                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 08-1515


IRINA DOLGALEVA,

                Plaintiff - Appellant,

           v.

VIRGINIA BEACH CITY PUBLIC SCHOOLS,

                Defendant – Appellee.

------------------------------------

SHIMICA D. GASKINS, Esq.,

                Court-Assigned Amicus Counsel
                Supporting Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.       Walter D. Kelley, Jr.,
District Judge. (2:06-cv-00717-WDK-FBS)


Argued:   December 1, 2009                 Decided:   January 29, 2010


Before MOTZ, DUNCAN, and AGEE, Circuit Judges.


Affirmed in part, reversed in part, and remanded by unpublished
opinion.   Judge Duncan wrote the opinion, in which Judge Motz
and Judge Agee joined.


ARGUED:   Shimica  D.  Gaskins,   COVINGTON  &   BURLING,  LLP,
Washington, D.C., Court-Assigned Amicus Counsel, for Appellant.
Elaine Kathryn Inman, Ann Sullivan, CRENSHAW, WARE & MARTIN,
PLC, Norfolk, Virginia, for Appellee.        ON BRIEF: Irina
Dolgaleva, Appellant Pro Se.    Scott D. Danzis, COVINGTON &
BURLING, LLP, Washington, D.C., Court-Assigned Amicus Counsel,
for Appellant.


Unpublished opinions are not binding precedent in this circuit.




                               2
DUNCAN, Circuit Judge:

      Dr.     Irina         Dolgaleva    (“Dolgaleva”)             appeals    the     district

court’s       dismissal          of     her      complaint           of      national-origin

discrimination under the Civil Rights Act of 1964 (“Title VII”),

as amended, 42 U.S.C. § 2000e-2(a), and 42 U.S.C. § 1981, and

its denial of leave to amend her complaint.                           For the reasons set

forth below, we affirm in part, reverse in part, and remand for

further proceedings consistent with this opinion.



                                               I.

      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, in violation of Title VII and 42

U.S.C. § 1981.              According to her original complaint, Dolgaleva

was discriminated against on August 25, 2006.                                That same day,

she   filed       a    complaint      with    the     Equal    Employment       Opportunity

Commission        (the       “EEOC”).         According        to     VBCPS’s       motion   to

dismiss,      the      EEOC    issued     a   right-to-sue          letter     on    or   about

September 29, 2006, and Dolgaleva thereafter filed her complaint

in the district court for the Eastern District of Virginia on

December 26, 2006.

      On     May       8,     2007,    VBCPS        moved     to    dismiss     Dolgaleva’s

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6),

                                                3
asserting     that    the     bare     and   conclusory    allegations     in    her

complaint were insufficient to state a claim upon which relief

could be granted.           VBCPS’s motion to dismiss also asserted that

Dolgaleva could not make out a claim of discrimination in any

event, “because the person who was hired is of the same national

origin as she.”       J.A. 11.

        On May 29, 2007, Dolgaleva filed a response to the motion

to dismiss that asserted facts in support of her claim, and

which     proffered         exhibits     purporting       to   show    that      her

qualifications were superior to those of the candidate VBCPS had

hired, Natalia Liapina, from Belarus.                 According to Dolgaleva,

Liapina had no experience teaching Russian, and had presented

false proof of a bachelor’s degree from a Russian university.

Dolgaleva’s    resume,        on   the   other   hand,    reflected    a   PhD    in

linguistics from a Russian University and twenty years’ relevant

teaching experience.           Dolgaleva also asserted that Russia and

Belarus are not the same place of national origin, and that

VBCPS’s Human Resources department would have been aware of this

distinction because it would have been noted in the respective

passports.     Finally, Dolgaleva elaborated on the hiring process,

claiming    that     when    she   interviewed    with    VBCPS   on   August    24,

2006, she had been assured that the job was still open, yet on

August 25, VBCPS told her the job had been given to Liapina in

early August.         VBCPS, through one Dr. Eidson, also allegedly

                                             4
informed Dolgaleva that it had not wanted to hire her, and that

her credentials were worthless, because she is Russian.

       On October 16, 2007, Dolgaleva filed a motion to amend her

complaint in two respects. 1               First, she sought to add a claim of

religious discrimination.                 Second, she sought to supplement her

national-origin            discrimination     claim.       The     amended    complaint

expressly incorporated the response by reference.

