                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 09-1447


ROSE URE MEZU,

                 Plaintiff - Appellant,

          v.

MORGAN STATE UNIVERSITY,

                 Defendant – Appellee,

          and

EARL RICHARDSON, Ph.D.; T. JOAN ROBINSON, Ph.D., Provost and
VP Academic; BURNEY J. HOLLIS, Ph.D., Dean, College of
Liberal Arts,

                 Defendants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:08-cv-01867-WDQ)


Submitted:   January 22, 2010                Decided:   February 19, 2010


Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


C. Valerie Ibe, LAW OFFICES OF C. VALERIE IBE, West Hills,
California, for Appellant. Douglas F. Gansler, Attorney General
of Maryland, Corlie McCormick, Jr., Carolyn W. Skolnik,
Assistant Attorneys General, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

           Dr.    Rose    Ure     Mezu,       an   African-American          woman     of

Nigerian origin and Igbo ethnicity, filed suit pursuant to Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§§ 2000e   to    2000e-17      (2006),    alleging         discrimination      on     the

basis of race and national origin for failure to promote and

retaliation for engaging in protected activities.                      The district

court dismissed Mezu’s failure to promote and retaliation claims

as untimely filed.       Finding no reversible error, we affirm.

           Mezu began her employment at Morgan State University

(“University”)      as    a     non-tenure         track     lecturer        with     the

University in January of 1993, and by 1998 she had achieved the

rank of associate professor with tenure.                      In 2002, after the

University      denied   Mezu     a     promotion      to     the   rank      of     full

professor, she filed a charge of discrimination with the Equal

Employment      Opportunity      Commission         (“EEOC”),       then      filed     a

complaint in federal court.              The district court dismissed the

complaint, and we affirmed.             See Mezu v. Dolan, 75 F. App’x 910

(4th Cir. 2003) (No. 03-1487).

           In    2004    and    2005,    Mezu      again    applied    for    and     was

denied promotion to full professor.                 In the spring of 2005, the

Dean,   Dr.     Bureny    J.     Hollis,       recommended      Mezu       engage      in

additional publishing.           With respect to her 2005 application,

the Departmental Promotion Committee recommended promoting Mezu

                                          3
to full professorship.            Dr. Dolan Hubbard, the Department Chair,

however, recommended against her promotion.

            The      University          President,    Dr.       Earl     Richardson,

notified     Mezu     by    letter       post-marked     April    6,     2006, 1     that

“[c]onsistent with the recommendation of the Provost and Vice

President for Academic Affairs, your request for promotion to

the rank of Professor, in the Department of English and Language

Arts is denied.”           The letter further informed Mezu of her right

to   appeal.        Despite    Mezu’s      argument    that    the     correspondence

pertained to her 2004 rather than 2005 promotion request and did

not represent an actionable decision, Mezu appealed the denial

within a few days.          In September 2006, Dr. T. Joan Robinson, the

Provost and Vice President for Academic Affairs, informed Mezu

that her prior adverse recommendation to the President remained

intact     and    explained       that    Mezu   could    appeal        the   negative

recommendation to the President.                 Defendants took no further

action on Mezu’s appeal.

            Believing       the    Defendants    had     not   complied       with   the

University’s published procedures on Appointment, Promotion, and

Tenure and were not going to complete the promotion process by

impaneling an appeals committee and rendering a final decision,


      1
       In what we take to be an obvious typographical error, the
letter was dated March 28, 2005, rather than March 28, 2006.



                                            4
Mezu filed her charge with the EEOC.                     Mezu filed the EEOC charge

on March 25, 2007, more than 300 days after Dr. Richardson, by

his   letter    post-marked       on    April      6,    2006,     informed    Mezu    the

University was denying her promotion.

           On    May    30,   2008,      the      EEOC    denied    Mezu’s     claim   and

issued a right to sue letter.                     Mezu filed a complaint in the

district   court       against    the        University,      Dr.    Richardson,       Dr.

Robinson, Dr. Hollis, and Dr. Hubbard.                        Mezu’s complaint, as

amended,    alleged      employment           discrimination        for      failure    to

promote based on race and national origin, in violation of Title

VII, and a violation of the Equal Pay Act, 29 U.S.C. § 206(d)

(2006),    based    on     race        and    national       origin,      as    well    as

retaliation for engaging in protected EEOC activities. 2

           The University and Dr. Hubbard filed a Fed. R. Civ. P.

12(b)(6) motion to dismiss for failure to state a claim upon

which relief could be granted. 3                  Mezu voluntarily dismissed her



      2
        Specifically, Mezu alleged Defendants retaliated in
response to her 2002 EEOC activities by rendering negative
recommendations, denying her promotion to full professor, and
failing to complete the promotion review process. Mezu further
claimed Defendants retaliated by failing to complete the
promotion review process and reassigning her classroom and
office after she complained to the human resources department in
2006 and filed her EEOC charge in 2007.
      3
       Although the remaining defendants did not answer or file
other responsive pleadings, the record does not reveal whether
these defendants were ever served.



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claims against Dr. Hubbard, as well as her Equal Pay Act claim.

Finding Dr. Richardson’s communication to Mezu of the promotion

denial on April 6, 2006, was the discrete act of discrimination

that commenced the statute of limitations, the district court

dismissed Mezu’s failure to promote claim as untimely, having

been filed more than 300 days thereafter.                       The district court

further dismissed Mezu’s claims of retaliation as untimely and

for failure to exhaust.

              We review de novo the district court’s rulings on a

motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).                            See

Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).

