Plain v. Sears Roebuck & Co ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SHARON MARIE PLAIN,
Plaintiff-Appellant,
v.
No. 96-1486
SEARS ROEBUCK AND COMPANY;
SEARS STORE 2755,
Defendants-Appellees.
Appeal from the United States District Court for the
Eastern District of North Carolina, at Wilmington.
James C. Fox, District Judge.
(CA-95-185-7-F)
Argued: September 29, 1997
Decided: December 15, 1997
Before RUSSELL, NIEMEYER, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Robert Allen Parks, THE PARKS LAW OFFICES, Jack-
sonville, North Carolina, for Appellant. James Bernard Spears, Jr.,
HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, P.A.,
Charlotte, North Carolina, for Appellees. ON BRIEF: Ruth E. Parks,
THE PARKS LAW OFFICES, Jacksonville, North Carolina, for
Appellant. Aaron M. Christensen, HAYNSWORTH, BALDWIN,
JOHNSON & GREAVES, P.A., Charlotte, North Carolina, for Appel-
lees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Sharon Marie Plain appeals the district court's grant of summary
judgment to Sears Roebuck and Company. We affirm.
I.
Plain began working for Sears in 1983 as a sales clerk. She was
diagnosed with transverse myelitis in 1985 and pernicious anemia in
1988. In 1989, Sears promoted Plain from sales clerk to sales supervi-
sor. Plain worked full-time as a sales supervisor until she was diag-
nosed with multiple sclerosis in November 1991. In 1992, Sears
restructured and Plain became a sales coordinator. Although Plain
attained the position of sales coordinator, she alleged that during her
career with Sears, Sears systematically discriminated against her by
failing to accommodate her disability in violation of the Americans
With Disabilities Act of 1990 (ADA);1 by failing to promote her
because of her sex and her disability in violation of Title VII of the
Civil Rights Act of 1964 ("Title VII"),2 and the ADA respectively;
and by failing to prevent her co-workers from harassing her on the
basis of her sex and disability.
Plain's complaint asserted the following events constituted the dis-
crimination she experienced:
(1) On March 2, 1992, her sales manager harassed her by
making fun of her disability and allowed others to do like-
wise.
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1 42 U.S.C.A. §§ 12101-12213 (West Supp. 1995).
2 42 U.S.C.A. §§ 2000e-2000h-6 (West Supp. 1994).
2
(2) On August 10, 1993, another sales manager
announced at a staff meeting that Plain would not be placed
on a staff schedule due to her health and her doctor's recom-
mendation.
(3) She was subjected to comments that she was the first
woman to work in lawn and garden.
Plain last worked for Sears on January 5, 1994. Based on her physi-
cians' reports that she was 100% disabled and her own admissions of
being unable to do any work, the Social Security Administration
determined Plain had been totally and permanently disabled since that
date. Three months later, on March 30, 1994, the Sears sponsored
Group Long Term Disability Insurance Plan (the "Plan") concluded
Plain was eligible to receive long-term disability benefits under the
Plan because she could neither perform her job nor any other job for
which she was qualified based on her education, training, or experi-
ence. Plain received disability benefits from both sources. She contin-
ues to receive monthly Social Security disability income. Sears
removed Plain from its payrolls in April 1995.
The district court granted summary judgment to Sears finding that
Plain had failed to timely file her charge of discrimination with the
Equal Employment Opportunity Commission (the "EEOC"); that she
failed to challenge her alleged termination in any EEOC charge; and
that she was not a qualified individual under the ADA. Plain appeals.
II.
Plain contends the district court erred in finding that she had failed
to timely file a charge of discrimination with the EEOC against Sears.
We review de novo a district court's order granting summary judgment.3
Pursuant to the ADA and Title VII, Plain cannot seek redress in
district court for an employer's alleged violations of either act unless
she filed a charge of discrimination with the EEOC"within 180 days
after the alleged unlawful employment practice occurred."4 According
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3 Anderson v. Liberty Lobby, Inc. , 477 U.S. 242 (1986).
4 42 U.S.C.A. § 2000e-5(e)1 (West Supp. 1994); and 42 U.S.C.A.
§ 12117(a) (West Supp. 1994) (ADA incorporating by reference Title
VII's 180 day limit within which to file charges of discrimination).
3
to the record of evidence, Plain filed a charge of discrimination on
February 13, 1995. Her charge alleged that Sears engaged in specific
and non-specific instances of discriminatory conduct. The specific
instances of discrimination allegedly occurred on March 2, 1992, and
August 10, 1993. We hold her filing to be untimely as to both the spe-
cific and non-specific incidents of discrimination. Plain untimely filed
her discrimination charge more than forty-seven months after the
occurrence of the alleged first specific instance of discriminatory con-
duct, and more than eighteen months after the alleged occurrence of
the second specific instance of discrimination. With respect to the
nonspecific instances of discriminatory conduct alleged in the charge,
they would have had to have occurred within the 180 days preceeding
her February 13, 1995, filing date. But Plain last worked for Sears on
January 5, 1994, therefore, her charge filed thirteen months later was
untimely. Accordingly, we find no error in the district court's deter-
mination that Plain failed to timely file an administrative charge of
discrimination.
III.
Having carefully reviewed the record, briefs, and contentions of the
parties at oral argument, we hold Plain's remaining contentions to be
without any merit. Accordingly, we can find no error in the order and
judgment of the district court, and we, therefore, affirm the judgment
below.
AFFIRMED
4