       In support of her religious discrimination claim, Dolgaleva

alleged      that    when     she    inquired      about   why   she    had   not   been

considered for the teaching position, VBCPS officials told her

that       her    superior     credentials        and   teaching    experience      were

worthless because, among other things, she had previously taught

at Brigham Young University, a school known to be associated

with the Church of Latter Day Saints.                       She also acknowledged

that she submitted her claim of religious discrimination to the

EEOC on July 10, 2007--which, we note, would be 320 days after

August 25, 2006, the day VBCPS allegedly discriminated against

her.

       In        support     of     her    national-origin         claim,     Dolgaleva

contended         that     VBCPS    materially      deviated     from   its    standard

course of hiring procedures in hiring Liapina.                      VBCPS procedures

required it to screen applicants for suitability, then interview

       1
            She also attached the actual amended complaint to her
motion.

                                              5
those qualified.           Successful interviewees would receive second

interviews with subject-area specialists, who would work with

Human Resources to create a list of finalists.                         Finalists would

next meet with the principals of schools at which they might

actually     work;        the    principals        would      then     identify       their

preferences.          The final recommendations would be forwarded to

the    school     board    for    a    final      determination.         In    contrast,

Dolgaleva asserted, Liapina was hired in early August 2006--

according to the record, on either August 7 or August 14--after

meeting     with   principals         in   two    schools     who     never   knew    that

Dolgaleva       had     been      selected        for    an      initial      interview.

Dolgaleva,      who    had      applied     for    the     job   in    May    2006,    was

scheduled to interview on August 24.                       At her interview, VBCPS

assured Dolgaleva that the position was still vacant.                          But, the

day after, August 25, Dolgaleva learned that the position had

gone to Liapina.

       On October 19, 2007, three days after Dolgaleva filed her

motion to amend, the district court held its hearing on VBCPS’s

motion to dismiss.           At the hearing, the district court said that

it had received Dolgaleva’s amended complaint.                         VBCPS responded

that   it   had    not     received        the    amended     complaint,      apparently

because it had been mailed rather than filed electronically.

       The district court first heard from VBCPS on its motion to

dismiss under Rule 12(b)(6).                 VBCPS argued for the first time

                                             6
that it employed a facially neutral, rolling hiring process.

VBCPS alleged that within that process, Liapina had applied and

interviewed first, and then received the job based on her own

superior     credentials,      experience       (including        time       with       VBCPS

itself as a substitute teacher), and references.                             VBCPS also

reiterated     that     it   could      not     have     discriminated              against

Dolgaleva, a Russian, by hiring Liapina, a Belarusian, when the

two share the same national origin, the former Soviet Union.

     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    granted       VBCPS’s       motion        to    dismiss,

concluding    that    Dolgaleva    had    not    been     hired       due    to     VBCPS’s

facially     neutral,    rolling       hiring    process,         rather         than    any

                                          7
discriminatory motive.         The district court also accepted VBCPS’s

explanation     that    it     could     not     have       discriminated     against

Dolgaleva when it hired Liapina, stating that although “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.”                        J.A. 76.

Subsequently,    on    April    3,   2008,      the    district   court     issued   a

memorandum      opinion      and       order     (the        “order”)      dismissing

Dolgaleva’s complaint with prejudice.

     The district court’s order dismissing Dolgaleva’s national-

origin claim relied extensively on language from that portion of

Dolgaleva’s amended complaint, from which the district court had

quoted   liberally     during      the   Rule    12(b)(6)       hearing.      In   the

order,   the   district      court   detailed         VBCPS’s   facially     neutral,

rolling hiring process and the fact that VBCPS had hired Liapina

before   Dolgaleva     had     interviewed.           The    district   court      also

suggested that VBCPS had not discriminated against Dolgaleva on

the basis of national origin by hiring Liapina, a Belarusian.

Finally, though Dolgaleva sought to amend her complaint to add a

claim of religious discrimination and to supplement her existing

national-origin claim, the district court denied her leave to

amend in a section that appeared to treat only the religious

discrimination claim, but denied leave to amend completely.                        The

district court denied leave to amend on the ground of futility.

                                          8
     Dolgaleva timely filed a notice of appeal, and we possess

jurisdiction pursuant to 28 U.S.C. § 1291.              We appointed amicus

counsel to appear on behalf of Dolgaleva.



                                       II.

     On appeal, Dolgaleva challenges the district court’s denial

of her leave to amend.         Amicus challenges the district court’s

dismissal of Dolgaleva’s complaint under Federal Rule of Civil

Procedure 12(b)(6).      We consider these contentions below.



                                       A.

