UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MAXIME GEDEON,

Plaintiff-Appellant,

v.

No. 97-2566

HOST MARRIOTT CORPORATION;

MARRIOTT DISTRIBUTION SERVICES,

INCORPORATED,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(CA-97-2048-AW)

Submitted: June 23, 1998

Decided: July 23, 1998

Before WILKINS, HAMILTON, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Randall L. Johnson, JOHNSON & ASSOCIATES, Arlington, Virginia, for Appellant. Todd J. Horn, VENABLE, BAETJER & HOWARD, L.L.P., Baltimore, Maryland; Nancy C. Lee, MARRIOTT

INTERNATIONAL, INC., Washington, D.C., for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Maxime Gedeon appeals from the district court order

granting the Defendant's motion for summary judgment and dismissing Gedeon's employment discrimination action. Gedeon, a Haitian

native, instituted an action against his former employer, Host Marriott

Corporation (Marriott), alleging unlawful discrimination in terminating his employment under 42 U.S.C.A. § 2000e to 2000e-17 (West

1994 & Supp. 1998). Gedeon alleges that Marriott fired him because

of his race and national origin.

Gedeon worked for Marriott beginning in the summer of 1986 as

"buy out" labor. In early 1987, Marriott employed him as a janitor in

a distribution center. In October 1987 Gedeon retained an attorney to

assist him in his application for political asylum in the United States.

His attorney contacted Marriott and indicated that Gedeon was a

political refugee and would be seeking political asylum in the United

States. At approximately the same time, Gedeon discussed the possibility of receiving a labor certification from Marriott which would

serve as Marriott's sponsorship of Gedeon for legal permanent residence in the United States. The labor certification was not prepared

or acted upon at that time.

Approximately three weeks later, Gedeon signed an Employment

Eligibility Verification Form (Form I-9), which falsely identified him

as a citizen or national of the United States. Gedeon alleges that a

manager at Marriott prepared the form for him and supplied the information and he signed it at a time when he understood little English.

Gedeon continued to work in the distribution center for eight years.

He was an adequate employee, was given a variety of responsibilities,

and was never disciplined. At the end of 1995 Gedeon and Marriott

again discussed the possibility of Marriott sponsoring him for his

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legal permanent residence. Gedeon again retained an attorney to complete the necessary paperwork. Gedeon gave the Application for Alien

Employment Certification to Kenn Floren, the general manager at

Marriott, to sign. The application stated Gedeon's position as "Manager, Warehouse." It listed the wage earned as that of the warehouse

manager position. Gedeon's position at the time was a janitor in the

warehouse, with a lower wage than what he reported for the manager

position.

Floren told Gedeon that changes needed to be made on the application before it could be signed. The form was not signed. On February

7, 1996, Floren called Gedeon in to participate in a conference call

with Gloria Evans, a member of Marriott's legal staff. Evans told

Gedeon that Marriott would not sponsor him and that because Haiti

had a new president it would be better for him to return to Haiti

because "[y]our country is good now." Evans then instructed

Gedeon's supervisor to terminate Gedeon immediately, which he did.

Marriott contends that it terminated Gedeon for falsification of the

Form I-9 and misrepresentation of his position and salary on the labor

certification application.

Gedeon filed a charge of employment discrimination based upon

national origin with the Equal Employment Opportunity Commission

(EEOC). The EEOC found insufficient evidence of a statutory violation, and closed its investigation. Gedeon then filed suit in the district

court alleging discrimination in the termination of employment on

account of race and national origin, and wrongful termination in violation of public policy.

Marriott filed a motion to dismiss or in the alternative for summary

judgment. The district court found that Gedeon could not proceed on

his claim of race discrimination because it was not presented to the

EEOC. The court further found that Gedeon did not establish a prima

facie case of national origin discrimination. Accordingly, the court

dismissed his action. Gedeon timely appealed.

The district court properly dismissed the race discrimination claim.

Gedeon's EEOC charge only alleges that Marriott discharged him

because of his nationality. The rest of the charge is also limited to

nationality discrimination. Gedeon never discussed race discrimina-

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tion in his EEOC charge. Gedeon also concedes that he did not raise

this claim.

