                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 08-1469


JOSEPH WOJCICKI,

                Plaintiff - Appellant,

           v.

AIKEN TECHNICAL COLLEGE; SUSAN A. WINSOR, ex Graham ATC
president; WILLIAM TILT, Associate Vice President of
Technical Education; THOMAS DESROCHER, Program Coordinator;
LEE POWELL, Human Resources Director,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Aiken.     Henry F. Floyd, District Judge.
(1:06-cv-00461-HFF-BM)


Argued:   December 4, 2009                 Decided:   January 11, 2010


Before TRAXLER, Chief Judge, and AGEE and DAVIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED:   Carte  Patrick  Goodwin,  GOODWIN  &   GOODWIN,  LLP,
Charleston, West Virginia, for Appellant.   Charles J. Boykin,
BOYKIN & DAVIS, LLC, Columbia, South Carolina, for Appellees.
ON BRIEF: Shunna T. Vance, BOYKIN & DAVIS, LLC, Columbia, South
Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        Joseph Wojcicki brought this action against Aiken Technical

College and its employees, alleging discrimination under Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§

2000e - 2000e-17 (West 2003 & Supp. 2009), the Americans with

Disabilities Act, 42 U.S.C.A. §§                     12101 - 12117 (West 2005 &

Supp. 2009), and the Age Discrimination in Employment Act, 29

U.S.C.A. §§       621 - 634 (West 2008 & Supp. 2009).                      The district

court dismissed the action with prejudice, adopting the report

and recommendation of the magistrate judge finding that Wojcicki

had   failed     to     exhaust    his   administrative           remedies    prior    to

filing the lawsuit.          In doing so, the district court refused to

consider evidence of exhaustion presented for the first time in

Wojcicki’s      objections        to   the    magistrate         judge’s    report    and

recommendation as untimely, and held that the issue was waived. 1

For   the     following    reasons,      we       vacate   and   remand    for   further

proceedings.


                                             I.

      In 2002, Wojcicki filed a discrimination lawsuit against

Aiken       Technical    College       and    several      individual       defendants,

        1
        The district court also dismissed with prejudice a state
law claim raised by plaintiff under the South Carolina Workers’
Compensation Act. The disposition of this claim, to the extent
it was ever asserted, has not been challenged on appeal.



                                              2
alleging      discrimination          under       various         federal       statutes.          The

lawsuit    was       settled     in    2003.            In     February          2006,    however,

Wojcicki filed a second pro se lawsuit against Aiken Technical

College       and      several        of     its        employees             alleging        similar

discrimination claims.            The defendants asserted that the claims

had been litigated in the prior lawsuit and were thus barred by

the doctrine of res judicata.                          The district court agreed in

part, dismissing any claims that preceded the disposition of the

prior   lawsuit        but   denying        the       motion      as     to    any     claims      that

postdated it.          The district court also ordered Wojcicki to file

an   amended        complaint     setting          out    the       exact        claims    he      was

asserting,       the    jurisdictional                bases       for    those       claims,       the

factual bases for those claims, and the relief sought.

       After Wojcicki filed his amended complaint, the defendants

again moved to dismiss, claiming, inter alia, that Wojcicki had

failed to exhaust his administrative remedies before filing his

action.       Specifically, they argued that Wojcicki had 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.

       In response to the defendants’ motion to dismiss, Wojcicki

filed a “Motion for Default Judgment in the Favor of Plaintiff,”

which   was    considered        by    the     court         to     be   a     response       to   the

                                                  3
defendants’    motion   to   dismiss.    As   noted   by   the   magistrate

judge,   the     pleading    is   difficult   to   read    and   at   times

disjointed.      Nevertheless, Wojcicki made several assertions to

the effect that he had exhausted his administrative remedies and

that the defendants and defense counsel were well aware that he

had done so. 2    The magistrate judge recommended dismissal of the

action for failure to exhaust administrative remedies, noting

that Wojcicki had “offer[ed] no exhibits, evidence, or even any

argument, to show that he exhausted his administrative remedies

with respect to any discrimination claims post-dating his prior

litigation.”     J.A. 122 (footnote omitted).