     We will begin with Dolgaleva’s argument that the district

court   erred   in   denying     her   leave   to    amend.    In   the   usual

instance, we review the denial of leave to amend for abuse of

discretion.     Edwards v. City of Goldsboro, 178 F.3d 231, 242

(4th Cir. 1999).       But in this case, we may dispose of this

argument, as well as VBCPS’s threshold argument that Dolgaleva

did not appeal the issue, by noting that Dolgaleva’s religious

discrimination claim is outside our subject-matter jurisdiction.

     Before a plaintiff may file a complaint of discrimination

in   federal    court,     she     must      first    timely   exhaust     her

administrative remedy by filing a complaint with the EEOC.                 See

Edelman v. Lynchburg College, 228 F.3d 503, 506 (4th Cir. 2000),

rev’d on other grounds, 535 U.S. 106 (2002).              In Virginia, a so-

                                       9
called “deferral state,” the time period is 300 days.                              Id.    The

failure to file a complaint with the EEOC in a timely manner

deprives      us     of    subject-matter            jurisdiction     over       the   claim.

Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009).

In     general,      we     may    raise    and       consider     our     subject-matter

limitations at any time.                 GO Computer, Inc. v. Microsoft Corp.,

508 F.3d 170, 175 n.2 (4th Cir. 2007).

       In this case, Dolgaleva lives in Virginia, and thus she had

300    days   from        the    discriminatory        act    to   file    her    religious

discrimination           claim    with    the    EEOC.        By   her    own    admission,

Dolgaleva experienced the discriminatory act on August 25, 2006,

the day she was informed of the hiring decision, but did not

file a charge of religious discrimination with the EEOC until

July 10, 2007, more than 300 days later.                           Her delay therefore

deprived the district court of subject-matter jurisdiction over

this    claim      and    any     amendment     of     that   claim      would    have   been

futile.



                                                B.

       We now consider Amicus’s argument that the district court

erroneously dismissed Dolgaleva’s complaint.                          Having determined

that    we    lack       jurisdiction      to    consider      Dolgaleva’s        religious

discrimination claim, the only claim before us is the national-

origin claim.

                                                10
                                           1.

     As a threshold matter, we must consider the scope of this

issue, for Amicus and VBCPS differ on whether it is the amended

complaint     or        the    original         complaint   on      national-origin

discrimination that is properly before us.                  Amicus suggests that

the amended complaint is before us because the district court

relied on language from it during the Rule 12(b)(6) hearing and

in the order. 2          VBCPS suggests that the original complaint is

before us, because the district court’s order denying leave to

amend “explicitly address[ed] the Motion to Amend as a whole.”

Appellee’s Br. at 10-11.

     At     the    October     19    hearing,      the   district    court    quoted

liberally    from       that   portion     of    Dolgaleva’s     amended   complaint

dealing with her national-origin claim, and further cited to it

throughout the order.               This amended complaint stated factual

allegations       not     present     in    the     original     complaint,    which

contained only seven single-sentence statements and offered no

     2
       Amicus also suggests that Dolgaleva had a right to amend
under Federal Rule of Civil Procedure 15(a)(1), which allows a
plaintiff one amendment by right before a defendant files a
responsive pleading. It is true that a motion to dismiss under
Rule 12(b)(6) is not a “responsive pleading” under the Federal
Rules.   Domino Sugar Corp. v. Sugar Workers Local Union 392 of
U.F.C.W.I., 10 F.3d 1064, 1069 n.1 (4th Cir. 1993).     But it is
also true that Dolgaleva’s response to the motion to dismiss
materially cured defects in her original complaint, so much so
that she incorporated it by reference in her amended complaint.
This may have constituted her free amendment.    In light of the
disposition we reach on this point, we need not decide.

                                           11
factual allegations.              The district court therefore implicitly

accepted      the     amended    complaint       as   an       exercise    of    its       “broad

discretion to conform the pleadings to the arguments raised by

the parties,” Weyerheauser Co. v. Brantley, 510 F.3d 1256, 1267

(10th Cir. 2007), but also determined that VBCPS would not need

to file a new motion to dismiss, see 6 Charles Alan Wright et

al.,       Federal    Practice    and   Procedure          §    1476     (2d    ed.    &    Supp.

2009).       We therefore conclude that Dolgaleva’s amended complaint

on national-origin discrimination is before us. 3




                                            2.

