Bishop v. Hazel & Thomas, PC ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHAU T. BISHOP,
Plaintiff-Appellant,
v.
HAZEL & THOMAS, PC,
Defendant-Appellee,
and
No. 97-2284
PITNEY BOWES MANAGEMENT
SERVICES,
Defendant.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-96-1839-A)
Submitted: May 12, 1998
Decided: July 1, 1998
Before LUTTIG and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James L. Kestell, Michael P. Deeds, KESTELL & ASSOCIATES,
Washington, D.C., for Appellant. Merrell B. Renaud, HAZEL &
THOMAS, P.C., Falls Church, Virginia, for Appellee. C. Gregory
Stewart, General Counsel, Vincent J. Blackwood, Acting Associate
General Counsel, Susan L.P. Starr, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus
Curiae.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Chau Bishop appeals the district court's grant of summary judg-
ment in favor of Hazel & Thomas in Bishop's employment discrimi-
nation action under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-5 (1994). We affirm, although on alternate grounds.
Chau Bishop, a Vietnamese woman, was employed by Ameriscribe
Management Services (Ameriscribe).1 Ameriscribe entered into a con-
tract with Hazel and Thomas (H&T), a law firm, to staff and manage
a full-service mail/messenger center at H&T's office. Bishop was
assigned to work in the mail center, copying documents and sending
faxes. In March 1993 Chau's supervisor, Dyrol Prioleau, promoted
Bishop to the position of supply clerk.
Bishop had no prior training in operating a supply room, and
received no training after being assigned to that position. Bishop was
often unfamiliar with the names of supplies or where they were
located. Bishop had problems filling orders because English is her
_________________________________________________________________
1 Pitney Bowes is the successor company to Ameriscribe.
2
second language, and she had trouble communicating with H&T
employees. Secretaries at H&T stated that Bishop had trouble under-
standing them, and that communicating with her was difficult because
she was unfamiliar with the names of many of the supplies and had
a heavy accent. H&T secretaries stated that they would have to
describe to Bishop the supplies they needed, that it took Bishop a long
time to find the requested supplies and that they would have to go into
the supply room and retrieve the articles themselves.
On April 29, 1993, the secretaries had a routine monthly meeting.
During the course of the meeting, one of the secretaries stated that an
interpreter was needed in the supply room. At that point some of the
other secretaries began to laugh and mock Bishop. The next day,
Prioleau met with the Human Resources director at H&T, Linda Man-
son. Manson stated that office productivity was diminished because
of Bishop's work performance, and requested that Prioleau address
the problem. Prioleau removed Bishop from the supply room and
Ameriscribe terminated her.
Bishop filed a complaint of national origin discrimination with the
Fairfax Human Rights Commission in June 1993, naming only
Ameriscribe as the respondent. The Commission sent a copy of Bish-
op's complaint to the EEOC for dual filing purposes. The EEOC noti-
fied Ameriscribe of Bishop's complaint and investigated Bishop's
complaint relative to Ameriscribe. There is no indication that the
EEOC notified H&T of the pending charges against Ameriscribe.
In December 1996, Bishop filed the instant action under Title VII
against both H&T and Pitney Bowes, contending that she was dis-
criminated against on the basis of her national origin when she was
fired. Both Defendants filed motions for summary judgment. The dis-
trict court denied Pitney Bowes' motion, but granted H&T's motion.
The district court held that as to H&T, there was no evidence showing
that H&T directed or suggested that Bishop be fired. Bishop appealed
from the district court order granting summary judgment to H&T.2
_________________________________________________________________
2 Although Bishop's notice of appeal was prematurely filed, see
Robinson v. Parke-Davis & Co., 685 F.2d 912, 913 (4th Cir. 1982), we
have jurisdiction over this appeal in accordance with the doctrine of
cumulative finality. See Equipment Fin. Group, Inc. v. Traverse Com-
puter Brokers, 973 F.2d 345, 347 (4th Cir. 1992).
3
Subsequently, the case against Pitney Bowes was settled, and the case
was voluntarily dismissed under Federal Rule of Civil Procedure
41(a)(1).
It is undisputed that Bishop failed to name H&T as a respondent
in her EEOC charge, as required by Title VII. See 42 U.S.C. § 2000e-
5(f)(1); Alvarado v. Board of Trustees, 848 F.2d 457, 458-59 (4th Cir.
1988). H&T did not receive notice from Ameriscribe of a pending
EEOC investigation, nor did H&T have an opportunity to participate
in the administrative conciliation process. Accordingly, the dual pur-
poses of EEOC administrative proceedings, notice and an opportunity
to secure voluntary compliance with the law, were not served. See
Virgo v. Riviera Beach Assoc., Ltd., 30 F.3d 1350, 1358 (11th Cir.
1994); Alvarado, 848 F.2d at 458-59. No recognized exception to the
naming requirement is applicable. See Virgo, 30 F.3d at 1358;
Alvarado, 848 F.2d at 458-59; EEOC v. American Nat'l Bank, 652
F.2d 1176, 1186 n.5 (4th Cir. 1981).3
Further, even assuming that H&T was named in the agency
complaint,4 Bishop fails to make out a prima facie case of national
_________________________________________________________________
3 Bishop contends that the Fairfax Human Rights Commission told her
that she could only name her employer, Ameriscribe. Bishop contends
that because her failure to name H&T was due to this misinformation,
she should be allowed to proceed against H&T based on "equitable toll-
ing." The doctrine of equitable tolling applies to toll the limitations
period when, due to agency error or misinformation, a complainant fails
to meet the time requirements for filing an agency complaint or for filing
a civil action once a right to sue letter has been issued. See Conaway v.
Control Data Corp., 955 F.2d 358, 362 (5th Cir. 1992); Gonzalez-Aller
Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir. 1983);
McKee v. McDonnell Douglas Technical Servs. Co., 700 F.2d 260, 263-
65 (5th Cir. 1983); Jennings v. American Postal Workers Union, 672
F.2d 712, 714-15 (8th Cir. 1982). Bishop does not contend that she ever
attempted to file an EEOC complaint against H&T. Thus, equitable toll-
ing does not apply.
4 H&T contends that it was not Bishop's "employer," and thus cannot
be liable under Title VII for sex discrimination. Bishop contends that
H&T does not have to be Bishop's employer to be liable under Title VII,
but that H&T can be liable because it discriminately interfered with
Bishop's employment opportunities. The EEOC has filed an amicus brief
addressing this issue. In light of Bishop's failure to name H&T as a
respondent and her failure to make out a prima facie case of national ori-
gin discrimination, we need not address this issue.
4
origin discrimination. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973); William v. Cerberonics, Inc., 871 F.2d 452, 455
(4th Cir. 1989). She was often unfamiliar with the names of supplies
and their location; she had trouble understanding and filling H&T
employees' requests; H&T employees had difficulty understanding
Bishop; often employees would have to retrieve the supplies them-
selves, or spend extra time describing the needed supplies. Secretaries
at H&T and the H&T human resources director stated that Bishop's
inefficiency and heavy accent diminished office productivity. Bishop
thus fails to show that she was performing satisfactorily. See Jiminez
v. Mary Washington College, 57 F.3d 369, 380 (4th Cir. 1995);
Williams, 871 F.2d at 455.
We thus affirm the district court's grant of summary judgment in
favor of H&T. 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
5