Unpublished Disposition, 880 F.2d 416 (9th Cir. 1989)

MEMORANDUM^** 

Edgar Perry brought an age discrimination action against his former employer, the Naval Supply Center and the Military Sealift Command in which Perry alleged that the defendants discriminated against him based upon his age because he was not selected, promoted or transferred to jobs for which he applied. Perry appeals pro se from the district court's grant of summary judgment in favor of defendants. We affirm.

Perry argues this appeal under Title VII of the Civil Rights Act of 1964. The Title VII claim was dismissed by this court in a memorandum disposition (Appeal No. 85-1714) for lack of subject matter jurisdiction. Therefore, that claim is not appealable and only the age discrimination claims may be addressed by this court.

To establish a prima facie case of intentional discrimination on the basis of age, Perry must show that he was denied a promotion which was given to a younger person. Pejic v. Hughes Helicopter, Inc., 840 F.2d 667, 674 (9th Cir. 1988) (citation omitted). Perry has shown that he was a member of the protected class because he was over 40 years of age at the time of the alleged discriminatory actions. However, Perry failed to show that a younger person with similar qualifications was hired or promoted to the positions for which Perry applied.

Perry erroneously claims that the government has the burden of proving the qualifications and ages of those individuals chosen for the jobs and of proving that this is not a prima facie case of discrimination. Establishing a prima facie case creates an inference of discrimination. Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir. 1987). The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee's refection. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Palmer v. United States, 794 F.2d 534, 537 (9th Cir. 1986). If the employer carries this burden, then the plaintiff must prove, by a preponderance of the evidence, that the employer's stated reason for rejection was in fact a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804-05; Palmer, 794 F.2d at 537.

Since Perry failed to establish a prima facie case of age discrimination, the district court properly granted summary judgment in favor of defendants.

AFFIRMED.