Tusing v. Des Moines Independent Community School District, 639 F.3d 507

Background

Tusing was 52 and had been a district elementary teacher since 2001, holding various positions including at Wright Elementary; Kelling was deputy HR director and Culp was Wright Elementary vice principal.
In 2007, Tusing applied for an elementary school counselor position; the district interviewed licensed applicants only and hired counselors aged 27–46, all with licenses; Tusing lacked a counseling license at the time.
The district hired five counselors in mid-2007 (ages 27, 29, 32, 40, 46); one later 37-year-old was hired; several counselors had licenses, including a conditional license for one applicant.
Tusing sought literacy leader roles in 2004, 2006, and 2007 but was not interviewed or hired for these positions; two literacy leaders were hired in 2007 with unclear licensing or qualifications.
In 2006–2007, Tusing agreed to transfer from Wright to Studebaker Elementary for an 0.8 teaching position to complete her counseling internship while preserving benefits; she signed the contract under circumstances she described as “strongly persuaded.”
The district granted summary judgment in favor of the School District on all claims under ADEA, ADA, and ICRA, applying McDonnell Douglas analysis for age discrimination and treating ADA/ICRA claims similarly; the court found no genuine issues of material fact.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Age discrimination—counselor position	Tusing's age was a factor; pretext shown by failure to interview without license.	Reason was lack of counseling license; licensing requirement justified by applicant pool.	No genuine issue; not-pretext; district granted summary judgment.
Disability discrimination—counselor position	Depression constituted a disability; knowledge by decision-makers implied; adverse action tied to disability.	No disability found; no knowledge by decision-makers; no causal link.	No genuine issue; not disabled under ADA as applied; summary judgment affirmed.
Age discrimination—literacy leader position	Age was a motivating factor; disparate treatment in posting/applications and hire.	Not timely or sufficiently connected; applicant pool and timing undermined claim; no direct evidence of discrimination.	Not time-barred for 2007 action but no showing of age discrimination; summary judgment affirmed.
Disability discrimination—literacy leader position	Depression known to decision-makers; not hired due to disability.	No evidence decision-makers knew of depression; not a disability under pre-2009 ADA.	No genuine issue; summary judgment affirmed.
0.8 transfer at Studebaker Elementary—adverse action	Transfer was involuntary/duress and discriminatory based on age or disability.	Transfer voluntary; option to stay at Wright and the record shows choice and consent.	No adverse employment action; transfer deemed voluntary; summary judgment affirmed.

Key Cases Cited

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (Supreme Court, 2009) (but-for standard for ADEA discrimination)
King v. United States, 553 F.3d 1156 (8th Cir. 2009) (applies similar framework to ADEA/ICRA; pretext analysis)
DeBoom v. Raining Rose, Inc., 772 N.W.2d 1 (Iowa 2009) (ICRA: age as motivating factor rather than sole reason)
Newberry v. Burlington Basket Co., 622 F.3d 979 (8th Cir. 2010) (discussion of motivating-factor standard in ICRA post-Gross)
Wingate v. Gage Cnty. Sch. Dist., 528 F.3d 1074 (8th Cir. 2008) (McDonnell Douglas framework in age-discrimination cases)
Carraher v. Target Corp., 503 F.3d 714 (8th Cir. 2007) (being replaced by younger workers is weak probative value for discrimination)
Nuzum v. Ozark Auto. Distribs., Inc., 432 F.3d 839 (8th Cir. 2005) (sleeping as a major life activity under ADA)
Nyrop v. Ind. Sch. Dist. No. 11, 616 F.3d 728 (8th Cir. 2010) (pre-amendment ADA and retroactivity issue)
Gretillat v. Care Initiatives, 481 F.3d 649 (8th Cir. 2007) (sleeping as a major life activity; limited circumstances for 'working')