                                                                           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                            NOT FOR PUBLICATION                             JUL 25 2011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.




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