McNeill v. Roche

42 F. App'x 990

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2002
• Docket: No. 01-35122
• Status: Published

Opinion

MEMORANDUM

**

Plaintiff Steven McNeill appeals the district court’s dismissal of his discrimination claim against Defendant, the Secretary of the Air Force. We affirm.

Plaintiffs employment was terminated on January 26, 1999. He appealed to the Merit Systems Protection Board (Board), which upheld the dismissal on May 27, 1999. Plaintiff filed a timely appeal with the Equal Employment Opportunity Commission (Commission) but, without waiting for its decision, initiated this action in court on August 27, 1999. The Commission dismissed Plaintiffs administrative appeal on January 5, 2000.

Under 5 U.S.C. §§ 7702 and 7703 and the applicable regulations, once an employee seeks review with the Commission after an adverse decision from the Board, the employee must wait for the Commission to issue a decision, or wait for 180 days to elapse, before the employee may file a civil action. In Washington v. Garrett, 10 F.3d 1421, 1437 (9th Cir.1994), we held that a plaintiffs failure to follow those procedures made the complaint in the court action untimely. To avoid dismissal, the employee must establish that equitable tolling applies. Id. Plaintiff points to no special circumstances that would constitute equitable tolling in this case, and the record reveals none.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.