.

5l at2l-22.

d. Pretext
Because the School District has provided legitimate, nondiscriminatory reasons for not

renewing Dunn's contract, the burden shifts back to Dunn to establish pretext. Although there
are

multiple ways to demonstrate pretext, plaintiffs typically do

employer's rationale is "unworthy of credence . .

.

because

so

by offering evidence that the

it has no basis in fact" or that "a

[prohibited] reasonmore likelymotivated the employer." Torgerson, 643 F.3d at1047 (quoting
Wallace v. DTG OErations. Inc. ,442F.3d

lll2,

t120 (8th Cir. 2006)). To survive swnmary

judgment at this stage, Dunn must "present evidence, that considered in its entirety (1) creates
a

fact issue as to whether [the School District's] proffered reasons are pretextual and (2) creates

areasonable inference thatagewas a determinative factor in the adverse employment decision."
Tusing, 639 F.3d at516 (quoting V/ingate v. Gage Cnty. Sch. Dist.. No. 34, 528 F.3d 1074,1079

(8th Cir.2008).
There are genuine issues of fact concerning whether the School District's proffered

justifications for nonrenewing Dunn are pretext. Although the School District pointed to
problems with Dunn's personality, performance, and connection with students and staff, Dunn
has offered evidence that casts doubt on these

justifications. Muirhead, the School District's

other counselor and Dunn's coworker since 1995, stated in an affidavit that she had never

24

observed that students were hesitant to approach Dunn for guidance on scholarships or other

problems and that Dunn was very connected and involved with students and worked diligently

to learn their backgrounds. Doc. 50 atl45;Doc. 52-24. Dunn also submitted affidavits from
Thomas Authier, Amanda Longhenry, and Keith Herman, all teachers with the School District,

statingthattheydisagreedwith some ofthe School District'sjustifications fornonrenewingDunn
and providing examples of Dunn's good job performance. Doc. 50 at t[45; Doc.

52-2t;Doc. 52-

22;Doc.52-23. These examples included Authier's statements that Dunn helped his children
a greatdeal with financial aid and scholarships and that Dunn often visited Authier's classroom
to provide information about scholarships and upcoming college application deadlines, Doc. 52-

21, as well as Longhenry's observation that the children in her classroom enjoyed having Dunn

visit and that Dunn made a point of attending one event of each activity per season. Doc. 52-22.
The School District contends that the affidavits from nondecisionmakers like Dunn's
coworkers have little value, but there is evidence from a former supervisor concerning Dunn's

performance. Former superintendent Carrier testified during his deposition that Dunn "always"
got information about scholarships out and that he met regularly with seniors. Doc. 50

Doc. 52-3 at

4.

atl46;

Carrier had received complaints from parents about Dunn's work on

scholarships, yet he chanctenzed these as "fn]othing serious," and stated that the complaints
were "not even close" to requiring discipline. Doc. 50 at'lf 46;Doc. 52-3 at 2-3. While Carrier
was superintendent, he consistently gave Dunn positive employment evaluations, with the last
one coming in 2009. Doc. 52 atf[45;Doc.52-20.6

6The

employment evaluation forms run from 1996 throudn2002 and one from 2009. The
record is unclear why there is a gap between 2002 to 2009 or a lack of evaluations after 2009.
25

Although the School District is correct that Carrier's testimony and the past performance
evaluations are insufficient by themselves to prevent suÍrmary judgment,

it is mistaken in

arguingthatthisevidenceistotallyirrelevant. SeeGuimaraesv.SuperValu.lnc.,674F.3d962,
975 (8th Cir.20l2)("'[E]vidence of a strong employment history

issue of fact regarding pretext and discrimination,' but

it

will not alone

create a genuine

'can be relevant when considering

whether the record as a whole establishes a genuine issue of material fact."' (quoting Strate v'

Midwest Bankcentre. Inc., 398 F.3d 101l, 1020 (8th Cir. 2005))). Of course, positive
performance evaluations may not be dispositive of the existence of pretext. See Lewis v. St.

Cloud State Univ. , 467 F.3d 1133, 1137-38 (8th Cir. 2006) ("While favorable performance
reviews sometimes provide evidence of pretext, . . . we agree with the district court that receipt

of positive reviews in the past, in and of itself, does not necessarily raise an inference of

age

discrimination.") (intemal quotation marks and citations omitted); Rose-Maston v. NME Hosps..

