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 2021-07

Alex Bilbrew v. Louis Dejoy ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        JUL 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEX BILBREW,                                   Nos. 20-55148
20-55150
Plaintiff-Appellant,
D.C. Nos. 2:17-cv-02825-SJO-SK
v.                                                       2:18-cv-08322-SJO-SK
LOUIS DEJOY,                                    MEMORANDUM*
Defendant-Appellee,
and
YVONNE SMITH,
Defendant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted June 21, 2021**
Before:      SILVERMAN, WATFORD, and BENNETT, Circuit Judges.
Alex Bilbrew appeals pro se from the district court judgment dismissing his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
action alleging employment discrimination and retaliation in violation of federal
law. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Colony
Cove Props., LLC v. City of Carson,
    640 F.3d 948
    , 955 (9th Cir. 2011) (dismissal
under Federal Rule of Civil Procedure 12(b)(6)); EEOC v. Dinuba Med. Clinic,
    222 F.3d 580
    , 584-85 (9th Cir. 2000) (dismissal of an action as time-barred). We
affirm.
The district court properly dismissed Bilbrew’s Title VII claims because
Bilbrew did not file this action within 90 days of receiving the right-to-sue letter
from the Equal Employment Opportunity Commission (“EEOC”). See Payan v.
Aramark Mgmt. Servs. Ltd. P’ship,
    495 F.3d 1119
    , 1121 (9th Cir. 2007) (42 U.S.C.
§ 2000e-5(f)(1) requires a claimant to file a civil lawsuit within 90 days of
receiving a right to sue notice from the EEOC); Bullock v. Berrien,
    688 F.3d 613
    ,
616 (9th Cir. 2012) (under Rehabilitation Act, a plaintiff is required to file suit
within 90 days of receiving notice of the final agency action on his complaint); see
also 42 U.S.C. § 12117 (Americans with Disabilities Act incorporates Title VII
procedures).
The district court did not abuse its discretion in declining to apply equitable
tolling. See Menominee Indian Tribe of Wis. v. United States,
    577 U.S. 250
    , 255
(2016) (equitable tolling applies when a litigant shows: “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood
2                            20-55148, 20-55150
in his way and prevented timely filing”); Leong v. Potter,
    347 F.3d 1117
    , 1121 (9th
Cir. 2003) (setting forth standard of review).
The district court did not err in dismissing Bilbrew’s veteran’s preference
claim. See Blue v. Widnall,
    162 F.3d 541
    , 545 (9th Cir. 1998) (“As the [Civil
Service Reform Act] does not authorize judicial review of [plaintiff’s] alleged
violations of the [Veteran’s Preference Act”] . . . we lack jurisdiction to review
these claims.”).
We reject as without merit Bilbrew’s contention that reversal is warranted
because defendant DeJoy allegedly did not comply with certain local rules in the
district court.
AFFIRMED.
3                            20-55148, 20-55150