                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 08a0359n.06
                               Filed: June 23, 2008

                                           No. 07-5853

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


SAMMY R. McKNIGHT,                                )
                                                  )
          Plaintiff-Appellant,                    )      ON APPEAL FROM THE
                                                  )      UNITED STATES DISTRICT
v.                                                )      COURT FOR THE MIDDLE
                                                  )      DISTRICT OF TENNESSEE
ROBERT MICHAEL GATES,                             )
Secretary, Department of Defense,                 )
                                                  )
      Defendant-Appellee.                         )
_______________________________________

                                            OPINION

Before: KEITH and SUTTON, Circuit Judges; ACKERMAN, District Judge.*

          HAROLD A. ACKERMAN, District Judge. Plaintiff Sammy R. McKnight appeals the

dismissal of his claims under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§ 633a, and the denial of his motion for class certification. We agree with the District Court that

McKnight failed to exhaust his administrative remedies or otherwise comply with the

prerequisites to file his class-based claims. With regard to his individual claims of age

discrimination, McKnight failed to state a claim under the ADEA. For these reasons, we will

affirm.



          *
        The Honorable Harold A. Ackerman, Senior United States District Judge for the District
of New Jersey, sitting by designation.

                                                 1
                                                I.

       McKnight is a retired civil service employee of the United States Department of the

Army. He retired from a position in South Korea in 2001 as a federal annuitant. In October

2003, McKnight applied for a new position with the United States Department of Defense in

South Korea as a General Supply Specialist. On January 26, 2004, he was offered the position,

and he accepted the offer the next day. On February 9, 2004, he received a telephone call from a

Human Resource Specialist in the Civilian Personnel Advisory Center in South Korea, informing

him that his hiring decision had been suspended due to a Department of Defense (“DOD”)

memorandum that imposed a fifty-day hiring freeze with regard to all federal annuitants. This

memorandum, issued February 3, 2004 by the DOD Civilian Personnel Management Services,

stated in relevant part: “The Department of Defense (DOD) is developing policy and procedures

for the employment of annuitants . . . . Because of pay considerations inherent to annuitant

appointments, all such hiring actions should be suspended until the DOD policy is implemented.”

(First Am. Compl. ¶ 15, JA at 25.) The memorandum was issued in furtherance of 5 U.S.C. §

9902, which created new policies related to encouraging the hiring of annuitants by the DOD.

       McKnight received an email containing the memorandum and an official letter

withdrawing the job offer on February 20, 2004. A current Civil Service employee was

subsequently hired for the General Supply Specialist position McKnight sought. However,

McKnight does not identify the age of the hired employee in his Amended Complaint in this

matter. The DOD annuitant hiring freeze was lifted after 50 days, on March 18, 2004, upon the

promulgation of new DOD policy and procedures encouraging the hiring of annuitants.

       McKnight first contacted the Equal Opportunity Employment Commission (“EEOC”) on


                                                2
March 10, 2004, by way of an informal complaint. It stated, in type-written text, that McKnight

wished “[t]o file a complaint based on age wherein it is alleged that the suspension of annuitant

appointments targets and discriminates against a select group of people by their age.” (JA at

158). The word “class” appears in the type-written text before the word “complaint”, but “class”

was crossed out. (Id.) At the end of this type-written sentence, the words “spefically including

myself” are hand-written.1 (Id.) Soon thereafter, McKnight wrote a memorandum to his EEOC

counselor concerning the informal complaint. The counselor’s report states that McKnight’s

memorandum alleged that “. . . the DOD memorandum was highly unfair, unjust and

discriminatory against all annuitants, especially himself.” (JA at 134.) McKnight filed a formal

EEOC complaint on April 16, 2004. This formal complaint did not contain any express class

allegations. The EEOC mailed him a right-to-sue letter on February 15, 2006.