Inc., 133 F.3d 1104, 1109 (8th Cir. 1998) (explaining that while employee's performance
evaluations may demonstrate that employee performed well in the past, they did "not render her
more recent negative evaluations inherentlyuntrustworthy"). However, here, none of Eppard's
concerns about Dunn's performance or lack of a connection to staff and students were reflected

in Carrier's evaluations of Dunn. Doo 52-20. In fact, Carrier's evaluation of Dunn in 2009
conflicts with some of Eppard's concems, with Carrier giving Dunn a "satisfactory" the highest
possible rating, with respect to Dunn's cooperation and interaction with staft his dissemination

of information for post high school educational and career opportunities, his support

and

participation in school activities with staff and parents, and his maintaining a visible profile in

26

the school and the community.T Doc. 52-50 at 20. Viewed in the light most favorable to Dunn,

Dunn's strong employment appraisal history, the dearth of documentation concerning Dunn's
performance problems under Eppard and Gamos, and the failure by Eppard and Gamos to inform

DunnofthesameaÍeevidenceofpossiblepretext.s See.e.g.,Lloydv.Ga.GulfCorp.,96lF.2d
1190, 1195 (5th Cir. 1992) ("We have very recently held that, when an employer's stated
motivation for an adverse employment decision involves the employee's performance, but there
is no supporting documentation,

a

jury

can reasonably infer pretext."); Stanfield v. Answering

Serv.. Inc. , 867 F.2d 1290, 1294 (1 lth Cir. 1989) (finding that lack of disciplinary reports in
employee's file and lack of verbal complaints about her work habits supported

a reasonable

jury's

conclusion that company's articulated reason for terminating employee was a pretext for age
discrimination). Although Eppard testified that he had several discussions with Garnos and Julie
about Dunn's performance, Eppard neither documented these discussions nor communicated to

Dunn any concems he or others had about Dunn's performance. Doc. 50 at fl 37;Doc.4l-4 at
18; Doc. 4L-12 at 4,

15,17. The only verbal or written complaint Dunn received from Gamos

about his performance was the staff evaluation form that Gamos did not provide to Dunn

until

well after the Board had decided to nonrenew Dunn's contract. Doc. 50 at'fffl 38, 80; Doc. 41-4
at 18; Doc. 52-5 at 4-5;Doc 52-25.

7In

fairness, Carrier testified that although Dunn had attended a significant amount of school
towards the beginning of his time with the School District, Dunn did not attend very many
events
events in Carrier's last three or four years with the School District. Doc. 52-3 at 7. Carrier
explained, however, that Dunn was not falling short in his job duties by attending fewer events. Doc.
52-3 at7.
sThe absence of poor perfoûnance evaluations of course does not itself suffice to prove
pretext. See Hague v. Thompson Distrib. Co. , 436 F .3d 816, 826-27 (7th Cir. 2006).
27

Finally, the arguably shifting explanations for nonrenewing Dunn's contract support a

finding of pretext. See Loeb, 537 F.3d at 873 ("Pretext may be shown with evidence that the
employer's reason for the termination has changed substantially over time."). When Eppard met

with Dunn in February 2012, according to Dunn, he told Dunn that the possible nonrenewal of

his contract had "nothing to do with [Dunn's] job performance," and that Dunn "had done
everything [he] had always been asked to do and done it

well[.]" Doc. 4l-4

at 3; Doc. 51 at

nn42,45. Conversel¡ Eppard's response to the EEOC identified several problems with Dunn's

job performance

as reasons Eppard

felt were pertinent to Dunn's nonrenewal. Doc. 4l-23.

