                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 10 2012

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



LANCE McDERMOTT,                                 No. 10-35531

                Plaintiff - Appellant,           D.C. No. 2:09-cv-01008-RAJ

  v.
                                                 MEMORANDUM **
PATRICK R. DONAHOE, Postmaster
General United States Postal Service; et
al.,*

                Defendants - Appellees.



                     Appeal from the United States District Court
                       for the Western District of Washington
                     Richard A. Jones, District Judge, Presiding

                            Submitted December 19, 2011 ***

Before:         GOODWIN, WALLACE, and McKEOWN, Circuit Judges.




          *
            Patrick R. Donahoe is substituted for his predecessor, John Potter, as
Postmaster General, 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).
      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




                                            2                                     10-35531
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.

Merit Sys. Prot. Bd., 982 F.2d 517, 519 (Fed. Cir. 1992) (WPA does not apply to

USPS).

      McDermott’s remaining contentions are unpersuasive.

      AFFIRMED.




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