                              PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 13-2037


PATRICIA HENTOSH,

                Plaintiff - Appellant,

           v.

OLD DOMINION UNIVERSITY,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge. (2:12-cv-00222-RGD-LRL)


Argued:   May 13, 2014                    Decided:   September 24, 2014


Before DUNCAN and WYNN, Circuit Judges, and J. Michelle CHILDS,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by published opinion. Judge Childs wrote the opinion,
in which Judge Duncan and Judge Wynn joined.


ARGUED: Raymond Lee Hogge, Jr., HOGGE LAW, Norfolk, Virginia,
for Appellant.    George William Norris, Jr., OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
ON BRIEF: Kenneth Michael Golski, HOGGE LAW, Norfolk, Virginia,
for Appellant.   Kenneth T. Cuccinelli, II, Attorney General,
Wesley G. Russell, Jr., Deputy Attorney General, Peter R.
Messitt, Senior Assistant Attorney General, Ronald N. Regnery,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
CHILDS, District Judge:

       Patricia Hentosh (“Hentosh”) appeals a district court order

that     granted    summary       judgment         to       her        former   employer,             Old

Dominion     University          (“ODU”),         on        a     claim       for        retaliation

regarding the denial of her application for tenure.                                             Hentosh

argues     that    the     district      court          erred          in    granting          summary

judgment because it lacked subject matter jurisdiction over a

retaliation claim that grew out of and was reasonably related to

an untimely filed charge of discrimination.                                   For the reasons

that follow, we affirm.

                                              I.

       ODU is a public university located in Norfolk, Virginia.

Hentosh,     a     white     female,      was           a       professor           at    ODU        from

approximately      January       2006    to       June          2013    in    ODU’s       School       of

Medical     Laboratory       and    Radiation               Sciences,         one        of     several

schools/departments          within      the       College             of    Health           Sciences.

Hentosh’s    claims        are    tied   to        her          belief       that    ODU       has    an

unwritten but widespread policy or practice of discriminating

against whites and in favor of minorities, and that said policy

caused ODU to, among other things, ignore Hentosh’s complaints

about Anna Jeng, an Asian professor in ODU’s School of Community

and Environmental Health, a division of the College of Health

Sciences.



                                              2
        On   or   about    May   26,     2010,      Hentosh      filed       a    charge   of

discrimination        with       the     United        States        Equal        Employment

Opportunity         Commission         (“EEOC”)        alleging       that         ODU     had

discriminated against her on the basis of race and retaliated

against her for filing a complaint against Jeng.                         To support her

charge, Hentosh primarily alleged discrete employment acts by

ODU that had occurred more than three hundred (300) days prior

to the filing of the charge.                     On January 26, 2012, the EEOC

dismissed Hentosh’s charge and issued her a right to sue letter.

While    the      EEOC’s    investigation         of    her    charge     was       ongoing,

Hentosh became eligible for tenure in the fall of 2011, but ODU

denied her application for tenure.

     On April 24, 2012, Hentosh filed suit against ODU alleging

discrimination       on     account     of    her      race    and    retaliation          for

engaging in protected activities, all in violation of Title VII

of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§

2000e-2000e-17.        As part of her claims, Hentosh alleged that she

was denied tenure as a direct result of both the discrimination

and the retaliation.

     ODU     moved    the    district        court     to     dismiss    the       complaint

pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).                               In granting

in part ODU’s motion to dismiss, the district court found that

it did not have subject matter jurisdiction over ODU’s acts of

adverse conduct raised in the charge of discrimination because

                                             3
Hentosh    failed   to     timely     complain            to     the   EEOC   within    three

hundred    (300)    days     of    the     conduct            and   thus    had    failed     to

properly    exhaust    her    administrative                  remedies. 1     The     district

court     further   found     that        it       did     not      have    subject    matter

jurisdiction    over     Hentosh’s        claim          of    discrimination       regarding

the denial of tenure because the claim was neither within the

scope of the charge nor reasonably related to the charge to be

considered exhausted.             However, the district court denied ODU’s

motion to dismiss the retaliation claim regarding its rejection

of Hentosh’s application for tenure, finding that she could sue

on the retaliation claim “without having to file a new EEOC

Charge.”     (J.A. 53 (citing Nealon v. Stone, 958 F.2d 584, 590

(4th Cir. 1992) (“[A] plaintiff may raise the retaliation claim

for the first time in federal court.”)).)                              Subsequently, the

district    court   granted        ODU’s       motion         for   summary       judgment    on