     2
           See J.A. 111 (“The statements in [the defendants’
Motion and Memorandum] are not true, have false information or
are irrelevant to this case[; e].g. the office of [defense
counsel] was representing defendants in my charges submitted to
[the] SC Human Affairs Commission, so they cannot claim that
administrative way was not used in this case.”); J.A. 112
(Defense counsel “has cooperated/represented [defendants] many
years in many disputes including charges in SC Human Affairs
Commission and EEOC. . . . There w[as] also no relie[f] offered
in the administrative way.”); id. (“The defendants in 2006 did
not   answer   on   my    First   Request   for  Production   [filed]
07/20/2006; where the item #5 asked for . . . [d]efendants’
responses to SC Human Affairs Commission and EEOC.          They know
about the new charges. . . .”); J.A. 113 (Defense “[f]irm dares
to   pretend   they    do    not   know   that  plaintiff   exhausted
administrative remedies.      Firm was a significant . . . partner
[to defendant] in SCHAC/EEOC.           Both institutions instructed
plaintiff to seek a relief in the court.”); J.A. 115 (“Firm
knows about fulfillment of the administrative way being
[defendants’] representative in the case for the long time.”).



                                     4
       In    his    objections        to    the       magistrate          judge’s       report       and

recommendation,             Wojcicki         again           pointed         out        that         the

“[d]efendants well knew . . . this case was in SC Human Affairs

Commission        as     well   as   in    EEOC,”       that        “[t]he    same       [attorney]

actively represented defendants in the administrative process,”

and that “[t]hey knew very well when it ended.”                                    J.A. 126; see

also   J.A.        128    (“They     might    not           claim    that     there       were       not

administrative remedies exhausted especially because they play

the active role there.                    This process last very long and THEY

KNEW its ending.               They are bringing the non-existing fact as a

support      for       their    motion.”).             This       time,    however,           Wojcicki

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.

       In response to Wojcicki’s objections to the recommendation

that     his      suit     be    dismissed            for    failure        to     exhaust,          the

defendants asserted that plaintiff’s amended complaint was time

barred      for    failure      to   bring    suit          within     ninety       days       of    his

receipt of the right-to-sue letters.                              Defendants also asserted

that the amended complaint contained claims that were dismissed

                                                  5
by   the      court’s   prior   order   and   that    it   set   forth   unfounded

assertions upon which relief could not be granted.                       Defendants

did not, however, dispute the authenticity of the EEOC and SCHAC

right-to-sue letters or, for that matter, disagree that Wojcicki

had exhausted his administrative remedies by filing before the

appropriate agencies.           On the contrary, defense counsel asserted

that:

      Plaintiff filed a Charge of Discrimination with SCHAC
      on or about February 22, 2005. SCHAC sent a Notice of
      Charge of Discrimination to the EEOC on or about
      February 23, 2005. During the time period the Notices
      of Right to Sue were issued, Defendants’ counsel
      withdrew from a law practice and opened a new practice
      on December 1, 2005. The notices of right to sue were
      inadvertently not referenced.   This was in no way an
      attempt to mislead the Court.        However, . . .,
      Plaintiff’s claims are time barred.         Defendants’
      counsel apologies [sic] to Plaintiff and the Court for
      any inconvenience.

J.A. 139 (emphasis added).

        The    district    court    thereafter       granted     the   defendants’

motion to dismiss on the ground that plaintiff had failed to

exhaust his administrative remedies.                 Although noting that the

plaintiff had “submit[ted] as evidence, for the first time, a

dismissal and notice of rights from the [EEOC] and a dismissal

and notice of right to sue from the [SCHAC],” J.A. 149, the

district court ruled that the evidence could not be considered

because it had not been first presented to the magistrate judge.




