Lola McGee v. Louis Dejoy ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOLA BONITTA McGEE, No. 19-17056
Plaintiff-Appellant, D.C. No. 2:13-cv-01426-RFB-VCF
v.
MEMORANDUM**
LOUIS DEJOY*, Postmaster General of the
United States; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Submitted September 8, 2020***
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Lola Bonitta McGee appeals pro se from the district court’s summary
judgment in her employment action alleging federal claims. We have jurisdiction
*
Louis DeJoy has been substituted for his predecessor, Megan J.
Brennan, as Postmaster General of the United States 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).
under 28 U.S.C. § 1291. We review de novo. Shelley v. Geren, 666 F.3d 599, 604
(9th Cir. 2012). We affirm.
The district court properly granted summary judgment on McGee’s Age
Discrimination in Employment Act (“ADEA”) claim as to thirteen of her seventeen
non-promotions because McGee failed to raise a genuine dispute of material fact as
to whether, prior to filing her Equal Employment Opportunity (“EEO”) complaint,
she contacted an EEO counselor within forty-five days of each non-promotion.
See Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002) (failure to comply with
forty-five day requirement is “fatal to a federal employee’s discrimination claim”);
29 C.F.R. § 1614.105(a)(1) (setting forth exhaustion requirement before filing
EEO complaint).
The district court properly granted summary judgment on McGee’s ADEA
claim as to the remaining four of the seventeen non-promotions because McGee
failed to raise a genuine dispute of material fact as to whether these promotions
were given to a substantially younger person. See Shelley, 666 F.3d at 608 (setting
forth prima facie case for an ADEA failure-to-promote claim; the plaintiff must
produce evidence that the promotion was given to a substantially younger person).
The district court properly dismissed McGee’s Title VII and Rehabilitation
Act claims because McGee failed to appeal the agency’s final decisions within
thirty days and failed to allege facts sufficient to show that equitable tolling should
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apply. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (standard of
review); Lopez v. Johnson, 333 F.3d 959, 961 (9th Cir. 2003) (Rehabilitation Act
borrows procedures from Title VII); 29 C.F.R. § 1614.402(a) (setting forth thirty-
day period in which Title VII complainant may appeal agency’s final decision); see
also Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1010 (9th Cir. 2011) (setting
forth test for equitable tolling on the basis of mental impairment).
The district court properly dismissed McGee’s 42 U.S.C. § 1981 claim
because Title VII provides the exclusive judicial remedy for claims of
discrimination in federal employment. See White v. Gen. Servs. Admin., 652 F.2d
913, 916-17 (9th Cir. 1981).
The district court did not abuse its discretion by denying McGee’s discovery
motions because McGee failed to demonstrate that the denial of discovery resulted
in actual and substantial prejudice to her. See Laub v. U.S. Dep’t of Interior,
342 F.3d 1080, 1084, 1093 (9th Cir. 2003) (setting forth standard of review and
explaining that a district court’s “decision to deny discovery will not be disturbed
except upon the clearest showing that the denial of discovery results in actual and
substantial prejudice to the complaining litigant” (citation and internal quotation
marks omitted)).
We reject as unsupported by the record McGee’s contentions that the district
court engaged in improper conduct and was biased against her.
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We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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