Contrary to the School District's argument, this is not a situation, viewed in the light most
favorable to Dunn, where Eppard gave Dunn a reason for his possible nonrenewal in February

2012 and then merely elaborated on this reason in his response to the EEOC. See Elam, 601
F.3d at 881 ("While '[s]ubstantial changes over time in the employer's proffered reason for its
employment decision support a finding of pretext, this does not mean that an employer cannot

elaborateonitsprofferedreason."'(quotingRodgers v. U.S. Bank.N.Am. ,4I7 F.3d845, 855 (8th

Cir. 2005))). Rather, Eppard's response to the EEOC, viewed in the light most favorable to
Dunn, is

a

shift away from his alleged statement that Dunn's nonrenewal was unrelated to his job

performance, and the discrepancybetween these two statements is substantial enough to indicate
'Warner-Jenkinson
Co., T52F.3d
pretext and thereby avoid summary judgment. See Young v.
1018, 1023 (8th Cir. 1998) (holding that plaintiff raised genuine fact issue concerning pretext

by presenting evidence that his employer initially told him that he was terminated because
poor performance but later claimed the termination was due to a lack of

of

worþ. Taken together,

the affidavits from Dunn's coworkers, Carrier's testimony, Dunn's employment history, and
28

Eppard's arguably shifting rationale for the nonrenewal create afact issue as to whether the
School District's proffered reasons for nonrenewing Dunn were pretextual.
As the School District notes, however, a showing of pretext is not by itself sufficient to
avoid summary judgment. Gibson, 670 F.3d at 856. Dunn also must show that the facts permit
a reasonable inference that his age was a determinative factor in the School District's decision

to nonrenew his contract.

Id. Of course, this does not necessarily

mean that Dunn must

introduce additional evidence of discriminatory animus beyond his prima facie case and evidence

ofpretext. Reeves v. Sanderson Plumbing Prods.. Inc., 530 U.S. 133,147-48 (2000). ln certain
circumstances, "a plaintiffs prima facie case, combined with sufficient evidence to find that the

employer's asserted justification is false, may permit the trier of fact to conclude that the
employer unlawfully discriminated." Id. at 148.
Here, Dunn likens his case to Fisher v. Pharmacia & Upjohn,225 F.3d 915 (8th Cir.

2000), and argues that Eppard's statement, as Dunn recalls it, that he had "two good, young
counseling interns" that he "did not want to lose," when considered in conjunction with Dunn's

prima facie case and evidence of pretext, creates enough of an inference of intentional
discrimination to avoid summary judgment. The plaintiff in Fisher not only cast significant
doubt on each of his employer's proffered reasons for demoting him, but also offered evidence
that management-level employees made dero gatory age-related comments, including a statement

by the vice-president that "[w]e need to get rid of the old guys," a remark by a director that the

employer "wanted to bring some of the younger people along faster[,]" and the plaintiffs
supervisor calling him "the old guy." Id. at 922. The Eighth Circuit held that even assuming that
these comments were strayremarks not causallyrelated to the adverse employment action, they

29

were the type of remarks that "could cause a reasonable trier of fact to raise an eyebrow" and,
when taken in conjunction with the plaintiffs prima facie case and evidence ofpretext, gave rise
to an inference ofintentional discrimination. ld. at922-23 (citation and intemal quotation marks

omitted).
Eppard's comment is not nearly as indicative of an ageist attitude in the worþlace as
were the comments in Fisher. Unlike the comments in Fisher, however, Eppard's comment was
related to the decision-making process as Eppard made the comment when explaining that Dunn

might not be renewed. Given Eppard's arguably shifting explanation for Dunn's nonrenewal and
the other evidence Dunn has offered to show pretext, a reasonable fact finder could infer that
Eppard's asking Dunn about his retirement and, according to Dunn, then stating that he had "two

good, young counseling interns" that he "did not want to lose" meant that Eppard was going to

recoÍtmend nonrenewal of Dunn's contract because he wanted to hire someone younger than
Dunn.

Dunn does not have a strong case that the School District engaged in intentional age

discrimination. Viewed in the light most favorable to Dunn, however, Dunn's prima facie case,
his evidence of pretext, and Eppard's statement during the February 2012 meeting are enough

to create a faú issue for the jury. Accordingly, the School District's motion for summary
judgment on Count I of Dunn's Amended Complaint is denied.

B. State Law Claimse
1. Breach of Fiduciary Duty and Breach of Loyalty
eThis Court has subject matter jurisdiction over Dunn's state law claims because they are so
closely related to Dunn's ADEA claim that they form part of the same case or controversy under
Article III of the United States Constitution. 28 U.S.C. $ 1367(a).

