Dolgaleva v. Virginia Beach City Public schools, No. 08-1515 (4th Cir. Jan. 29, 2010)

| Jan 28, 2010 | Daily Developments in EEO Law |

Though the Fourth Circuit ultimately does the right thing in this unpublished opinion, vacating and remanding dismissal of a Title VII national-origin case at the complaint stage, it should throw a scare into plaintiffs’-side lawyers in federal court that a hearing on a Rule 12(b)(6) motion can be the occasion for a mini-trial on the merits.

Dolgaleva v. Virginia Beach City Public schools, No. 08-1515 (4th Cir. Jan. 29, 2010):  As the panel opinion summarizes, “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 [Russian], in violation of Title VII and 42 U.S.C. § 1981.” (She later sought to amend the complaint to add a religious discrimination claim, but this dropped out of the case on timing grounds.) The board moved to dismiss under Rule 12(b)(6), “asserting that the bare and conclusory allegations in her complaint were insufficient to state a claim upon which relief could be granted” and that Dolgaleva could not make out a claim of discrimination “because the person who was hired is of the same national origin as she.” The plaintiff (pro se) responded to the motion and also moved top amend her complaint to add more factual allegations.

On October 19, 2007, the judge convened a hearing on the motion, at which the board “argued for the first time that it employed a facially neutral, rolling hiring process.” The court then heard from the plaintiff:

“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 then granted the motion to dismiss the national-origin claim on the ground that the employer used a neutral process.

The Fourth Circuit reverses.  Although the plaintiff’s first pro se complaint was sketchy indeed, the panel holds that the district court implicitly accepted the plaintiff’s proposed amended complaint as the operative pleading in the case. It then holds that the district court erred by considering matters outside the pleadings (learned in the hearing on the motion) without giving the plaintiff notice that it was converting the motion to dismiss to a summary judgment motion. “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.”

Thus, “By allowing VBCPS to plead facts outside the pleadings, and relying on those facts to dismiss the complaint with prejudice, 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.” 

There is also an amusing sidelight. that the district court thought that Russian and Belarusian are the same nationality because both were former Soviet republics: “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.” Holds the panel, “[w]e 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. . . . As a matter of ancestry, it would seem that the nations comprising the former Soviet Union are distinct.”

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