Irina Dolgaleva v. Virginia Beach City Public Schools

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1515
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)
Argued: December 1, 2009 Decided: 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Affirmed in part, reversed in part, and remanded by unpublished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,

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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Unpublished opinions are not binding precedent in this circuit.
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DUNCAN, Circuit Judge:
Dr. Irina Dolgaleva (“Dolgaleva”) appeals the district
court’s dismissal of her complaint of national-origin
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 brought this action against Appellee Virginia
Beach City Public Schools (“VBCPS”), the school system 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
was discriminated against on August 25, 2006. That same day,
she filed a complaint with the Equal Employment Opportunity
Commission (the “EEOC”). According to VBCPS’s motion to
dismiss, the EEOC issued a right-to-sue letter on or about
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),
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asserting that the bare and conclusory allegations in her
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. Finally, Dolgaleva elaborated on the hiring process,
claiming that 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
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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 First, she sought to add a claim of
religious discrimination. Second, she sought to supplement her
national-origin discrimination 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 support of her national-origin claim, Dolgaleva
contended that VBCPS materially deviated from its standard
course of hiring procedures in hiring Liapina. VBCPS procedures
required it to screen applicants for suitability, then interview
1 She also attached the actual amended complaint to her
motion.
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those qualified. 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 final recommendations would be forwarded to
the school 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 in two schools who never knew that
Dolgaleva had been selected for an initial interview.
Dolgaleva, who had applied for the job in May 2006, was
scheduled to interview on August 24. At her interview, VBCPS
assured Dolgaleva that the position was still vacant. But, the
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
it had received Dolgaleva’s amended complaint. VBCPS responded
that it had not received the amended complaint, apparently
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
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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. VBCPS also
reiterated that it could not have discriminated 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 understand why she felt she had been discriminated
against. Dolgaleva explained that she brought 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 district court granted VBCPS’s motion to dismiss,
concluding that Dolgaleva had not been hired due to VBCPS’s
facially neutral, rolling hiring process, rather than any
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discriminatory motive. The district court also accepted VBCPS’s
explanation that it 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.” J.A. 76.
Subsequently, on April 3, 2008, the district court issued a
memorandum opinion and order (the “order”) dismissing
Dolgaleva’s complaint with prejudice.
The district court’s order dismissing Dolgaleva’s national-
origin claim relied extensively on language from that portion of
Dolgaleva’s amended complaint, from which the district court had
quoted liberally during the Rule 12(b)(6) hearing. In the
order, the district court detailed VBCPS’s facially neutral,
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.
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Dolgaleva timely filed a notice of appeal, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291. We appointed amicus
counsel to appear on behalf of Dolgaleva.
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
(4th Cir. 1999). But in this case, we may dispose of this
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
administrative remedy by filing a complaint with the EEOC. See
Edelman v. Lynchburg College, 228 F.3d 503, 506 (4th Cir. 2000),
rev’d on other grounds, 535 U.S. 106 (2002). In Virginia, a so-
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called “deferral state,” the time period is 300 days. Id. The
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 discriminatory act to file her religious
discrimination claim with the EEOC. By her own 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
futile.
B.
We now consider Amicus’s argument that the district court
erroneously dismissed Dolgaleva’s complaint. Having determined
that we lack jurisdiction to consider Dolgaleva’s religious
discrimination claim, the only claim before us is the national-
origin claim.
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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 the October 19 hearing, the district court quoted
liberally from that portion of Dolgaleva’s amended complaint
dealing with her national-origin claim, and further cited to it
throughout the order. This amended complaint stated factual
allegations not present in the original complaint, which
contained only seven single-sentence statements and offered no
2 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.
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factual allegations. The district court therefore implicitly
accepted the amended 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.
2009). We therefore conclude that Dolgaleva’s amended complaint
on national-origin discrimination is before us.3
2.
We now consider whether the district court erred in
dismissing Dolgaleva’s amended complaint of national-origin
discrimination under Rule 12(b)(6). Amicus argues that the
district court made erroneous findings of fact under Rule
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.
3 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.
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2009). 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. Giarratano v. Johnson,
521 F.3d 298, 302 (4th Cir. 2008). 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. Sec’y of State for Defence v. Trimble
Navigation Ltd., 484 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. Fed. R. Civ. P.
12(d). Statements of counsel at a Rule 12(b)(6) hearing that
raise new facts constitute matter beyond the pleadings. Hamm v.
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.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th
Cir. 2007). This power to perform a sua sponte conversion at
the appellate 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
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pleadings anyway, id., or if the complaint would not have
survived under a proper consideration of Rule 12(b)(6), see
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 are involved, especially when enforcing those
requirements might result in a loss of the opportunity 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 that it could not have
discriminated against Dolgaleva, a Russian, because it hired
Liapina, a Belarusian. The district court then dismissed the
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case on the bases offered by VBCPS.4 By allowing VBCPS to plead
facts outside the pleadings, and relying on those facts to
dismiss the complaint with prejudice,5 the district court
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
4 We note, without deciding, that the district court’s
assumption that Russia and Belarus are of the same national
origin, because they were once part of the Soviet Union, is of
questionable accuracy. The EEOC has stated that it will define
national origin
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.
5 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).
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factual matters”). 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. At this juncture, we may confine ourselves to
considering whether 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). Monroe, 579 F.3d 385. Though the complaint must
“give[] the respondent fair notice 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
6 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).
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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). Legal
inferences drawn from the facts, unwarranted inferences,
unreasonable conclusions, or arguments are not part of the
consideration. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
We construe 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 a violation of Title VII and “detailed the events
leading to his [adverse employment determination], provided
relevant dates, and included . . . nationalities of at least
7 This basic framework is applicable to both a Title VII
claim and a § 1981 claim. Jordan, 458 F.3d at 343-44.
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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.
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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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