UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TIMOTHY I. BENNETT,
Plaintiff-Appellant,

v.
                                                                      No. 00-1037
ST. MARY'S COUNTY SHERIFF'S
DEPARTMENT,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Frederic N. Smalkin, District Judge.
(CA-99-1480-S)

Submitted: July 31, 2000

Decided: August 14, 2000

Before WIDENER, MOTZ, and TRAXLER, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Joe C. Ashworth, Leonardtown, Maryland, for Appellant. Daniel
Karp, Victoria M. Shearer, ALLEN, JOHNSON, ALEXANDER &
KARP, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Timothy I. Bennett appeals the district court's order granting
Defendant's motion to dismiss his complaint of discrimination under
the Americans with Disabilities Act for failure to state a claim under
Fed. R. Civ. P. 12(b)(6). We vacate and remand to the district court
for further proceedings.

We review Fed. R. Civ. P. 12(b)(6) dismissals de novo, accept as
true factual allegations of the complaint, and view the complaint in
the light most favorable to Bennett. See Mylan Labs., Inc. v. Matkari,
7 F.3d 1130, 1134 (4th Cir. 1993). Bennett's complaint alleged he
filed an administrative charge of discrimination with the Equal
Employment Opportunity Commission 298 days after the alleged act
of discrimination by Defendant. The record before us is silent as to
whether, and if so, when, the EEOC transferred the complaint to the
Maryland Commission on Human Relations ("MCHR"). The district
court, citing EEOC v. Techalloy Maryland, Inc. , 894 F.2d 676 (4th
Cir. 1990), found Bennett's complaint failed to state a claim upon
which relief could be granted because his administrative charge of
discrimination was not timely filed.

We disagree with the district court's reading of Techalloy Mary-
land. In Techalloy Maryland, an administrative charge of discrimina-
tion was filed with the EEOC 281 days after the alleged act of
discrimination. The administrative charge was received by the MCHR
on the 299th day following the alleged act of discrimination. Upon
these facts, we found the complaint in Techalloy Maryland to be
timely filed. Because receipt of the charge by both the EEOC and the
MCHR occurred within 300 days of the alleged act of discrimination,
"we decline[d] to decide whether the charge should be considered as
filed on the date the EEOC received it or on the date it was received
by MCHR." Id. at 678 n.4. Here, Bennett's complaint states that he
filed his administrative charge with the EEOC within 300 days of the
alleged act of discrimination. If further proceedings reveal that his
administrative charge was also received by the MCHR within 300
days of the alleged act of discrimination, the facts in this case will be
indistinguishable from those in Techalloy Maryland. Thus, it is not

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clear as a matter of law that no relief can be granted under any set of
facts that can be proved consistent with Bennett's allegations. See
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

Further, even if Bennett's administrative charge was not received
by the MCHR within 300 days of the alleged act of discrimination,
it is not plain that the district court lacked jurisdiction to entertain his
complaint. While Techalloy Maryland explicitly declined to decide
whether filing of the administrative charge with the EEOC alone
within 300 days would have been timely, thus leaving that question
unresolved, at least one other district court in Maryland has applied
Techalloy Maryland to find that "a charge is deemed timely if it is
sent to the EEOC within 300 days after the alleged unlawful prac-
tice." Francis v. Board of Sch. Comm'rs, 32 F. Supp. 2d 316, 321 (D.
Md. 1999).

Accordingly, while we express no opinion as to either the threshold
question of whether Bennett's administrative charge was timely filed
or the ultimate merits of his complaint of discrimination, we vacate
the district court's order dismissing his complaint and remand for fur-
ther proceedings. 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.

VACATED AND REMANDED

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