Ramona D. Lopez v. John Epotter

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAMONA D. LOPEZ,
Plaintiff - Appellant,
v.
JOHN E POTTER,
Defendant - Appellee.
No. 08-16465
D.C. No. 2:05-CV-01794-SMM
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted February 9, 2010
San Francisco, California
Before: NOONAN, BERZON and IKUTA, Circuit Judges.
It was not an abuse of discretion for the district court to strike Lopez’s non-
compliant summary judgment filings. See Leong v. Potter, 347 F.3d 1117, 1125
(9th Cir. 2003). The district court repeatedly notified Lopez that her filings were
FILED
MAR 11 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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procedurally deficient, and Lopez failed to take advantage of opportunities to file
properly. The some fifteen-hundred pages of documentary evidence submitted by
Lopez and stricken by the district court consisted of a loose collection of papers
that were neither numbered nor arranged to correlate to documents identified in
Lopez’s moving papers. Under these circumstances, the district court was under
no obligation to “search the entire record” for disputed facts. See Carmen v. S.F.
Unified Sch. Dist., 237 F.3d 1026, 1030–31 (9th Cir. 2001). “Pro se litigants must
follow the same rules of procedure that govern other litigants.” King v. Atiyeh, 814
F.2d 565, 567 (9th Cir. 1987).
Under the record properly before the district court, we find no error in the
district court’s grant of summary judgment in favor of the United States Postmaster
General (USPS). Viewing the evidence in the light most favorable to Lopez, the
record shows that there were no genuine issues of material fact and that Lopez
failed to make out a prima facie case under Title VII, see St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 506 (1993), or the Rehabilitation Act, see Zukle v. Regents of
Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999).
There is no genuine issue of material fact regarding Lopez’s disqualification
from the Associate Supervisor Program (ASP). Lopez’s argument on this claim
hinges on the improper issuance of the Letter of Warning, a matter that was not
exhausted and is thus not available for this court’s review. See Charles v. Garrett,

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12 F.3d 870, 873 (9th Cir. 1993). Given the issuance of the Letter of Warning to
Lopez, she failed to establish that she was qualified for the ASP, and thus failed to
make a prima facie case.
As to the claim involving Dave Diletosso, Lopez fails to show that, by
placing her on administrative leave, USPS treated her differently than similarly
situated employees. See St. Mary’s Honor Ctr., 509 U.S. at 506. Even if the court
were to consider the affidavit of Diletosso describing the treatment of certain USPS
managers in other incidents of alleged sexual harassment, that document is not
probative because those managers were not similarly situated to Lopez.
“Employees in supervisory positions are generally deemed not to be similarly
situated to lower level employees.” Vasquez v. County of L.A., 349 F.3d 634, 641
(9th Cir. 2004).
With respect to Lopez’s 2004 Rio Salado Claim, Lopez fails to show that
USPS took any adverse action based solely on her alleged disability, an element
required to make out a prima facie case under the Rehabilitation Act. See Zukle,
166 F.3d at 1045.
Lopez’s 2003 Rio Salado Claim was unexhausted, and the record does not
support Lopez’s argument that she is entitled to equitable tolling of the time period
for filing her complaint with the EEOC. See Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 96 (1990).

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Finally, even if the district court abused its discretion in failing to rule on
Lopez’s motion for appointment of counsel, any such error was harmless. Lopez
filed her request after the deadline for dispositive motions had passed, and after the
date on which the district court had informed her that the case would be ready for
decision. There was no role for an appointed attorney by the time Lopez requested
one, so failing to appoint an attorney was necessarily harmless.
USPS’s motion to strike Lopez’s extra-record exhibit is denied as moot.
AFFIRMED.

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