Rose Mezu v. Morgan State University

Filing 920100219

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. University denied Mezu a promotion to In 2002, after the 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. complaint, and we affirmed.

The district court dismissed the 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. Dean, Dr. Bureny J. Hollis,

In the spring of 2005, the Mezu engage in

recommended

additional publishing.

With respect to her 2005 application,

the Departmental Promotion Committee recommended promoting Mezu 3

to full professorship.

Dr. Dolan Hubbard, the Department Chair,

however, recommended against her promotion. The notified Mezu University by letter President, post-marked Dr. April Earl 6, Richardson, 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." to appeal. The letter further informed Mezu of her right Mezu's argument that the correspondence

Despite

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. action on Mezu's appeal. Believing the Defendants

Defendants took no further

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,

In what we take to be an obvious typographical error, the letter was dated March 28, 2005, rather than March 28, 2006.

1

4

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. district court against the

Mezu filed a complaint in the Dr. Richardson, Dr.

University,

Robinson, Dr. Hollis, and Dr. Hubbard. amended, alleged employment

Mezu's complaint, as for failure to

discrimination

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

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. Although the remaining defendants did not answer or file other responsive pleadings, the record does not reveal whether these defendants were ever served.
3

2

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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 Id. possibility that a defendant has acted

unlawfully." that, when

It requires the plaintiff to articulate facts as true, "show" that the plaintiff has

accepted

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). 6

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 or after within the 300 alleged days unlawful if the employment has

practice

occurred,

claimant

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 (2007). v. Goodyear rule Tire & Rubber to Co., 550 U.S. 618, act' 621 of to

The

applies

"any

`discrete in [the]

discrimination,

including Id.

discrimination

`failure

promote' . . . ."

(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. 111. Morgan, 536 U.S. at

"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." the initial employment decision was Id. at 114. made and The time

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). 7

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' process, did alleged not failure to complete the internal appeal acts

constitute

independently

discriminatory

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. initial tenure Ricks, 449 U.S. at 261-62 (finding time was made and communicated triggered

decision

commencement of limitation period despite pendency of grievance procedure grievance and as rejecting trigger); date Int'l of notification of Elec. of denial of

Union 8

Workers,

Local

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 contained during complained in the the of is and "like or related out of to

allegations allegations Commission."

charge

growing case

such the

pendency

of

the

before

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. Mezu is not relieved of the 9 timeliness and Therefore, exhaustion

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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