Here’s a modest success story for a pro se litigant who was denied leave to supplement the record on a motion to dismiss to demonstrate that he had met the administrative prerequisites for filing a Title VII, ADA and ADEA case.
Wojcicki v. Aiken Technical College, No. 08-1469 (4th Cir. Jan. 11, 2010): In this unreported opinion, the plaintiff (unrepresented in the trial court) commenced a second lawsuit in the district court against the same employer; the first had previously been settled. He was met with a Rule 12(b)(6) motion to dismiss his complaint on res judicata grounds. The district court dismissed some of the claims, but found that other claims that postdated the settlement survived. The district court ordered the plaintiff, though, to file an amended complaint to clarify the claims.
The defendants moved to dismiss the amended complaint on the ground that the plaintiff supposedly “failed to file any new administrative charges with either the Equal Employment Opportunity Commission (‘EEOC’) or the South Carolina Human Affairs Commission (‘SCHAC’) for the alleged acts of discrimination that post-dated resolution of his prior lawsuit.” The magistrate judge assigned to the case recommended that the motion to dismiss be granted. While objecting to the recommendation before the district court judge, the plaintiff “produced for the first time documents from the EEOC and SCHAC demonstrating that he had exhausted his administrative remedies. Specifically, he produced a ‘Dismissal and Notice of Rights’ from the EEOC, dated December 8, 2005, J.A. 133, and a ‘Dismissal and Notice of Right to Sue’ from the S.C. Human Affairs Commission, dated November 4, 2005, J.A. 134. Both documents post-dated the dismissal of his prior lawsuit.” The district court judge nevertheless adopted the recommendation and declined to consider the newly-produced documents.
The Fourth Circuit reverses. It holds that plaintiff had preserved his argument before the magistrate, and that the district court accordingly ought to have reviewed the belatedly-filed administrative documents. Apparently, even the defense counsel himself had abandoned the exhaustion argument below: “Immediately after the magistrate judge issued the report and recommendation, defense counsel advised the court that the right-to-sue letters were, in fact, in his possession but ‘inadvertently not referenced,’ and represented that ‘[t]his was in no way an attempt to mislead the Court.’ J.A. 139. Thus, in our view, defense counsel implicitly (and arguably explicitly) withdrew failure-to-exhaust as a ground for the motion to dismiss. Certainly, defense counsel did not pursue the ground in his filings with the district court, choosing instead to assert timeliness and other grounds as a basis for accepting the magistrate judge’s recommendation.”