Dodge v. Philip Morris Inc ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHERYL J. DODGE,
Plaintiff-Appellant,
v.
No. 98-1968
PHILIP MORRIS, INCORPORATED, d/b/a
Philip Morris USA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-97-880-3)
Submitted: January 19, 1999
Decided: March 25, 1999
Before WILKINS and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Carolyn P. Carpenter, CARPENTER & WOODWARD, P.L.C., Rich-
mond, Virginia, for Appellant. Hill B. Wellford, Jr., Charles N.
Whitaker, Kimberly L. Carey, HUNTON & WILLIAMS, Richmond,
Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Cheryl Dodge appeals the district court's dismissal of her com-
plaint under Fed. R. Civ. P. 12(b)(6). Because we find that Dodge did
not pursue her disability claims under state law and thus did not sat-
isfy the prerequisites for federal subject matter jurisdiction, we affirm.
In her complaint, Dodge alleged that she resigned from Philip Mor-
ris, Incorporated, on February 16, 1996 (the latest possible date of
alleged discrimination), and filed a charge with the Equal Employ-
ment Opportunity Commission ("EEOC") on December 6, 1996--294
days later. Dodge raised claims, inter alia, under the Americans with
Disabilities Act, 42 U.S.C.A. §§ 12101-12213 (West Supp. 1998).
However, Dodge did not assert any claims under the Virginia Human
Rights Act, the Virginians with Disabilities Act or any other state law;
she did not mark the appropriate box on the EEOC charge in order
to request the EEOC to file the charge with a state agency; and she
did not take any action to institute proceedings with the Virginia
Council on Human Rights ("VCHR").
Philip Morris moved to dismiss Dodge's complaint on the ground
that Dodge's charges had not been filed with the EEOC within 180
days of the adverse employment action. Dodge asserted that (1) the
limitations period was extended to 300 days, because state law pro-
scribes the alleged employment practice and the VCHR was a proper
deferral agency, see 42 U.S.C.A. § 2000e-5 (West Supp. 1998) (incor-
porated in 42 U.S.C.A. § 12117(a) by reference); (2) a work-sharing
agreement between the EEOC and the VCHR allowed Dodge to file
a timely charge with either agency; and (3) even if Dodge should have
filed within 180 days, that limitation period should be equitably
tolled, given the work-sharing agreement. The district court granted
the motion to dismiss, holding that (1) the VCHR was not a deferral
agency, and thus Dodge's claim was untimely filed; (2) even if the
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VCHR were a deferral agency, Dodge's claim would fail because she
did not institute proceedings with the VCHR or allege a claim under
state law in her EEOC charge; and (3) equitable tolling did not apply.
We review the district court's dismissal of Dodge's claim de novo.
See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
After the district court dismissed Dodge's complaint, we decided
that the VCHR is indeed a deferral agency. See Tinsley v. First Union
Nat'l Bank, 155 F.3d 435, 440 (4th Cir. 1998). Nevertheless, we agree
with the district court that, because Dodge failed to include a state
claim in her EEOC charge, she failed to satisfy the prerequisites for
federal jurisdiction.
Title VII provides that
[i]n the case of an alleged unlawful employment practice
occurring in a State, or political subdivision of a State,
which has a State or local law prohibiting the unlawful
employment practice alleged and establishing or authorizing
a State or local authority to grant or seek relief from such
practice . . . no charge may be filed . . . by the person
aggrieved before the expiration of sixty days after proceed-
ings have been commenced under the State or local law
unless proceedings have been earlier terminated.
42 U.S.C.A. § 2000e-5(c). It is undisputed that Virginia state law pro-
vides for equal opportunity for employment without regard to disabil-
ity. In addition, as discussed above, we have recently held that an
appropriate state agency, the VCHR, has been established to process
claims of discrimination. See Tinsley, 155 F.3d at 440. Under these
circumstances, § 2000e-5 requires that Dodge commence proceedings
under state law before the EEOC can act upon her federal discrimina-
tion claims. See Davis v. North Carolina Dep't of Correction, 48 F.3d
134, 137-40 (4th Cir. 1995). Because Dodge never pursued her claims
under state law, her charges were never properly pending before the
EEOC. See id. Therefore, Dodge was not entitled to the issuance of
a right-to-sue letter by the EEOC, and the federal district court had
no jurisdiction over the claims. See id.Dodge contends that Davis is inapposite to the present case,
because Virginia and North Carolina have substantially different
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work-sharing agreements with the EEOC. Dodge asserts that under
the relevant work-sharing agreement, VCHR has jurisdiction over
claims alleging violations of federal law as well as claims alleging
violations of state law. (See J.A. at 117.)
However, the fact that proceedings with the VCHR could also
involve federal law does not eviscerate the requirement, set forth in
§ 2000e-5(c), that the commencement of state proceedings must be
"under state law." Davis, 48 F.3d at 139-40.* Therefore, we conclude
that Davis controls this case, and consequently, that the district court
had no jurisdiction over Dodge's claim. See Pledger v. North Caro-
lina Dep't of Health & Human Servs., 7 F. Supp.2d 705, 708
(E.D.N.C. 1998) (alleged violations of Title VII do not constitute state
law discrimination claims even if the state agency has authority to
investigate Title VII claims); Henderson v. Employment Sec.
Comm'n, 910 F. Supp. 252, 255 (W.D.N.C. 1995) (state proceedings
under federal law cannot satisfy the requirements of§ 2000e-5(c)).
Thus, we affirm the dismissal of Dodge's complaint. Accordingly,
we need not decide whether filing with the EEOC satisfied the
requirement of commencing state proceedings with the VCHR. In
addition, Dodge's equitable tolling claim is moot, because even if her
charge was timely filed, it was insufficient to exhaust state adminis-
trative remedies. Thus, we affirm the dismissal of Dodge's complaint.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the material before the court and
argument would not aid the decisional process.
AFFIRMED
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*In any event, North Carolina's deferral agency also has the authority
to investigate violations of federal law. See Pledger v. North Carolina
Dep't of Health & Human Servs., 7 F. Supp.2d 705, 708 (E.D.N.C.
1998). Therefore, Dodge cannot distinguish Davis on this basis.
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