UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished 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Unpublished opinions are not binding precedent in this circuit.
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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 
3

(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 nationalorigin 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.
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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).
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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 
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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
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presented in the materials before this court and argument would 

not aid the decisional process.

AFFIRMED IN PART,

VACATED IN PART, AND REMANDED