UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANTHONY CRAIG WALKER,
Plaintiff-Appellant,

v.

NOVO NORDISK PHARMACEUTICAL
                                                                         No. 99-2015
INDUSTRIES, INCORPORATED,
Defendant-Appellee,

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-98-302-5-BO)

Argued: June 6, 2000

Decided: July 24, 2000

Before LUTTIG, TRAXLER, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Craig James, LAW OFFICE OF CRAIG JAMES, Smith-
field, North Carolina, for Appellant. Jennifer Susan Goldstein, Office
of General Counsel, EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Amicus Curiae. William
Charles Livingston, KENNEDY, COVINGTON, LOBDELL &
HICKMAN, L.L.P., Charlotte, North Carolina, for Appellee. ON
BRIEF: C. Gregory Stewart, General Counsel, Philip B. Sklover,
Associate General Counsel, Lorraine C. Davis, Assistant General
Counsel, Office of General Counsel, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus
Curiae. Christopher L. Ekman, KENNEDY, COVINGTON, LOB-
DELL & HICKMAN, L.L.P., Charlotte, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Anthony Craig Walker ("Walker") appeals from a grant of sum-
mary judgment in favor of Novo Nordisk Pharmaceutical, Inc. ("Novo
Nordisk") on his Title VII religious accommodation claim. We affirm.

I.

Appellee Novo Nordisk is one of only two suppliers of insulin in
the United States and operates an insulin manufacturing facility in
Clayton, North Carolina. Appellant Walker was employed by Novo
Nordisk from April 1995 to April 1997.

Walker's first position with Novo Nordisk was that of a filling
operator, part of a seven-member team of employees responsible for
operating and maintaining machines that fill insulin into vials and car-
tridges to be used by persons suffering with insulin-dependent diabe-
tes. At some point, Walker and four other members of his shift
informed the company that they preferred not to work on Sundays for
religious reasons. However, on Sunday, November 24, 1996, Walker
and the others were required to work because the"fill" for a batch of
insulin which had been manufactured could not be completed on Sat-

                    2
urday. Because a batch of insulin, once formulated, must be discarded
if not filled within five days, Novo Nordisk could not stop its fill and
begin again on Monday. And, both shifts at Novo Nordisk were nec-
essary to complete the fill, a situation that had never previously
existed. As a result, Walker was unable to swap shifts to avoid work-
ing. He worked, but informed the company that he was doing so
"under protest."

As a drug manufacturer, Novo Nordisk is subject to regulation by
the federal Food & Drug Administration ("FDA"), including the FDA
requirement that it maintain a quality assurance program that will pre-
vent bacterial contamination of the insulin product. On December 12,
1996, Walker was transferred, at his request, to Novo Nordisk's Qual-
ity Assurance Department as an environmental technician. While in
this position, Walker was asked to work two additional Sundays, Feb-
ruary 23 and March 9, 1997. Walker testified that he worked, without
complaint, because he was one of only two people trained to perform
environmental technician duties in the aseptic area of the facility, and
he did not want the burden of all of the Sunday work to fall on his
co-employee.

In his position as an environmental technician, Walker was respon-
sible for monitoring certain aspects of the manufacturing process for
microbiological growth. Specifically, Walker's position required him
to test various areas of the plant using Rodac plates, wait for a period
of possible growth, and then record his findings. On several occa-
sions, however, Walker erroneously recorded an "O" for no microbio-
logical growth when in fact such growth existed. Believing that
Walker was falsifying his documentation, Novo Nordisk terminated
him on April 11, 1997.

On April 15, 1997, Walker and four other employees filed a com-
plaint with the Office of Federal Contract Compliance Programs
("OFCCP"). Although Walker admitted the documentation errors, he
blamed them on inadequate training and alleged that he had been dis-
criminated against based upon his race, sex, and religion. The OFCCP
issued the results of its investigation on August 20, 1997:

           Our investigation found that the contractor violated its
          obligations under the affirmative action provisions of its

                    3
          Federal contract by: not placing the burden on the employer
          to provide an accommodation policy for individuals with
          religious accommodation requests. . . .

           The investigation did not find that the contractor violated
          the nondiscrimination provisions of its contracts in the ter-
          mination of Charntetzky and Walker. Both employees
          admitted that they falsified data. The severity of their mis-
          conduct, according to company policy could result in termi-
          nation at the discretion of management. The company chose
          to terminate them, along with two other individuals whose
          records showed similar infractions. They had not identified
          themselves as christians.

J.A. 27 (emphasis omitted).