30

Count II of Dunn's Amended Complaint alleges that the Board's hiring of Brittany and
Reuman's participation in the decision to nonrenew his contract constituted

a

breach of fiduciary

duty and a breach of loyalty. Dunn contends in his Amended Complaint that these actions
violated standard ten of the Code of Ethics of the Associated School Boards of South Dakota
(ASBSD) and SDCL section 47-lA-830. Doc. 22 at 10. Standard ten of the ASBSD's ethical
standards states "I

will refuse to use my position as a board member for personal gain or the gain

ofspecial interests orpartisanpolitics[,]" Doc.41-28, while section4T-lA-830 states inrelevant

part thatmembers of the board of directors of a corporation shall act in good faith while
discharging their duties. The School District in its brief in support of its motion for summary

judgment offers multiple reasons why Count II of Dunn's Amended Complaint fails, including:
1) that Dunn lacks standing to assert a cause of action for a breach of fiduciary duty or a breach

of loyalty in this context; 2) thatDunn's employment contract did not make the School District
Dunn's fiduciary; 3) that even assuming a fiduciary relationship, there was no breach; 4) that
SDCL section 47-14-830, which is a portion of the South Dakota Business Corporation Act,
does not provide a private cause of action to a plaintiff in Dunn's position and is inapplicable to
a

public entity like the Board; 5) that SDCL section 6-l-17 prohibits Dunn from asserting his

claims in Count II; and 6) that the ASBSD's ethical standards are non-binding suggestions from
a private

nonprofit orgarization and are insufficient to create a remedy beyond that authorized

in section 6-I-17.
Dunn fails to respond to any of the School District's arguments in his brief in opposition
to summary judgment, thereby waiving any argument conceming the ASBSD's ethical standards
and SDCL section

47-lA-830.

See Satcher v.

Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d

3t

731,735 (8th Cir. 2009) ("[F]ailure to oppose abasis for summaryjudgment constitutes waiver

of that argument."). lnstead, Dunn recasts his claim as one based on the Code of Ethics for
Professional Administrators (Code of Ethics), which provides in relevant part that

[t]he professional administrator shall comply with the
following code of ethics:
(1) Make the well-being of the students the basis of
decision making and action;
(10) Not allow professional decisions or actions to be
impaired or influenced by personal gain, gifts, gratuities,
favors, and services made or withheld;
(l l) Avoidpreferential treatment and conflicts ofinterest;
(14) Accurately represent personal qualifications and the
evaluations and recommendations of others . . ' '
S.D. Admin. R. (ARSD) 24:11:03:01. Dunn made no mention of the Code of Ethics in Count

II of his Amended Complaint. Dunn's arguments under the Code of Ethics are insufficient to
avoid summaryjudgment on Count II of his Amended Complaint.

Preliminarily Dunn does not have a claim for breach of fiduciary duty or breach of a duty
of loyalty against the School District. To establish a claim forbreach of a fiduciary duty, Dunn
must show that the School District was acting as his fiduciary. See Chem-Age Indus.. Inc. v.
Glover, 652 N.W.2 d756,772 (5.D.2002) (explaining that plaintiff asserting a claim for breach
of a fiduciary duty must show

a

fiduciary relationship). The Supreme Court of South Dakota has

declined to find a fiduciary relationship absent evidence that a party placed his trust and
confidence in the alleged fiduciary and that the party was in

a

position of dependence, inequality,

lack of knowledge, or a similar state allowing the alleged fiduciary an advantage. Bienash v.

Moller, 721 N.W.2 d 431,434 (S.D. 2006). Dunn has not offered any evidence that he satisfies

32

this standard. The onlypossible justification for finding a fiduciaryrelationship is Dunn's status
as the School District's employee. South Dakota follows "the traditional view that fiduciary

duties are not inherent in normal arm'sJength business relationships, and arise only when one
undertakes to act primarily for another's benefit.

" Poulos v. Summit Hotel

Props.. LLC, No. CIV

09-4062-RAL,2Ol0WL3604127,at*13 (D.S.D. Sept. 10,2010) (quotingNelsonv. WEB
WaterDev.Ass'n.Inc.,507N.W.2d691,698(S.D. 1993)). Dunn'semploymentwiththeSchool
District was a typical arm's-length business relationship and was insufficient to transform the
School District into his fiduciary.

