Patricia Hentosh v. Old Dominion University , 767 F.3d 413 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2037
PATRICIA HENTOSH,
Plaintiff - Appellant,
v.
OLD DOMINION UNIVERSITY,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:12-cv-00222-RGD-LRL)
Argued: May 13, 2014 Decided: September 24, 2014
Before DUNCAN and WYNN, Circuit Judges, and J. Michelle CHILDS,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by published opinion. Judge Childs wrote the opinion,
in which Judge Duncan and Judge Wynn joined.
ARGUED: Raymond Lee Hogge, Jr., HOGGE LAW, Norfolk, Virginia,
for Appellant. George William Norris, Jr., OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
ON BRIEF: Kenneth Michael Golski, HOGGE LAW, Norfolk, Virginia,
for Appellant. Kenneth T. Cuccinelli, II, Attorney General,
Wesley G. Russell, Jr., Deputy Attorney General, Peter R.
Messitt, Senior Assistant Attorney General, Ronald N. Regnery,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
CHILDS, District Judge:
Patricia Hentosh (“Hentosh”) appeals a district court order
that granted summary judgment to her former employer, Old
Dominion University (“ODU”), on a claim for retaliation
regarding the denial of her application for tenure. Hentosh
argues that the district court erred in granting summary
judgment because it lacked subject matter jurisdiction over a
retaliation claim that grew out of and was reasonably related to
an untimely filed charge of discrimination. For the reasons
that follow, we affirm.
I.
ODU is a public university located in Norfolk, Virginia.
Hentosh, a white female, was a professor at ODU from
approximately January 2006 to June 2013 in ODU’s School of
Medical Laboratory and Radiation Sciences, one of several
schools/departments within the College of Health Sciences.
Hentosh’s claims are tied to her belief that ODU has an
unwritten but widespread policy or practice of discriminating
against whites and in favor of minorities, and that said policy
caused ODU to, among other things, ignore Hentosh’s complaints
about Anna Jeng, an Asian professor in ODU’s School of Community
and Environmental Health, a division of the College of Health
Sciences.
2
On or about May 26, 2010, Hentosh filed a charge of
discrimination with the United States Equal Employment
Opportunity Commission (“EEOC”) alleging that ODU had
discriminated against her on the basis of race and retaliated
against her for filing a complaint against Jeng. To support her
charge, Hentosh primarily alleged discrete employment acts by
ODU that had occurred more than three hundred (300) days prior
to the filing of the charge. On January 26, 2012, the EEOC
dismissed Hentosh’s charge and issued her a right to sue letter.
While the EEOC’s investigation of her charge was ongoing,
Hentosh became eligible for tenure in the fall of 2011, but ODU
denied her application for tenure.
On April 24, 2012, Hentosh filed suit against ODU alleging
discrimination on account of her race and retaliation for
engaging in protected activities, all in violation of Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§
2000e-2000e-17. As part of her claims, Hentosh alleged that she
was denied tenure as a direct result of both the discrimination
and the retaliation.
ODU moved the district court to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). In granting
in part ODU’s motion to dismiss, the district court found that
it did not have subject matter jurisdiction over ODU’s acts of
adverse conduct raised in the charge of discrimination because
3
Hentosh failed to timely complain to the EEOC within three
hundred (300) days of the conduct and thus had failed to
properly exhaust her administrative remedies. 1 The district
court further found that it did not have subject matter
jurisdiction over Hentosh’s claim of discrimination regarding
the denial of tenure because the claim was neither within the
scope of the charge nor reasonably related to the charge to be
considered exhausted. However, the district court denied ODU’s
motion to dismiss the retaliation claim regarding its rejection
of Hentosh’s application for tenure, finding that she could sue
on the retaliation claim “without having to file a new EEOC
Charge.” (J.A. 53 (citing Nealon v. Stone, 958 F.2d 584, 590
(4th Cir. 1992) (“[A] plaintiff may raise the retaliation claim
for the first time in federal court.”)).) Subsequently, the
district court granted ODU’s motion for summary judgment on
Hentosh’s retaliation claim regarding the rejection of her
application for tenure, finding that she failed to establish
that ODU’s desire to retaliate was the but-for cause of its
1
Approximately three (3) weeks after the district court
issued its order on ODU’s motion to dismiss, Hentosh filed a
second charge of discrimination on August 23, 2012. In the
second charge, Hentosh alleged that she suffered discrimination
on the basis of her race and retaliation when ODU denied her
tenure and issued her a terminal teaching contract. After
receiving the right to sue from the EEOC, Hentosh filed a second
action against ODU on May 21, 2013, asserting claims for
discrimination and retaliation regarding the denial of tenure.
4
adverse employment acts. After the district court entered
judgment for ODU, Hentosh timely filed a notice of appeal.
II.
On appeal, Hentosh argues that the district court committed
reversible error by failing to dismiss her tenure retaliation
claim with her other claims. In this regard, she argues that
the district court did not have subject matter jurisdiction over
the tenure retaliation claim after it (1) dismissed the claims
brought pursuant to untimely discriminatory conduct set forth in
the EEOC charge and (2) dismissed the claims based on
discriminatory conduct occurring subsequent to the EEOC charge
because it was unrelated to the EEOC charge and not exhausted. 2
Based on the foregoing, Hentosh asserts that this Court’s
unpublished opinion in Mezu v. Morgan State Univ., 367 F. App’x
385 (4th Cir. 2010), requires the Court to vacate the district
court’s judgment on the tenure retaliation claim and remand the
case to the district court to dismiss the claim for lack of
subject matter jurisdiction. 3 We disagree.
