UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRENDA R. POTEAT,
Plaintiff-Appellant,

v.

MACK TRUCKS INCORPORATED,
                                                                   No. 96-1437
Defendant-Appellee,

and

ROBERT WALTHALL,
Defendant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CA-93-265-3-19BD)

Argued: December 2, 1996

Decided: January 28, 1997

Before HALL, WILKINS, and NIEMEYER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Steven Kapustin, BLAND & ARNDT, L.L.P., Columbia,
South Carolina, for Appellant. Leigh Mullikin Nason, HAYNS-
WORTH, BALDWIN, JOHNSON & GREAVES, P.A., Columbia,
South Carolina, for Appellee. ON BRIEF: Eric S. Bland, Mary Con-
nell Elam, BLAND & ARNDT, L.L.P., Columbia, South Carolina,
for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Brenda R. Poteat appeals the summary judgment order dismissing
her Title VII hostile environment action against her employer, Mack
Trucks, Inc. For the reasons that follow, we affirm.

I

We review the grant of summary judgment de novo , and we view
the facts and inferences drawn therefrom in the light most favorable
to the non-moving party. Evans v. Technologies Applications & Ser-
vice Co., 80 F.3d 954, 958 (4th Cir. 1996). We begin, then, with
Poteat's version of the facts.

Poteat works at the Mack Trucks plant in Winnsboro, South Caro-
lina. During October and November, 1992, she was subjected to sex-
ual innuendo and improper physical contacts from her co-worker,
Robert Walthall. The harassment continued despite her complaints to
management. On December 2, 1992, her lawyer sent a letter to the
South Carolina Human Affairs Commission (SCHAC) outlining her
complaints in detail. The letter concluded by asking that an investiga-
tion be conducted and that the SCHAC issue a right-to-sue letter.

Soon thereafter, Poteat's lawyer asked David Smith, the SCHAC
investigator assigned to the case, to notify the EEOC. Smith agreed
to do so, though in fact the EEOC was never notified. On January 9,
1993, Poteat's lawyer informed Smith that the harassment had ceased
prior to the complaint letter, and Smith responded that the administra-

                    2
tive remedies had been exhausted and that a complaint would have to
be filed in court.1 On January 25, 1993, the SCHAC sent a form letter
stating that because Poteat was no longer being subjected to harass-
ment, the agency could do nothing further, and,"consequently, this is
notice that Ms. Poteat's administrative remedy has been exhausted by
this agency."

On February 8, 1993, Poteat filed this action in federal court
against Walthall and Mack Trucks. In April, Poteat requested that she
be supplied with a newer version of a tool that she used in her job line
because the older version she was using hurt her arm. Although others
with a similar problem had received the newer tool, Mack Trucks ini-
tially refused her request and only supplied the newer tool after she
complained to upper management. On November 23, 1993, Poteat's
lawyer wrote to the EEOC claiming that this refusal constituted retali-
ation for Poteat's harassment complaints. In another letter written the
same day, the lawyer informed the EEOC that he had just discovered
that the SCHAC had never notified the federal agency about the ini-
tial complaints raised in the December 2, 1993 letter, and he asked
that the EEOC investigate and issue a right-to-sue letter "to conform
to the ongoing lawsuit."

On February 15, 1994, Poteat filed a verified complaint with the
EEOC regarding the hostile environment created by Walthall's
harassment in October-November, 1992, and the retaliation of April-
May, 1993. Within days she received a right-to-sue letter "issued at
your request."

After lengthy discovery, Mack moved for summary judgment
because Poteat had failed to exhaust the required administrative reme-
dies. The magistrate judge recommended that the motion be granted
_________________________________________________________________
1 In an affidavit submitted by Poteat in opposition to Mack Trucks'
motion for summary judgment, Smith stated that he told Poteat's lawyer
that he would "notify the EEOC of Ms. Poteat's claim." In a subse-
quently dated "supplementary affidavit," submitted in support of the
company's summary judgment motion, Smith stated that he told the law-
yer that SCHAC procedure involved "notifying the EEOC if a charge of
discrimination is perfected." Smith added that"there was at no time a
charge of discrimination perfected" by Poteat or her lawyer.

