UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1469
JOSEPH WOJCICKI,
Plaintiff - Appellant,
v.
AIKEN TECHNICAL COLLEGE; SUSAN A. WINSOR, ex Graham ATC
president; WILLIAM TILT, Associate Vice President of
Technical Education; THOMAS DESROCHER, Program Coordinator;
LEE POWELL, Human Resources Director,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Henry F. Floyd, District Judge.
(1:06-cv-00461-HFF-BM)
Argued: December 4, 2009 Decided: January 11, 2010
Before TRAXLER, Chief Judge, and AGEE and DAVIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Carte Patrick Goodwin, GOODWIN & GOODWIN, LLP,
Charleston, West Virginia, for Appellant. Charles J. Boykin,
BOYKIN & DAVIS, LLC, Columbia, South Carolina, for Appellees.
ON BRIEF: Shunna T. Vance, BOYKIN & DAVIS, LLC, Columbia, South
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Wojcicki brought this action against Aiken Technical
College and its employees, alleging discrimination under Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§
2000e - 2000e-17 (West 2003 & Supp. 2009), the Americans with
Disabilities Act, 42 U.S.C.A. §§ 12101 - 12117 (West 2005 &
Supp. 2009), and the Age Discrimination in Employment Act, 29
U.S.C.A. §§ 621 - 634 (West 2008 & Supp. 2009). The district
court dismissed the action with prejudice, adopting the report
and recommendation of the magistrate judge finding that Wojcicki
had failed to exhaust his administrative remedies prior to
filing the lawsuit. In doing so, the district court refused to
consider evidence of exhaustion presented for the first time in
Wojcicki’s objections to the magistrate judge’s report and
recommendation as untimely, and held that the issue was waived. 1
For the following reasons, we vacate and remand for further
proceedings.
I.
In 2002, Wojcicki filed a discrimination lawsuit against
Aiken Technical College and several individual defendants,
1
The district court also dismissed with prejudice a state
law claim raised by plaintiff under the South Carolina Workers’
Compensation Act. The disposition of this claim, to the extent
it was ever asserted, has not been challenged on appeal.
2
alleging discrimination under various federal statutes. The
lawsuit was settled in 2003. In February 2006, however,
Wojcicki filed a second pro se lawsuit against Aiken Technical
College and several of its employees alleging similar
discrimination claims. The defendants asserted that the claims
had been litigated in the prior lawsuit and were thus barred by
the doctrine of res judicata. The district court agreed in
part, dismissing any claims that preceded the disposition of the
prior lawsuit but denying the motion as to any claims that
postdated it. The district court also ordered Wojcicki to file
an amended complaint setting out the exact claims he was
asserting, the jurisdictional bases for those claims, the
factual bases for those claims, and the relief sought.
After Wojcicki filed his amended complaint, the defendants
again moved to dismiss, claiming, inter alia, that Wojcicki had
failed to exhaust his administrative remedies before filing his
action. Specifically, they argued that Wojcicki had failed to
file any new administrative charges with either the Equal
Employment Opportunity Commission (“EEOC”) or the South Carolina
Human Affairs Commission (“SCHAC”) for the alleged acts of
discrimination that post-dated resolution of his prior lawsuit.
In response to the defendants’ motion to dismiss, Wojcicki
filed a “Motion for Default Judgment in the Favor of Plaintiff,”
which was considered by the court to be a response to the
3
defendants’ motion to dismiss. As noted by the magistrate
judge, the pleading is difficult to read and at times
disjointed. Nevertheless, Wojcicki made several assertions to
the effect that he had exhausted his administrative remedies and
that the defendants and defense counsel were well aware that he
had done so. 2 The magistrate judge recommended dismissal of the
action for failure to exhaust administrative remedies, noting
that Wojcicki had “offer[ed] no exhibits, evidence, or even any
argument, to show that he exhausted his administrative remedies
with respect to any discrimination claims post-dating his prior
litigation.” J.A. 122 (footnote omitted).
