UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PAULINA ARELLANO,
Plaintiff-Appellant,

v.
                                                                       No. 98-1348
WILLIAM J. HENDERSON, Postmaster
General, United States Postal
Service,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-97-347-A)

Submitted: October 20, 1998

Decided: November 16, 1998

Before ERVIN and MOTZ, Circuit Judges, and HALL, Senior
Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Stephen Domenic Scavuzzo, Vienna, Virginia, for Appellant. Helen
F. Fahey, United States Attorney, Rachel C. Ballow, Alexandria, Vir-
ginia; R. Andrew German, Janet Noble Smith, UNITED STATES
POSTAL SERVICE, Austin, Texas, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Paulina Arellano appeals the district court order granting the
Appellee's motion for summary judgment and dismissing her action
filed under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A.
§§ 2000e to 2000e-16 (West 1994 & Supp. 1998) ("Title VII").

Arellano was employed by the Postal Service since 1985 as a dis-
tribution clerk. In 1989, she suffered a work-related back injury. She
returned to work in September 1991 with certain work restrictions due
to her 1989 injury. On her first day back to work, she suffered another
back injury which caused her to miss the next two-and-one-half years
of work. She returned in May 1994 with a new set of work restric-
tions. However, she claimed that the Postal Service did not fully com-
ply with the restrictions. She reinjured her back in August 1995
allegedly due to the Postal Service's failure to comply with the work
restrictions. She returned to work in February 1996 under the same
set of work restrictions. At that time, she complained to a union offi-
cial that the work restrictions were not being followed.

However, it was not until June 1996 that Arellano initiated a con-
tact with an EEO counselor concerning the alleged failure of the
Postal Service to follow her doctor's work restrictions. She then filed
a formal complaint with the Postal Service which was dismissed as
untimely. Arellano commenced the instant action in March 1997. In
October 1997, she filed an amended complaint alleging a June 1997
injury due to the Postal Service's failure to comply with work restric-
tions.

In granting the Postal Service's summary judgment motion, the dis-
trict court found that Arellano failed to initiate proceedings with an
EEO counselor in a timely fashion since she was aware that the Postal
Service was not complying with the work restrictions in May 1994,

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in August 1995, and in February 1996. The court also found that she
failed to exhaust administrative remedies with regard to the June 1997
incident.

This Court reviews de novo a district court's grant of summary
judgment. See Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th
Cir. 1995). Summary judgment is appropriate when the non-moving
party fails to establish, by sworn evidence, an essential element of the
case. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).

On appeal, Arellano contends that her complaint to the EEO coun-
selor was timely because the failure to comply with the work restric-
tions is a continuing violation. Arellano also contends that her
complaint was timely insofar as it related to events forty-five days
prior to initiating her complaint with an EEO counselor. She also con-
tends that she did not need to exhaust administrative remedies regard-
ing the June 1997 incident because it was reasonably related to
allegations in her June 1996 EEO complaint.

Timely exhaustion of administrative remedies is a prerequisite to
filing suit in federal court pursuant to Title VII. See 42 U.S.C.
§ 2000e-16(c); 29 C.F.R. § 1614.110 (1997) (following the final deci-
sion of an agency, an employee may either appeal to the Equal
Employment Opportunity Commission or file a civil action in federal
district court); Zografov v. V.A. Medical Ctr. , 779 F.2d 967, 968-69
(4th Cir. 1985). Under 29 C.F.R. § 1614.105(a)(1) (1997), federal
employees who believe they are the subject of discrimination on the
basis of sex are required to consult an agency EEO counselor within
forty-five calendar days of the alleged discriminatory event. An
agency shall dismiss a complaint that "fails to comply with the appli-
cable time limits." 29 C.F.R. § 1614.107(b) (1997).

We are not persuaded by Arellano's contention that the failure to
comply with the work restrictions was a continuing violation. "A con-
tinuing violation is one that could not reasonably have been expected
to be made the subject of a lawsuit when it first occurred because its
character as a violation did not become clear until it was repeated dur-
ing the limitations period." Dasgupta v. University of Wisconsin Bd.
of Regents, 121 F.3d 1138, 1139 (7th Cir. 1997). In spite of the fact

                    3
that Arellano was aware of all the facts supporting her claim in May
1994 and February 1996, she failed to take action. See, e.g.,
Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998) (equitable
considerations require that an employee need not file a complaint
until facts supporting a discrimination claim are apparent to a reason-
ably prudent person).

Arellano's reliance on pay disparity cases to support her continuing
violation argument is misguided. See Brinkley-Obu v. Hughes Train-
ing, Inc., 36 F.3d 336 (4th Cir. 1994); Marshall v. Manville Sales
Corp., 6 F.3d 229 (4th Cir. 1993). In these cases, each paycheck is
part of a chain of disparate pay violations. In Arellano's case, the
alleged violations occurred when Arellano returned to work with
work restrictions which were allegedly not complied with by the
Postal Service. The filing period runs from the time when the
employee is informed of the allegedly discriminatory employment
decision, regardless of when the effects of that decision come to fru-
ition. See Price v. Litton Business Sys., Inc. , 694 F.2d 963 (4th Cir.
1982).

Nor was her EEO complaint timely as to the events within forty-
five days of the filing of the EEO complaint. During that period, Arel-
lano was merely feeling the effects of the alleged decision by her
employer not to comply with the work restrictions. She alleged no
actual Title VII violation that occurred within that forty-five day
period. The actual discriminatory event occurred much earlier. See
Huckabay, 142 F.3d at 238 (mere perpetuation of effects of time-
barred discrimination does not constitute Title VII violation). Accord-
ingly, we find that Arellano did not timely initiate counseling with an
EEO counselor.

With regard to the June 1997 claim, it is settled law that a federal
employee must seek administrative review of her grievance before fil-
ing suit for unlawful discrimination in employment. See 42 U.S.C.
§ 2000e-16(b), (c); Zografov, 779 F.2d at 968-69. Arellano contends
that this claim is related to the allegations in her 1996 charge. See
Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962-63
(4th Cir. 1996) (discrimination claims reasonably related to the origi-
nal complaint and those developed by reasonable investigation of the
original complaint may be maintained in a subsequent Title VII law-

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suit). The June 1996 charge was time-barred and cannot serve as a
predicate for allegations in the complaint said to be reasonably
related. See Butts v. City of New York Dep't of Hous. Preservation &
Dev., 990 F.2d 1397, 1403 (2d Cir. 1993). Because Arellano failed to
exhaust administrative remedies concerning the June 1997 incident,
the court properly dismissed the claim.

We affirm the order of the district court. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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