Brenda Parker Grady v. North Carolina Department of Transportation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 BRENDA PARKER GRADY,
Plaintiff-Appellant,
v.
NORTH CAROLINA DEPARTMENT OF
TRANSPORTATION; LYNDO TIPPETT, in
his official capacity as Secretary of No. 02-2350  Transportation; CAROL HOWARD, in
her official capacity as
Commissioner of the Division of
Motor Vehicles; BECKY KEITH, in
her official capacity as Director of
Human Resources,
Defendants-Appellees. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-02-360-5-H)
Submitted: June 25, 2003
Decided: August 19, 2003
Before NIEMEYER and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL
Jonathan F. Koffa, Zebulon, North Carolina, for Appellant. Roy Coo-
per, North Carolina Attorney General, Hal F. Askins, Special Deputy
Attorney General, Kimberly D. Potter, Assistant Attorney General,
Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Brenda Parker Grady appeals the district court’s order dismissing
her complaint pursuant to Fed. R. Civ. P. 12(b)(6) against her
employer, the North Carolina Department of Transportation
("Department"), alleging retaliation and civil conspiracy in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A.
§§ 2000e to 2000e-17 (West 1994 & Supp. 2002).
Grady conceded her civil conspiracy claim in the district court and
does not raise it on appeal. Therefore, we affirm the district court’s
dismissal of her civil conspiracy claim.
Grady asserts the dismissal of her retaliation claim was improper
and that the district court converted the Department’s motion to dis-
miss pursuant to Fed. R. Civ. P. 12(b)(6) to a motion for summary
judgment by considering documents outside the pleadings. Generally,
if the district court is presented with materials outside the pleadings
and does not exclude them, "the motion shall be treated as one for
summary judgment . . . and all parties shall be given reasonable
opportunity to present all material made pertinent to such motion by
Rule 56." Fed. R. Civ. P. 12(b); see Gay v. Wall, 761 F.2d 175, 177-
78 (4th Cir. 1985).
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In ruling upon Grady’s retaliation claim, the district court consid-
ered letters from the Department offering Grady positions within the
Division of Motor Vehicles that the Department attached to its motion
to dismiss. The district court specifically states that "plaintiff had the
option of returning to the Nash County office and refused," a conclu-
sion apparently based upon the Department’s Exhibit 3, which offered
Grady the opportunity to "remain in her current position" with an
adjusted pay and grade level. Based on our review of the record, we
conclude the district court converted the motion to dismiss to a
motion for summary judgment. Because the motion should have been
treated as one for summary judgment, the court should have given the
parties a reasonable opportunity to present all material made pertinent
by Rule 56. See Gay, 761 F.2d at 177.
Accordingly, we vacate the portion of the district court’s order dis-
missing Grady’s retaliation claims under Rule 12(b)(6) and remand
for further proceedings consistent with this opinion. 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 IN PART; VACATED IN PART AND REMANDED
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