       We     now     consider    whether    the       district          court        erred     in

dismissing          Dolgaleva’s    amended       complaint          of     national-origin

discrimination         under     Rule   12(b)(6).              Amicus    argues       that     the

district       court    made     erroneous       findings         of     fact    under        Rule

12(b)(6), and that her complaint alleges sufficient facts to

surpass a motion to dismiss under that rule.

       We review de novo a dismissal under Rule 12(b)(6).                                  Monroe

v. City of Charlottesville, Va., 579 F.3d 380, 385 (4th Cir.

       3
       VBCPS also suggests that Dolgaleva did not appeal the
denial of leave to amend on the national-origin claim.     As we
agree with Amicus that the district court effectively allowed
Dolgaleva to amend her complaint on her national-origin claim,
VBCPS’s argument is moot.    Also, since we understand Dolgaleva
to argue that the district court erred by denying her leave to
amend on this claim, that argument is moot as well.

                                            12
2009).    On a motion to dismiss, the district court’s obligation

is to test the sufficiency of the complaint to see if it alleges

a claim for which relief can be granted.               Giarratano v. Johnson,

521 F.3d 298, 302 (4th Cir. 2008).                   In so doing, the court

should evaluate the complaint in its entirety, as well as those

documents    attached    to    the     complaint    along   with    any   that   are

integral and authentic.          Sec’y of State for Defence v. Trimble

Navigation    Ltd.,     484    F.3d    700,   705    (4th   Cir.    2007).       The

district court may go beyond these documents, which constitute

“the pleadings,” in a Rule 12(b)(6) proceeding if it converts

the proceeding to one for summary judgment.                   Fed. R. Civ. P.

12(d).    Statements of counsel at a Rule 12(b)(6) hearing that

raise new facts constitute matter beyond the pleadings.                    Hamm v.

Rhone-Poulenc Rorer Pharms., Inc., 187 F.3d 941, 948 (8th Cir.

1999).

      “While it may be preferable for a district court to trigger

this conversion [to a summary judgment proceeding] explicitly,

appellate courts may take the district court’s consideration of

matters     outside     the      pleadings     to     trigger       an    implicit

conversion.”      Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th

Cir. 2007).       This power to perform a sua sponte conversion at

the   appellate    level      serves    judicial    economy   “by    sparing     the

district court an unnecessary remand,” when the non-moving party

has had a full opportunity to respond to the matter outside the

                                         13
pleadings       anyway,      id.,     or   if    the       complaint        would       not     have

survived    under       a    proper     consideration           of    Rule    12(b)(6),          see

Thomas v. City of New York, 143 F.3d 31, 37 (2d Cir. 1998); GFF

Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384

(10th    Cir.     1997).        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.           See        Davis     v.

Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979); see also Garaux

v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984) (“The rights of pro

se litigants require careful protection where highly technical

requirements       are       involved,      especially            when      enforcing         those

requirements       might       result      in    a   loss       of    the    opportunity          to

prosecute . . . a lawsuit on the merits.”).

       In this case, rather than consider the face of Dolgaleva’s

complaint,        the       district       court         allowed      VBCPS        to     dispute

allegations in it by explaining its facially neutral, rolling

hiring     program       and    by     suggesting          that      it     could       not     have

discriminated       against      Dolgaleva,          a    Russian,        because       it    hired

Liapina, a Belarusian.                The district court then dismissed the



                                                14
case on the bases offered by VBCPS. 4            By allowing VBCPS to plead

facts    outside    the   pleadings,     and    relying    on   those    facts      to

dismiss    the     complaint   with     prejudice, 5      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.                  See Lee v. City of

Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (finding error

where the district court “assumed the existence of facts that

favor     defendants       based   on     evidence        outside     plaintiffs’

pleadings, [and] took judicial notice of the truth of disputed

     4
       We 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. The EEOC has              stated that it will define
national origin

     broadly as including, but not limited to, the denial
     of   equal  employment  opportunity   because of   an
     individual’s, or . . . her ancestor’s, place of
     origin; or because an individual has the physical,
     cultural, or linguistic characteristics of a national
     origin group.

29 C.F.R. § 1606.1. As the Supreme Court has said, “[t]he term
‘national origin’ on its face refers to the country where a
person was born, or, more broadly, the country from which his or
her ancestors came.” Espinoza v. Farah Mfg. Co., Inc., 414 U.S.
86, 88 (1973) (footnote call number omitted).    As a matter of
ancestry, it would seem that the nations comprising the former
Soviet Union are distinct.
     5
        A dismissal which is designated “with prejudice” is
“normally an adjudication on the merits for purposes of res
judicata.”   Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d
278, 284 n.8 (5th Cir. 1993) (internal quotation marks and
citation omitted).