To survive a motion to dismiss under Rule 12(b)(6), “a complaint

must contain sufficient factual matter, accepted as true, to

‘state    a   claim     to    relief   that     is   plausible     on   its    face.’”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).                             This

plausibility standard requires a plaintiff to demonstrate more

than     “a     sheer    possibility        that     a     defendant     has    acted

unlawfully.”      Id.        It requires the plaintiff to articulate facts

that,    when    accepted      as   true,   “show”       that   the   plaintiff   has

stated a claim entitling her to relief, i.e., the “plausibility

of ‘entitlement to relief.’”                Francis v. Giacomelli, 588 F.3d

186, 193 (4th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949, and

Twombly, 550 U.S. at 557).

                                            6
            The    Civil    Rights      Act      of    1964,       42    U.S.C.       §   2000e-

5(e)(1), provides that a Title VII charge must be filed with the

EEOC   within     180   days     after       the      alleged       unlawful         employment

practice    occurred,      or    within       300      days     if      the     claimant        has

instituted proceedings with a state or local agency.                                      “[T]he

time for filing a charge of employment discrimination with the

. . . EEOC . . . begins when the discriminatory act occurs.”

Ledbetter   v.     Goodyear      Tire    &    Rubber        Co.,     550      U.S.    618,      621

(2007).          The    rule     applies         to     “any       ‘discrete          act’       of

discrimination,        including    discrimination             in       [the]    ‘failure        to

promote’ . . . .”          Id.     (quoting Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 114 (2002)).

            An    “unlawful      employment           practice”          under       42   U.S.C.

§ 2000(e)-5(e) refers to a discrete discriminatory act or single

occurrence even when related to other acts.                          Morgan, 536 U.S. at

111.    “Discrete acts such as . . . failure to promote . . . are

not actionable if time barred, even when they are related to

acts alleged in timely filed charges.”                        Id. at 114.             The time

the    initial     employment      decision           was     made       and    communicated

triggered the commencement of the limitations period despite the

pendency    of    the    internal       appeal        and     the       possibility        of    a

reversal of the initial decision.                      Del. State Coll. v. Ricks,

449 U.S. 250, 261-62 (1980); Watson v. Eastman Kodak Co., 235

F.3d 851, 856 (3d Cir. 2000).

                                             7
            Because       Mezu   instituted          proceedings       with    a   state

agency, the 300-day statute of limitations applies.                            We agree

with the district court that Dr. Richardson’s letter post-marked

on April 6, 2006, denying Mezu’s promotion to full professor,

constituted the discrete act of failure to promote triggering

the commencement of the limitation period despite the pendency

of her internal appeal with the University.                         We further agree

that the Provost and Vice President Academic’s reaffirmation of

her prior adverse recommendation to the President, as well as

Defendants’      alleged      failure      to    complete     the    internal      appeal

process, did        not   constitute       independently       discriminatory          acts

commencing the limitation period anew.                 Morgan, 536 U.S. at 113.

            Furthermore, as in Mezu’s prior appeal, the doctrines

of   equitable      tolling    and    equitable       estoppel       are    inapplicable

because Defendants’ actions cannot be construed to have misled

Mezu into missing the filing deadlines.                      Mezu v. Dolan, 75 F.

App’x 910 (4th Cir. 2003) (No. 03-1487); see also English v.

Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987).                                 The

pendency of the internal appeal does not toll the running of the

limitations period.           Ricks, 449 U.S. at 261-62 (finding time

initial   tenure      decision       was    made     and    communicated       triggered

commencement of limitation period despite pendency of grievance

procedure     and    rejecting       date       of   notification      of     denial    of

grievance   as      trigger);    Int’l       Union     of    Elec.    Workers,     Local

                                            8
790 v.     Robbins      &    Myers,     Inc.,     429     U.S.          229,    230-31        (1976)

(noting the existence and utilization of grievance procedures

does not toll the running of the limitations period that would

otherwise begin on the date the allegedly discriminatory act

took   place).         Therefore,       the    district           court    did       not     err   in

dismissing Mezu’s failure to promote claim as untimely.

               We     further    conclude         the    district          court           correctly

determined that Mezu’s retaliation claims do not satisfy the

narrow        exemption         from        timeliness             and         exhaustion          of

administrative remedies.               “Before filing suit under Title VII, a

plaintiff must exhaust her administrative remedies by bringing a

charge with the EEOC.”                 Smith v. First Union Nat’l Bank, 202

F.3d 234, 247 (4th Cir. 2000) (citing King v. Seaboard Coast

Line R.R., 538 F.2d 581, 583 (4th Cir. 1976)).                             However, a Title

VII plaintiff may raise a retaliation claim for the first time

in federal court without exhausting her administrative remedies

if   the      discrimination      complained        of       is    “like       or     related      to

allegations         contained    in    the    charge      and       growing          out    of   such

allegations         during      the    pendency         of        the     case       before        the

Commission.”          Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992)

(citations and internal quotations omitted).

               We find Mezu had no claims properly before the court

to which she could attach her retaliation claims.                                      Therefore,

Mezu     is     not     relieved       of     the       timeliness             and     exhaustion

                                              9
requirements.   See Franceschi v. United States Dep’t of Vet.

Affairs, 514 F.3d 81, 87 (1st Cir. 2008); Hargett v. Valley Fed.

Sav. Bank, 60 F.3d 754, 762 (11th Cir. 1995); Barrow v. New

Orleans S.S. Ass’n, 932 F.2d 473, 479 (5th Cir. 1991).       The

district court thus did not err in dismissing Mezu’s retaliation

claims.

          Accordingly, we affirm the district court’s judgment

dismissing Mezu’s complaint.   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




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