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-AJKS NORMAN Y. MINETA,

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). 

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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

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at the Anchorage Air Route Traffic Control Center. Whitman

filed suit against the FAA, alleging violations of the Age Discrimination 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 Whitman’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 Oppor12052 WHITMAN v. MINETA
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 retaliation 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 dismissal of Whitman’s retaliation claim and remand for reconsideration 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 discrimination. 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 protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise

to an inference of discrimination.” Peterson v. HewlettPackard Co., 358 F.3d 599, 603 (9th Cir. 2004) (applying the

1After Gomez-Perez was decided, which was subsequent to the completion of briefing in this case, the government withdrew its contention that

the ADEA did not authorize a retaliation claim. 

WHITMAN v. MINETA 12053
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. Whitman 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. Accordingly, Whitman’s claim of discrimination based on the promotion 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 administrative process, he must notify the EEO counselor within fortyfive 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

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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 fortyfive 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.

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