Tinsley v. First Union Nat. Bank

• Decision Date: 02 September 1998
• Docket Number: No. 97-2640,97-2640
• Citation: 155 F.3d 435
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 1753, 74 Empl. Prac. Dec. P 45,526 Patricia Willoughby TINSLEY, Plaintiff-Appellant, v. FIRST UNION NATIONAL BANK, Defendant-Appellee. Equal Employment Opportunity Commission; The Council on Human Rights, Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 435

155 F.3d 435

77 Fair Empl.Prac.Cas. (BNA) 1753,

74 Empl. Prac. Dec. P 45,526

Patricia Willoughby TINSLEY, Plaintiff-Appellant, v. FIRST UNION NATIONAL BANK, Defendant-Appellee Equal Employment Opportunity Commission; The Council on Human Rights, Amici Curiae.

No. 97-2640.

United States Court of Appeals Fourth Circuit.

Argued May 8, 1998.

Decided Sept. 2, 1998.

ARGUED: Lamont Navarro White, Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae EEOC; Terry N. Grimes, King, Fulghum, Snead, Nixon & Grimes, P.C., Roanoke, Virginia, for Appellant. William Fain Rutherford, Jr., Flippen, Densmore, Morse, Rutherford & Jessee, Roanoke, Virginia, for Appellee. ON BRIEF: C. Gregory Stewart, General Counsel, Vincent J. Blackwood, Acting Associate General Counsel, Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae EEOC. Kerith Cohen, Flippen, Densmore, Morse, Rutherford & Jessee, Roanoke, Virginia, for Appellee. David R. Simonsen, Jr., Richmond, Virginia, for Amicus Curiae Council.

Before MURNAGHAN, NIEMEYER, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge NIEMEYER and Judge MICHAEL joined.

OPINION

MURNAGHAN, Circuit Judge:

In 1979, Patricia Tinsley filed a charge of sex discrimination against First National Exchange Bank (now First Union National Bank of Virginia) with the Equal Employment Opportunity Commission (EEOC). The parties settled the claim. In 1993, First Union National Bank fired Tinsley. She filed another charge with the EEOC, alleging that her termination was in retaliation for her complaint of discrimination fourteen years earlier.

A district court granted summary judgment to the bank, holding both that Tinsley's filing of her charge was untimely and that there was no genuine issue of material fact sufficient to support her claim of retaliation. Tinsley appealed.

We hold that Tinsley's filing of her charge was timely because the Virginia Council on Human Rights is a "deferral agency" with authority to seek relief from unlawful employment practices, so a claim arising within Virginia is subject to the 300-day limitations period, not the shorter 180-day period appropriate in states without such a deferral agency. With that longer limitations period, Tinsley complied. However, Tinsley has not established a genuine issue of material fact so far as retaliation was concerned. For that reason, summary judgment for the Bank was appropriate.

I.

Because we review a grant of summary judgment, we are constrained to view all disputed facts in the light most favorable to Tinsley and to draw all reasonable inferences in her favor. See Halperin v. Abacus Technology Corp., 128 F.3d 191, 196 (4th Cir.1997). Tinsley began work for First National Exchange Bank (later acquired by Dominion Bank and currently First Union National Bank of Virginia, hereinafter the "Bank") in 1975. In 1979, Tinsley filed a charge against the Bank alleging a violation of the Equal Pay Act, 29 U.S.C. § 206(d)(1). The Bank and Tinsley entered into a settlement agreement in which the Bank, without admitting liability, agreed to compensate Tinsley $969.92 and to fulfill certain other conditions, including keeping the settlement agreement confidential. Tinsley continued to work for the Bank, and was even promoted in 1980 and in 1986. Tinsley has claimed, however, that she was mistreated and retaliated against repeatedly throughout her tenure at the Bank.

In 1993, Tinsley accepted an offer from Christle Morris of the Bank to transfer from the Bankcard/Lease Recovery Department into the Consumer Loan Recovery Department. On May 1, 1993, Tinsley began work in the new department as a legal specialist, supervised by Morris. The transfer worked out unhappily for all involved. In the two months that Tinsley served under Morris, she was officially reprimanded and given informal warnings of misconduct on numerous occasions. The Bank claims that Tinsley was insubordinate and unable to cooperate with others; Tinsley asserts that her reprimands were merely a "paper trail" compiled to justify her termination.

On June 24, 1993, the Bank fired Tinsley for misconduct and violation of company policy. Tinsley has asserted that her termination was in retaliation for the discrimination charge settled fourteen years earlier.

