                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 13-1127


SUNDERSINGH BALA,

                Plaintiff - Appellant,

          v.

COMMONWEALTH   OF   VIRGINIA   DEPARTMENT    OF   CONSERVATION   AND
RECREATION,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:12-cv-00748-HEH)


Submitted:   June 28, 2013                        Decided:   July 5, 2013


Before MOTZ, SHEDD, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Sundersingh Bala, Appellant Pro Se.  Nicholas Foris Simopoulos,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Sundersingh        Bala    appeals     the    district          court’s   order

dismissing, pursuant to Fed. R. Civ. P. 12(b)(6), his action

alleging violations of Title VII of the Civil Rights Act of

1964, as amended (“Title VII”), 42 U.S.C.A. §§ 2000e to 2000e-17

(West 2003 & Supp. 2013).              Bala, an East Indian and naturalized

United     States         citizen,     alleged     that         his     employer,        the

Commonwealth         of    Virginia       Department       of     Conservation          and

Recreation (“DCR”), discriminated and retaliated against him in

violation       of   Title    VII    by   laying    him    off        and    subsequently

failing to select him for an interview for an open position.

Bala’s complaint also asserted that DCR conspired to violate his

civil rights.        In granting DCR’s motion to dismiss, the district

court    held    that     Bala’s     discrimination       and    retaliation          claims

failed to allege facts sufficient to survive analysis under the

framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973).           The court also concluded that Bala failed

to allege facts sufficient to establish a conspiracy claim.                             For

the reasons that follow, we affirm in part, vacate in part, and

remand.

            This court reviews de novo a district court’s order

dismissing a complaint for failure to state a claim, assuming

that all well-pleaded nonconclusory factual allegations in the

complaint are true.            Aziz v. Alcolac, Inc., 658 F.3d 388, 391

                                            2
(4th Cir. 2011).          A Rule 12(b)(6) motion challenges the legal

sufficiency of the complaint.                   Francis v. Giacomelli, 588 F.3d

186, 192 (4th Cir. 2009).

              “To    survive   a    motion       to    dismiss      pursuant     to    Rule

12(b)(6), plaintiff’s ‘[f]actual allegations must be enough to

raise a right to relief above the speculative level,’ thereby

‘nudg[ing]     their     claims     across       the   line    from     conceivable        to

plausible.’”        Aziz, 658 F.3d at 391 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)).                     While a court must accept

the material facts alleged in the complaint as true, Edwards v.

City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999), statements

of bare legal conclusions “are not entitled to the assumption of

truth”   and    are    insufficient     to       state    a   claim.         Ashcroft      v.

Iqbal, 556 U.S. 662, 679 (2009).                      “Although the Supreme Court

has made clear that the factual allegations in a complaint must

make entitlement to relief plausible and not merely possible,

what Rule 12(b)(6) does not countenance are dismissals based on

a   judge’s     disbelief      of   a   complaint's           factual    allegations.”

McLean   v.    United    States,     566     F.3d      391,   399     (4th    Cir.    2009)

(internal quotation marks and citations omitted).                            Moreover, if

a   claim    lacks    merit,   it    “may       be    dealt   with    through       summary

judgment under Rule 56.”            Swierkiewicz v. Sorema N.A., 534 U.S.

506,   514     (2002).      Finally,        a    pro    se    complaint       “is     to   be

liberally construed, . . . and . . . must be held to less

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stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation

marks and citations omitted).

            In reviewing the dismissal of a complaint under Rule

12(b)(6), we “may consider documents attached to the complaint

. . . as well as those attached to the motion to dismiss, so

long   as   they    are   integral         to       the   complaint       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 the

complaint     and     attached         documents,               which    constitute          “the

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

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

12(d).      But,    conversion        of    a       motion      to   dismiss      to   one      for

summary judgment requires that “[a]ll parties must be given a

reasonable    opportunity        to    present            all    the    material       that     is

pertinent to the motion.”             Id.

            The district court analyzed Bala’s discrimination and

retaliation claims under the burden-shifting framework adopted

by the Supreme Court in McDonnell Douglas, requiring Bala at a

minimum to allege a prima facie case as to each of his claims.

In the employment discrimination context, however, a plaintiff

need not establish a prima facie case under McDonnell Douglas in

order to survive a motion to dismiss.                        Swierkiewicz, 534 U.S. at

510-11   (concluding      that    “the          prima      facie       case   .   .    .   is    an

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evidentiary      standard,   not     a    pleading    requirement.”).            “This

Court has never indicated that the requirements for establishing

a prima facie case under McDonnell Douglas also apply to the

pleading    standard   that    plaintiffs       must    satisfy       in   order      to

survive a motion to dismiss.”              Id. at 511.       Complaints in such

cases therefore “must satisfy only the simple requirements of

Rule 8(a).”      Id. at 513.

            On    appeal,    Bala        challenges    the     district        court’s

disposition of his discrimination and retaliation claims. 1                       Bala

does not specifically argue that the district court erred in

analyzing   his    claims    under       McDonnell    Douglas.        As   a   pro     se

litigant, however, Bala is entitled to liberal construction of

his pleadings.       Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

We   therefore    construe     Bala’s      informal    brief     to    advance        the

alternative argument that the district court erred in dismissing

his claims based solely on his failure to survive the McDonnell

Douglas analysis.

