           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 15, 2009

                                     No. 09-50430                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



DARCY WALKER,

                                                   Plaintiff - Appellant
v.

JOHN E. POTTER, United States Postmaster General,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:08-CV-342


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Darcy Walker appeals the district court’s dismissal of her employment
discrimination complaint, arguing that the court erred in finding her complaint
untimely. We AFFIRM.
       The United States Postal Service terminated Walker’s employment on
June 27, 2006.         Walker initiated EEO counseling for alleged disability
discrimination and retaliation for filing a prior EEOC complaint. The Postal


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                   No. 09-50430

Service mailed Walker a “Notice of Right to File Individual Complaint,” which
indicated that she had fifteen days to file a complaint. The Postal Service
claimed that she received this notice on September 18, 2006, and Walker claimed
she received the notice on September 23, 2006.        Walker mailed her EEOC
complaint to the Postal Service on October 6, 2006. The Postal Service dismissed
her complaint as not timely filed. By its calculation, the deadline was October
4, fifteen days from September 18. Walker appealed to the EEOC, which found
her complaint timely filed but did not find discrimination or retaliation. Walker
received a right-to-sue letter and subsequently filed suit in district court.
      The district court expressed uncertainty over whether the Postal Service’s
motion should be addressed under Rule 12(b)(1) as a motion to dismiss for lack
of subject matter jurisdiction or Rule 56(c) as a motion for summary judgment.
Ultimately, the district court dismissed under Rule 12(b)(1).
      As this court has noted, despite some conflict over whether exhaustion
requirements are jurisdictional, the law is settled that EEOC and EEO filing
deadlines are not jurisdictional. Pacheco v. Mineta, 448 F.3d 783, 788 n.7 (citing
Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)).         By not being
jurisdictional, these deadlines are subject to waiver, estoppel, and equitable
tolling. Zipes, 455 U.S. at 393.
      We conclude the motion should have been treated as one for summary
judgment and not one to dismiss for lack of subject matter jurisdiction.
      The mislabeling of the procedure did not affect the result. The district
court stated that it would have also granted a Rule 56(c) motion for summary
judgment if deciding under that procedure. Further, the district court found the
complaint untimely filed and the tolling arguments without merit. We agree
with all those conclusions.
      The district court properly found that the complaint was untimely. Walker
has presented no evidence supporting her contention that she received the notice

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                                   No. 09-50430

on September 23, 2006. Further, the Postal Service has presented credible
evidence that the notice was delivered on September 18, 2006, in the form of a
tracking printout confirming delivery at Walker’s zip code with an item number
matching that on the Postal Service’s delivery confirmation receipt, which
contains Walker’s address. Though the EEOC did not find this evidence to
support with sufficient clarity the fact of a late filing, we do.
      The district court also correctly concluded that the equitable tolling
argument was meritless. Walker had the burden of proving equitable tolling,
and she failed to show that any of the justifications for equitable tolling applied.
Manning v. Chevron Chem. Co., 332 F.3d 874, 880 (5th Cir. 2003). Even if true,
none of her assertions about good-faith compliance with the administrative
procedures related to her failure to file within fifteen days of receiving her notice
of a right to sue.
      For the first time on appeal, Walker argues that the Postal Service waived
the arguments about untimely filing. We do not generally review issues raised
for the first time on appeal. United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th
Cir. 1990). The timeliness of filing was fully explored by the district court, and
we will not entertain this new argument concerning waiver.
      Walker has failed to show that she timely filed her EEOC complaint, and
her tolling arguments are without merit.
      The judgment of the district court is AFFIRMED.




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