Mezu v. Morgan State University , 367 F. App'x 385 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1447
ROSE URE MEZU,
Plaintiff - Appellant,
v.
MORGAN STATE UNIVERSITY,
Defendant – Appellee,
and
EARL RICHARDSON, Ph.D.; T. JOAN ROBINSON, Ph.D., Provost and
VP Academic; BURNEY J. HOLLIS, Ph.D., Dean, College of
Liberal Arts,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cv-01867-WDQ)
Submitted: January 22, 2010 Decided: February 19, 2010
Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Valerie Ibe, LAW OFFICES OF C. VALERIE IBE, West Hills,
California, for Appellant. Douglas F. Gansler, Attorney General
of Maryland, Corlie McCormick, Jr., Carolyn W. Skolnik,
Assistant Attorneys General, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Dr. Rose Ure Mezu, an African-American woman of
Nigerian origin and Igbo ethnicity, filed suit pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 2000e to 2000e-17 (2006), alleging discrimination on the
basis of race and national origin for failure to promote and
retaliation for engaging in protected activities. The district
court dismissed Mezu’s failure to promote and retaliation claims
as untimely filed. Finding no reversible error, we affirm.
Mezu began her employment at Morgan State University
(“University”) as a non-tenure track lecturer with the
University in January of 1993, and by 1998 she had achieved the
rank of associate professor with tenure. In 2002, after the
University denied Mezu a promotion to the rank of full
professor, she filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), then filed a
complaint in federal court. The district court dismissed the
complaint, and we affirmed. See Mezu v. Dolan, 75 F. App’x 910
(4th Cir. 2003) (No. 03-1487).
In 2004 and 2005, Mezu again applied for and was
denied promotion to full professor. In the spring of 2005, the
Dean, Dr. Bureny J. Hollis, recommended Mezu engage in
additional publishing. With respect to her 2005 application,
the Departmental Promotion Committee recommended promoting Mezu
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to full professorship. Dr. Dolan Hubbard, the Department Chair,
however, recommended against her promotion.
The University President, Dr. Earl Richardson,
notified Mezu by letter post-marked April 6, 2006, 1 that
“[c]onsistent with the recommendation of the Provost and Vice
President for Academic Affairs, your request for promotion to
the rank of Professor, in the Department of English and Language
Arts is denied.” The letter further informed Mezu of her right
to appeal. Despite Mezu’s argument that the correspondence
pertained to her 2004 rather than 2005 promotion request and did
not represent an actionable decision, Mezu appealed the denial
within a few days. In September 2006, Dr. T. Joan Robinson, the
Provost and Vice President for Academic Affairs, informed Mezu
that her prior adverse recommendation to the President remained
intact and explained that Mezu could appeal the negative
recommendation to the President. Defendants took no further
action on Mezu’s appeal.
Believing the Defendants had not complied with the
University’s published procedures on Appointment, Promotion, and
Tenure and were not going to complete the promotion process by
impaneling an appeals committee and rendering a final decision,
1
In what we take to be an obvious typographical error, the
letter was dated March 28, 2005, rather than March 28, 2006.
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Mezu filed her charge with the EEOC. Mezu filed the EEOC charge
on March 25, 2007, more than 300 days after Dr. Richardson, by
his letter post-marked on April 6, 2006, informed Mezu the
University was denying her promotion.
On May 30, 2008, the EEOC denied Mezu’s claim and
issued a right to sue letter. Mezu filed a complaint in the
district court against the University, Dr. Richardson, Dr.
Robinson, Dr. Hollis, and Dr. Hubbard. Mezu’s complaint, as
amended, alleged employment discrimination for failure to
promote based on race and national origin, in violation of Title
VII, and a violation of the Equal Pay Act, 29 U.S.C. § 206(d)
(2006), based on race and national origin, as well as
retaliation for engaging in protected EEOC activities. 2
The University and Dr. Hubbard filed a Fed. R. Civ. P.
12(b)(6) motion to dismiss for failure to state a claim upon
which relief could be granted. 3 Mezu voluntarily dismissed her
2
Specifically, Mezu alleged Defendants retaliated in
response to her 2002 EEOC activities by rendering negative
recommendations, denying her promotion to full professor, and
failing to complete the promotion review process. Mezu further
claimed Defendants retaliated by failing to complete the
promotion review process and reassigning her classroom and
office after she complained to the human resources department in
2006 and filed her EEOC charge in 2007.
3
Although the remaining defendants did not answer or file
other responsive pleadings, the record does not reveal whether
these defendants were ever served.
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claims against Dr. Hubbard, as well as her Equal Pay Act claim.
Finding Dr. Richardson’s communication to Mezu of the promotion
denial on April 6, 2006, was the discrete act of discrimination
that commenced the statute of limitations, the district court
dismissed Mezu’s failure to promote claim as untimely, having
been filed more than 300 days thereafter. The district court
further dismissed Mezu’s claims of retaliation as untimely and
for failure to exhaust.
