UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VICTORIA A. JEDROWICZ,
Plaintiff-Appellant,

v.

GIANT FOODS, INC.,
Defendant-Appellee,

and
                                                                     No. 99-2219
ROYAL AHOLD; J. SAINSBURY (USA)
HOLDINGS, INCORPORATED; PETER
MANOS, in his official capacity;
BRIAN KAMISCINSKI, District Manager
in his Official Capacity; FRANK
PODGORSKI, Store Manager in his
Official Capacity,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-98-3899-WMN)

Submitted: May 16, 2000

Decided: May 31, 2000

Before WIDENER and MICHAEL, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________
COUNSEL

Jo Ann P. Myles, Largo, Maryland, for Appellant. Robert G. Ames,
Connie N. Bertram, VENABLE, BAETJER, HOWARD & CIVI-
LETTI, L.L.P., Washington, D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Victoria A. Jedrowicz appeals the district court's order dismissing
her complaint against her employer, Giant Foods Incorporated
("Giant"), alleging that she was retaliated against for engaging in pro-
tected activity. The district court dismissed Jedrowicz's amended
complaint because: (1) it contained claims duplicitous of claims
against Giant contained in another of Jedrowicz's lawsuits, and (2)
the non-duplicitous claims did not state a valid claim of retaliation
because Jedrowicz did not allege an adverse employment action.

We review the district court's dismissal of an action as duplicitous
for abuse of discretion. See Serlin v. Arthur Andersen & Co., 3 F.3d
221, 223-24 (7th Cir. 1993); Upchurch v. Piper Aircraft Corp., 736
F.2d 439, 440 (8th Cir. 1984). In 1996, Jedrowicz filed an employ-
ment discrimination against Giant alleging, among other things, that
she had been retaliated against for complaining of discrimination
("the 1996 action"). In 1998, Jedrowicz filed another complaint
against Giant alleging that Giant retaliated against her after she filed
the 1996 action ("the 1998 action"). The 1998 action is the subject of
this appeal.

Giant filed a motion to dismiss the 1998 action on the basis that it
was in part duplicitous of the 1996 action. Giant supported its claim
by demonstrating that the allegations in the 1998 action were also

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contained in Jedrowicz's responses to interrogatories filed in the 1996
action. The district court agreed with Giant and dismissed many of
Jedrowicz's claims in the 1998 action as being duplicitous of the 1996
action.

In Young-Henderson v. Spartanburg Area Mental Ctr., 945 F.2d
770 (4th Cir. 1991), we found that a complaint is not amended by
facts contained in responses to interrogatories. In Young-Henderson,
the plaintiff responded to interrogatories by referring to events that
occurred after the lawsuit was filed. We stated that the "honest
response to an interrogatory was not sufficient basis to assert a legal
claim. As a general rule, facts accruing after the suit is brought may
not be inserted by way of amendment but must be added by supple-
mental pleading." Id. at 775 (citing Fed. R. Civ. P. 15(d)). Accord-
ingly, in that case, the second action was not properly dismissed on
the basis that the allegations in that complaint had been included in
answers to interrogatories in a prior action. See id.

We find that the district court erred by dismissing as duplicitous
part of Jedrowicz's 1998 action. The 1996 action was not supple-
mented pursuant to Rule 15(d) with any of the events occurring after
the 1996 action was filed and contained in the 1998 action. The dis-
trict court is under no obligation to consider the post-1996 action alle-
gations contained in the responses to interrogatories when it considers
the merits of the 1996 action. See, e.g., Perry v. Village of Arlington
Heights, 186 F.3d 826, 830 (7th Cir. 1999) ("[T]he district court did
not err by refusing to consider Perry's supplemental affidavits
addressing facts that arose after the filing of Perry's complaint.").
Thus, by dismissing the 1998 action, the district court may have
deprived Jedrowicz of a forum in which to have the post-1996 action
allegations litigated. As to these claims we vacate and remand for fur-
ther proceedings.

We review de novo the court's dismissal for failure to state a claim.
See Mayes v. Rapoport, 198 F.3d 457, 460 (4th Cir. 1999). The dis-
trict court dismissed for failure to state a claim Jedrowicz's allega-
tions that she was not allowed to wear Birkenstock sandals, that Giant
did not permit her to be measured for a new uniform, and that she was
assigned to a cash register in a remote location. We have reviewed the
record and the district court's memorandum and find no reversible

                    3
error as to these claims. Accordingly, we affirm the dismissal of
these.

In sum, we vacate that part of the district court's order finding
Jedrowicz's allegations duplicitous and remand for further proceed-
ings. We affirm that part of the district court's order dismissing those
allegations found not to state a claim. 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 IN PART, VACATED
IN PART, AND REMANDED

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