        McKnight filed this purported class action against the Secretary of Defense in the

Northern District of Georgia in May 2006. He alleged violations of Title VII and the ADEA. He

filed a First Amended Complaint with the same claims in July 2006, and filed a motion for class

certification in August 2006. In September 2006, the parties stipulated to the dismissal of the

Title VII claim. The Government moved to dismiss for lack of venue, and the district court

transferred the case to the Middle District of Tennessee. The Government thereafter filed a

motion to dismiss. The District Court granted the Government’s motion, and denied the motion

for class certification.



        1
        The copies of these and other documents in the record are of poor quality and difficult to
decipher. However, McKnight does not dispute their substance as stated by the District Court,
and does not dispute that the word “class” is crossed out, although he asserts that he does not
remember crossing it out himself. (McKnight Br. at 8 & n.1.)

                                                 3
        The District Court had federal question jurisdiction over McKnight’s ADEA claims

pursuant to 28 U.S.C. § 1331. This Court has jurisdiction over McKnight’s timely appeal

pursuant to 28 U.S.C. § 1291.



                                                   II.

        We review the District Court’s grant of the Government’s motion to dismiss de novo.

Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008). A claim survives a motion to

dismiss if “[f]actual allegations [are] enough to raise a right to relief above the speculative level,

on the assumption that all the allegations in the complaint are true.” Bell Atl. Corp. v. Twombly,

__ U.S. __, 127 S. Ct. 1955, 1965 (2007) (citations omitted). “[W]hen a complaint adequately

states a claim, it may not be dismissed based on a district court’s assessment that the plaintiff will

fail to find evidentiary support for his allegations or prove his claim to the satisfaction of the

factfinder.” Id. at 1969 n.8. However, the “‘[f]actual allegations must be enough to raise a right

to relief above the speculative level’; they must ‘state a claim to relief that is plausible on its

face.’” Bishop v. Lucent Techs., Inc., __ F.3d __, 2008 WL 822265, at *2 (6th Cir. Mar. 25,

2008) (quoting Twombly, 127 S. Ct. at 1965, 1974). Of course, this Court must construe the

complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all

reasonable inferences in the plaintiff’s favor. Jones, 521 F.3d at 559. “[W]e need not accept as

true legal conclusions or unwarranted factual inferences.” Directv, Inc. v. Treesh, 487 F.3d 471,

476 (6th Cir. 2007); see also Twombly, 127 S. Ct. at 1964-65 (holding that “a plaintiff’s

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

conclusions”). “[L]egal conclusions masquerading as factual allegations will not suffice.”


                                                   4
Eidson v. State of Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007).



                                                 III.

       The District Court held that McKnight failed to exhaust administrative remedies for his

class action claims.2 We agree.

       For Federal Government employees, the ADEA does not explicitly require a plaintiff to

exhaust administrative remedies before bringing suit. Rather, a plaintiff has two alternative

routes pursuant to 29 U.S.C. § 633a. Under subsections (b) and (c), “[a]n individual may invoke

the EEOC’s administrative process and then file a civil action in federal district court if he is not

satisfied with his administrative remedies.” Stevens v. Dep’t of Treasury, 500 U.S. 1, 5 (1991).

Or “[h]e can decide to present the merits of his claim to a federal court in the first instance,”

pursuant to 29 U.S.C. § 633a(d). Id. at 6. This Court has held that these two potential routes are

not mutually exclusive: filing an administrative claim with the EEOC does not foreclose the

option of proceeding directly in federal court. Langford v. U.S. Army Corps of Eng’rs, 839 F.2d

1192, 1195 (6th Cir. 1988) (holding that “the ADEA places no limitations on the filing of a civil

action when an employee has filed an age discrimination complaint with the EEOC and . . . the

regulations contemplate the filing of civil actions without exhaustion of administrative

remedies”).


       2
         The Government filed its motion to dismiss the class allegations as a motion for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). However, a
failure to exhaust administrative remedies – the asserted basis for the Government’s motion – is
not a jurisdictional bar, but rather a condition precedent to an action in federal court. See, e.g.,
Zipes v. Trans World Airlines, 455 U.S. 385, 393-98 (1982); Mitchell v. Chapman, 343 F.3d 811,
819-20 (6th Cir. 2003). Thus, the District Court assessed the Government’s exhaustion argument
pursuant to Rule 12(b)(6) standards, and we do the same.