2
See J.A. 111 (“The statements in [the defendants’
Motion and Memorandum] are not true, have false information or
are irrelevant to this case[; e].g. the office of [defense
counsel] was representing defendants in my charges submitted to
[the] SC Human Affairs Commission, so they cannot claim that
administrative way was not used in this case.”); J.A. 112
(Defense counsel “has cooperated/represented [defendants] many
years in many disputes including charges in SC Human Affairs
Commission and EEOC. . . . There w[as] also no relie[f] offered
in the administrative way.”); id. (“The defendants in 2006 did
not answer on my First Request for Production [filed]
07/20/2006; where the item #5 asked for . . . [d]efendants’
responses to SC Human Affairs Commission and EEOC. They know
about the new charges. . . .”); J.A. 113 (Defense “[f]irm dares
to pretend they do not know that plaintiff exhausted
administrative remedies. Firm was a significant . . . partner
[to defendant] in SCHAC/EEOC. Both institutions instructed
plaintiff to seek a relief in the court.”); J.A. 115 (“Firm
knows about fulfillment of the administrative way being
[defendants’] representative in the case for the long time.”).
4
In his objections to the magistrate judge’s report and
recommendation, Wojcicki again pointed out that the
“[d]efendants well knew . . . this case was in SC Human Affairs
Commission as well as in EEOC,” that “[t]he same [attorney]
actively represented defendants in the administrative process,”
and that “[t]hey knew very well when it ended.” J.A. 126; see
also J.A. 128 (“They might not claim that there were not
administrative remedies exhausted especially because they play
the active role there. This process last very long and THEY
KNEW its ending. They are bringing the non-existing fact as a
support for their motion.”). This time, however, Wojcicki
produced for the first time documents from the EEOC and SCHAC
demonstrating that he had exhausted his administrative remedies.
Specifically, he produced a “Dismissal and Notice of Rights”
from the EEOC, dated December 8, 2005, J.A. 133, and a
“Dismissal and Notice of Right to Sue” from the S.C. Human
Affairs Commission, dated November 4, 2005, J.A. 134. Both
documents post-dated the dismissal of his prior lawsuit.
In response to Wojcicki’s objections to the recommendation
that his suit be dismissed for failure to exhaust, the
defendants asserted that plaintiff’s amended complaint was time
barred for failure to bring suit within ninety days of his
receipt of the right-to-sue letters. Defendants also asserted
that the amended complaint contained claims that were dismissed
5
by the court’s prior order and that it set forth unfounded
assertions upon which relief could not be granted. Defendants
did not, however, dispute the authenticity of the EEOC and SCHAC
right-to-sue letters or, for that matter, disagree that Wojcicki
had exhausted his administrative remedies by filing before the
appropriate agencies. On the contrary, defense counsel asserted
that:
Plaintiff filed a Charge of Discrimination with SCHAC
on or about February 22, 2005. SCHAC sent a Notice of
Charge of Discrimination to the EEOC on or about
February 23, 2005. During the time period the Notices
of Right to Sue were issued, Defendants’ counsel
withdrew from a law practice and opened a new practice
on December 1, 2005. The notices of right to sue were
inadvertently not referenced. This was in no way an
attempt to mislead the Court. However, . . .,
Plaintiff’s claims are time barred. Defendants’
counsel apologies [sic] to Plaintiff and the Court for
any inconvenience.
J.A. 139 (emphasis added).
The district court thereafter granted the defendants’
motion to dismiss on the ground that plaintiff had failed to
exhaust his administrative remedies. Although noting that the
plaintiff had “submit[ted] as evidence, for the first time, a
dismissal and notice of rights from the [EEOC] and a dismissal
and notice of right to sue from the [SCHAC],” J.A. 149, the
district court ruled that the evidence could not be considered
because it had not been first presented to the magistrate judge.
6
II.
