Steven M. Fitten v. CHRISTINE WORMUTH, Secretary of the Army

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN M. FITTEN,
Plaintiff-Appellant,
v.
CHRISTINE WORMUTH, Secretary of the
Army,
Defendant-Appellee.
No. 22-15075
D.C. No. 2:21-cv-00513-TLN-AC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted March 14, 2023**
Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.
Steven M. Fitten appeals pro se from the district court’s judgment
dismissing his employment action alleging discrimination and retaliation under
Title VII, the Age Discrimination in Employment Act (“ADEA”), and 42 U.S.C.
§ 1981. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
* 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
MAR 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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district court’s dismissal on the basis of the applicable statute of limitations.
O’Donnell v. Vencor Inc., 466 F.3d 1104, 1109 (9th Cir. 2006). We affirm.
The district court properly dismissed Fitten’s Title VII and ADEA claims as
time-barred because Fitten did not file within 90 days of receiving notice of the
Army’s final action and failed to establish grounds for equitable tolling. See 42
U.S.C. § 2000e-16(c); Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119,
1121-22 (9th Cir. 2007) (explaining that the 90-day period operates as a limitations
period; if a litigant does not file suit within 90 days of delivery of the notice of the
right to sue, the action is time-barred); see also Menominee Indian Tribe of Wis. v.
United States, 577 U.S. 250, 255 (2016) (equitable tolling only applies when a
litigant shows: “(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing”);
Leong v. Potter, 347 F.3d 1117, 1121 (9th Cir. 2003) (setting forth standard of
review for equitable tolling decisions).
Contrary to Fitten’s contention, Fitten’s consent to the magistrate judge’s
designation was not required because the magistrate judge issued only findings and
recommendations and not dispositive orders, and the district judge properly
conducted a de novo review of the magistrate judge’s uncontested findings and
recommendations and entered final judgment. See 28 U.S.C. § 636(b)(1)(B), (C);
see also Est. of Conners by Meredith v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993)

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(discussing scope of magistrate judge’s authority under § 636(b)(1)(B)).
AFFIRMED.

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