Nelson v. Lockheed Missiles ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HAROLD L. NELSON,
Plaintiff-Appellant,
v.
No. 97-1430
LOCKHEED MISSILES AND SPACE
COMPANY, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
William B. Traxler, Jr., District Judge.
(CA-96-1444-2-21AJ)
Submitted: November 12, 1997
Decided: November 24, 1997
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Russell Brown, Charleston, South Carolina, for Appellant. David B.
McCormack, Christine E.W. Edenfield, BUIST, MOORE, SMYTHE
& MCGEE, P.A., Charleston, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Harold Nelson appeals from the district court's order
adopting the report and recommendation of a magistrate judge and
granting the Defendant's motion for summary judgment on his com-
plaint filed pursuant to Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e (1994). On appeal, Nelson challenges
the district court's decision that his formal charge of discrimination
was untimely filed. Finding no error, we affirm.
On July 1, 1992, Defendant notified Nelson that he would be laid
off on September 30, 1992, as part of an anticipated reduction in
force. The notice informed Nelson that he could seek reassignment
within the company, but that he would be laid off if such a position
could not be found. Nelson was able to secure a temporary position.
However, on September 3, 1992, Defendant sent him a notice stating
that his layoff date was extended to December 31, 1992. Nelson con-
tinued to seek reassignment, but he was unable to secure a position.
Consequently he was terminated, with a last pay date of December
31, 1992. Nelson filed a formal charge of discrimination with the
South Carolina Human Affairs Commission on August 6, 1993.1
Summary judgment is appropriate when there is "no genuine issue
of material fact," given the parties' burdens of proof at trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Fed. R. Civ. P.
56(c). In determining whether the moving party has shown that there
is no genuine issue of material fact, a court must assess the factual
evidence and all inferences to be drawn therefrom in the light most
favorable to the non-moving party. Ross v. Communications Satellite
Corp., 759 F.2d 355, 364 (4th Cir. 1985). We review a grant of sum-
mary judgment de novo. Higgins v. E.I. DuPont de Nemours & Co.,
863 F.2d 1162, 1167 (4th Cir. 1988). We find the district court prop-
erly granted the Defendant's motion.
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1 South Carolina is known as a"deferral state" because charges of dis-
crimination must first be filed with a local agency before a plaintiff can
file them with the EEOC.
2
Normally, a plaintiff has only 180 days from the alleged discrimi-
natory action to file a charge. However, in a deferral state, such as
South Carolina, that time is extended to 300 days. 2 There is an addi-
tional requirement that the plaintiff must wait sixty days after filing
with the local agency before filing his charge with the EEOC, unless
the state agency waives this requirement, which happened here.3 In
analyzing whether a charge was timely filed, two dates are critical:
the date of the alleged discriminatory action and the date the formal
charge was filed.
It is undisputed on appeal that Nelson filed his formal charge on
August 6, 1993. The dispute here centers around the date of the
alleged discriminatory action. Nelson contends that the time period
began to run on either December 23, 1992, the last day Appellant
worked, or December 30, 1992 when his termination became effec-
tive. The district court agreed with the Defendant and found that the
time period began to run on September 3, 1992, when Nelson was
notified of his new lay-off date.
We find Nelson's assertion meritless. This court has previously
held that the time period in discrimination cases begins to run when
the plaintiff receives notice of the alleged discrimination, not when
the discrimination actually occurs. See Hamilton v. 1st Source Bank,
928 F.2d 86, 89 (4th Cir. 1990). We find that by at least September
3, 1992, Nelson was placed on notice that he would be removed from
his prior position.4 Even if Nelson were able to secure another posi-
tion, this would not change the fact that the alleged discriminatory act
was his removal from his prior position. See English v. Whitfield, 858
F.2d 957, 961-62 (4th Cir. 1988). Finally, we note that Nelson fails
to establish any equitable basis for excusing his late filing, such as
waiver, estoppel, or equitable tolling, nor do we find a basis for such
an allegation. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393 (1982).
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2 See 42 U.S.C. § 2000e-5(e)(1) (1994).
3 See 42 U.S.C. § 2000e-5(c) (1994).
4 Since Nelson's formal charge was filed more than 300 days after Sep-
tember 3, 1992, we do not address whether July 1 or September 3 was
the date upon which Nelson first received notice of the alleged discrimi-
natory action.
3
We therefore affirm the district court's order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the material before the court and argument would not aid
the decisional process.
AFFIRMED
4