This court has held that:

[t]he allegations contained in the administrative charge of

discrimination generally operate to limit the scope of any

subsequent judicial complaint. Only those discrimination

claims stated in the initial charge, those reasonably related

to the original complaint, and those developed by reasonable

investigation of the original complaint may be maintained in

a subsequent Title VII lawsuit.

Evans v. Technologies Applications & Serv. Co. , 80 F.3d 954, 962-63

(4th Cir. 1996) (citation omitted). Gedeon now claims that the racial

discrimination is related to, or grows out of, the allegations of discrimination on the basis of nationality because all Haitians are black.

However, he could have requested an investigation of racial discrimination when filing with the EEOC. Gedeon admits that they are two

different forms of discrimination. Gedeon's racial discrimination

claim is not sufficiently similar to a nationality discrimination claim

to merit considering the claims to be related. Cf. Nealon v. Stone, 958

F.2d 584, 590 (4th Cir. 1992). Accordingly, we affirm the district

court's dismissal of the racial discrimination claim.

To establish a prima facie case of discriminatory discharge under

Title VII, Gedeon must establish that he is a member of a protected

class, he was qualified for the job he held and performed it satisfactorily, in spite of his qualifications and performance Marriott discharged

him, and that the circumstances of the discharge raise the inference

of discrimination. See Carter v. Ball, 33 F.3d 450, 458-59 (4th Cir.

1994).1

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1 Gedeon may not meet the second requirement, that he is qualified for

the position he held. Gedeon argues that he was qualified for the job

because he received authorization to continue working under the grandfather clause of the Immigration Reform and Control Act of 1986

(IRCA), 8 U.S.C.A. § 1324a(a)(2) (Supp. 1996), which states that the

Act will not apply to individuals hired before the Act's enactment. The

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Regardless of whether Gedeon met the required elements of the

prima facie case, Marriott has articulated a legitimate, non discriminatory reason for Gedeon's discharge. See St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 514-15 (1993). Marriott alleges that due to two

material misrepresentations Gedeon made to Marriott that it discovered in the course of its investigation of Gedeon's Application for

Alien Employment Certification, Marriott terminated his employment.2

The first misrepresentation was Gedeon's signature on the I-9 form,

where he claimed to be a United States citizen. At the time, Gedeon

was not a United States citizen. The second misrepresentation was the

incorrect employment position information supplied by Gedeon on

the Application for Alien Employment Certification.

Even though Marriott prepared the I-9 form for Gedeon to sign and

Gedeon did not have a good understanding of the English language,

Gedeon is still responsible for the information he swears to. In addition, he reported an incorrect job description and wage information on

the Application for Alien Employment Certification. Finally, Gedeon

did not put forth any evidence that his termination for providing false

information in these documents was pretextual. He does not present

any evidence that his termination was based upon a discriminatory

motive. Indeed, Gedeon's supervisor even assented to Marriott's

sponsorship of Gedeon on his labor certification. It was not until

Floren discovered the misrepresentations on this certification that any

adverse employment action was taken against him. Therefore, this

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relevant issue is whether Gedeon was qualified at the time Marriott hired

him. Gedeon was an illegal alien when he was hired by Marriott in early

1987 and his citizenship was misrepresented on the I-9 form. This court

has a case pending on in banc rehearing, Egbuna v. Time-Life Libraries,

Inc., 95 F.3d 353 (4th Cir. 1996) (vacated), that presents the issue of

whether an alien without employment authorization is qualified for

employment under the McDonnell Douglas framework. Even if the court

finds that an alien without employment authorization is "qualified for

employment," Marriott was entitled to summary judgment.

2 In Marriott's materials supporting its motion for summary judgment,

Marriott submitted the personnel action sheet terminating Gedeon. It

only gives a numerical termination code without stating what the code

number stands for.

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case is not subject to an after-acquired evidence analysis. See Russell

v. Microdyne Corp., 65 F.3d 1229, 1237-38 (4th Cir. 1995). Finally,

Marriott cannot legally employ an alien without employment authorization. See 8 U.S.C.A. § 1324a(a)(1) (West Supp. 1998).

We therefore affirm the district court order. 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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