                                                  5
       The question here is whether McKnight exhausted the administrative prerequisites to

bringing a class action suit; he undoubtedly exhausted the process with regard to his individual

ADEA claim. See, e.g., Monreal v. Potter, 367 F.3d 1224, 1233 (10th Cir. 2004) (“[W]e have

held that class claims cannot be exhausted through an individual complaint.”). We agree with

the District Court that McKnight did not exhaust his administrative remedies with regard to his

class action counts. EEOC regulations dictate the requirements for exhaustion of class

allegations. The written EEOC complaint must contain allegations regarding numerosity,

commonality, typicality, and adequate representation. 29 C.F.R. § 1614.204(a)(2). A claimant

seeking to file a class complaint “must seek counseling and be counseled” with regard to such a

claim. 29 C.F.R. § 1614.204(b). After such counseling, a claimant “may move for class

certification at any reasonable point in the process when it becomes apparent that there are class

implications to the claim raised in an individual complaint.” Id. A class administrative

complaint “must identify the policy or practice adversely affecting the class as well as the

specific action or matter affecting the class agent.” 29 C.F.R. § 1614.204(c)(1). Furthermore,

such a “complaint must be filed with the agency that allegedly discriminated not later than 15

days after the agent’s receipt of the notice of right to file a class complaint.” 29 C.F.R. §

1614.204(c)(2).

       McKnight did not comply with these procedures. In his first informal complaint, the

word “class” is crossed out. In his formal EEOC complaint, he charges the Department of

Defense with “target[ing] and discriminating against a select group of people by their age,

spe[cifically] including myself.” (JA at 164). However, this is insufficient to assert a class

claim, as the complaint did not include the specific information required by 29 C.F.R. §


                                                  6
1614.204. The EEOC counselor made no reference to any class claim in his report based on his

counseling of McKnight. As the District Court commented, “EEOC counselors are not oracles,”

(JA at 195), and McKnight’s informal and formal filings with the EEOC did not alert the EEOC

of any desire to bring a class claim in accordance with EEOC regulations. He cannot now be

heard to contend that the EEOC failed to properly counsel him regarding the requirements for a

class complaint when he did not express any intent to file such an action in his dealings with the

EEOC.

        McKnight seeks refuge in the “scope of the charge” rule, which allows a plaintiff to add

to his claims based on information discovered during an EEOC investigation. EEOC v. McCall

Printing Corp., 633 F.2d 1232, 1235 (6th Cir. 1980). Yet this doctrine does not aid McKnight

here because rather than add to the substance of his claims, he attempts to evade EEOC

requirements by transforming an individual action into a class action. As the District Court

concluded, “the EEOC has promulgated specific guidelines for the filing and presentation of

class complaints that, under [McKnight’s] reading of the ‘scope of the charge’ rule, would be

rendered meaningless.” (JA at 196.)

        As noted, a plaintiff in this Circuit may seek administrative remedies and then bring an

ADEA claim against the Federal Government without first exhausting those remedies. Langford,

839 F.2d at 1195. Several circuits now follow Langford. See Bankston v. White, 345 F.3d 768,

772-77 (9th Cir. 2003), Adler v. Espy, 35 F.3d 263, 264-65 (7th Cir. 1994). We recognize that

some circuits follow a different approach and have held that once a plaintiff invokes the EEOC’s

administrative process, he or she cannot bring a direct claim in federal court until exhaustion of

that administrative process. See Ivey v. Rice, 759 F. Supp. 394, 399 (S.D. Ohio 1991) (collecting


                                                 7
cases from First, Second, Third, and Fifth Circuits). In Ivey, a district court in our Circuit

distinguished Langford and held that “[w]here a plaintiff elects to bypass the administrative

process in whole or in part, he must comply with the notice requirement of § 633a(d) or face

dismissal.” Id. at 402 (emphasis added). Notice, the court elaborated, therefore “would be

required in regard to any claims which are not the subject of the EEOC complaint, and in regard

to claims for which administrative remedies were not exhausted.” Id. A panel of this Court

affirmed that decision, concluding that the district court’s reasoning was “correct.” Ivey v. Rice,

