NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 18 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHANTEL MITCHELL, No. 24-292 D.C. No. Plaintiff - Appellant, 3:22-cv-00183-SLG-KFR v.

MEMORANDUM*

OFFICE DEPOT, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, Chief District Judge, Presiding

Submitted July 14, 2025**

Before: HAWKINS, S.R. THOMAS, and McKEOWN, Circuit Judges.

Chantel Mitchell appeals pro se from the district court’s judgment

dismissing her employment action alleging discrimination claims under federal

law. We have jurisdiction under 28 U.S.C. § 1291. “We review a district court’s

ruling that a Title VII action is barred by the statute of limitations de novo.” Payan

* 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). v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1121 (9th Cir. 2007). We

affirm.

The district court properly dismissed Mitchell’s action because Mitchell

filed her complaint more than ninety days after she received a “Right to Sue” letter

from the Equal Employment Opportunity Commission (“EEOC”). 42 U.S.C.

§ 2000e-5(f)(1); see also Scholar v. Pac. Bell, 963 F.2d 264, 266-67 (9th Cir.

1992) (“The requirement for filing a Title VII civil action within 90 days from the

date EEOC dismisses a claim constitutes a statute of limitations.”). While the

ninety-day deadline is subject to equitable tolling, Mitchell has not established that

(1) “[she] has been pursuing [her] rights diligently,” and (2) “some extraordinary

circumstance stood in [her] way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

Mitchell gives two excuses for filing late: she contracted COVID-19 during

the ninety-day period and she miscounted when the ninety days expired. Given

that Mitchell had seventy-five days to prepare her complaint before she tested

positive for COVID-19, and returned to work five days later, her failure to timely

file constitutes “a garden variety claim of excusable neglect” to which the

equitable tolling doctrine does not apply. Irwin v. Dep’t of Veterans Affs., 498

U.S. 89, 96 (1990).

AFFIRMED.

2 24-292