                    3
on the ground that Poteat had failed to timely file a proper complaint
with EEOC and, further, that she was not entitled to equitable relief
from such non-compliance. The refusal to recommend equitable relief
rested primarily on the fact that Poteat was represented by counsel
from the outset. The district court adopted the magistrate judge's
report and granted summary judgment in favor of Mack Trucks.
Poteat appeals.2

II

A federal court can assume jurisdiction over a Title VII claim, such
as the one alleged by Poteat, only after the claimant has exhausted the
various administrative procedures set forth in 42 U.S.C. § 2000e-5(b).
We recently summed up the process by which the court attains subject
matter jurisdiction as follows:

          Title VII . . . establishes a multi-tiered administrative
          scheme pursuant to which a claimant is required first to file
          a discrimination claim under state law, where such law
          exists, and may not proceed to federal district court until
          state proceedings under state law have commenced and,
          after the deferral period, the EEOC has made its own deter-
          mination as to the validity of complainant's claim and
          issued a right-to-sue letter.

Davis v. North Carolina Dept. of Correction, 48 F.3d 134, 138 (4th
Cir. 1995). In South Carolina, which has anti-discrimination laws
similar to Title VII and a "deferral agency" with essentially the same
powers as the EEOC, a claimant must first file her claim with such
agency within 180 days from the last act of discrimination. See id.
(under 42 U.S.C. § 2000e-5(c), "commencement of proceedings under
state law is a prerequisite to EEOC action where a state remedial
scheme exists."). The purpose of this deferral procedure is to give the
state agency a chance to resolve the claim and thereby possibly obvi-
ate the need for the involvement of the federal agency or courts.
_________________________________________________________________
2 After a bench trial, judgment was entered in favor of Walthall on all
the claims against him, and Poteat does not appeal that judgment. She
voluntarily dismissed her state-law claims against Mack.

                    4
The timely filing of a verified complaint with the EEOC is another
precondition to filing suit. In South Carolina and other deferral states,
the complaint must be filed with the EEOC by the earlier of 300 days
from the last discriminatory act or 30 days from the termination of the
state agency's proceeding. For our purposes, the last act of harass-
ment occurred in November, 1992.3 A year passed before the EEOC
had actual notice of the allegations, and two more months before a
properly verified complaint was finally filed with the EEOC.

"`[A]ction by the EEOC . . . is a predicate for litigation based on
the federal statute.'" Id. at 137 (quoting Yellow Freight Sys., Inc. v.
Donnelly, 494 U.S. 820, 825 (1990)) (alteration in original). More
precisely, it is the legal entitlement to a right-to-sue letter, rather than
the actual issuance of the letter itself, that is the final step to federal
court jurisdiction. See Moore v. City of Charlotte, N.C., 754 F.2d
1100, 1104 n.1 (4th Cir. 1985). Under well-settled law, the verifica-
tion and timeliness requirements are strictly enforced. Failure to file
within the statutory time limits is not an absolute bar to maintenance
of an action, however.

"[F]iling a timely charge of discrimination with the EEOC is not
a jurisdictional prerequisite to suit in federal court, but a requirement
that, like a statute of limitations, is subject to waiver, estoppel, and
equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393 (1982). In English v. Pabst Brewing Co., 828 F.2d 1047, 1049
(4th Cir. 1987), we held that equitable tolling can be applied where
the employer "has wrongfully deceived or misled the plaintiff in order
to conceal the existence of a cause of action." See also Weick v.
O'Keefe, 26 F.3d 467, 470 (4th Cir. 1994) (equitable tolling justified
where employer "lulled [the claimant] into inaction"). Poteat does not
dispute that she failed to technically satisfy a number of the statutory
preconditions to federal jurisdiction. Instead, she argues that because
her lawyer was misled in several respects by the SCHAC, the statu-
tory time limits should be tolled.

A workshare agreement between the EEOC and SCHAC provides
the backdrop for Poteat's bid to avoid the statutory filing require-
_________________________________________________________________
3 We deal with the effect of the retaliation allegations separately in Part
III below.