No. 91-3487, 961 F.2d 1577 (Table), 1992 WL 102498, at *3 (6th Cir. Apr. 29, 1992) (per

curiam). A subsequent panel of this Court applied the same reasoning in Anderson v. Tennessee

Valley Authority, in which the panel expressly approved of the reasoning of another district court

which held that “‘[although a federal employee may file suit for age discrimination] without

having first exhausted his or her administrative remedies, if the federal employee does not do so,

he or she must give the . . . EEOC ‘not less than thirty days’ notice of an intent to file such

action.’” No. 92-5811, 991 F.2d 794 (Table), 1993 WL 113730, at *6 (6th Cir. Apr. 13, 1993)

(per curiam) (quoting Thorne v. Cavazos, 744 F. Supp. 348, 350-51 (D.D.C. 1990)).

       Thus, as the District Court correctly noted, any action in which the plaintiff fails to

exhaust his or her administrative remedies is subject to the notice requirements of 29 U.S.C. §

633a(d). See, e.g., Burzynski v. Cohen, 264 F.3d 611, 617 (6th Cir. 2001). A plaintiff must file a

notice of intent to file within 180 days of the alleged discrimination, and must file the action in

federal court no less than 30 days after giving such notice. 29 U.S.C. § 633a(d). Here, plaintiff

never informed the EEOC of his intent to file a class complaint. McKnight did not satisfy the

requirements to bring a class claim under any approach, and the District Court did not err in


                                                  8
dismissing his class claims and denying his motion for class certification.



                                                 IV.

       The District Court considered McKnight’s individual ADEA claims under theories of

disparate treatment and disparate impact. To state a claim under a disparate treatment theory, a

plaintiff must allege that “age was a determining factor in the adverse action that the employer

took against him or her.” Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1023 (6th Cir. 1993).

McKnight asserts that age discrimination was a motivating factor in the DOD hiring freeze that

led to the withdrawal of his job offer, because annuitant status depends on age and nearly all

annuitants are over 40 years of age. As the District Court held, however, the Supreme Court’s

decision in Hazen Paper Company v. Biggins forecloses McKnight’s claim. 507 U.S. 604

(1993). In Hazen Paper, the Supreme Court held that “[b]ecause age and years of service are

analytically distinct, an employer can take account of one while ignoring the other, and thus it is

incorrect to say that a decision based on years of service is necessarily ‘age based.’” Id. at 611.

Thus, pursuant to Hazen Paper, “the ADEA prohibits only actions actually motivated by age and

does not constrain an employer who acts on the basis of other factors – pension status, seniority,

wage rate – that are empirically correlated with age.” Allen v. Diebold, Inc., 33 F.3d 674, 676

(6th Cir. 1994) (citing Hazen Paper, 507 U.S. at 611). Annuitant status here, like the pension

status at issue in Hazen Paper, is analytically distinct from age. As the District Court noted,

federal employees may reach annuitant status in several ways, none of which directly

corresponds to age and two of which are entirely independent of age. (JA at 205 n.4.) The DOD

memorandum upon which McKnight bases his claim does not refer to age, but only to the


                                                  9
Department’s ability to compensate newly-hired annuitants.

       We have held that “an employer may not use any of these factors as a proxy for age, but

age itself must be the motivating factor behind the employment action in order to constitute an

ADEA violation.” Allen, 33 F.3d at 676. Indeed, the Supreme Court in Hazen Paper carved out

a limited exception to its holding. The Court stated that “[w]e do not preclude the possibility that

an employer who targets employees with a particular pension status on the assumption that these

employees are likely to be older thereby engages in age discrimination.” Hazen Paper, 507 U.S.