V/ith respect to Dunn's claim for breach of a duty of loyalty, the Supreme Court of South
Dakota has recognized the existence of a duty of loyalty in certain circumstances. See In re
Estate of Moncur, 812 N.W.2d 485, 4S8 (S.D. 2012) (noting that

a

trustee owes a duty of loyalty

to beneficiaries of a trust); Behrens v. Wedmore, 698 N.W.2d 555, 576 (S.D. 2005) (recognizing

that attomeys owe their clients a duty of loyalty); Setliff v. Stewart, 694 N.W.2d 859, 867 (S.D.

2005) (stating that employees may owe their employers a duty of loyalty); Dinsmore v. Piper
Jaffray. Inc., 593 N.W.2d 41,46 (S.D. 1999) (frnding that securities brokers owe their clients a

dutyofloyalty);Hurneyv. Locke,308N.V/.2d764,768-69 (S.D. 1981) (holdingthatreal
agents owe their clients a duty of

estate

loyalty). None of these circumstances exist here, however, and

Dunn has not directed this Court to any South Dakota case holding that a school district owes

its teachers a duty of loyalty.
Perhaps in recognition that he has no claims for breach of a fiduciary duty or a duty

of

loyalty, Dunn asserts that under the Code of Ethics, the School District owes a duty to "the
school, district[,] and students" to "employ and retain the most qualified teachers in every

JJ

position." Doc. 51 at33. This argument has at least two major flaws'
First, although Dunn claims that the School District breached this alleged duty, he makes
no attempt to explain why the School District owes any duty to him in particular to "employ and

retain the most qualified teachers in everyposition." See Doc. 51 at 33. Moreover, if the Code

of Ethics were held not only to establish that school districts owe a duty to hire the most
qualified teachers but also to allow teachers and students to enforce this dutyviaapnvate cause
of action, then state circuit courts and federal district courts exercising supplemental jurisdiction

would have jurisdiction to review a school district's hiring decision any time there was

a

disagreement about whether the teacher hired was "the most qualified." There is no indication

in the Code of Ethics or anywhere else that the South Dakota Legislature intended such aresult.
Second, Dunn's argument that the Board's actions violated the Code of Ethics provisions

concerning conflicts

of

interest is misplaced. Because school board officials are not

"Administrators" as that term is defined

in ARSD 24:Il:0I:01, the Code of Ethics for

ProfessionalAdministratorsisinapplicabletotheBoardanditsmembers.

ARSD 24:II:01:01(7)

and (8) define a "Chief administrator" as "arr administrator, including a superintendent or chief

executive officer (CEO), solely accountable to the appropriate educational goveming board,
whose responsibilities encompass the total educational operation of a school or district" and an

"Administrator" as "any educational administrator other than the chief administrator or business

manager[.]" That is, an "Administrator" and "Chief administrator" is someone ultimately
supervised by a school board and not the school board

itself.

Indeed, the South Dakota

Legislature in creating the entity that promulgated the Code of Ethics makes the same distinction.

SDCL

$

13-43-38 (creating the Professional Administrators Practices and Standards
34

Commission, the organization that promulgated the Code of Ethics, and differentiating between

administrators and school board members when setting forth the constituency

of

the

Commission). Section 13-43-38 states in relevant part:
There is hereby created the South Dakota Professional
Administrators Practices and Standards Commission,
which shall consist of seven members, as follows: (l)
Five representative members who are employed as fulltime administrators: two who are principals, two who are
chief administrators of school districts offering an
accredited twelve-year program of education, and one
who is employed in an administrative capacity other than
previously listed; (2) One representative who is a school

boardmember....
That is, a "school board member" is considered in SDCL section 13-43-48 to be separate from

"administrators" or "chief administratorsf,]" and "one who is employed in an administrative
capacity[.]"
Beyond that, Dunn's reliance on the Code of Ethics overlooks the factthat South Dakota
has a statute that prohibits county, municipal, and school officials from partaking in matters

in

which they have a conflict of interest. See SDCL $ 6-1-17 ("No county, municipal, or school

official may participate in discussing or vote on any issue in which the official has a conflict of
interest."). "School officials" who discuss and vote on official matters

as used

in section 6-l-17

logically includes school board members. If officials violate section 6-L-17 by voting on or
discussing an issue in which they have a direct pecuniary interest, an injured partys sole legal
remedy is to have the officials' votes invalidated.

