Lance McDermott v. John Potter , 465 F. App'x 686 ( 2012 )

FILED
NOT FOR PUBLICATION JAN 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LANCE McDERMOTT, No. 10-35531
Plaintiff - Appellant, D.C. No. 2:09-cv-01008-RAJ
v.
MEMORANDUM **
PATRICK R. DONAHOE, Postmaster
General United States Postal Service; et
al.,*
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted December 19, 2011 ***
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
*
Patrick R. Donahoe is substituted for his predecessor, John Potter, as
Postmaster General, under Fed. R. App. P. 43(c)(2).
** 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).
Lance McDermott appeals pro se from the district court’s judgment
dismissing his action alleging that his employer violated Title VII of the Civil
Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act
(“ADEA”), and the Whistleblower Protection Act (“WPA”). We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Cholla Ready Mix, Inc. v. Civish,
382 F.3d 969, 973 (9th Cir. 2004). We affirm.
The district court properly determined that McDermott’s Title VII and
ADEA claims were time-barred because McDermott did not file this action within
90 days of receiving the right-to-sue letter from the Equal Employment
Opportunity Commission (“EEOC”). See 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C.
§ 626(e); O’Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. 2006) (per
curiam) (Title VII and ADEA claims were untimely because complaint was filed
more than 90 days after EEOC’s issuance of right-to-sue letter, even though earlier
dismissed complaint was timely). The district court properly declined to apply
equitable tolling because McDermott failed to establish grounds warranting such
relief. See Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th Cir. 1997)
(“Equitable tolling is . . . to be applied only sparingly, and courts have been
generally unforgiving . . . when a late filing is due to claimant’s failure to exercise
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due diligence in preserving his legal rights[.]” (alteration, citation, and internal
quotation marks omitted)).
The district court properly dismissed McDermott’s claims under the WPA
because it does not apply to the United States Postal Service (“USPS”). See 5
U.S.C. §§ 104(1), 105, 2105(e), 2302(a)(2)(C) (USPS excluded from WPA’s
definition of “agency,” and USPS employees generally excluded from definition of
“employee”); see also 39 U.S.C. § 201 (establishing USPS as an independent
establishment of the executive branch of the United States Government); Booker v.
Merit Sys. Prot. Bd., 982 F.2d 517, 519 (Fed. Cir. 1992) (WPA does not apply to
USPS).
McDermott’s remaining contentions are unpersuasive.
AFFIRMED.
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