holding that the McDonnell Douglas framework applies to ADEA claims
How later courts described this case
- holding that the McDonnell Douglas framework applies to ADEA claims
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY L. WHITMAN, No. 05-36231
Plaintiff-Appellant, D.C. No.
v. CV-04-00018-A-
NORMAN Y. MINETA, JKS
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Senior District Judge, Presiding
Submitted August 7, 2008*
Anchorage, Alaska
Filed September 2, 2008
Before: Dorothy W. Nelson, A. Wallace Tashima, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge D.W. Nelson
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
12049
WHITMAN v. MINETA 12051
COUNSEL
Terry L. Whitman, Anchorage, Alaska, Pro Se appellant.
August E. Flentje, United States Department of Justice,
Washington, D.C., for the appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
Terry Whitman (“Whitman”) was employed by the Federal
Aviation Administration (“FAA”) as a Flight Data Specialist
12052 WHITMAN v. MINETA
at the Anchorage Air Route Traffic Control Center. Whitman
filed suit against the FAA, alleging violations of the Age Dis-
crimination in Employment Act (“ADEA”), 29 U.S.C. § 633a
et seq. Whitman alleged that his employer discriminated
against him when it promoted a student intern to a full-time
salaried position which he sought, and when it denied Whit-
man’s request for an extension of a work detail. Whitman also
alleged that his employer retaliated against him when he filed
a formal complaint of age discrimination.
The district court dismissed Whitman’s retaliation claim
after concluding that the ADEA did not permit a claim for
retaliation against a federal employer. The district court
granted summary judgment to the FAA on the remaining
claims of age discrimination. We reverse and remand in part,
and affirm in part.
I. Standard of Review
We review de novo the district court’s grant of a motion to
dismiss. Blue v. Widnall, 162 F.3d 541, 544 (9th Cir. 1998).
We also review de novo the district court’s grant of summary
judgment to determine whether, viewing all evidence in the
light most favorable to the nonmoving party, there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law. Metoyer v.
Chassman, 504 F.3d 919, 930 (9th Cir. 2007). On a dismissal
for failure to exhaust administrative remedies, the district
court’s underlying factual determinations are reviewed for
clear error, and its application of substantive law is reviewed
de novo. Wilkins v. United States, 279 F.3d 782, 785 (9th Cir.
2002).
II. Retaliation Claim
Whitman’s retaliation claim is based upon his contention
that he was mistreated by his employer after he first filed an
administrative complaint with the Equal Employment Oppor-
WHITMAN v. MINETA 12053
tunity (“EEO”) counselor in July 1999. He alleges that he was
denied an extension of a work detail, denied a promotion, and
subjected to acts of intimidation due to animus surrounding
his discrimination complaint.
[1] The district court dismissed Whitman’s claim for retali-
ation on the ground that the federal-employee provision of the
ADEA does not waive the federal government’s sovereign
immunity for a claim of retaliation. Since then, the Supreme
Court held that, to the contrary, the ADEA does provide a
cause of action for retaliation against federal employers.
Gomez-Perez v. Potter, ___ U.S. ___, ___, 128 S. Ct. 1931,
1936 (2008).1 Accordingly, we reverse the district court’s dis-
missal of Whitman’s retaliation claim and remand for recon-
sideration in light of Gomez-Perez.
III. Age Discrimination Claim Based on Younger
Employee’s Promotion
[2] Whitman’s claim for employment discrimination based
upon the promotion of a younger employee is unavailing
because he has not set forth a prima facie case of age discrim-
ination. Under the ADEA, “[a]ll personnel actions affecting
employees or applicants for employment who are at least 40
years of age . . . shall be made free from any discrimination
based on age.” 29 U.S.C. § 633a(a). In order to establish a
prima facie case of discrimination, a plaintiff must show that
“(1) he is a member of a protected class; (2) he was qualified
for his position; (3) he experienced an adverse employment
action; and (4) similarly situated individuals outside his pro-
tected class were treated more favorably, or other circum-
stances surrounding the adverse employment action give rise
to an inference of discrimination.” Peterson v. Hewlett-
Packard Co., 358 F.3d 599, 603 (9th Cir. 2004) (applying the
1
After Gomez-Perez was decided, which was subsequent to the comple-
tion of briefing in this case, the government withdrew its contention that
the ADEA did not authorize a retaliation claim.
12054 WHITMAN v. MINETA
Title VII framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)); see Diaz v. Eagle Produce Ltd.
P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (holding that the
McDonnell Douglas framework applies to ADEA claims).
[3] Whitman fails the second element of the McDonnell
Douglas test because he has not demonstrated that he was
either qualified or eligible for the contested position. Whit-
man did not show that he possessed the requisite knowledge
and experience to compete for a computer specialist position
similar to that obtained by the younger employee. The FAA
denied Whitman a promotion because he lacked skills, did not
show that he would be able to handle the job responsibilities,
and did not have one year of specialized experience. Accord-
ingly, Whitman’s claim of discrimination based on the pro-
motion of a younger employee must fail.
IV. Age Discrimination Claim Based on Denial of Detail
Extension
[4] Under the ADEA, an employee has two alternative
options for seeking judicial redress. In the first, an employee
gives the Equal Employment Opportunity Commission
(“EEOC”) notice of the alleged discriminatory act within 180
days, and gives notice of his intent to sue at least thirty days
before commencing suit in a federal court. 29 U.S.C.
§§ 633a(c), (d). In the second option, an employee invokes
the EEOC’s administrative claims process, and then may
appeal any loss therein to the federal court. 29 U.S.C.
§§ 633a(b), (c). If the employee goes through the administra-
tive process, he must notify the EEO counselor within forty-
five days of the alleged discriminatory conduct. 29 C.F.R.
§ 1614.105(a)(1). Under either avenue, Whitman’s claim was
untimely.
[5] Whitman’s challenge to his employer’s denial of an
extension of a work detail was untimely. Whitman learned
about the denial of his request for an extension of his work
WHITMAN v. MINETA 12055
detail in August 2000. He raised his claim in administrative
proceedings in September 2001, more than one year later, by
adding this additional claim to his complaint. Whitman failed
to give the EEOC notice of the allegedly discriminatory act
within 180 days of its occurrence. See 29 U.S.C. § 633a(d).
During the pendency of administrative proceedings, Whitman
did not notify the EEO counselor of this incident within forty-
five days of its occurrence. See 29 C.F.R. § 1614.105(a)(1);
Lyons v. England, 307 F.3d 1092, 1108 (9th Cir. 2002). He
therefore has not met the time requirements for either option.
V. Conclusion
In sum, we reverse and remand in part so the district court
may reconsider Whitman’s claim for retaliation in light of the
Supreme Court’s recent decision on this subject. We affirm
the district court’s judgment dismissing Whitman’s other
claims for age discrimination. Each party shall bear its own
costs on appeal.
REVERSED AND REMANDED IN PART;
AFFIRMED IN PART.