Irina Dolgaleva v. VA Beach City Public Schools
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
IRINA DOLGALEVA, Plaintiff - Appellant, v. VIRGINIA BEACH CITY PUBLIC SCHOOLS, Defendant Appellee. -----------------------------------SHIMICA D. GASKINS, Esq., Court-Assigned Amicus Counsel Supporting Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Walter D. Kelley, Jr., District Judge. (2:06-cv-00717-WDK-FBS)
December 1, 2009
January 29, 2010
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished opinion. Judge Duncan wrote the opinion, in which Judge Motz and Judge Agee joined.
ARGUED: Shimica D. Gaskins, COVINGTON & BURLING, LLP, Washington, D.C., Court-Assigned Amicus Counsel, for Appellant. Elaine Kathryn Inman, Ann Sullivan, CRENSHAW, WARE & MARTIN,
PLC, Norfolk, Virginia, for Appellee. ON BRIEF: Irina Dolgaleva, Appellant Pro Se. Scott D. Danzis, COVINGTON & BURLING, LLP, Washington, D.C., Court-Assigned Amicus Counsel, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge: Dr. court's Irina Dolgaleva of ("Dolgaleva") her complaint appeals of the district
discrimination under the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e-2(a), and 42 U.S.C. § 1981, and its denial of leave to amend her complaint. For the reasons set
forth below, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
I. Dolgaleva Beach City brought this action against the Appellee school Virginia in
Virginia Beach, Virginia, alleging failure or refusal to hire on the basis of national origin, in violation of Title VII and 42 U.S.C. § 1981. According to her original complaint, Dolgaleva That same day, Opportunity motion or to
was discriminated against on August 25, 2006. she filed a complaint with the Equal
Employment to VBCPS's letter
"EEOC"). issued a
September 29, 2006, and Dolgaleva thereafter filed her complaint in the district court for the Eastern District of Virginia on December 26, 2006. On May 8, 2007, VBCPS moved to dismiss Dolgaleva's
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), 3
complaint were insufficient to state a claim upon which relief could be granted. VBCPS's motion to dismiss also asserted that
Dolgaleva could not make out a claim of discrimination in any event, "because the person who was hired is of the same national origin as she." J.A. 11.
On May 29, 2007, Dolgaleva filed a response to the motion to dismiss that asserted facts in support of her claim, and which proffered exhibits purporting to show that her
qualifications were superior to those of the candidate VBCPS had hired, Natalia Liapina, from Belarus. According to Dolgaleva,
Liapina had no experience teaching Russian, and had presented false proof of a bachelor's degree from a Russian university. Dolgaleva's resume, on the other hand, reflected a PhD in
linguistics from a Russian University and twenty years' relevant teaching experience. Dolgaleva also asserted that Russia and
Belarus are not the same place of national origin, and that VBCPS's Human Resources department would have been aware of this distinction because it would have been noted in the respective passports. claiming Finally, Dolgaleva elaborated on the hiring process, when she interviewed with VBCPS on August 24,
2006, she had been assured that the job was still open, yet on August 25, VBCPS told her the job had been given to Liapina in early August. VBCPS, through one Dr. Eidson, also allegedly 4
informed Dolgaleva that it had not wanted to hire her, and that her credentials were worthless, because she is Russian. On October 16, 2007, Dolgaleva filed a motion to amend her complaint in two respects. 1 religious discrimination. national-origin First, she sought to add a claim of Second, she sought to supplement her claim. The amended complaint
expressly incorporated the response by reference. In support of her religious discrimination claim, Dolgaleva alleged that when she inquired about why she had not been
considered for the teaching position, VBCPS officials told her that her superior credentials and teaching experience were
worthless because, among other things, she had previously taught at Brigham Young University, a school known to be associated with the Church of Latter Day Saints. She also acknowledged
that she submitted her claim of religious discrimination to the EEOC on July 10, 2007--which, we note, would be 320 days after August 25, 2006, the day VBCPS allegedly discriminated against her. In contended support that of VBCPS her national-origin deviated claim, from its Dolgaleva standard
course of hiring procedures in hiring Liapina.
required it to screen applicants for suitability, then interview
She also attached the actual amended complaint to her
Successful interviewees would receive second
interviews with subject-area specialists, who would work with Human Resources to create a list of finalists. Finalists would
next meet with the principals of schools at which they might actually work; the principals would then identify their
preferences. the school
The final recommendations would be forwarded to board for a final determination. In contrast,
Dolgaleva asserted, Liapina was hired in early August 2006-according to the record, on either August 7 or August 14--after meeting with principals been had in two schools for the an job who never knew that
selected applied for
initial in May
interview. 2006, was
scheduled to interview on August 24.