                                         6
                                            II.

     The    Federal      Magistrate’s        Act     provides     that    a    district

court,     when     reviewing        a     magistrate       judge’s       report     and

recommendation, “shall make a de novo determination of those

portions     of    the     report    or     specified       proposed     findings      or

recommendations       to     which       objection    is    made”   and       “may   also

receive further evidence.”               28 U.S.C.A. § 636(b)(1) (West 2006)

(emphasis added); see also Doe v. Chao, 306 F.3d 170, 183 n.9

(4th Cir. 2002).            We review the district court’s refusal to

accept new evidence following a magistrate judge’s report and

recommendation for abuse of discretion.                     See Doe, 306 F.3d at

183 (citing United States v. Howell, 231 F.3d 615, 622-23 (9th

Cir. 2000) (reviewing for abuse of discretion a district court’s

refusal to permit the production of new evidence following a

magistrate        judge’s     recommendation          regarding     a     dispositive

motion)).         Wojcicki    contends       the     district   court     abused      its

discretion    by     refusing       to    consider    the    right-to-sue       letters

which were submitted along with his objections to the magistrate

judge’s report and recommendation. 3               We agree.

     In dismissing Wojcicki’s suit, the district court, relying

primarily upon Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec.


     3
       Following his appeal to this court, we appointed counsel
to represent Wojcicki and scheduled the case for oral argument.



                                             7
Co., held that issues raised for the first time in objections to

the magistrate judge’s recommendation should be deemed waived.

See 840 F.2d 985, 990-91 (1st Cir. 1988); but see United States

v. George, 971 F.2d 1113, 1118 (4th Cir. 1992) (holding that “as

part of its obligation to determine de novo any issue to which

proper   objection      is    made,     a    district       court     is     required    to

consider all arguments directed to that issue, regardless of

whether they were raised before the magistrate.”).                           However, we

need not decide whether the district court could or should have

considered   an    issue       raised       for      the    first     time    after     the

magistrate   judge      issued      the     recommendation.            In     this    case,

Wojcicki   did    respond      to   the     issue      of   exhaustion        before    the

magistrate judge and, in doing so, asserted that he had in fact

exhausted his administrative remedies.                        He also informed the

magistrate judge that the defendants and defense counsel were

involved in and well aware of the administrative proceedings and

the outcome of them.

     While   we    are       sympathetic        to    the     difficulties      district

judges and magistrate judges sometimes face when dealing with

pro se litigants, the circumstances in this case compel us to

conclude   that   the    district         judge      should    have    considered       the

belated evidence presented to support Wojcicki’s assertions.                             As

a pro se litigant, Wojcicki was entitled to have his pleadings

read liberally.      See Erickson v. Pardus, 551 U.S. 89, 94 (2007)

                                            8
(per    curiam)         (“A    document       filed     pro    se    is    to   be     liberally

construed, and a pro se complaint, however inartfully pleaded,

must be held to less stringent standards than formal pleadings

drafted      by    lawyers.”          (internal        quotation     marks      and     citation

omitted)); Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002)

(noting “the long-standing practice” that courts “construe pro

se pleadings liberally”).

       In    his    response          to    the    defendants’       motion      to    dismiss,

Wojcicki did raise, however inartfully, the issue of exhaustion

and    asserted         that     defense          counsel     was    aware      that    he    had

exhausted his remedies.                    And this, it appears, was a reasonable

belief      on    his    part.        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.                                     We

also note that this does not appear to be a case where Wojcicki

held     back      the        evidence       in    order      to    gain     some      strategic

                                                   9
advantage.    See Howell, 231 F.3d at 622 (noting that “requiring

the district court to hear evidence not previously presented to

the    magistrate   judge   might   encourage     sandbagging”).         On   the

contrary, a fair reading of the pleadings in this case indicates

that    Wojcicki    may   simply   have    seen   no   need   to    produce   the

letters given his knowledge that they existed and that defense

counsel was aware of them.          And, while there was no requirement

that a hearing be held by the magistrate judge, we think it

likely that such a hearing would have uncovered both the mistake

on the part of defense counsel and the evidence itself.



                                     III.

       For the foregoing reasons, we are constrained to conclude

that the district court abused its discretion in refusing to

accept the evidence of exhaustion presented by Wojcicki in his

objections to the report and recommendation of the magistrate

judge and in dismissing the lawsuit on the basis of a failure to

exhaust    administrative     remedies     without     at   least   considering

that evidence.       By this disposition, we only conclude that the

district court should have accepted and considered the evidence.

We indicate no view as to the ultimate viability of this defense

or of any other factual or legal defenses properly raised by the

defendants.

                                                        VACATED AND REMANDED

                                      10
