FILED
NOT FOR PUBLICATION JUL 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JENNIFER HO, No. 10-15373
Plaintiff - Appellant, D.C. No. 3:09-cv-01600-MEJ
v.
MEMORANDUM *
PATRICK DONAHOE,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding **
Submitted July 12, 2011 ***
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Jennifer Ho appeals pro se from the district court’s summary judgment in
her employment action against the United States Postal Service. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Kraus v. Presidio Trust
Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1042-43 (9th Cir. 2009).
We affirm.
The district court properly granted summary judgment because Ho failed to
raise a genuine dispute of material fact as to whether she complied with the
administrative exhaustion requirement of timely contacting an Equal Employment
Opportunity (“EEO”) counselor. See 29 C.F.R. § 1614.105(a) (prior to filing an
employment discrimination lawsuit, a federal employee must initiate contact with
an EEO counselor within forty-five days of the alleged discriminatory act); see
also Kraus, 572 F.3d at 1043 (failure to comply with forty-five-day EEO contact
requirement is “‘fatal to a federal employee’s discrimination claim’ in federal
court” absent waiver, estoppel, or equitable tolling) (quoting Lyons v. England, 307
F.3d 1092, 1105 (9th Cir. 2002)).
Ho’s remaining contentions are unpersuasive.
Ho’s “Motion for Granting Appellant’s Appeal” and “Motion for Case
Decision” are denied as moot.
AFFIRMED.
2 10-15373