Lola McGee v. Louis Dejoy

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 15, 2020
• Docket: 19-17056
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 19-17056 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.

3 19-17056 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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