NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOLA BONITTA McGEE, 

Plaintiff-Appellant, 

 v. 

LOUIS DEJOY*, Postmaster General of the 

United States; et al., 

Defendants-Appellees.

No. 19-17056 

D.C. No. 2:13-cv-01426-RFB-VCF 

MEMORANDUM**

Appeal from the United States District Court

for the District of Nevada

Richard F. Boulware II, District Judge, Presiding

Submitted September 8, 2020***

Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.

Lola Bonitta McGee appeals pro se from the district court’s summary 

judgment in her employment action alleging federal claims. We have jurisdiction 

* Louis DeJoy has been substituted for his predecessor, Megan J. 

Brennan, as Postmaster General of the United States 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).

FILED

SEP 15 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-17056 

under 28 U.S.C. § 1291. We review de novo. Shelley v. Geren, 666 F.3d 599, 604

(9th Cir. 2012). We affirm. 

The district court properly granted summary judgment on McGee’s Age 

Discrimination in Employment Act (“ADEA”) claim as to thirteen of her seventeen 

non-promotions because McGee failed to raise a genuine dispute of material fact as 

to whether, prior to filing her Equal Employment Opportunity (“EEO”) complaint, 

she contacted an EEO counselor within forty-five days of each non-promotion. 

See Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002) (failure to comply with 

forty-five day requirement is “fatal to a federal employee’s discrimination claim”); 

29 C.F.R. § 1614.105(a)(1) (setting forth exhaustion requirement before filing 

EEO complaint). 

The district court properly granted summary judgment on McGee’s ADEA 

claim as to the remaining four of the seventeen non-promotions because McGee 

failed to raise a genuine dispute of material fact as to whether these promotions 

were given to a substantially younger person. See Shelley, 666 F.3d at 608 (setting 

forth prima facie case for an ADEA failure-to-promote claim; the plaintiff must

produce evidence that the promotion was given to a substantially younger person). 

The district court properly dismissed McGee’s Title VII and Rehabilitation 

Act claims because McGee failed to appeal the agency’s final decisions within 

thirty days and failed to allege facts sufficient to show that equitable tolling should 
3 19-17056 

apply. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (standard of 

review); Lopez v. Johnson, 333 F.3d 959, 961 (9th Cir. 2003) (Rehabilitation Act 

borrows procedures from Title VII); 29 C.F.R. § 1614.402(a) (setting forth thirtyday period in which Title VII complainant may appeal agency’s final decision); see 

also Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1010 (9th Cir. 2011) (setting 

forth test for equitable tolling on the basis of mental impairment).

The district court properly dismissed McGee’s 42 U.S.C. § 1981 claim 

because Title VII provides the exclusive judicial remedy for claims of 

discrimination in federal employment. See White v. Gen. Servs. Admin., 652 F.2d 

913, 916-17 (9th Cir. 1981). 

The district court did not abuse its discretion by denying McGee’s discovery 

motions because McGee failed to demonstrate that the denial of discovery resulted 

in actual and substantial prejudice to her. See Laub v. U.S. Dep’t of Interior, 

342 F.3d 1080, 1084, 1093 (9th Cir. 2003) (setting forth standard of review and 

explaining that a district court’s “decision to deny discovery will not be disturbed 

except upon the clearest showing that the denial of discovery results in actual and 

substantial prejudice to the complaining litigant” (citation and internal quotation 

marks omitted)). 

We reject as unsupported by the record McGee’s contentions that the district 

court engaged in improper conduct and was biased against her. 
4 19-17056 

We do not consider matters not specifically and distinctly raised and argued 

in the opening brief, or arguments and allegations raised for the first time on 

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.