At her interview, VBCPS But, the
assured Dolgaleva that the position was still vacant.
day after, August 25, Dolgaleva learned that the position had gone to Liapina. On October 19, 2007, three days after Dolgaleva filed her motion to amend, the district court held its hearing on VBCPS's motion to dismiss. At the hearing, the district court said that VBCPS responded apparently
it had received Dolgaleva's amended complaint. that it had not received the amended
because it had been mailed rather than filed electronically. The district court first heard from VBCPS on its motion to dismiss under Rule 12(b)(6). VBCPS argued for the first time 6
that it employed a facially neutral, rolling hiring process. VBCPS alleged that within that process, Liapina had applied and interviewed first, and then received the job based on her own superior credentials, experience (including time with VBCPS
itself as a substitute teacher), and references. reiterated that it could not have
VBCPS also against
Dolgaleva, a Russian, by hiring Liapina, a Belarusian, when the two share the same national origin, the former Soviet Union. The district court then engaged in a colloquy with
Dolgaleva during which it tried to develop her allegations and further against. understand why she felt she had she been brought discriminated her action
because she had not been hired for the position and had been deprived of an opportunity to be considered for it. When she
had inquired as to why she was not considered, Dolgaleva was told that her Russian credentials were worthless, and that VBCPS did not like that she had taught at Brigham Young University. In response to this explanation, VBCPS again asserted the nature of its facially neutral, rolling hiring process, explaining that Liapina was simply hired because she applied and was interviewed first, and found to be desirable for the job. The concluding facially district that court granted had not VBCPS's been motion hired due to to dismiss, VBCPS's any
discriminatory motive. explanation that it
The district court also accepted VBCPS's could not have discriminated against
Dolgaleva when it hired Liapina, stating that although "Russia and Belarus are now two countries and occasionally . . . don't get along . . . you've got to be filled by . . . somebody outside your group, and this is . . . close enough." Subsequently, memorandum on April 3, 2008, order the district court J.A. 76. issued a
Dolgaleva's complaint with prejudice. The district court's order dismissing Dolgaleva's nationalorigin claim relied extensively on language from that portion of Dolgaleva's amended complaint, from which the district court had quoted order, liberally the during the Rule 12(b)(6) VBCPS's hearing. facially In the
rolling hiring process and the fact that VBCPS had hired Liapina before Dolgaleva had interviewed. The district court also
suggested that VBCPS had not discriminated against Dolgaleva on the basis of national origin by hiring Liapina, a Belarusian. Finally, though Dolgaleva sought to amend her complaint to add a claim of religious discrimination and to supplement her existing national-origin claim, the district court denied her leave to amend in a section that appeared to treat only the religious discrimination claim, but denied leave to amend completely. The
district court denied leave to amend on the ground of futility. 8
Dolgaleva timely filed a notice of appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291. counsel to appear on behalf of Dolgaleva. We appointed amicus
II. On appeal, Dolgaleva challenges the district court's denial of her leave to amend. Amicus challenges the district court's
dismissal of Dolgaleva's complaint under Federal Rule of Civil Procedure 12(b)(6). We consider these contentions below.
A. We will begin with Dolgaleva's argument that the district court erred in denying her leave to amend. In the usual
instance, we review the denial of leave to amend for abuse of discretion. Edwards v. City of Goldsboro, 178 F.3d 231, 242 But in this case, we may dispose of this
(4th Cir. 1999).
argument, as well as VBCPS's threshold argument that Dolgaleva did not appeal the issue, by noting that Dolgaleva's religious discrimination claim is outside our subject-matter jurisdiction. Before a plaintiff may file a complaint of discrimination in federal court, she must first timely exhaust her See
administrative remedy by filing a complaint with the EEOC.
Edelman v. Lynchburg College, 228 F.3d 503, 506 (4th Cir. 2000), rev'd on other grounds, 535 U.S. 106 (2002). 9 In Virginia, a so-
called "deferral state," the time period is 300 days.
failure to file a complaint with the EEOC in a timely manner deprives us of subject-matter jurisdiction over the claim.
Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009). In general, we may raise and consider our subject-matter
limitations at any time.
GO Computer, Inc. v. Microsoft Corp.,
508 F.3d 170, 175 n.2 (4th Cir. 2007). In this case, Dolgaleva lives in Virginia, and thus she had 300 days from the claim discriminatory with the act to By file her her own religious admission,
Dolgaleva experienced the discriminatory act on August 25, 2006, the day she was informed of the hiring decision, but did not file a charge of religious discrimination with the EEOC until July 10, 2007, more than 300 days later. Her delay therefore
deprived the district court of subject-matter jurisdiction over this claim and any amendment of that claim would have been
B. We now consider Amicus's argument that the district court erroneously dismissed Dolgaleva's complaint. that we lack jurisdiction to consider Having determined religious
discrimination claim, the only claim before us is the nationalorigin claim. 10
1. As a threshold matter, we must consider the scope of this issue, for Amicus and VBCPS differ on whether it is the amended complaint or the original complaint on national-origin
discrimination that is properly before us.