                      5
ments. See 42 U.S.C. § 2000e-8(b). Under this agreement, each
agency designates the other as its "agent for the purpose of receiving
and drafting charges." The SCHAC must refer all charges to the
EEOC "so long as the allegations meet the minimum requirements of
[Title VII]." However, "[t]he delegation of authority to receive
charges . . . does not include the right of one Agency to determine the
jurisdiction of the other agency over a charge." The agreement also
requires each agency to "inform individuals of their rights[,] . . . to
assist any person to draft a charge in a manner which will satisfy the
requirements of both agencies to the extent of their common jurisdic-
tion," and to "explain the rights, responsibilities of the parties under
the applicable federal or state statutes."

Poteat points to three instances where she claims that her lawyer
was misled by the SCHAC: (1) SCHAC official Smith told Poteat's
lawyer that the December 1992 letter would be forwarded to the
EEOC; (2) the January 25, 1993 letter from the SCHAC stating that
Poteat's "administrative remedies with [the SCHAC] had been
exhausted" was reasonably interpreted by Poteat's lawyer as satisfy-
ing the entitlement to a right-to-sue letter from the EEOC; and (3) the
SCHAC's failure to include the lack of notarization as a reason for
closing the file misled Poteat's lawyer into believing that verification
was unnecessary.4 We agree with the district court that these are
insufficient grounds for equitable relief.

III

There is no question but that the December 2, 1992 letter from
Poteat's lawyer to SCHAC did not satisfy the basic requirements of
42 U.S.C. § 2000e-5(b). Although the time limits are not jurisdic-
tional, we have stressed that "[e]quitable relief is reserved for only the
most deserving complainants." Polsby v. Chase , 970 F.2d 1360, 1363
(4th Cir. 1992), vacated on other grounds, 113 S. Ct. 1940 (1993).
_________________________________________________________________
4 The form letter from the SCHAC stated that the agency was "unable
to proceed with your complaint because of the reasons checked below."
This was followed by eleven separate reasons, e.g., "Your charge form
was not notarized," none of which were checked. Instead, the reason
given was typed at the bottom on the last line that was designated
"Other."

                    6
Moreover, the verification requirement is strictly enforced. See Balazs
v. Liebenthal, 32 F.3d 151, 156-57 (4th Cir. 1994) ("[T]he filing of
a sworn charge of discrimination with the EEOC is a mandatory pre-
requisite to the validity of the charge . . . .").5 Even if we assume, as
we must at this point, the truth of Poteat's version of the only relevant
disputed historical fact--that Poteat's lawyer was told by a state offi-
cial that the SCHAC would forward a copy of his December 1992 let-
ter to the EEOC--equitable tolling is unwarranted.

The alleged promise to forward the complaint is of little moment
because the situation would be unchanged had the letter actually been
forwarded. It was unverified, the untimely verified charge could not
relate back, and suit was filed before Poteat became entitled to a
right-to-sue letter. Poteat is left with her lawyer's misinterpretation of
the SCHAC's January 25, 1993 letter, but neither of the allegedly
misleading aspects of that letter carry the day for her. First, the
SCHAC's failure to note lack of notarization as an alternative reason
for closing the case in its January 25, 1993 form letter is scant support
for the contention that her lawyer was misled into believing that veri-
fication requirements were being waived by the EEOC. And the form
letter's statement that the administrative remedies"with this agency"
(i.e., the SCHAC) had been exhausted cannot be reasonably inter-
preted as notice that exhaustion of the process at the next rung--the
EEOC--had also been completed.6

At bottom, this case is about the tension between the need to main-
tain an orderly dispute-resolution process, and the desire to permit the
resolution on the merits of a possibly meritorious claim. There are no
_________________________________________________________________
5 In Balazs, we held that the regulations permit "charges to be verified
and to relate back only so long as the charge is a viable one in the
EEOC's files . . . ." 32 F.3d at 157. Once suit is filed, however, "there
is no longer a charge pending before the EEOC which is capable of being
amended." Id.
6 The SCHAC's enforcement powers are limited to enjoining unlawful
employment practices, reinstatement with back pay, and "any other equi-
table relief as the court deems appropriate." S.C. Code Ann. § 1-13-
90(d)(9) (Law. Co-op. 1986). Inasmuch as Poteat remained in her job
and the harassment by Walthall had ceased, the SCHAC apparently felt
that there was nothing further it could do.

