PER CURIAM:
Algernon W. Tinsley ("Tinsley") appeals the district court's grant of summary judgment to Michael J. Astrue, Commissioner of the Social Security Administration, on several claims arising from Tinsley's suspension from his employment. For the reasons set forth below, we affirm the judgment of the district court.
Tinsley, an African-American, was employed as an Administrative Law Judge ("ALJ") by the Social Security Administration, Office of Disability Adjudication and Review ("the SSA"), in Huntington, West Virginia. In March 2008, Tinsley received a thirty-day suspension from his employment for making false entries on the SSA's Serial Time and Attendance Rosters ("time sheets") on four separate occasions. Tinsley, who was sixty-nine years old at the time, challenged the suspension before the Merit Systems Protection Board ("MSPB") alleging that he was treated in a disparate manner because of his race and age. He also raised an affirmative defense under the Whistleblower Protection Act of 1989, 5 U.S.C. § 2302(b)(8) ("Whistleblower Protection Act"), alleging that he was retaliated against for making certain disclosures to the Office of the Inspector General against the SSA.
On August 26, 2008, an administrative hearing was held before MSPB ALJ William N. Cates ("ALJ Cates"). On October 21, 2008, after considering the hearing testimony and the parties' arguments,
After exhausting his administrative remedies, Tinsley filed a complaint in the Southern District of West Virginia alleging employment discrimination based upon race and age pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
The parties filed cross-motions for summary judgment on Tinsley's whistleblower claim. Tinsley also filed a motion under Federal Rule of Civil Procedure 59(e) to amend, alter, or vacate the final judgment on his race and age discrimination claims. The district court granted summary judgment to the SSA on Tinsley's whistleblower claim. The district court also denied Tinsley's Rule 59(e) motion, finding there was "absolutely no reason why it should amend, vacate, or alter its previous judgment." (J.A. 1993.)
Tinsley timely appealed, and we have jurisdiction under 28 U.S.C. § 1291.
We review the district court's grant of summary judgment
In reviewing the district court's grant of summary judgment to the SSA on Tinsley's whistleblower claim, the Court relies upon the standard of review set forth in 5 U.S.C. § 7703(c), which provides:
5 U.S.C. § 7703(c).
The district court's denial of Tinsley's Rule 59(e) motion is reviewed under an abuse-of-discretion standard.
Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C. § 2000e-2(a)(1). The Age Discrimination in Employment Act ("ADEA") similarly forbids "an employer . . . to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1).
Where, as here, there is no direct evidence of discrimination, "a plaintiff may proceed under the
Tinsley raises three issues on appeal: (1) whether the district court erred in granting summary judgment to the SSA on his race and age discrimination claims; (2) whether the district court erred in granting summary judgment to the SSA and denying summary judgment to Tinsley on his whistleblower claim; and (3) whether the district court abused its discretion in denying his Rule 59(e) motion to alter, amend, or vacate the judgment as to his race and age discrimination claims.
We conclude that the district court properly granted summary judgment to the SSA on Tinsley's race and age discrimination claims. Tinsley has failed to demonstrate a prima facie case of discriminatory discipline based on his thirty-day suspension.
Turning to Tinsley's whistleblower claim, we conclude that the district court properly granted summary judgment to the SSA and denied summary judgment to Tinsley. Tinsley has presented no evidence to support his claim of discrimination based on protections afforded by the Whistleblower Protection Act. Tinsley waived his right to testify about his whistleblower affirmative defense when he asserted his Fifth Amendment privilege at his MSPB deposition and the administrative hearing. At the hearing, Tinsley presented no witnesses on his behalf, and his counsel made no mention of the whistleblower claim during closing argument. Given the evidence, the district court properly found that ALJ Cates's denial of Tinsley's whistleblower claim was not in violation of 5 U.S.C. § 7703(c).
Finally, we conclude that the district court did not abuse its discretion in denying Tinsley's motion to alter, amend, or vacate the judgment as to his race and age discrimination claims under Rule 59(e).
Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.