Id.

Dunn has not pointed to any case law,

statutes, or administrative regulations suggesting that the Code

of Ethics-an administrative

regulation that does not even apply to the Board-allows him to circumvent the remedial

35

limitation in section 6-l-17.
Although Dunn did not make the allegation in Count II of his Amended Complaint, he
argues in his brief that Eppard violated the Code of Ethics by not accurately representing

Dunn's qualifications to the Board or the EEOC. Doc. 51 at34. Unlike the Board, Eppard
would be subject to the Code of Ethics. However, if Eppard's conduct did violate the Code of

Ethics, South Dakota's administrative regulations provided Dunn with a remedy; a person
asserting a violation

of the Code of Ethics may file a complaint with the Professional

Administrative Practices and Standards Commission. ARSD 24:71:04:01. The Commission
maythen investigate the matter and is authorized to reprimand the administrator or recommend
a disciplinary action. SDCL $$ 13-43-48,13-43-49; ARSD

24:ll:04:02. The South Dakota

Legislature has not provided a private cause of action for the violation of the Code of Ethics.
The Code of Ethics and the accompanying regulations allowing a party to file a complaint with

the Commission are similar to the rules of professional conduct for attorneys. With respect
to certain rules of professional conduct for attorneys, the Supreme Court of South Dakota has
stated: "[v]iolation of a Rule lof Professional Conduct] should not give rise to a cause of
action nor should it create any presumption that a legal duty has been breached. The Rules
are designed to provide guidance to lawyers and to provide a structure for regulating conduct

through disciplinary agencies. They are not designed to be a basis for civil liability."
Behrens, 698 N.W.2d at 575-76 (citation omitted). The same reasoning applies to the Code

of Ethics. The School District's motion for summary judgment on Count II of the Amended
Complaint is granted.

2. Intentional Infliction of Emotional Distress
36

Dunn alleges intentional infliction of emotion distress in Count III of his Amended
Complaint. Plaintiffs allegingintentional infliction of emotional distress in SouthDakotamust
show four elements:

An act by defendant amounting to extreme and outrageous conduct;
2. Intent (or recklessness) on the part of the defendant to cause plaintiff severe
1.

emotional distress;
3. The defendant's conduct was the cause-in-fact of plaintiffs distress; and
4. Theplaintiffsuffered an extreme disabling emotional responseto defendant's
conduct.
Reeves v. Reiman, 523

N.V/.2d78,83 (S.D. 1994) (quoting Tibke v. McDougall,479 N.W.2d

898, 906 (S.D. 1992). Plaintiffs attempting to demonstrate that a defendant's conduct was
extreme and outrageous face a high threshold. See Harris v. Jefferson Partners. L.P., 653

N.W.2d 496,500 (S.D. 2002) ("Proofunder this tort must exceed a rigorous benchmark."). To
be actionable, the defendant's conduct "must be so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds ofdecency, and be regarded as atrocious, and utterly

intolerable in a civilized community." Fix v. First State Bank of Roscoe, 807 N.W.2 d 612, 618

(quoting Harris, 653 N.W.2d at 500). The conduct must be of a nature that is "calculated to
cause," and which actually causes, extremely serious mental distress. Citibank (S.D.). N.A. v.

Hauff, 668 N.W.2d528,535 (S.D. 2003) (quotingRichardsonv. E. River. Elec. Coop..Inc., 531
N.W.2d 23,27 (S.D. 1995)). Whether
to permit recovery is

a defendant's

initially a question for

the

conduct is extreme and outrageous enough

trial court. Fix, 807 N.W.2d at618; Richardson,

531 N.W.2d at 27-28. Only "[w]here reasonable men may differ, [is

determine whether,

in the particular

outrageous to result in

it] for the jury . . . to

case, the conduct has been sufficiently extreme and

liability." &har<!son,

531

N.W.2dat27 (quoting Restatement (Second)

37

of Torts $ 46 cmt. h (1965).
As evidence that the School District engaged in extreme and outrageous conduct, Dunn
points to Eppard asking him about his retirement plans and allegedly saying that there were two
"good, young counseling intems" living in the School District that he didn't want to lose, the
nonrenewal ofhis contract, the misplacement ofhis employment file, the Board's decision to hire
a younger employee who was related

to a Board member, and Eppard's response to the EEOC.