            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 termination,

      1
       Bala concedes on appeal that his claim alleging that DCR
conspired to violate his civil rights was insufficient to
survive the motion to dismiss.



                                           5
provided relevant dates, and included the . . . nationalities of

at     least    some      of     the     relevant       persons      involved     with    his

termination.”         534 U.S. at 514.

               Bala’s complaint first alleged a discrimination claim

against DCR arising from his layoff (Claim One).                           Bala provided

details and the relevant dates of his employment and of the

events leading to the termination of his position.                              However, he

did not provide the nationalities of any of the relevant persons

involved with DCR’s decision to lay him off or otherwise allege

facts supporting his assertion that the decision was influenced

by his national origin or race.                        Taking these allegations as

true, as is required in consideration of a Rule 12(b)(6) motion,

we   nonetheless          conclude       that    this    claim      is   insufficient      to

survive DCR’s motion to dismiss.                        Accordingly, we affirm the

portion        of   the     district        court’s         order    dismissing      Bala’s

discrimination claim arising from his layoff.

               Bala’s complaint next alleged that DCR discriminated

against    him       on    the    basis     of       national     origin   and     race    in

declining to select him for an interview (Claim Two).                                Rather

than consider the face of Bala’s complaint, the district court

allowed DCR to dispute Bala’s discrimination claim by asserting

that     Bala       had        limited     experience,          received        unfavorable

performance         reviews,      and     engaged      in    prior    misconduct.         The

district court then dismissed this claim on the bases offered by

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DCR. 2       By allowing DCR to raise facts outside the pleadings, and

relying on those facts to dismiss Bala’s discrimination claim,

the district court permitted DCR to demonstrate that it acted on

a   legitimate,        nondiscriminatory       basis.   Because   the   district

court        considered    DCR’s     proffered   legitimate   nondiscriminatory

reasons at a procedurally improper time, within the context of a

Rule 12(b)(6) motion, we conclude that the court erred.

                  Bala’s discrimination claim arising from DCR’s failure

to select him for an interview alleged that DCR’s failure to

interview him for the position was discriminatory based on his

national origin and race, and Bala set forth his qualifications

for the position.            He alleged that less qualified applicants

were selected for the interview and that the screening panel for

the position consisted of only one Caucasian male.                Taking these

allegations as true, we conclude that the district court erred

in finding Bala’s complaint insufficiently pleaded to state a

claim of race or national origin discrimination sufficient to

survive       a    Rule   12(b)(6)    dismissal,   particularly   in    light   of

Bala’s pro se status.




         2
       The district court’s order dismissed Bala’s entire action
without prejudice, so the dismissal is immediately reviewable.
See Chaov Rivendell Woods, Inc., 415 F.3d 342, 345 (4th Cir.
2005).



                                           7
                Likewise,       in     dismissing           Bala’s      retaliation     claim

arising from DCR’s decision to lay him off (Claim Three), the

district        court    relied      on    the       assertions      contained    in    DCR’s

motion.     By allowing DCR to establish a nondiscriminatory reason

for   its    conduct,         and    further     concluding       that     Bala   failed    to

allege      that    the       stated       justification          was     pretextual,      the

district court went outside of the pleadings.                            By doing so at a

procedurally improper time, the district court erred.

                Bala alleged that DCR laid him off as of December 31,

2009, because of his previously filed internal grievances and

EEOC complaints.              Bala provided the dates and details of his

protected activities, and attached a number of the grievances to

his complaint.           Taking these allegations as true, as we must at

this stage, we conclude that the district court erred in finding

them insufficient to state a claim of retaliation sufficient to

survive     a    Rule     12(b)(6)        dismissal,        particularly     in   light     of

Bala’s pro se status.

                Finally, Bala alleged a retaliation claim against DCR

for   failing       to    select       him     for     an    interview      for   a    grants

accounting position (Claim Four).                      He alleged that DCR declined

to    interview         him    in    retaliation         for    his      previously     filed

internal grievances and EEOC complaints.                        Bala also provided the

dates and details of his protected activities, and he attached a

number of the grievances to his complaint.                            Bala set forth his

                                                 8
qualifications     for    the   position,    including    his   education     and

experience working for DCR, and asserted that ten less qualified

applicants were selected to interview for the position.                   Taking

these allegations as true, as we must, we conclude that the

district court erred in finding them insufficient to state a

claim of retaliation at the Rule 12(b)(6) stage.

           For    the    foregoing   reasons,    we    affirm   the     district

court’s dismissal of Bala’s discrimination claim arising from

his layoff.      However, we hold that Bala’s claims under Title VII

for discrimination relating to DCR’s failure to select him for

an interview and for retaliation relating to DCR’s decision to

lay him off and failure to select him for an interview are

sufficient to withstand Rule 12(b)(6) dismissal.                 Accordingly,

we vacate the judgment dismissing those claims and remand for

further proceedings.

           In    holding    that   these    claims    survive    a   motion    to

dismiss   under    Rule    12(b)(6),   we    express     no   opinion    on   the

ultimate merits of these claims.            On remand and after discovery,

the district court must determine whether issues of triable fact

exist on the elements of Bala’s claims.               We dispense with oral

argument because the facts and legal contentions are adequately




                                       9
presented in the materials before this court and argument would

not aid the decisional process.



                                                   AFFIRMED IN PART,
                                       VACATED IN PART, AND REMANDED




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