Unpublished Disposition, 889 F.2d 1094 (9th Cir. 1989)

MEMORANDUM^** 

Carl B. Henderson appeals the district court's grant of summary judgment to the State of Idaho Personnel Commission, Department of Health and Welfare, Department of Corrections, and various named and unnamed individuals (hereinafter referred to as "the State") in his employment discrimination action for damages and lost wages. He contends that the State discriminated against him on the basis of age in denying him employment as a psychologist.

The judgment is affirmed. Henderson has failed to produce evidence that supports an inference of age discrimination based upon disparate treatment under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1459 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). Further, even if this court construes Henderson's pro se complaint as pleading age discrimination based upon disparate impact, Henderson has failed to raise a genuine issue of material fact as to whether the allegedly subjective State evaluation process had a significant discriminatory impact upon individuals of Henderson's age. See Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir. 1987). Therefore, the district court properly granted summary judgment to the State. See Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 671 (9th Cir. 1988).

AFFIRMED.