Terry L. Whitman v. Norman Y. Mineta
United States Court of Appeals for the Ninth Circuit
2 September 2008
No. 05-36231 D.C. No. CV-04-00018-A-JKS

ADEA-based Retaliation Claim Proper Against Federal Employer

It appears that Whitman, the petitioner in this case, was an employee of the Federal Aviation Administration as a Flight Data Specialist at the Anchorage Air Route Traffic Control Center. He filed a suit against his employer on the ground of violations of Age Discrimination in Employment Act or ADEA.

Whitman alleged that FAA discriminated against him when:

• FAA promoted a student intern to a full-time salaried position which he sought


• FAA denied his request for an extension of a work detail

He also alleged that FAA retaliated against him when he filed a formal complaint of age discrimination. He said that he was mistreated by his employer after he first filed an administrative complaint with the Equal Employment Opportunity counselor.

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 in favor of FAA on the remaining claims of age discrimination.

Whitman appeals, hence, this case.

With respect to the issue of retaliation, it appears that the district court dismissed Whitman’s claim for retaliation because the federal-employee provision of the ADEA does not waive the federal government’s sovereign immunity for a claim of retaliation. But since then, says the Court of Appeals, the rule has changed.

The Supreme Court had recently held that the ADEA does provide a cause of action for retaliation against federal employers. In accordance with this decision, the Court of Appeals reversed the ruling of the district court as far as dismissal of Whitman’s claim of retaliation is concerned and remanded the case for reconsideration.

However, the Court did not agree with Whitman with respect to his claim of discrimination based on a younger employee’s promotion. The Court said that such claim is unavailing because he has not set forth a prima facie case of age discrimination.

Under the ADEA, “all 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.”

In order that discrimination can be held to exist, the Court said that the following must be shown:

1. He is a member of a protected class


2. He was qualified for his position


3. He experienced an adverse employment action


4. Similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action gave rise to an inference of discrimination

The Court ruled that Whitman failed on the second element. He was not able to demonstrate that he was either qualified or eligible for the contested position.

As regards Whitman’s claim of discrimination based on denial of detail extension, the Court ruled that it was filed out of time.

Under the law, an employee must give the Equal Employment Opportunity Commission notice of the alleged discriminatory act within 180 days. When Whitman learned about the denial of his request for an extension of his work detail in August of 2000, he raised his claim in administrative proceedings only on September of 2001 or more than a year later. He failed to give the EEOC notice of the allegedly discriminatory act within 180 days.

In sum, the Court of Appeals reversed and remanded in part the district court’s decision as regards Whitman’s claim for retaliation in light of the recent Supreme Court decision. The Court, however, affirmed the dismissal by the district court of Whitman’s other claims for age discrimination.