Amicus suggests that
the amended complaint is before us because the district court relied on language from it during the Rule 12(b)(6) hearing and in the order. 2 VBCPS suggests that the original complaint is
before us, because the district court's order denying leave to amend "explicitly address[ed] the Motion to Amend as a whole." Appellee's Br. at 10-11. At liberally the October that 19 hearing, of the district court quoted
dealing with her national-origin claim, and further cited to it throughout the order. allegations not This amended complaint stated factual in the original complaint, which
contained only seven single-sentence statements and offered no Amicus also suggests that Dolgaleva had a right to amend under Federal Rule of Civil Procedure 15(a)(1), which allows a plaintiff one amendment by right before a defendant files a responsive pleading. It is true that a motion to dismiss under Rule 12(b)(6) is not a "responsive pleading" under the Federal Rules. Domino Sugar Corp. v. Sugar Workers Local Union 392 of U.F.C.W.I., 10 F.3d 1064, 1069 n.1 (4th Cir. 1993). But it is also true that Dolgaleva's response to the motion to dismiss materially cured defects in her original complaint, so much so that she incorporated it by reference in her amended complaint. This may have constituted her free amendment. In light of the disposition we reach on this point, we need not decide. 11
factual allegations. accepted the amended
The district court therefore implicitly complaint as an exercise of its "broad
discretion to conform the pleadings to the arguments raised by the parties," Weyerheauser Co. v. Brantley, 510 F.3d 1256, 1267 (10th Cir. 2007), but also determined that VBCPS would not need to file a new motion to dismiss, see 6 Charles Alan Wright et al., Federal Practice and Procedure § 1476 (2d ed. & Supp.
We therefore conclude that Dolgaleva's amended complaint
on national-origin discrimination is before us. 3
2. We now consider Dolgaleva's under made whether amended the district of court erred in
national-origin argues fact that the Rule
discrimination district court
12(b)(6), and that her complaint alleges sufficient facts to surpass a motion to dismiss under that rule. We review de novo a dismissal under Rule 12(b)(6). Monroe
v. City of Charlottesville, Va., 579 F.3d 380, 385 (4th Cir.
VBCPS also suggests that Dolgaleva did not appeal the denial of leave to amend on the national-origin claim. As we agree with Amicus that the district court effectively allowed Dolgaleva to amend her complaint on her national-origin claim, VBCPS's argument is moot. Also, since we understand Dolgaleva to argue that the district court erred by denying her leave to amend on this claim, that argument is moot as well. 12
On a motion to dismiss, the district court's obligation
is to test the sufficiency of the complaint to see if it alleges a claim for which relief can be granted. 521 F.3d 298, 302 (4th Cir. 2008). Giarratano v. Johnson, In so doing, the court
should evaluate the complaint in its entirety, as well as those documents attached to the complaint along with any that are
integral and authentic. Navigation Ltd., 484
Sec'y of State for Defence v. Trimble F.3d 700, 705 (4th Cir. 2007). The
district court may go beyond these documents, which constitute "the pleadings," in a Rule 12(b)(6) proceeding if it converts the proceeding to one for summary judgment. 12(d). Fed. R. Civ. P.
Statements of counsel at a Rule 12(b)(6) hearing that Hamm v.
raise new facts constitute matter beyond the pleadings.
Rhone-Poulenc Rorer Pharms., Inc., 187 F.3d 941, 948 (8th Cir. 1999). "While it may be preferable for a district court to trigger this conversion [to a summary judgment proceeding] explicitly, appellate courts may take the district court's consideration of matters outside the pleadings to trigger an implicit
conversion." Cir. 2007). the appellate
Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th This power to perform a sua sponte conversion at level serves judicial economy "by sparing the
district court an unnecessary remand," when the non-moving party has had a full opportunity to respond to the matter outside the 13
anyway, under a
Thomas v. City of New York, 143 F.3d 31, 37 (2d Cir. 1998); GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). When dealing with pro se litigants, the
district court may still consider matter outside the pleadings, but it is particularly important that the litigant either have notice and a chance to file appropriate supplementary materials for a summary judgment proceeding, or at least have had a full opportunity to present all the matter the district court would have needed to render summary judgment. See Davis v.
Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979); see also Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984) ("The rights of pro se litigants require careful protection where highly technical requirements requirements are might involved, result especially in a loss when of the enforcing those to
prosecute . . . a lawsuit on the merits."). In this case, rather than consider the face of Dolgaleva's complaint, the district court allowed VBCPS to dispute
allegations in it by explaining its facially neutral, rolling hiring program and by suggesting a that it could because not it have hired
Liapina, a Belarusian.
