Davis

MEMORANDUM ****

Robert L. Davis appeals the district court’s grant of summary judgment against him for failure to timely exhaust his administrative remedies in this employment discrimination action. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

It is undisputed that Davis failed to timely file an appeal to the Equal Employment Opportunity Commission’s second final agency decision (“FAD”). Davis argues that his failure to timely file his appeal should be excused by the doctrine of equitable tolling. The equitable tolling doctrine may apply to the limitations periods for filing a petition or appeal with an agency. See Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir.2002). Equitable tolling is only available, however, when the petitioner failed to comply with the limitations period because he or she “had *722 neither actual nor constructive notice of the filing period” or if a “reasonable” person would not have known about the need to file within the limitations period. Id.

The district court correctly recognized that “[Davis] admits to knowledge of the time limitation” and therefore had actual notice. Davis was represented by counsel at the time he received…