                                                                            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                           NOT FOR PUBLICATION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




                                           3
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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