On October 1, 1997, Walker filed a charge of discrimination with
the EEOC alleging that he was denied religious accommodation and
discriminated against because of his religious beliefs and race. The
EEOC issued a right-to-sue letter on January 13, 1998. Then, on April
13, 1998, Walker filed a lawsuit in the district court alleging that his
employer discriminated against him on the basis of his religious
beliefs, in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C.A. §§ 2000e to 2000e-17 (West 1994 & Supp. 2000). Specifi-
cally, Walker alleged that Novo Nordisk failed to accommodate his
religious beliefs by requiring him to work on Sundays and terminated
him because of his religious beliefs and his request for religious
accommodation.

Novo Nordisk moved for summary judgment, which the district
court granted. With regard to Walker's claims that Novo Nordisk
failed to accommodate his religious practices by requiring him to
work on three Sundays, the district court determined that the claim
was barred by Walker's failure to file a timely charge of discrimina-
tion with the EEOC. With regard to Walker's claim that he was termi-
nated for his religious beliefs, the district court concluded that Walker
failed to establish a prima facie case because Walker was not per-
forming his job in a satisfactory manner and that, in any event, he had
failed to show that Novo Nordisk's reasons for discharging him were
pretextual.

                     4
II.

A.

Under the Civil Rights Act, an employer may not discriminate
against an employee on the basis of religious preferences. See 42
U.S.C.A. § 2000e-2. Religious discrimination claims may be brought
under two theories: (1) "disparate treatment" claims and (2) "failure
to accommodate" claims. See Chalmers v. Tulon Co., 101 F.3d 1012,
1017 (4th Cir. 1996).

"To prove a claim under the disparate treatment theory, an
employee must demonstrate that the employer treated[him] differ-
ently than other employees because of [his] religious beliefs." Id.
(emphasis omitted). If the employee cannot show that he was treated
differently because of his religious beliefs or cannot rebut an employ-
er's legitimate, non-discriminatory reason for his discharge, he may
still be able to establish a religious accommodation claim based upon
Title VII's requirement that an employer reasonably accommodate
religious observances or practices, unless such accommodation will
impose undue hardship on the employer's business. See 42 U.S.C.A.
§§ 2000e-2(a), 2000e(j).

In the instant case, Walker does not appeal the district court's grant
of summary judgment to Novo Nordisk on his disparate treatment
claim. Rather, the sole issue on appeal is whether the district court
erred in granting summary judgment to Novo Nordisk on Walker's
religious accommodation claim. We conclude that it did not.

B.

In order to state a claim for a violation of Title VII, the plaintiff
must file an EEOC charge within 180 days after the alleged unlawful
employment action occurs. See 42 U.S.C.A.§ 2000e-5(e)(1); Beall v.
Abbott Lab., 130 F.3d 614, 620 (4th Cir. 1997). The failure to file a
timely complaint with the EEOC bars the claim in federal court. See
McCullough v. Branch Banking & Trust Co., 35 F.3d 127, 131 (4th
Cir. 1994) ("When the plaintiff fails to file such a complaint in a
timely fashion with the EEOC, the claim is time-barred in federal

                     5
court. This filing requirement acts as a 180-day statute of limitations.
. . ." (internal citation omitted)). However,"filing 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 limita-
tions, is subject to waiver, estoppel, and equitable tolling." Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (footnote omit-
ted).

In the instant case, Walker claims that Novo Nordisk failed to
accommodate his request that he not be required to work on Sundays
based upon the fact that he worked a total of three Sundays during his
employment -- November 24, 1996, February 23, 1997, and March 9,
1997. And, while he acknowledges that none of these events took
place within 180 days of his filing a complaint with the EEOC, he
asserts that his EEOC claim was timely because they all took place
within 180 days of his filing his complaint with the OFCCP. Relying
upon a Memorandum of Understanding ("MOU") between the
OFCCP and the EEOC concerning the filing of complaints, and upon
our prior decision in Reynolds Metals Co. v. Rumsfeld, 564 F.2d 663
(4th Cir. 1977), Walker asserts that by filing a complaint with the
OFCCP, he tolled the time period for filing with the EEOC. We dis-
agree.

In rejecting Walker's contention that his EEOC claim was timely,
we look to the plain language of Title VII and the MOU in effect at
the time Walker filed his complaint with the OFCCP. Title VII
requires that a charge be filed with the EEOC, see 42 U.S.C.A.
§ 2000e-5(e), which in turn triggers the investigatory and remedial
process called for by the Act, see 42 U.S.C.A § 2000e-5(a)-(d). The
Act does not, however, contemplate that filing a complaint with
another agency can or should be deemed a filing with the EEOC for
purposes of § 2000e-5(e). See e.g., Mohasco Corp. v. Silver, 447 U.S.
807, 826 (1980) (recognizing that "strict adherence to the procedural
requirements specified by the legislature [in§ 2000e-5(e)] is the best
guarantee of evenhanded administration of the law").