2
Hentosh does not suggest that the district court erred in
finding that the tenure retaliation claim was like, related to,
or grew out of the EEOC Charge.
3
In Mezu, the Court affirmed the district court’s dismissal
of Mezu’s failure to promote and retaliation claims as untimely
filed, finding that “Mezu had no claims properly before the
court to which she could attach her retaliation claims . . .
[and she] is not relieved of the timeliness and exhaustion
(Continued)
5
A brief discussion of the scope of our jurisdiction over
Title VII claims clarifies why the district court retained
jurisdiction over Hentosh’s retaliation claim after dismissing
her underlying discrimination claims as untimely. Prior to
pursuing a Title VII claim in federal court, a plaintiff must
exhaust her administrative remedies by filing a charge of
discrimination with the EEOC. Jones v. Calvert Grp., Ltd., 551
F.3d 297, 300 (4th Cir. 2009) “[A] failure by the plaintiff to
exhaust administrative remedies concerning a Title VII claim
deprives the federal courts of subject matter jurisdiction over
the claim.” Id. The allegations contained in the
administrative charge of discrimination generally limit the
scope of any subsequent judicial complaint. King v. Seaboard
Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976) (stating that
a subsequent civil suit “may encompass only the ‘discrimination
stated in the [EEOC] charge itself or developed in the course of
a reasonable investigation of that charge’”) (quoting EEOC v.
Gen. Elec., 532 F.2d 359, 365 (4th Cir. 1976)); see also Smith
v. First Union Nat’l Bank, 202 F.3d 234, 247 (4th Cir. 2000) (“A
plaintiff's EEOC charge defines the scope of her subsequent
right to institute a civil suit.”).
requirements.” Mezu v. Morgan State Univ., 367 F. App’x 385,
389 (4th Cir. 2010).
6
Significantly here, in Nealon v. Stone, 958 F.2d 584 (4th
Cir. 1992), we held that a plaintiff may raise for the first
time in federal court the claim that her employer retaliated
against her for filing with the EEOC in violation of Title VII.
Id. at 590. This exception is “the inevitable corollary of our
generally accepted principle” that we have jurisdiction over
those claims “reasonably related to” the allegations in the
administrative charge. Id. Practically, it also responds to
the fact that if a plaintiff faced retaliation for filing an
initial EEOC claim, she would “‘naturally be gun shy about
inviting further retaliation by filing a second charge
complaining about the first retaliation.’” Id. (quoting
Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (8th Cir. 1989)).
The plaintiff’s filing with the EEOC must also be timely.
See 42 U.S.C. § 2000e-5(e)(1); EEOC v. Commercial Office
Products Co., 486 U.S. 107, 110 (1988). If an individual fails
to file an administrative charge with the EEOC within one
hundred eighty (180) days after an alleged discriminatory act
occurs (or three hundred (300) days if the aggrieved person
presented the claim to a state deferral agency), then the EEOC
charge is not considered timely filed. See 42 U.S.C. § 2000e-
5(e)(1); EEOC v. Commercial Office Products Co., 486 U.S. 107,
110 (1988). The failure to timely file an EEOC charge, however,
does not deprive the district court of subject matter
7
jurisdiction. See Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393 (1982). The court retains discretion, therefore, to
equitably toll the statutory deadline. Id.; see also Olson v.
Mobil Oil Corp., 904 F.2d 198, 201 (4th Cir. 1990).
It is undisputed here that Hentosh met the jurisdictional
requirement of exhaustion of administrative remedies as to her
Title VII discrimination claims. Under Nealon, therefore, it
follows that the district court had jurisdiction over her
related Title VII retaliation claim. Hentosh argues, however,
that her failure to timely file with the EEOC means that her
discrimination claims were never properly before the court.
Therefore, she contends, the district court lacked jurisdiction
over her related retaliation claims. Hentosh relies heavily
upon our unpublished decision in Mezu, which she reads as
holding retaliation claims cannot “relate to” discriminatory
conduct alleged in an untimely EEOC charge.
Even assuming her reading is correct, however, Mezu as an
unpublished decision is neither controlling nor persuasive here
as it conflicts with our published precedent in Nealon. See
Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334,
338-39 (4th Cir. 2009) (recognizing that ordinarily, unpublished
opinions are not accorded precedential value but that such
decisions “are entitled only to the weight they generate by the
persuasiveness of their reasoning”) (quoting Collins v. Pond
8
Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006)). In
Nealon, the plaintiff, an employee of the United States Army,
exhausted her administrative remedies by first filing her Title
VII gender discrimination claim with the EEOC prior to filing in
federal court. Id. at 587. She failed, however, to inform her
supervisor within thirty days of the alleged act of
discrimination, thereby missing a regulatory, non-jurisdictional
deadline. Id. We affirmed the district court’s dismissal of
her Title VII claim as untimely, but held that the district
court retained jurisdiction over her related retaliation claim.
Id. The critical fact was that the plaintiff’s retaliation
claim was like or related to acts of discriminatory conduct
which, although untimely, were exhausted in the prior EEOC
charge. Id. Similarly here, because the district court had
subject matter jurisdiction over Hentosh’s administratively
exhausted but untimely filed non-retaliation claims, the
district court properly exercised subject matter jurisdiction
over Hentosh’s related tenure retaliation claim. Nealon, 958
F.2d at 590. 4
4
The Court notes that in Nealon, the plaintiff, in addition
to her untimely, exhausted discrimination claim, also had a
timely filed Equal Pay Act (EPA) claim pending before the
district court. Nealon, 958 F.2d at 590. The Nealon Court,
however, did not suggest that the presence of the timely filed
EPA claim affected its decision. See id.9
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
10