Mezu v. Dolan

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROSE URE MEZU, 
Plaintiff-Appellant,
v.
HUBBARD DOLAN, Morgan State  No. 03-1487
University, Chair Department of
English and Language Arts;
MORGAN STATE UNIVERSITY,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CA-02-3713-JFM)
Submitted: September 4, 2003
Decided: September 22, 2003
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Theresa I. Obot, LAW OFFICE OF THERESA I. OBOT, Baltimore,
Maryland, for Appellant. J. Joseph Curran, Jr., Attorney General of
Maryland, Mark J. Davis, Assistant Attorney General, Baltimore,
Maryland, for Appellees.
2 MEZU v. DOLAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Rose Ure Mezu appeals the district court’s order dismissing her
complaint alleging her employer, Morgan State University, and Dolan
Hubbard,* the chair of the English and Language Arts Department
(collectively "University"), violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1994
& Supp. 2002); the Family Medical Leave Act, 29 U.S.C. §§ 2601-
2654 (2000); and the Equal Pay Act, 29 U.S.C. § 206(d) (2000).
The University moved to dismiss the complaint for failure to state
a claim under Fed. R. Civ. P. 12(b)(6). Mezu opposed the motion to
dismiss and filed an affidavit and numerous other exhibits. The dis-
trict court dismissed Mezu’s Title VII failure to promote claim, her
Equal Pay Act claim, and her FMLA claim. The court treated the Uni-
versity’s motion to dismiss her Title VII hostile environment claim as
a motion for summary judgment because it relied on materials outside
the pleadings and dismissed the claim under summary judgment stan-
dards. We affirm.
We review the district court’s rulings on a motion to dismiss pursu-
ant to Fed. R. Civ. P. 12(b)(6) de novo. See Mylan Labs., Inc. v. Mat-
kari, 7 F.3d 1130, 1134 (4th Cir. 1993). A motion to dismiss under
Rule 12(b)(6) should not be granted unless it appears that the plaintiff
can prove no set of facts that would support her claim and would enti-
tle her to relief. Id. Thus, when considering the propriety of a dis-
*Because the district court’s docket lists the named defendant as
"Hubbard Dolan," this court’s practice is to do likewise in an effort to
avoid inconsistency. The appeal record leaves little doubt, however, that
the correct name of this defendant is "Dolan Hubbard." We accordingly
utilize the latter name in our opinion, recognizing the resultant inconsis-
tency.
MEZU v. DOLAN 3
missal, we accept the factual allegations in the complaint as true and
afford the plaintiff the benefit of all reasonable inferences that can be
drawn from those allegations. Id.First, Mezu asserts the district court erred in dismissing her Equal
Pay Act claim. Under the Equal Pay Act, 29 U.S.C. § 206(d)(1), an
employer is proscribed from discriminating by paying wages to
employees of one gender, on the basis of that gender, at a rate less
than that paid to employees of the other gender who are performing
equal work on jobs that require equal skill and responsibility. Because
Mezu only asserts she was paid different wages based on national ori-
gin, we find no error in the dismissal of her Equal Pay Act claim.
Second, Mezu asserts equitable tolling and equitable estoppel are
applicable to her Title VII claim. The district court determined Mezu
failed to allege that any discriminatory acts occurred within 300 days
prior to her filing the EEOC charge. "Equitable tolling applies where
the defendant has wrongfully deceived or misled the plaintiff in order
to conceal the existence of a cause of action." English v. Pabst Brew-
ing Co., 828 F.2d 1047, 1049 (4th Cir. 1987). For Mezu to invoke
equitable tolling, she must show the University attempted to mislead
her and that she reasonably relied on the misrepresentation by
neglecting to file a timely EEOC charge. Id. "Equitable estoppel
applies where, despite the plaintiff’s knowledge of the facts, the
defendant engages in intentional misconduct to cause the plaintiff to
miss the filing deadline." Id. We have reviewed the record and find
no error in the district court’s dismissal of Mezu’s Title VII failure
to promote claim.
The district court relied on matters outside the pleadings when it
considered Mezu’s hostile work environment claim and converted the
University’s motion to dismiss to a motion for summary judgment.
We review an award of summary judgment de novo. Higgins v. E.I.
DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).
Summary judgment is appropriate only if there are no genuine issues
of material fact and the moving party is entitled to judgment as a mat-
ter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). We view the evidence in the light most favorable
to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
4 MEZU v. DOLAN
In order to state a claim for a hostile work environment, Mezu must
show: "(1) the harassment was unwelcome; (2) the harassment was
because of [national origin]; (3) the harassment was sufficiently
severe or pervasive to alter the conditions of employment and create
an abusive atmosphere; and (4) there is some basis for imposing lia-
bility on the employer." Causey v. Balog, 162 F.3d 795, 801 (4th Cir.
1998). We conclude the district court properly granted summary judg-
ment in favor of the University on this issue because Mezu failed to
allege any specific acts of harassment based on her national origin
that were sufficiently severe or pervasive to alter the conditions of her
employment.
Finally, Mezu asserts the district court erred in dismissing her
FMLA claim. The district court, citing our decision in Lizzi v. Alexan-
der, 255 F.3d 128, 136 (4th Cir. 2001), cert. denied, 534 U.S. 1081(2002), determined the FMLA did not abrogate a state’s Eleventh
Amendment immunity from suit and therefore Mezu’s claim failed as
a matter of law. After the district court issued its order, however, the
Supreme Court ruled in Nevada Dep’t of Human Resources v. Hibbs,
123 S. Ct. 1972, 1984 (2003), that Congress did in fact intend to abro-
gate a state’s Eleventh Amendment immunity and therefore an indi-
vidual may sue a state for money damages under the FMLA.
Nonetheless, we affirm the district court’s dismissal of Mezu’s FMLA
claim based on its correct observation that Mezu failed to allege an
FMLA claim upon which relief could be granted in any event. Mezu’s
complaint alleges no facts constituting a substantive violation of the
FMLA. Hence, she cannot state a claim, see Fed. R. Civ. P. 8(a), and
dismissal is appropriate. See Fed. R. Civ. P. 12(b)(6). Alternatively,
we note that Mezu abandoned her FMLA claim on appeal, thereby
waiving review of this issue under Local Rule 34(b).
Accordingly, for the reasons stated, the judgment of the district
court is affirmed. 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