The district court then dismissed the
case on the bases offered by VBCPS. 4 facts outside the the pleadings, with and
By allowing VBCPS to plead relying on the those facts to
permitted VBCPS to demonstrate that it acted on a legitimate, non-discriminatory basis. The district court did this at a
procedurally improper time, and so erred.
See Lee v. City of
Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (finding error where the district court "assumed the existence of facts that favor defendants based on evidence outside plaintiffs'
pleadings, [and] took judicial notice of the truth of disputed We note, without deciding, assumption that Russia and Belarus origin, because they were once part questionable accuracy. The EEOC has national origin
that the district court's are of the same national of the Soviet Union, is of stated that it will define
broadly as including, but not limited to, the denial of equal employment opportunity because of an individual's, or . . . her ancestor's, place of origin; or because an individual has the physical, cultural, or linguistic characteristics of a national origin group. 29 C.F.R. § 1606.1. As the Supreme Court has said, "[t]he term `national origin' on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 88 (1973) (footnote call number omitted). As a matter of ancestry, it would seem that the nations comprising the former Soviet Union are distinct. A dismissal which is designated "with prejudice" is "normally an adjudication on the merits for purposes of res judicata." Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 n.8 (5th Cir. 1993) (internal quotation marks and citation omitted). 15
We must still consider, however, whether the
error requires reversal. As we have explained, a district court errs by going
outside the pleadings without giving the necessary notice, but the error is harmless if the parties had a full and fair
opportunity to provide the court with discovery and disclosure materials suitable for summary judgment, see Bosiger, 510 F.3d at 450, or if the complaint would not have withstood the motion to dismiss on its face, see Thomas, 143 F.3d at 37; GFF Corp., 130 F.3d at 1384. considering At this juncture, we may confine ourselves to Dolgaleva's amended complaint could have
withstood the motion to dismiss. We review de novo the dismissal of a complaint under Rule 12(b)(6). "give the Monroe, 579 F.3d 385. respondent fair notice Though the complaint must of the basis for [the
plaintiff's] claims," 6 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002), it must also allege "enough facts to state a claim Amicus suggests that at the pleading stage, the complaint need satisfy the four-factor test under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This is incorrect. McDonnell Douglas outlined a burden of proof applicable to making out a prima facie case of discrimination when a plaintiff elects to make out animus by inference. See Swierkiewicz, 534 U.S. at 510-11 (overturning the Second Circuit's application of the McDonnell Douglas factors at the pleading stage). At the pleading stage, however, a complaint of national-origin discrimination need only provide sufficient factual allegations to support the elements of the claim. See Jordan v. Alternative Res. Corp., 458 F.3d 332, 346 (4th Cir. 2006). 16
to relief that is plausible on its face," Monroe, 579 F.3d at 386 (internal quotation marks and citation omitted); see also Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). inferences unreasonable drawn from the or facts, unwarranted are not Legal
inferences, part of the
consideration. We construe
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). pro se complaints liberally, imposing "less
stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94 (internal quotation marks and citation omitted); see also Atherton v. Dist. of Columbia Office of
Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (noting that pro se complaints "must be held to less stringent standards than formal pleadings" but that "even a pro se complainant must plead
`factual matter' that permits the court to infer `more than the mere possibility of misconduct'") (internal quotation marks and citations omitted). 7 Applying this framework, the Supreme Court
in Swierkiewicz held that a plaintiff had sufficiently pleaded a complaint of national-origin discrimination when his complaint alleged leading a to violation his of Title VII and "detailed the events
relevant dates, and included . . . nationalities of at least
This basic framework is applicable to both a Title VII claim and a § 1981 claim. Jordan, 458 F.3d at 343-44. 17
some of the relevant persons involved with his termination." 534 U.S. at 514. Here, Dolgaleva brought a claim under Title VII and § 1981. In her complaint, she named VBCPS as the defendant. She also
alleged that she applied for the teaching position in question in May 2006 and was the most qualified applicant based on her credentials and experience. Despite these qualifications, VBCPS
deviated from its usual hiring procedures in hiring Liapina in early August 2006, before Dolgaleva's scheduled interview took place on August 24. Finally, Dolgaleva alleged that when she
attempted to find out why she had not been considered for the position, a VBCPS employee told her that her Russian credentials were worthless, and that her Russian ancestry had been held
against her in the hiring decision.
Taking these allegations as
true, as we must at this stage, we believe that the district court erred in finding them insufficiently pleaded by a pro se litigant to state a claim of national-origin discrimination.
See Swierkiewicz, 534 U.S. at 514. We therefore reverse the district court's dismissal of
Dolgaleva's amended complaint as it pertains to her claim of national-origin discrimination, and remand that portion of her amended complaint for further proceedings consistent with this opinion.
III. For the foregoing reasons, the final order of the district court is AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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