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 1997-01

Nwaobasi v. First Security Fed ( 1997 )


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  • UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VICTORIA NWAOBASI,
Plaintiff-Appellant,
v.
No. 96-1648
FIRST SECURITY FEDERAL SAVINGS
BANK, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-95-3516-CCB)
Submitted: December 31, 1996
Decided: January 13, 1997
Before WILLIAMS and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Erroll D. Brown, Kirk A. Wilder, LAW OFFICES OF ERROLL D.
BROWN, Landover, Maryland, for Appellant. Lawrence S. Green-
wald, Bradford W. Warbasse, GORDON, FEINBLATT, ROTHMAN,
HOFFBERGER & HOLLANDER, L.L.C., Baltimore, Maryland, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Victoria Nwaobasi, an African woman, filed an EEOC complaint
against her employer, First Security Mortgage ("mortgage division"),
and Jane McQuilkin, a senior vice-president of First Security Federal
Savings Bank ("First Security"), alleging race and sex discrimination,
harassment, and retaliation in her employment in violation of Title
VII of the Civil Rights Act of 1961, as amended , 42 U.S.C. § 2000e
(1994). The EEOC issued a right to sue letter in September 1994, and
Nwaobasi filed a timely complaint in the district court in October
1994.
The mortgage division filed a motion to dismiss on the ground that
it lacked the capacity to be sued because it was an unincorporated
subsidiary of First Security. The district court granted the mortgage
division's motion and dismissed Nwaobasi's complaint without preju-
dice, at the same time granting Nwaobasi's motion to substitute First
Security as a party. The district court gave Nwaobasi fifteen days to
serve process on First Security, but Nwaobasi failed to comply until
four months after the district court's order. First Security filed a sec-
ond motion to dismiss based on insufficiency of service of process.
The district court granted the motion in September 1995 and dis-
missed Nwaobasi's complaint without prejudice. Nwaobasi did not
appeal that order.
Nwaobasi filed a second complaint, identical to the first, in
November 1995. First Security again filed a motion to dismiss on the
ground that the complaint was time-barred because it was filed more
than ninety days after receipt of the right to sue letter. Nwaobasi did
not file an opposition to the motion to dismiss, and the district court
dismissed the second complaint in March 1996. The court also denied
Nwaobasi's motion for reconsideration, and she timely appealed both
orders. We affirm.
2
This court reviews the district court's decision to dismiss Nwaoba-
si's claim de novo. Schatz v. Rosenberg,
    943 F.2d 485
    , 489 (4th Cir.
1991). We find persuasive the policy followed in several other cir-
cuits that dismissal of a Title VII claim without prejudice does not toll
the ninety-day limitations period. See Minnette v. Time Warner,
    997 F.2d 1023
    , 1027 (2d Cir. 1993); Berry v. CIGNA/RSI-CIGNA,
    975 F.2d 1188
    , 1191 (5th Cir. 1992); Brown v. Hartshorne Pub. Sch. Dist.
No. 1,
    926 F.2d 959
    , 961 (10th Cir. 1991); Wilson v. Grumman Ohio
Corp.,
    815 F.2d 26
    , 27-28 (6th Cir. 1987). Since Nwaobasi filed her
second complaint more than one year after receiving her right to sue
letter, that complaint was time-barred.
Nwaobasi's other arguments were not raised before the district
court, and they cannot now be raised on appeal. Singleton v. Wulff,
    428 U.S. 106
    , 120 (1976); Muth v. United States ,
    1 F.3d 246
    , 250 (4th
Cir. 1993).
Accordingly, we affirm the district court's orders. First Security's
unopposed motion to take judicial notice is granted. 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
3