We review de novo the district court’s rulings on a
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
To survive a motion to dismiss under Rule 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
plausibility standard requires a plaintiff to demonstrate more
than “a sheer possibility that a defendant has acted
unlawfully.” Id. It requires the plaintiff to articulate facts
that, when accepted as true, “show” that the plaintiff has
stated a claim entitling her to relief, i.e., the “plausibility
of ‘entitlement to relief.’” Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949, and
Twombly, 550 U.S. at 557).
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The Civil Rights Act of 1964, 42 U.S.C. § 2000e-
5(e)(1), provides that a Title VII charge must be filed with the
EEOC within 180 days after the alleged unlawful employment
practice occurred, or within 300 days if the claimant has
instituted proceedings with a state or local agency. “[T]he
time for filing a charge of employment discrimination with the
. . . EEOC . . . begins when the discriminatory act occurs.”
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 621
(2007). The rule applies to “any ‘discrete act’ of
discrimination, including discrimination in [the] ‘failure to
promote’ . . . .” Id. (quoting Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 114 (2002)).
An “unlawful employment practice” under 42 U.S.C.
§ 2000(e)-5(e) refers to a discrete discriminatory act or single
occurrence even when related to other acts. Morgan, 536 U.S. at
111. “Discrete acts such as . . . failure to promote . . . are
not actionable if time barred, even when they are related to
acts alleged in timely filed charges.” Id. at 114. The time
the initial employment decision was made and communicated
triggered the commencement of the limitations period despite the
pendency of the internal appeal and the possibility of a
reversal of the initial decision. Del. State Coll. v. Ricks,
449 U.S. 250, 261-62 (1980); Watson v. Eastman Kodak Co., 235
F.3d 851, 856 (3d Cir. 2000).
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Because Mezu instituted proceedings with a state
agency, the 300-day statute of limitations applies. We agree
with the district court that Dr. Richardson’s letter post-marked
on April 6, 2006, denying Mezu’s promotion to full professor,
constituted the discrete act of failure to promote triggering
the commencement of the limitation period despite the pendency
of her internal appeal with the University. We further agree
that the Provost and Vice President Academic’s reaffirmation of
her prior adverse recommendation to the President, as well as
Defendants’ alleged failure to complete the internal appeal
process, did not constitute independently discriminatory acts
commencing the limitation period anew. Morgan, 536 U.S. at 113.
Furthermore, as in Mezu’s prior appeal, the doctrines
of equitable tolling and equitable estoppel are inapplicable
because Defendants’ actions cannot be construed to have misled
Mezu into missing the filing deadlines. Mezu v. Dolan, 75 F.
App’x 910 (4th Cir. 2003) (No. 03-1487); see also English v.
Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987). The
pendency of the internal appeal does not toll the running of the
limitations period. Ricks, 449 U.S. at 261-62 (finding time
initial tenure decision was made and communicated triggered
commencement of limitation period despite pendency of grievance
procedure and rejecting date of notification of denial of
grievance as trigger); Int’l Union of Elec. Workers, Local
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790 v. Robbins & Myers, Inc., 429 U.S. 229, 230-31 (1976)
(noting the existence and utilization of grievance procedures
does not toll the running of the limitations period that would
otherwise begin on the date the allegedly discriminatory act
took place). Therefore, the district court did not err in
dismissing Mezu’s failure to promote claim as untimely.
We further conclude the district court correctly
determined that Mezu’s retaliation claims do not satisfy the
narrow exemption from timeliness and exhaustion of
administrative remedies. “Before filing suit under Title VII, a
plaintiff must exhaust her administrative remedies by bringing a
charge with the EEOC.” Smith v. First Union Nat’l Bank, 202
F.3d 234, 247 (4th Cir. 2000) (citing King v. Seaboard Coast
Line R.R., 538 F.2d 581, 583 (4th Cir. 1976)). However, a Title
VII plaintiff may raise a retaliation claim for the first time
in federal court without exhausting her administrative remedies
if the discrimination complained of is “like or related to
allegations contained in the charge and growing out of such
allegations during the pendency of the case before the
Commission.” Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992)
(citations and internal quotations omitted).
We find Mezu had no claims properly before the court
to which she could attach her retaliation claims. Therefore,
Mezu is not relieved of the timeliness and exhaustion
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requirements. See Franceschi v. United States Dep’t of Vet.
Affairs, 514 F.3d 81, 87 (1st Cir. 2008); Hargett v. Valley Fed.
Sav. Bank, 60 F.3d 754, 762 (11th Cir. 1995); Barrow v. New
Orleans S.S. Ass’n, 932 F.2d 473, 479 (5th Cir. 1991). The
district court thus did not err in dismissing Mezu’s retaliation
claims.
Accordingly, we affirm the district court’s judgment
dismissing Mezu’s complaint. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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