                     7
doubt situations in which tolling might be warranted in cases involv-
ing bad advice from the governmental agency charged with enforcing
discrimination complaints. See Morrison v. United Parcel Service,
515 F. Supp. 1317 (W.D. Okla. 1981) (allowing tolling based in part
on the EEOC's actions that served to confuse complainant of her
rights), but see Chappell v. Emco Mach. Works Co., 601 F.2d 1295
(5th Cir. 1979) (equitable tolling not permitted where claimant relied
on state official's representations that a Title VII charge had been
filed with the EEOC). Poteat has not directed our attention to a case
in which equitable tolling was afforded a claimant represented by
counsel who was misled as to Title VII's filing requirements, on the
other hand, a number of courts have denied relief on the ground that
the claimant was represented. See Polsby, 970 F.2d at 1364 (the
employer "does not bear responsibility for the mistaken counsel of an
attorney with whom Polsby consulted."); Hamel v. Prudential Ins.
Co., 640 F. Supp. 103 (D. Mass. 1986) (counsel has ultimate respon-
sibility to monitor his client's claim).

Our denial of relief to Poteat does not signal a lack of concern
about the allegations that Poteat's counsel was misled. See Ford v.
Bernard Fineson Development Center, 81 F.3d 304, 312 (2d Cir.
1996) ("It is already difficult enough to understand the deadlines for
filing Title VII claims. Claimants who master the intricacies of these
deadlines have the right to expect that they will not be penalized by
a bureaucrat's non-compliance with the Worksharing Agreement.").
We are nonetheless mindful of the Supreme Court's statement that
"[p]rocedural requirements established by Congress for gaining
access to the federal courts are not to be disregarded by courts out of
a vague sympathy for particular litigants." Baldwin County Welcome
Ctr. v. Brown, 466 U.S. 147, 152 (1984).

IV

Poteat attempts to bring her February 1994 EEOC charge within
the statutory limits under an alternative argument. She points to the
allegations in that charge of retaliation in April and May of 1993, and
contends that the retaliation was merely part of a"continuing viola-
tion" that started in 1992 with Walthall's comments.7 For two inde-
_________________________________________________________________
7 The magistrate judge simply refused to consider the retaliation argu-
ment because Poteat had never attempted to amend her complaint to add
a retaliation claim.

                    8
pendent reasons, we reject this attempt to link her sexual harassment
claims with the alleged retaliation.

A

By her own admission, the hostile environment created by Wal-
thall's harassment ended in November, 1992, while the retaliation six
months later occurred in response to Poteat having lodged the com-
plaint with the SCHAC and the ensuing court action."[A] continuing
violation may be found where . . . specific and related instances of
discrimination are permitted by the employer to continue unremedied
for so long as to amount to a discriminatory policy or practice."
Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). An isolated
instance of discrimination does not amount to the type of "discrimina-
tory policy or practice" that is necessary for a finding of a continuing
violation. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708,
713 (2d Cir. 1996).

B

Poteat's retaliation claim, in addition to comprising an isolated
incident, is simply too weak. She complained in April, 1993, that the
"twist gun" she used on the assembly line was difficult to use, and in
May she complained that the gun was hurting her elbow. Her supervi-
sor told her that a replacement gun would be received in two weeks,
although a co-worker had received a replacement some time earlier.
She then "suddenly" received a replacement gun the same day she
reported the problem to the plant manager and after the company doc-
tor restricted her from using the old gun.

These allegations do not even amount to a colorable case of an
adverse employment action, much less a retaliation claim. Her co-
worker got the first available gun, and she was told she would have
to wait two weeks for hers. Her complaints higher up the chain of
command brought satisfactory results almost immediately. Were we
to allow this incident to serve as a link to a hostile environment claim,
the time limitations of Title VII would quickly become little more
than loose guidelines.

AFFIRMED

                     9
