UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, Virginia; 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Unpublished opinions are not binding precedent in this circuit.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 distribution 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 restrictions. However, she claimed that the Postal Service did not fully comply 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 official that the work restrictions were not being followed.

However, it was not until June 1996 that Arellano initiated a contact 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 restrictions.

In granting the Postal Service's summary judgment motion, the district 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 counselor was timely because the failure to comply with the work restrictions 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 contends that she did not need to exhaust administrative remedies regarding 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 decision 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 applicable 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 continuing 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 during the limitations period." Dasgupta v. University of Wisconsin Bd.

of Regents, 121 F.3d 1138, 1139 (7th Cir. 1997). In spite of the fact

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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 reasonably prudent person).

Arellano's reliance on pay disparity cases to support her continuing

violation argument is misguided. See Brinkley-Obu v. Hughes Training, 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 fruition. 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 fortyfive days of the filing of the EEO complaint. During that period, Arellano 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 timebarred discrimination does not constitute Title VII violation). Accordingly, 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 filing 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 original 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 presented in the materials before the court and argument would not aid

the decisional process.

AFFIRMED

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