On or about June 25, 1993, Tinsley contacted the EEOC by telephone to file a complaint. The EEOC told Tinsley her case was too involved to take over the telephone and advised her to send her information in writing. On December 11, 1993, Tinsley sent to the EEOC by certified mail a detailed letter explaining her retaliation claim. The EEOC received the letter on or about December 13, 1993, 172 days after the allegedly retaliatory discharge. ¹ Although the letter charging retaliation was filed within the 180 days after Tinsley's discharge, it was not sworn to under oath or affirmation.

On December 15, 1993, the EEOC wrote to Tinsley requesting that she contact the agency in order to schedule an interview within 30 days. Tinsley arranged the interview, which took place sometime prior to January 4, 1994. On January 4, the EEOC mailed Tinsley, for her signature, an official charge form and an affidavit drafted as a result of the interview. Tinsley signed the forms on January 28, 1994, and forwarded them to the EEOC on February 2, 1994--223 days after her discharge. The formal charge form and affidavit were therefore filed in the period between 180 and 240 days after Tinsley's discharge.

Following termination of administrative proceedings with the EEOC and the issuance of a right-to-sue letter, Tinsley filed the present complaint in district court. The district court granted summary judgment for the Bank, holding both that Tinsley's charge was not timely filed with the EEOC and that she could not establish a prima facie case of discriminatory retaliation. Tinsley timely filed a notice of appeal to us.

II.

A.

Before reaching the merits of Tinsley's claim, we address the procedural issue of whether Tinsley timely filed her charge of discrimination with the EEOC. The district court held that the appropriate limitations period for Tinsley's filing of her charge with the EEOC was 180 days, not 300 days, after the allegedly retaliatory discharge. Because Tinsley did not file a verified (that is, sworn to before a notary public, see 29 C.F.R. 1601.3(a)) charge with the EEOC within the 180-day period, the district court concluded that her claim was barred. ²

Section 706(e)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e)(1), establishes two potential limitations periods within which a discrimination charge must be filed with the EEOC. The basic limitations period is 180 days after the alleged unlawful employment practice. However, the limitations period is extended to 300 days when state law proscribes the alleged employment practice and the charge has initially been filed with a state deferral agency, ³ that is, "a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof." 42 U.S.C. § 2000e-5(e)(1).

When a charge is sent first to the EEOC instead of the appropriate state deferral agency, and the state prohibits the alleged employment practice, the EEOC will refer the claim to the state agency. The EEOC works out arrangements with each state deferral agency regarding such referrals. See 29 C.F.R. § 1601.13(c). Tinsley's charge was referred by the EEOC to the Virginia Council on Human Rights (the "Council") pursuant to such a work-sharing agreement. That referral to the state agency satisfied 42 U.S.C. § 2000e-5(e)(1)'s requirement that the aggrieved person must have instituted proceedings with the state deferral agency in order to qualify for the 300-day limitations period. See EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 111, 122-25, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988).

The state agency then has sixty days ⁴ in which to resolve the complaint on its own. See 42 U.S.C. § 2000e-5(c). After this period of deference to the state agency the charge is deemed filed with the EEOC, which may then begin its process of resolution. Because of the sixty-day deferral period, the 300-day limitations period within which a charge must be filed with the EEOC is effectively reduced to 240 days. See Commercial Office Prods., 486 U.S. at 111, 108 S.Ct. 1666.

The district court rejected Tinsley's argument that the Council is a state deferral agency within the meaning of Title VII, and that therefore the longer 300-day limitations period should be applied. The district court held that the Council does not have the necessary authority required by 42 U.S.C. § 2000e-5(e)(1) to qualify as a deferral agency. See also, e.g., McGuire v. Commonwealth of Virginia, 988 F.Supp. 980, 985-86 (W.D.Va.1997); Young v. Sheetz, Inc., 987 F.Supp. 496, 499 (W.D.Va.1997); Tokuta v. James Madison Univ., 977 F.Supp. 763, 764-66 (W.D.Va.1997); cf. Dorsey v. Duff's Motel, Inc., 878 F.Supp. 869, 870 (W.D.Va.1995) (interpreting 42 U.S.C. § 2000a-3(c)).

We hold, to the contrary, that the authority granted to the Virginia Council on Human Rights is sufficient to qualify it as a deferral agency under Title VII. The appropriate limitations period for filing a charge with the EEOC of an employment practice proscribed by Virginia law, therefore, is 300 days.

To qualify as a deferral agency, the Council must be "a State or local agency with authority to grant or seek relief from [an unlawful employment] practice or to institute criminal proceedings with respect thereto upon receiving notice thereof." 42 U.S.C. § 2000e-5(e)(1) (emphasis added). Because the powers to "grant" relief, "seek" relief and "institute criminal proceedings" are listed in the disjunctive, an agency need only possess one of the three statutory powers in order to...