Opinion
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 32.1)
Appeal from the United States District Court for the Western District of Washington. D.C. No. 2:09-cv-01008-RAJ. Richard A. Jones, District Judge, Presiding.
LANCE MCDERMOTT, Plaintiff - Appellant, Pro se, Seattle, WA.
For JOHN POTTER, Postmaster General United States Postal Service, DON JACOBUS, USPS Seattle Processing and Distribution Manager, JENNY A. DURKAN, U.S. District Attorney, ERIC H. HOLDER, Jr., Attorney General, U.S. Attorney General, ROBERT DEBOARD, USPS Senior Maintenance Manager, JEFF CARTER, USPS Maintenance Manager, DAVE HOFF, USPS Engineering Technician, SUSAN HOUSER, USPS Labor Relations Specialist, Defendants - Appellees: Helen J. Brunner, Esquire, Assistant U.S. Attorney, Kristin Berger Johnson, Assistant U.S. Attorney, OFFICE OF THE U.S. ATTORNEY, Seattle, WA.
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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 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. MSPB, 982 F.2d 517, 519 (Fed. Cir. 1992) (WPA does not apply to USPS).
McDermott's remaining contentions are unpersuasive.
AFFIRMED.