Shin v. Shalala, Sec

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHUNG SHIN,
Plaintiff-Appellant,
v.
No. 99-2451
DONNA E. SHALALA, SECRETARY,
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-99-916-AW)
Submitted: March 20, 2000
Decided: April 24, 2000
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
David H. Shapiro, Diane Bodner Duhig, SWICK & SHAPIRO,
Washington, D.C., for Appellant. Lynne A. Battaglia, United States
Attorney, Mythili Raman, Assistant United States Attorney, Green-
belt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Chung Shin appeals the district court's order dismissing his
employment discrimination claim for failure to exhaust administrative
remedies. For the reasons set forth below, we vacate and remand for
further proceedings.
Chung Shin, an employee of the United States Department of
Health and Human Services, contacted the agency's EEO office
because he believed that the agency had unlawfully discriminated
against him when it failed to promote him. Shin initially met with an
EEO counselor on April 21, 1997. At Shin's final interview on May
22, 1997, the EEO counselor advised Shin of his rights, including his
right to file a formal complaint within fifteen days of the final inter-
view. Shin signed the counselor's Informal Counseling Report,
acknowledging that he had been so advised.
After the final interview, Shin sent an e-mail to the EEO office
stating that he wished to file a formal complaint. The e-mail contained
no description of the alleged discriminatory acts. Also on May 22,
1997, Shin filed a copy of the Informal Counseling Report ("Report")
with the agency's EEO office. The Report noted Shin's allegations of
discriminatory failure to promote on the grounds of race and national
origin and detailed Shin's factual allegations.
On June 30, 1997, the EEO office contacted Shin, informing him
that he had filed the incorrect form on May 22, 1997. The agency pro-
vided Shin with its complaint form, which Shin completed and
returned to the agency the same day. After the agency failed to act
within 180 days, Shin filed suit in district court. The district court
granted the Defendant's motion to dismiss the action pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. In so ruling, the dis-
trict court found that neither Shin's e-mail nor the Report qualified as
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a formal complaint within the meaning of 29 C.F.R.§ 1614.106(c)
(1999).
If materials outside the pleadings are presented and considered by
the court, a motion to dismiss should be treated as one for summary
judgment. See Fed. R. Civ. P. 12(b); see also Finley Lines Joint Pro-
tective Bd. v. Norfolk S. Corp., 109 F.3d 993, 995-96 (4th Cir. 1997).
In reaching its decision that Shin's e-mail and Informal Counseling
Report failed to act as a formal complaint, the district court examined
those documents, effectively converting the motion to dismiss to a
motion for summary judgment. See id. This court reviews the district
court's ruling de novo, drawing all reasonable inferences in favor of
the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Atlas Mach. & Iron Works,
Inc. v. Bethlehem Steel Corp., 986 F.2d 709, 712 (4th Cir. 1993).
The regulations require that a formal complaint contain a signed
statement identifying the aggrieved individual and agency and setting
forth a general description of the actions that form the basis of the
complaint. See 29 C.F.R. § 1614.106(c). The regulations are to be lib-
erally construed to effectuate the purpose of Title VII. See 29 C.F.R.
§ 1601.34 (1999). Nothing in the regulations precludes an Informal
Counseling Report from operating as a formal complaint if the
requirements of 29 C.F.R. § 1614.106(c) are otherwise satisfied. The
record reflects that the Informal Counseling Report contains the nec-
essary elements to qualify as a formal complaint and provides suffi-
cient notice to the agency of Shin's claims.
We accordingly conclude that the district court erred in granting
the motion to dismiss. We vacate the district court's order and remand
for the district court to conduct further proceedings. 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.
VACATED AND REMANDED
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