UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHARON FORD,
Plaintiff-Appellant,

v.
                                                                      No. 99-1782
ADVANCED MARKETING SERVICES,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CA-99-120-L)

Submitted: November 30, 1999

Decided: January 12, 2000

Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Alan Banov, ALAN BANOV & ASSOCIATES, Washington, D.C.,
for Appellant. Eric Hemmendinger, SHAWE & ROSENTHAL, Balti-
more, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Sharon Ford appeals the district court's order dismissing her
employment discrimination claim as untimely. For the reasons set
forth below, we vacate and remand for further proceedings.

On December 8, 1994, Ford was terminated from her employment
with Advanced Marketing Services, Inc. ("AMS"). Ford filed a timely
charge with the Equal Employment Opportunity Commission
("EEOC") alleging that she was terminated on the basis of her race
and sex. In support of her allegation, Ford stated that she was termi-
nated because she "cursed at a co-worker (male)" while other "em-
ployees (white) have cursed at fellow employees" without being
terminated. The EEOC issued Ford a right to sue letter, but Ford did
not file a lawsuit within the ninety-day time period prescribed by the
notice.

Ford filed a second timely charge with the EEOC alleging that she
was terminated in retaliation for complaining about gender discrimi-
nation in the workplace. Specifically, Ford stated that she "com-
plained to Respondent's Vice President of Human Resources about
[her] supervisor's favoritism towards one co-worker" and that she was
sexually harassed by a co-worker. The EEOC issued a right to sue let-
ter, and Ford brought the instant suit against her employer within
ninety days of her receipt of the notice. The suit alleges that Ford was
terminated in retaliation for her opposition to gender discrimination
in the workplace.

The district court granted AMS' motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. In so ruling, the dis-
trict court relied upon Lo v. Pan Am. World Airways, Inc., 787 F.2d
827 (2d Cir. 1986) (per curiam). In Lo, the Second Circuit dismissed
the plaintiff's suit because his second EEOC charge was little more
than a reiteration of the same facts in his first EEOC charge, which
had lapsed. See id. at 828; Babcock v. Frank, 729 F. Supp. 279, 285
(S.D.N.Y. 1990). Applying Lo, the district court held that Ford's two
EEOC complaints alleged the same facts and, therefore, the suit could
be timely only if filed within ninety days of the right to sue letter
issued on the first EEOC charge. See Ford v. Advanced Mktg. Servs.,

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Inc., No. CA-99-120-L (May 7, 1999). The court accordingly dis-
missed Ford's suit with prejudice as untimely. See id.

If materials outside the pleadings are presented and considered by
the court, a motion to dismiss should be treated as one for summary
judgment. See Fed. R. Civ. P. 12(b); see also Finley Lines Joint Pro-
tective Bd. v. Norfolk Southern Corp., 109 F.3d 993, 995-96 (4th Cir.
1997). In reaching its decision that Ford's EEOC complaints alleged
the same facts, the district court compared the two charges, effec-
tively converting the motion to dismiss to a motion for summary
judgment. See id. This court reviews the district court's ruling de
novo, drawing all reasonable inferences in favor of the non-moving
party. See Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Atlas Mach. & Iron Works, Inc. v. Bethlehem
Steel Corp., 986 F.2d 709, 712 (4th Cir. 1993).

The record reflects that, although both of Ford's EEOC charges
challenged her termination, different facts were raised in each of
Ford's charges and each narrative charge supported a different theory
of liability. The second charge was not merely a reiteration of the
first, as was the case in Lo. The district court thus erred in holding
that the same facts were presented in both of Ford's EEOC charges.

Furthermore, a theory of retaliation for past protected activity does
not necessarily flow from race and sex discrimination claims. See
Evans v. Technologies Applications & Servs., 80 F.3d 954, 963 (4th
Cir. 1996) (holding that an untimely charge of age discrimination can-
not relate back to a timely charge of sex discrimination because the
two theories do not necessarily flow from each other). Based on the
principles of Evans, we find that Ford's first EEOC charge does not
bar a lawsuit based on her second EEOC charge in which Ford alleges
different facts and a different theory of liability.

We accordingly conclude that the district court erred in granting
the motion to dismiss. We vacate the district court's order and remand
for the district court to conduct further 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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