Hentosh’s    retaliation          claim    regarding             the   rejection      of     her

application for tenure, finding that she failed to establish

that ODU’s desire to retaliate was the but-for cause of its

     1
       Approximately three (3) weeks after the district court
issued its order on ODU’s motion to dismiss, Hentosh filed a
second charge of discrimination on August 23, 2012.       In the
second charge, Hentosh alleged that she suffered discrimination
on the basis of her race and retaliation when ODU denied her
tenure and issued her a terminal teaching contract.         After
receiving the right to sue from the EEOC, Hentosh filed a second
action against ODU on May 21, 2013, asserting claims for
discrimination and retaliation regarding the denial of tenure.



                                               4
adverse    employment    acts.       After   the   district     court   entered

judgment for ODU, Hentosh timely filed a notice of appeal.

                                      II.

        On appeal, Hentosh argues that the district court committed

reversible error by failing to dismiss her tenure retaliation

claim with her other claims.           In this regard, she argues that

the district court did not have subject matter jurisdiction over

the tenure retaliation claim after it (1) dismissed the claims

brought pursuant to untimely discriminatory conduct set forth in

the     EEOC   charge    and   (2)    dismissed    the    claims    based   on

discriminatory conduct occurring subsequent to the EEOC charge

because it was unrelated to the EEOC charge and not exhausted. 2

Based     on   the   foregoing,   Hentosh    asserts     that   this    Court’s

unpublished opinion in Mezu v. Morgan State Univ., 367 F. App’x

385 (4th Cir. 2010), requires the Court to vacate the district

court’s judgment on the tenure retaliation claim and remand the

case to the district court to dismiss the claim for lack of

subject matter jurisdiction. 3        We disagree.


      2
       Hentosh does not suggest that the district court erred in
finding that the tenure retaliation claim was like, related to,
or grew out of the EEOC Charge.
      3
       In Mezu, the Court affirmed the district court’s dismissal
of Mezu’s failure to promote and retaliation claims as untimely
filed, finding that “Mezu had no claims properly before the
court to which she could attach her retaliation claims . . .
[and she] is not relieved of the timeliness and exhaustion
(Continued)
                                       5
      A brief discussion of the scope of our jurisdiction over

Title    VII   claims     clarifies       why    the   district      court    retained

jurisdiction over Hentosh’s retaliation claim after dismissing

her   underlying     discrimination         claims     as   untimely.        Prior    to

pursuing a Title VII claim in federal court, a plaintiff must

exhaust    her     administrative         remedies     by   filing     a    charge    of

discrimination with the EEOC.               Jones v. Calvert Grp., Ltd., 551

F.3d 297, 300 (4th Cir. 2009)               “[A] failure by the plaintiff to

exhaust    administrative      remedies         concerning     a    Title    VII    claim

deprives the federal courts of subject matter jurisdiction over

the     claim.”          Id.        The     allegations        contained       in    the

administrative       charge    of    discrimination         generally       limit    the

scope of any subsequent judicial complaint.                        King v. Seaboard

Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976) (stating that

a subsequent civil suit “may encompass only the ‘discrimination

stated in the [EEOC] charge itself or developed in the course of

a reasonable investigation of that charge’”) (quoting EEOC v.

Gen. Elec., 532 F.2d 359, 365 (4th Cir. 1976)); see also Smith

v. First Union Nat’l Bank, 202 F.3d 234, 247 (4th Cir. 2000) (“A

plaintiff's       EEOC   charge     defines     the    scope   of    her    subsequent

right to institute a civil suit.”).



requirements.”   Mezu v. Morgan State Univ., 367 F. App’x 385,
389 (4th Cir. 2010).



                                            6
       Significantly here, in Nealon v. Stone, 958 F.2d 584 (4th

Cir. 1992), we held that a plaintiff may raise for the first

time in federal court the claim that her employer retaliated

against her for filing with the EEOC in violation of Title VII.