The Federal Magistrate’s Act provides that a district
court, when reviewing a magistrate judge’s report and
recommendation, “shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made” and “may also
receive further evidence.” 28 U.S.C.A. § 636(b)(1) (West 2006)
(emphasis added); see also Doe v. Chao, 306 F.3d 170, 183 n.9
(4th Cir. 2002). We review the district court’s refusal to
accept new evidence following a magistrate judge’s report and
recommendation for abuse of discretion. See Doe, 306 F.3d at
183 (citing United States v. Howell, 231 F.3d 615, 622-23 (9th
Cir. 2000) (reviewing for abuse of discretion a district court’s
refusal to permit the production of new evidence following a
magistrate judge’s recommendation regarding a dispositive
motion)). Wojcicki contends the district court abused its
discretion by refusing to consider the right-to-sue letters
which were submitted along with his objections to the magistrate
judge’s report and recommendation. 3 We agree.
In dismissing Wojcicki’s suit, the district court, relying
primarily upon Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec.
3
Following his appeal to this court, we appointed counsel
to represent Wojcicki and scheduled the case for oral argument.
7
Co., held that issues raised for the first time in objections to
the magistrate judge’s recommendation should be deemed waived.
See 840 F.2d 985, 990-91 (1st Cir. 1988); but see United States
v. George, 971 F.2d 1113, 1118 (4th Cir. 1992) (holding that “as
part of its obligation to determine de novo any issue to which
proper objection is made, a district court is required to
consider all arguments directed to that issue, regardless of
whether they were raised before the magistrate.”). However, we
need not decide whether the district court could or should have
considered an issue raised for the first time after the
magistrate judge issued the recommendation. In this case,
Wojcicki did respond to the issue of exhaustion before the
magistrate judge and, in doing so, asserted that he had in fact
exhausted his administrative remedies. He also informed the
magistrate judge that the defendants and defense counsel were
involved in and well aware of the administrative proceedings and
the outcome of them.
While we are sympathetic to the difficulties district
judges and magistrate judges sometimes face when dealing with
pro se litigants, the circumstances in this case compel us to
conclude that the district judge should have considered the
belated evidence presented to support Wojcicki’s assertions. As
a pro se litigant, Wojcicki was entitled to have his pleadings
read liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
8
(per curiam) (“A document filed pro se is to be liberally
construed, and a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers.” (internal quotation marks and citation
omitted)); Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002)
(noting “the long-standing practice” that courts “construe pro
se pleadings liberally”).
In his response to the defendants’ motion to dismiss,
Wojcicki did raise, however inartfully, the issue of exhaustion
and asserted that defense counsel was aware that he had
exhausted his remedies. And this, it appears, was a reasonable
belief on his part. Immediately after the magistrate judge
issued the report and recommendation, defense counsel advised
the court that the right-to-sue letters were, in fact, in his
possession but “inadvertently not referenced,” and represented
that “[t]his was in no way an attempt to mislead the Court.”
J.A. 139. Thus, in our view, defense counsel implicitly (and
arguably explicitly) withdrew failure-to-exhaust as a ground for
the motion to dismiss. Certainly, defense counsel did not
pursue the ground in his filings with the district court,
choosing instead to assert timeliness and other grounds as a
basis for accepting the magistrate judge’s recommendation. We
also note that this does not appear to be a case where Wojcicki
held back the evidence in order to gain some strategic
9
advantage. See Howell, 231 F.3d at 622 (noting that “requiring
the district court to hear evidence not previously presented to
the magistrate judge might encourage sandbagging”). On the
contrary, a fair reading of the pleadings in this case indicates
that Wojcicki may simply have seen no need to produce the
letters given his knowledge that they existed and that defense
counsel was aware of them. And, while there was no requirement
that a hearing be held by the magistrate judge, we think it
likely that such a hearing would have uncovered both the mistake
on the part of defense counsel and the evidence itself.
III.
For the foregoing reasons, we are constrained to conclude
that the district court abused its discretion in refusing to
accept the evidence of exhaustion presented by Wojcicki in his
objections to the report and recommendation of the magistrate
judge and in dismissing the lawsuit on the basis of a failure to
exhaust administrative remedies without at least considering
that evidence. By this disposition, we only conclude that the
district court should have accepted and considered the evidence.
We indicate no view as to the ultimate viability of this defense
or of any other factual or legal defenses properly raised by the
defendants.
VACATED AND REMANDED
10