Kim v. Caldera

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1097
JOHN P. KIM,
Plaintiff - Appellant,
versus
LOUIS CALDERA, Secretary of the Army,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CA-00-1531-A)
Submitted: August 31, 2001 Decided: October 1, 2001
Before WILKINS, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas J. Gagliardo, Silver Spring, Maryland, for Appellant.
Kenneth E. Melson, United States Attorney, Mark David Maxwell,
Special Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John P. Kim appeals the district court’s order granting
Appellee’s motion to dismiss and dismissing with prejudice Kim’s
employment discrimination action alleging retaliation. We have
reviewed the parties’ briefs, the joint appendix, and the district
court’s reasoning stated from the bench and find no reversible
error. We agree with the district court that Kim suffered no
adverse employment action and, therefore, failed to state a prima
facie case of retaliation. See Von Gunten v. Maryland, 243 F.3d
858, 863, 866 (4th Cir. 2001); Page v. Bolger, 645 F.2d 227, 233
(4th Cir. 1981) (en banc). Accordingly, we affirm on the reasoning
of the district court.* Kim v. Caldera, No. CA-00-1531-A (E.D. Va.
filed Dec. 15, 2000; entered Dec. 18, 2000). 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
*
Where, as in this case, the district court considered
matters outside the pleadings, it should have treated the motion to
dismiss as a motion for summary judgment. Fed. R. Civ. P. 12(b);
Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d 253, 260-61
(4th Cir. 1998). Because Kim had ample notice of a possible
conversion and because Rule 12(b)(6) does not impose on the
district court “an obligation to notify parties of the obvious,”
id. at 261, we find that any error in the court’s characterization
of Appellee’s motion as a motion to dismiss was harmless error.
2