Id. at 590.           This exception is “the inevitable corollary of our

generally          accepted      principle”       that     we     have         jurisdiction         over

those    claims       “reasonably         related         to”    the      allegations          in   the

administrative charge.                   Id.     Practically, it also responds to

the fact that if a plaintiff faced retaliation for filing an

initial       EEOC    claim,       she    would      “‘naturally           be     gun    shy    about

inviting       further           retaliation         by     filing          a     second       charge

complaining          about       the     first       retaliation.’”                Id.     (quoting

Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (8th Cir. 1989)).

       The plaintiff’s filing with the EEOC must also be timely.

See     42    U.S.C.        §    2000e-5(e)(1);           EEOC       v.     Commercial         Office

Products Co., 486 U.S. 107, 110 (1988).                              If an individual fails

to    file     an    administrative            charge      with      the        EEOC    within      one

hundred eighty (180) days after an alleged discriminatory act

occurs       (or    three       hundred    (300)      days      if    the       aggrieved      person

presented the claim to a state deferral agency), then the EEOC

charge is not considered timely filed.                            See 42 U.S.C. § 2000e-

5(e)(1); EEOC v. Commercial Office Products Co., 486 U.S. 107,

110 (1988).          The failure to timely file an EEOC charge, however,

does     not        deprive       the     district         court          of     subject       matter

                                                 7
jurisdiction.       See Zipes v. Trans World Airlines, Inc., 455 U.S.

385, 393 (1982).          The court retains discretion, therefore, to

equitably toll the statutory deadline.                   Id.; see also Olson v.

Mobil Oil Corp., 904 F.2d 198, 201 (4th Cir. 1990).

       It is undisputed here that Hentosh met the jurisdictional

requirement of exhaustion of administrative remedies as to her

Title VII discrimination claims.                  Under Nealon, therefore, it

follows      that   the   district   court        had    jurisdiction        over     her

related Title VII retaliation claim.                    Hentosh argues, however,

that her failure to timely file with the EEOC means that her

discrimination       claims   were   never        properly   before       the    court.

Therefore, she contends, the district court lacked jurisdiction

over her related retaliation claims.                     Hentosh relies heavily

upon   our    unpublished     decision       in    Mezu,   which     she     reads     as

holding    retaliation      claims   cannot       “relate    to”     discriminatory

conduct alleged in an untimely EEOC charge.

       Even assuming her reading is correct, however, Mezu as an

unpublished decision is neither controlling nor persuasive here

as it conflicts with our published precedent in Nealon.                               See

Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334,

338-39 (4th Cir. 2009) (recognizing that ordinarily, unpublished

opinions     are    not   accorded   precedential          value    but    that      such

decisions “are entitled only to the weight they generate by the

persuasiveness      of    their   reasoning”)       (quoting       Collins      v.   Pond

                                         8
Creek     Mining      Co.,   468    F.3d    213,       219      (4th    Cir.       2006)).     In

Nealon, the plaintiff, an employee of the United States Army,

exhausted her administrative remedies by first filing her Title

VII gender discrimination claim with the EEOC prior to filing in

federal court.          Id. at 587.        She failed, however, to inform her

supervisor         within     thirty       days        of       the         alleged    act    of

discrimination, thereby missing a regulatory, non-jurisdictional

deadline.         Id.    We affirmed the district court’s dismissal of

her Title VII claim as untimely, but held that the district

court retained jurisdiction over her related retaliation claim.

Id.       The    critical    fact    was    that       the      plaintiff’s         retaliation

claim     was    like   or   related       to       acts   of    discriminatory         conduct

which,     although      untimely,     were          exhausted         in    the    prior    EEOC

charge.         Id.     Similarly here, because the district court had

subject     matter       jurisdiction           over       Hentosh’s         administratively

exhausted        but    untimely      filed           non-retaliation              claims,    the

district        court   properly     exercised         subject         matter      jurisdiction

over Hentosh’s related tenure retaliation claim.                                   Nealon, 958

F.2d at 590. 4


      4
       The Court notes that in Nealon, the plaintiff, in addition
to her untimely, exhausted discrimination claim, also had a
timely filed Equal Pay Act (EPA) claim pending before the
district court.    Nealon, 958 F.2d at 590.    The Nealon Court,
however, did not suggest that the presence of the timely filed
EPA claim affected its decision. See id.



                                                9
                           III.

    For the foregoing reasons, the judgment of the district

court is

                                                  AFFIRMED.




                            10
