Benedetti v. Computer Sciences Corp. ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ARTURO G. BENEDETTI,
Plaintiff-Appellant,
v. No. 97-1324
COMPUTER SCIENCES CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-96-888-A)
Argued: April 6, 1998
Decided: July 26, 1999
Before WIDENER, HAMILTON, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: J. Charles Curran, KIDWELL, KENT & CURRAN, Fair-
fax, Virginia, for Appellant. Merrell B. Renaud, HAZEL &
THOMAS, P.C., Falls Church, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
The plaintiff, Arturo G. Benedetti, brought an action against defen-
dant, Computer Sciences Corporation for violation of the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. The district
court dismissed the action on summary judgment because the action
was filed outside the statute of limitations. We affirm.
Benedetti was hired by Computer Sciences Corporation in 1993 as
a computer programer in its Northern Virginia location. He suffers
from multiple sclerosis. Benedetti alleges that: he was subjected to
harassment and embarrassment on the job and that Computer Sci-
ences Corporation failed to take action to prevent such mistreatment;
failed to provide him with reasonable accommodations; and wrong-
fully disclosed about him to his fellow employees that he was dis-
abled, which he chose to be confidential information.
In August 1994, Benedetti was placed on a Performance Improve-
ment Plan. While on this plan, his medical condition worsened, forc-
ing Benedetti to take sick leave. After subsequent evaluation,
Computer Sciences Corporation determined that he had not completed
this plan. By letter dated October 3, 1994, Computer Sciences Corpo-
ration terminated Benedetti.
Prior to being terminated, Benedetti went to the Equal Employment
Opportunity Commission in Washington and there met with an EEOC
counselor who advised him that he presently had suffered no harm to
support a complaint but that he would have a claim if he were fired.
The counselor also told Benedetti that he would have one year from
the date of his termination in which to file an action. On or about May
12, 1995 Benedetti filed his charge of discrimination in the EEOC
office in Pittsburgh, Pennsylvania. The EEOC issued a right-to-sue
letter in March of 1996.
Benedetti filed his complaint in this case, and Computer Sciences
Corporation filed a motion for summary judgment on various grounds
including that the statute of limitations barred the claim. By order
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dated January 31, 1998, the district court granted defendant's motion
and dismissed Benedetti's action with prejudice. Benedetti appeals,
and we have jurisdiction pursuant 28 U.S.C. § 1291.
The grant of a motion for summary judgment is reviewed de novo.
Myers v. Finkle, 950 F.2d 165, 167 (4th Cir. 1991). Summary judg-
ment is appropriate where there is no genuine issue of material fact,
and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court views
the evidence presented in the light most favorable to the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The Americans With Disabilities Act enforcement provision, 42
U.S.C. § 12117, incorporates the powers, remedies, and procedures of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-4 et seq. Thus,
claimants are required to file a charge with the EEOC within 180 days
of the alleged unlawful employment practice, unless within that
period the claimant had "initially instituted proceedings with a State
or local agency," in which case the charge must be filed with the
EEOC within 300 days. 42 U.S.C. § 2000e-5(e)(1). "When the plain-
tiff fails to file such a complaint in a timely fashion with the EEOC,
the claim is time-barred in federal court. This filing requirement acts
as a 180-day statute of limitations." McCullough v. Branch Banking
& Trust Co., 35 F.3d 127 (4th Cir. 1994) (citations omitted).
Benedetti was terminated by Computer Sciences Corporation on
October 3, 1994. On May 12, 1995 he filed his claim with the EEOC
in its Pittsburgh, Pennsylvania office. Benedetti admits that this filing
was more than 180 days after his termination. Consequently, his claim
is barred by the statutory 180-day limitations period unless the 300-
day exception applies.
Under the statute, a claimant who "initially instituted proceedings
with a State or local agency" must file a claim with the EEOC within
300 days from the alleged unlawful employment practice. 42 U.S.C.
§ 2000e-5(e)(1). Benedetti argues that because he filed with the
EEOC in Pennsylvania within 300 days, he is entitled to the 300-day
limitations period. He bases his claim on the fact that the EEOC refers
claims to the Pennsylvania Human Relations Commission under 29
C.F.R. § 1601.13(a)(3). According to Benedetti, this referral process
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entitles him to the 300-day limitations period under 29 C.F.R.
§ 1601.13(a)(3) and 29 C.F.R. § 1601.13(a)(4)(ii)(A-B).
But this position was not taken by Benedetti in the district court.
To the contrary, the argument now made was there conceded. The
transcript shows that the subject was raised before the district court
during argument on the motion for summary judgment. At that time,
the court stated it had been advised that Benedetti took the position
that the 180-day period did not apply because he had charged a con-
tinuing violation. While the question of a continuing violation is no
longer in the case, Benedetti did take the position before the district
court that the 300-day period applied rather than the 180-day period,
and his attorney added ". . . I'd be happy to brief that point afterward
if Your Honor is so inclined." A.132.
The following colloquy at once occurred:
THE COURT: The question is whether it was 180 or 300.
MR. CURRAN: Right.
A.132.
The court then permitted the attorneys to file additional authority
as follows:
THE COURT: I will let you file something with me by
Tuesday, both sides, as to whether it's 180 or 300, and I will
take it under advisement.
A.139.
The parties then filed supplemental memoranda. A part of the
plaintiff's memorandum is quoted:
In this case, the Plaintiff admittedly filed his charge with the
EEOC more than one hundred eighty, but less than three
hundred days after the date of his termination, the ultimate
unlawful employment practice alleged. Plaintiff concedes
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that he did not institute proceedings with a State or local
agency so as to invoke the three hundred day period . Plain-
tiff also recognizes that his termination cannot under current
case law be the basis for a "continuing violation" of the
ADA, however, Plaintiff submits that sufficient other equi-
table grounds exist for the Court to find that the filing of his
charge of discrimination was not untimely. (Italics added.)
A.161. Following the submission of the additional memoranda, the
district court decided only the points on the statute of limitations and
the doctrine of equitable tolling and dismissed the complaint with
prejudice.
Despite this concession made in the district court, the plaintiff now
argues that the 300-day limitation should apply. We have read the
entire record on appeal, including the memorandum of authorities of
the plaintiff and do not find any mention of any other favorable regu-
lations or of 29 C.F.R. § 1601.13(a)(3) or 29 C.F.R. § 1601.13(a)(4)
(ii)(A-B), the regulations now relied upon for recovery. Neither do we
find any mention of any other favorable regulations or of E.E.O.C. v.
Commercial Office Products, 486 U.S. 107 (1989), and our related
cases on the subject. So the district court was justified in relying on
the concession.*
Benedetti next argues that even in view of the 180-day limitations
period, that period should be extended under the doctrine of equitable
tolling. We have held in the case followed by the district court, Olson
v. Mobil Oil Corp., 904 F.2d 198, 201 (4th Cir. 1990) that ". . . the
doctrine applies only when an employer's reliance on the applicable
statute of limitations would be inequitable, because the employer
`wrongfully deceived or misled the plaintiff in order to conceal the
existence of the cause of action.'" Olson at 201. In this case, the
record shows no deception or misleading by Computer Sciences Cor-
poration. We are of opinion the district court correctly applied the
Olson case.
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*Absent exceptional circumstances not present here, we do not ordi-
narily consider points raised for the first time on appeal. See Skipper v.
French, 130 F.3d 603, 610 (4th Cir. 1997).
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The judgment of the district court is accordingly
AFFIRMED.
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