In Wilkinson v. Douglas Collins, Sec’y, U.S. Dep’t of Veterans Affs., No. 3:24-CV-01749-AP, 2026 WL 396526 (D. Or. Feb. 12, 2026), the court granted defendant’s motion to dismiss plaintiff’s claim of age discrimination under the Age Discrimination in Employment Act (ADEA), on the ground that plaintiff failed to exhaust administrative remedies.
From the decision:
Under the ADEA, it is unlawful to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age,” or “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” 29 U.S.C. §§ 623(a)(1)–(2).
To establish a prima facie case for age discrimination, a plaintiff must show that “(1) he is [at least age 40]; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals [who were substantially younger] were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Whitman v. Mineta, 541 F.3d 929, 932 (9th Cir. 2008).
Before bringing sex or age discrimination claims in District Court, plaintiffs must exhaust administrative remedies and allege as much in the complaint. Under the ADEA, this can be done in two ways. Forester v. Chertoff, 500 F.3d 920, 924 (9th Cir. 2007). First, plaintiffs can file an age discrimination claim with the EEOC; then after 180 days or final agency determination, plaintiffs can file in District Court. Id. (citing 29 C.F.R. §§ 1614.105, 201(c)).
Alternatively, plaintiffs can use the “bypass provision” and “file a notice of intent to file a civil action with the EEOC within 180 days from the alleged discriminatory conduct,” and then file the age discrimination claim in District Court at least 30 days later. Id. (citing 29 U.S.C. § 633a(d); 29 C.F.R. § 1614.201(a)).
Here, unlike with his sex discrimination claims, Plaintiff fails to allege that he exhausted administrative remedies when it comes to his age discrimination claim. Nor does he provide other evidence of exhaustion of his age discrimination claim. Plaintiff neither attaches the EEO complaints, nor alleges in his Complaint in this case that the EEO complaints contained specific evidence of age discrimination. See Compl. And the attached EEOC decision mentions sex discrimination only. See Compl.; See also Attach. 1–3.Plaintiff maintains that the original EEOC charge contained evidence of age discrimination that was omitted from the EEOC decision due to administrative error. Pl.’s Surreply 2–4, ECF No. 26. However, because Plaintiff did not attach the original EEOC charge to the Complaint, the Court cannot determine whether Plaintiff exhausted administrative remedies for his age discrimination claim. Plaintiff’s age discrimination claim is therefore dismissed with leave to amend.
The court further noted that it is insufficient for plaintiff to merely state age discrimination as a cause of action, but that plaintiff that, when he amends his complaint, plaintiff “must show that he is at least age 40; he was qualified for his position; he experienced an adverse employment action; and similarly situated individuals who were substantially younger were treated more favorably.”