                                        15
factual matters”).          We must still consider, however, whether the

error requires reversal.

      As   we     have   explained,      a    district      court       errs    by     going

outside the pleadings without giving the necessary notice, but

the   error     is    harmless    if   the    parties       had    a    full     and    fair

opportunity to provide the court with discovery and disclosure

materials suitable for summary judgment, see Bosiger, 510 F.3d

at 450, or if the complaint would not have withstood the motion

to dismiss on its face, see Thomas, 143 F.3d at 37; GFF Corp.,

130 F.3d at 1384.         At this juncture, we may confine ourselves to

considering       whether    Dolgaleva’s       amended      complaint          could   have

withstood the motion to dismiss.

      We review de novo the dismissal of a complaint under Rule

12(b)(6).         Monroe, 579 F.3d 385.               Though the complaint must

“give[]     the      respondent   fair       notice    of    the       basis    for    [the

plaintiff’s] claims,” 6 Swierkiewicz v. Sorema N.A., 534 U.S. 506,

514 (2002), it must also allege “enough facts to state a claim

      6
       Amicus suggests that at the pleading stage, the complaint
need satisfy the four-factor test under McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973).     This is incorrect.   McDonnell
Douglas outlined a burden of proof applicable to making out a
prima facie case of discrimination when a plaintiff elects to
make out animus by inference.     See Swierkiewicz, 534 U.S. at
510-11 (overturning the Second Circuit’s application of the
McDonnell Douglas factors at the pleading stage).         At the
pleading   stage,  however,   a   complaint  of   national-origin
discrimination need only provide sufficient factual allegations
to support the elements of the claim. See Jordan v. Alternative
Res. Corp., 458 F.3d 332, 346 (4th Cir. 2006).

                                         16
to relief that is plausible on its face,” Monroe, 579 F.3d at

386 (internal quotation marks and citation omitted); see also

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam).                                   Legal

inferences      drawn       from       the       facts,          unwarranted       inferences,

unreasonable        conclusions,         or      arguments         are   not    part      of   the

consideration.        Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

We   construe       pro     se        complaints            liberally,      imposing       “less

stringent standards than formal pleadings drafted by lawyers.”

Erickson, 551 U.S. at 94 (internal quotation marks and citation

omitted);     see    also    Atherton            v.    Dist.       of   Columbia    Office      of

Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (noting that pro se

complaints “must be held to less stringent standards than formal

pleadings”     but    that       “even       a    pro       se    complainant      must    plead

‘factual matter’ that permits the court to infer ‘more than the

mere possibility of misconduct’”) (internal quotation marks and

citations omitted). 7         Applying this framework, the Supreme Court

in Swierkiewicz held that a plaintiff had sufficiently pleaded a

complaint of national-origin discrimination when his complaint

alleged   a    violation         of    Title          VII    and    “detailed      the    events

leading   to    his       [adverse       employment              determination],       provided

relevant dates, and included . . . nationalities of at least




     7
       This basic framework is applicable to both a Title VII
claim and a § 1981 claim. Jordan, 458 F.3d at 343-44.

                                                 17
some of the relevant persons involved with his termination.”

534 U.S. at 514.

       Here, Dolgaleva brought a claim under Title VII and § 1981.

In her complaint, she named VBCPS as the defendant.                     She also

alleged that she applied for the teaching position in question

in May 2006 and was the most qualified applicant based on her

credentials and experience.          Despite these qualifications, VBCPS

deviated from its usual hiring procedures in hiring Liapina in

early August 2006, before Dolgaleva’s scheduled interview took

place on August 24.           Finally, Dolgaleva alleged that when she

attempted to find out why she had not been considered for the

position, a VBCPS employee told her that her Russian credentials

were   worthless,   and      that   her    Russian   ancestry    had   been   held

against her in the hiring decision.             Taking these allegations as

true, as we must at this stage, we believe that the district

court erred in finding them insufficiently pleaded by a pro se

litigant    to   state   a   claim    of   national-origin      discrimination.

See Swierkiewicz, 534 U.S. at 514.

       We   therefore    reverse     the    district   court’s    dismissal     of

Dolgaleva’s amended complaint as it pertains to her claim of

national-origin discrimination, and remand that portion of her

amended complaint for further proceedings consistent with this

opinion.



                                          18
                             III.

     For the foregoing reasons, the final order of the district

court is

               AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




                              19
