Tartal v. Henderson ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARTHA A. TARTAL,
Plaintiff-Appellant,
v.
No. 99-2007
WILLIAM J. HENDERSON, Postmaster
General,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-99-539-AMD)
Submitted: February 22, 2000
Decided: April 17, 2000
Before MURNAGHAN, WILLIAMS, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James J. Nolan, Jr., W. Michel Pierson, PIERSON, PIERSON &
NOLAN, Baltimore, Maryland, for Appellant. Lynne A. Battaglia,
United States Attorney, Nadira Clarke, Assistant United States Attor-
ney, Baltimore, Maryland, 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Unpublished opinions are not binding precedent in this circuit.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:
Martha A. Tartal appeals the district court's order granting sum-
mary judgment to William J. Henderson, Postmaster General, and dis-
missing Tartal's employment discrimination complaint alleging a
hostile work environment based on her sex. The district court held
that Tartal did not contact an Equal Employment Opportunity
("EEO") counselor within forty-five days of the alleged discrimina-
tory events that created the hostile work environment. See 29 C.F.R.
§ 1614.105 (1999). Finding no reversible error, we affirm.
The record shows that Tartal believed she had an actionable dis-
crimination complaint as early as April 1996. Furthermore, the only
events that occurred within the forty-five-day period prior to meeting
with the EEO counselor are insufficient to establish a continuing vio-
lation. Tartal does not contest the dismissal on the merits of these
claims. See Beall v. Abbott Lab., 130 F.3d 614, 621 (4th Cir. 1997)
(noting that the continuing violation theory is available "only where
an actual violation has occurred within that requisite time period"
(internal quotation marks omitted)). Nor can Tartal successfully assert
equitable estoppel as a bar to Henderson's assertion of untimeliness.
Tartal acknowledged that she knew she could initiate formal proceed-
ings and that in September 1996, the Postal Police suggested that she
file an EEO complaint. She did not heed this advice. We find that she
was not diligent in preserving her legal rights. See Irwin v. Depart-
ment of Veterans Affairs, 498 U.S. 89, 96 (1990).
Tartal also asserted that the district court erred by proceeding with
summary judgment without allowing her additional time to secure the
deposition of Gwen Gales, one of Tartal's supervisors. The record is
ambiguous as to whether Tartal made a proper showing under Fed. R.
Civ. P. 56(f).* In addition, although Tartal noted at the summary
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*Although Tartal submitted a declaration arguably requesting an
opportunity to conduct discovery, the declaration did not specifically
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judgment hearing that Gales' deposition would be essential to oppose
the motion, Tartal did not specifically object at the hearing, nor did
she formally move for a continuance. Therefore, we find that the
court did not abuse its discretion in conducting the proceeding with-
out the additional discovery. See Nguyen v. CNA Corp., 44 F.3d 234,
242 (4th Cir. 1995).
Accordingly, we affirm the district court's order. 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 in the decisional process.
AFFIRMED
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mention Gales nor did it articulate any reasons why discovery was neces-
sary. It simply asserts that "I do not believe that it would be fair to con-
sider the defendant's motion until I have had the opportunity to conduct
pretrial discovery." (J.A. at 15.)
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