Turning to the language of the MOU between the OFCCP and the
EEOC in effect at the time Walker filed his complaint with the
OFCCP, we also find nothing that would indicate that the MOU
intends to affect the time limits for filing with the EEOC. Rather, the
MOU provides only that:

                     6
          [c]omplaints filed with OFCCP within the jurisdiction of
          EEOC which OFCCP refers to EEOC shall be deemed
          charges filed jointly with EEOC. OFCCP shall promptly
          transmit all such charges to the appropriate EEOC Field
          Office.

46 Fed. Reg. 7435, 7438 (1981) (emphasis added). The MOU does
not dictate that a complaint filed with the OFCCP is tantamount to fil-
ing with the EEOC, or that such complaints must be automatically
forwarded or referred to the EEOC to initiate the EEOC's investiga-
tory process. Rather, by its explicit terms, the MOU provides only
that a charge of discrimination filed with the OFCCP shall be deemed
a charge filed jointly with the EEOC if the OFCCP actually refers the
complaint to the EEOC. See NAACP Labor Committee v. Laborers'
Int'l Union, 902 F. Supp. 688, 703-04 (W.D. Va. 1993), aff'd Balti-
more v. Laborers' Int'l Union, No. 93-1810, 1995 WL 578084 (4th
Cir. Oct. 2, 1995) (holding that a Title VII charge filed with the
OFCCP was "filed" for purposes of 42 U.S.C.A.§ 2000e-5(e) "when
the EEOC actually receive[d] the charge" from the OFCCP, and not
when the OFCCP received the charge); but see Egelston v. State Univ.
College, 535 F.2d 752, 755 n.4 (2d Cir. 1976) (noting that the court
would "consider the filing with the OFCC as constituting a filing with
the EEOC").

Additionally, we note that because the OFCCP never referred
Walker's complaint to the EEOC, the plain language of the MOU
would in any event have no application to Walker's charges in this
case. And, in fact, the EEOC did not treat the OFCCP complaint as
an EEOC charge. Rather, Walker was required to complete a new
charge form and the EEOC did not backdate the charge to the date of
the OFCCP complaint.

Nor are we persuaded that our decision in Rumsfeld requires a dif-
ferent result. In Rumsfeld, this court upheld paragraph 10 of the 1974
version of the MOU between the OFCCP and the EEOC which pro-
vided that:

          [c]omplaints filed with OFCC [the compliance office] shall
          be deemed charges filed with EEOC and OFCC shall
          promptly transmit such charges to the appropriate EEOC
          District Office.

                    7
Rumsfeld, 564 F.2d at 667 (alteration in original) (internal quotation
marks omitted). Rejecting a challenge that paragraph 10 amounted to
an improper delegation of the OFCCP's responsibility for processing
complaints and was promulgated in violation of the Administrative
Procedures Act, we held that "the paragraph simply provides that the

compliance office will act as an agent for the commission by receiv-
ing and transmitting misdirected complaints." Id. But we expressly
noted that the issue of "the effect of filing a charge with the [OFCCP]
on the period of limitations set forth in Title VII" had not been raised.
Id. at 670 n.12.

Having now been presented with that precise question, we con-
clude that filing a complaint with the OFCCP does not, by virtue of
the 1981 MOU between the OFCCP and the EEOC, operate to toll the
180-day time period required by 42 U.S.C.A. § 2000e-5(e).*

III.

For the foregoing reasons, we affirm the district court's decision
granting summary judgment to Novo Nordisk on Walker's Title VII
claims.

AFFIRMED
_________________________________________________________________

*We note that an amended MOU was entered between the two agen-
cies in 1999, see 64 Fed. Reg. 17,664, 17,666 (1999), which states that:

          Complaints of employment discrimination filed with OFCCP
          under Executive Order 11246 will be considered charges simul-
          taneously filed under Title VII whenever the complaints also fall
          within the jurisdiction of Title VII. For the purpose of determin-
          ing the timeliness of such a charge . . ., the date the matter was
          received by OFCCP shall be deemed to be the date it was
          received by EEOC.

Id. We express no opinion on whether, under this MOU, Walker's com-
plaint would be considered timely under 42 U.S.C.A.§ 2000e-5(e).

                     8