Even taking this evidence in the light most favorable to Dunn,

it

does not constitute such

"extreme and outrageous conduct" to give rise to a viable claim of intentional infliction of
emotional distress under South Dakota law.
To begin with, asking Dunn about his retirement plans and deciding whom to hire as his
replacement were reasonable actions that an employer such as the School District was entitled

to take. Although Dunn raises concerns about nepotism, Reuman did not participate in the
Board's decision to hire Brittany and the evidence of nepotism Dunn has presented, while
perhaps calling the Board's objectivity into question, is not enough to nudge the Board's conduct
past the "rigorous benchmark" set by the Supreme Court of South Dakota for a viable claim

of

intentional infliction of emotional distress.
Next, with respect to the nonrenewal of his contract, Dunn has not offered any evidence
that Eppard or anyone else from the School District exceeded "all possible bounds of decency"
when communicating with him about his nonrenewal or that the School District knew or should
have known that he was particularly susceptible to emotional distress. See Harris, 653 N.W.2d
at 500; Moysis v. DTG

Datanet,278F.3d8l9,827-23 (Sth Cir.2002) (applying South Dakota

law and upholding judgment for the plaintiff where the employer manufactured reasons for
38

terminating the plaintiff even though the employer knew that the plaintiffs medical condition
made him particularlyvulnerable to emotional distress). While no doubt upsetting to Dunn, the

School District's nonrenewal of his contract, even if done on an illegitimate basis, was not done

in

a manner

involving extreme or outrageous conduct "calculated to cause" serious emotional

distress. Hggff, 668 N.W.2d at 535; see also Reynolds v. Ethicon Endo-Surgery.lnc.,454F.3d

868,873-74 (Sth Cir. 2006) (applying South Dakota law and stating that "[w]hile termination
from

a

job maybe upsetting, this does not in itself constitute extreme or outrageous conduct");

Richardson, 531 N.W.Zd at 28-29 (holding that employer's conduct was not extreme and
outrageous where employer terminated employee and had her escorted out of the building but

did not raise his voice or use profanity when doing so).

As for Eppard's response to the EEOC, Dunn's contention that Eppard created this
document to damage his character and that the statements therein have "no supportive evidence"
is not borne out by the record. Eppard created this document as
as an effort to defame or disparage

a

response to the EEOC and not

Dunn. Although Dunn disagrees with Eppard's assessment

ofhis performance and has offered contrary evidence,

he has not shown that Eppard's statements

were so patently false or derogatory that they exceeded "all possible bounds of decency[.]" See

Harris, 653 N.W.2d at 500.
Finally and contrary to Dunn's argument, neither the remaining conduct he points to nor

the School District's conduct as a whole make this case similar to Hayes v. Northern Hills
General Hospital, 590 N.W.2d 243 (S.D. 1999). In Hayes, the Supreme Court of South Dakota

found a question of fact concerning whether the defendant's harassment of the plaintiff-which

included placing him on emergency room call twenty-four hours a day seven days a week,

39

mistreating his patients, manipulating his mail, tampering with his patient charts, and singling
him out for review before
Such

a

a

committee-constituted extreme and outrageous conduct. ld. at25l

.

level ofharassment is simply not present here. fn sum, no material question of fact exists

on the first element of Dunn's intentional infliction of emotional distress claim because the
School District's conduct was not sufficiently extreme and outrageous as a matter of law to

justify allowing the claim to proceed. Accordingly, the School District is entitled to summary
judgment on Count III of Dunn's Amended Complaint.

V.

ConclusÍon
For the reasons states above, it is hereby

ORDEREDthatthe SchoolDistrict'sMotionfor SummaryJudgment, Doc.4l, is granted
in part and denied in part, being denied on Count I but granted on Counts II and III.
Dated August

+',2014.
BY THE COURT:

UNITED STATES DISTRICT JUDGE

40