                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1376
                                   ___________

John Starway,                         *
                                      *
            Plaintiff-Appellant,      *
                                      * Appeal from the United States
       v.                             * District Court for the
                                      * District of Minnesota.
St. Cloud Technical College,          *
                                      *      [UNPUBLISHED]
            Defendant-Appellee.       *
                                 ___________

                             Submitted: August 5, 2004
                                Filed: August 19, 2004
                                 ___________

Before MELLOY, LAY, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

      John Starway appeals pro se from the district court’s1 entry of summary
judgment in favor of Defendant, St. Cloud Technical College, in his employment
discrimination action. Starway’s complaint alleged that he applied for and was
denied the position of instructor of anatomy and physiology on the basis of his
national origin and age, in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29

      1
        The Honorable Raymond L. Erickson, United States Magistrate Judge for the
District of Minnesota, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).
U.S.C. § 621 et seq. Starway also alleged violations of 42 U.S.C. § 1981 and the
Fourteenth Amendment to the United States Constitution.

       Applying the traditional burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), the district court concluded that
Starway failed to carry his burden of establishing a prima facie case of discrimination
insofar as the evidence clearly demonstrated that Defendant had already filled the
position prior to receiving Starway’s application for employment. See Chambers v.
Wynne Sch. Dist., 909 F.2d 1214, 1216 (8th Cir. 1990) (noting that an element of the
plaintiff’s prima facie case in a failure to hire action is that “after his rejection, the
position remained open and the employer continued to seek applicants from persons
of complainant’s qualifications”) (quoting McDonnell Douglas, 411 U.S. at 802). In
the alternative, the district court reasoned that this same evidence warranted the
conclusion that Defendant proffered a legitimate, non-discriminatory reason for its
decision not to hire Starway, and that this reason was not shown to be pretextual.

       On appeal, Starway contends that the district court’s rigid application of the
McDonnell Douglas framework is contrary to the Supreme Court’s decision in
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). Swierkiewicz, however,
addressed the issue of whether a plaintiff must plead specific facts establishing a
prima facie case of employment discrimination under McDonnell Douglas in order
to withstand a motion to dismiss for failure to state a claim. See Swierkiewicz, 534
U.S. at 508. The present case, by contrast, involves the evidentiary showing
necessary to defeat a motion for summary judgment, see id. at 514 (noting that
“claims lacking merit may be dealt with through summary judgment under Rule 56”),
and we see no reason to depart from our well-settled precedent in this area. See, e.g.,
Schiltz v. Burlington N. R.R., 115 F.3d 1407, 1412 (8th Cir. 1997). We have
considered the remainder of Starway’s contentions and find them to be without merit.




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       Accordingly, the judgment of the district court is affirmed. See 8th Cir. R.
47B.
                       ______________________________




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