UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANTHONY N. WHITING,

Plaintiff-Appellant,

v.

SKI'S AUTO WORLD PAINT AND BODY

No. 98-2623

SHOP, INCORPORATED; WILLIAM W.

WESLOWSKI, d/b/a Ski's Auto World

Paint and Body Shop,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief District Judge.

(CA-98-215-5-B02)

Submitted: May 28, 1999

Decided: September 23, 1999

Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed in part and vacated and remanded in part by unpublished

per curiam opinion.

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COUNSEL

Anthony N. Whiting, Appellant Pro Se. Susan Joyce Hall, Fayetteville, North Carolina, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Anthony N. Whiting appeals from the district court's order denying

relief on his claims of employment discrimination, brought under 42

U.S.C. § 2000e-2 (1994) (Title VII) and 42 U.S.C. § 1981 (1994), and

his pendent state tort claims of intentional and negligent infliction of

emotional distress. His claims are based on his former employer's

decision not to promote him to the position of painter, and his subsequent termination from employment. We have reviewed the record

and the district court's opinion and find no reversible error with

regard to the state tort claims or the § 1981 discriminatory termination

claim. Accordingly, we affirm the dismissal of those claims on the

reasoning of the district court. See Whiting v. Ski's Auto World, No.

CA-98-215-5-B02 (E.D.N.C. Sept. 25, 1998).

We find, however, that the district court's determination that Whiting failed to file a timely charge of discrimination with the Equal

Employment Opportunity Commission ("EEOC") was incorrect.

Although Whiting's June 1996 letter to the EEOC was not sworn, that

letter was verified when Whiting met with an EEOC representative in

October 1996. An otherwise timely, but unsworn, charge of discrimination may be subsequently amended to become verified, and the

amended charge relates back to the date the complaint was first

received by the EEOC. See 29 C.F.R. § 1601.12(b) (1998). Whiting's

June 1996 letter was, therefore, a timely charge of discrimination filed

with the EEOC. See id.; Tinsley v. First Union Nat'l Bank, 155 F.3d

435, 439 n.2 (4th Cir. 1998); Balazs v. Liebenthal, 32 F.3d 151, 156-

58 (4th Cir. 1994). We vacate and remand that portion of the district

court's order that dismissed Whiting's Title VII claim.

The district court's dismissal of Whiting's § 1981 discrimination

claim for failure to promote must also be vacated. To establish a

prima facie case of discrimination for this claim, Whiting had to show

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that: 1) he is a member of a protected class; 2) he applied for the

painter position; 3) he was qualified for the position; and 4) he was

rejected for the position under circumstances that raise an inference

of unlawful discrimination. See Carter v. Ball , 33 F.3d 450, 458 (4th

Cir. 1994); Gairola v. Commissioner of Va. Dep't of Gen. Servs., 753

F.2d 1281, 1285-86 (4th Cir. 1985).

In reaching the conclusion that Whiting's allegations did not provide a sufficient basis for a § 1981 discrimination claim for failure to

promote, the district court relied primarily on two facts: Terry Alfono

accepted the painter position; and Alfono had seniority over Whiting

when Alfono was initially offered the painter job. In reviewing the

record in the light most favorable to Whiting, as we must in the summary judgment posture, see Smith v. Virginia Commonwealth Univ.,

84 F.3d 672, 675 (4th Cir. 1996) (en banc), we conclude that Whiting's June 1996 letter to the EEOC set forth facts sufficient to state

a prima facie case. Importantly, although Alfono, who is white, was

offered the promotion to painter, he decided he did not want the job.

Alfono then left Defendant Ski's employ. Although Alfono returned

to Ski's as a painter about two weeks later, the series of events that

occurred during his absence are central to Whiting's claim.

After Alfono left Ski's, Whiting, who is black, expressed an interest in the painter position but was rebuffed by Defendant Weslowski;

Weslowski allegedly told Whiting that a new person had been hired

for the position. However, several days passed and no new person

reported for work. When questioned by Whiting, Weslowski continued to maintain that a new person had been hired as painter. Whiting

then telephoned Weslowski and, without first identifying himself,

asked Weslowski whether the painter position had been filled; Weslowski said that the position had not been filled. Weslowski then

asked the caller to identify himself and Whiting did so. Whiting was

terminated the following morning. Two days after Whiting was fired

Alfono returned to Ski's as a painter.

Because the totality of these facts, as alleged by Whiting and when

considered in a light most favorable to him, established a prima facie

claim of § 1981 discrimination for failure to promote, we vacate that

portion of the district court's order that dismissed this claim and

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remand for further proceedings. See Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986); Smith, 84 F.3d at 675.

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.

AFFIRMED IN PART; VACATED AND REMANDED IN PART 

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