at 612-13. However, the Court cautioned that “inferring age-motivation from the implausibility

of the employer’s explanation may be problematic in cases where other unsavory motives, such

as pension interference, were present.” Id. at 613. McKnight does not allege pretext; rather, he

asserts repeatedly in his First Amended Complaint and his brief that the DOD memorandum was

expressly discriminatory on its face. McKnight’s only allegation that could possibly be read to

suggest pretext states that “[a]s virtually all annuitants are over the age of forty (40), the issuance

of the Memorandum freezing the hiring of annuitants evidenced discrimination towards a class of

people solely due to their advanced age.” (First Am. Compl. ¶ 24, JA at 27.) This allegation

cannot be read to assert pretext, especially because, as a matter of law, the Supreme Court and

this Court have held that decisions based on pension and annuitant status alone are not

discriminatory.

       Hazen Paper also dooms McKnight’s efforts to establish age discrimination through

circumstantial evidence, rather than direct evidence. In the absence of direct discrimination, a

plaintiff may establish a prima facie violation of the ADEA by alleging “(1) he was at least 40

years old at the time of the alleged discrimination; (2) he was subjected to an adverse


                                                  10
employment action; (3) he was otherwise qualified for the position; and (4) he was replaced by a

younger worker.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 521 (6th Cir. 2008).

McKnight’s First Amended Complaint contains no allegation regarding the age of the person

who ultimately took the General Supply Specialist position. Thus, he has not made out a prima

facie case. Even if he had, he still has failed to state a claim. If an ADEA plaintiff makes out a

claim of prima facie discrimination, the burden shifts to the defendant to “articulate a legitimate,

nondiscriminatory reason” for the adverse employment action. Id. If the defendant provides

such a reason, the burden shifts back to plaintiff to show that the reason was pretextual. Id.

Here, as discussed above, DOD’s asserted basis for the hiring freeze – concerns regarding the

compensation for annuitants – has been held by the Supreme Court in Hazen Paper to be

nondiscriminatory under the ADEA as a matter of law. Furthermore, McKnight does not allege

pretext; in fact, he asserts that the DOD hiring freeze was directly motivated by the intent to limit

the number of newly-hired annuitants.3

       Finally, any disparate impact claim that may be found in McKnight’s First Amended

Complaint fails because a prima facie case under a disparate impact theory requires a plaintiff to

allege a disproportionate impact on a specific protected group. Gantt v. Wilson Sporting Goods,

143 F.3d 1042, 1048 (6th Cir. 1998). McKnight alleges in his First Amended Complaint that the

DOD memorandum “caused a disparate impact to a protected group of people, annuitants.”


       3
         In his brief, McKnight asserts that the DOD memorandum “speaks for itself, in that it
suspended the hiring of the older workforce. Thus, Appellant would be able to support his
burden of showing pretext in this case.” (McKnight Br. at 24.) However, the text of the
memorandum as alleged does not suspend the hiring of “the older workforce.” It suspends the
hiring of annuitants, and Hazen Paper held that pension status is analytically distinct from age.
Furthermore, by asserting that the memorandum “speaks for itself,” McKnight undermines any
possible allegation of pretext.

                                                 11
(First Am. Compl. ¶ 20, JA at 26.) The Supreme Court’s decision in Hazen Paper compels the

conclusion that annuitants, like pensioners, are not a protected group under the ADEA.

McKnight argues that the District Court’s ruling runs afoul of Smith v. City of Jackson, in which

a plurality of the Supreme Court stated “we were careful to explain that [in Hazen Paper] we

were not deciding ‘whether a disparate impact theory of liability is available under the

ADEA[.]’” 544 U.S. 228, 238 (2005) (plurality) (quoting Hazen Paper, 507 U.S. at 610).

However, the District Court clearly did not conclude that the ADEA disallows a disparate impact

claim. Rather, the District Court correctly concluded that McKnight has not sufficiently alleged

such a claim here.

       The District Court did not err in dismissing McKnight’s ADEA claims under all asserted

theories.



                                                V.

       For the foregoing reasons, we AFFIRM the District Court’s grant of Defendant’s motion

to dismiss and denial of McKnight’s motion for class certification.




                                                12
