Zarski v. Potter

MEMORANDUM *** Stephen Zarski appeals the district court’s judgment dismissing his action alleging race and gender discrimination and retaliation because Zarski failed to exhaust his administrative remedies. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo. Vinieratos v. United States, 939 F.2d 762 , 768 & n. 5 (9th Cir.1991). We affirm. Contrary to Zarski’s contention, the district court did not convert USPS’ motion to dismiss into a motion for summary judgment. See Ass’n of Am. Med. Colleges v. United States, 217 F.3d 770 , 778 (9th Cir. 2000) (holding that courts may consider *556 extra-pleading material in evaluating a motion to dismiss for lack of subject matter jurisdiction). The district court properly dismissed Zarski’s action because he failed to exhaust administrative remedies by filing an Equal Employment Opportunity complaint within fifteen days of receiving notice of his right to do so. See 29 C.F.R. § 1614.106 (b); Leorna v. United States Dep’t of State, 105 F.3d 548, 551 (9th Cir. 1997). The district court properly concluded that Zarski did not establish that he was entitled to equitable tolling. See Leorna, 105 F.3d at 551 . AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.