UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRENDA PARKER GRADY, 

Plaintiff-Appellant,

v.

NORTH CAROLINA DEPARTMENT OF

TRANSPORTATION; LYNDO TIPPETT, in

his official capacity as Secretary of  No. 02-2350 Transportation; CAROL HOWARD, in

her official capacity as

Commissioner of the Division of

Motor Vehicles; BECKY KEITH, in

her official capacity as Director of

Human Resources,

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge.

(CA-02-360-5-H)

Submitted: June 25, 2003

Decided: August 19, 2003

Before NIEMEYER and TRAXLER, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion. 
COUNSEL

Jonathan F. Koffa, Zebulon, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, Hal F. Askins, Special Deputy

Attorney General, Kimberly D. Potter, Assistant Attorney General,

Raleigh, North Carolina, for Appellees. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Brenda Parker Grady appeals the district court’s order dismissing

her complaint pursuant to Fed. R. Civ. P. 12(b)(6) against her

employer, the North Carolina Department of Transportation

("Department"), alleging retaliation and civil conspiracy in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A.

§§ 2000e to 2000e-17 (West 1994 & Supp. 2002). 

Grady conceded her civil conspiracy claim in the district court and

does not raise it on appeal. Therefore, we affirm the district court’s

dismissal of her civil conspiracy claim. 

Grady asserts the dismissal of her retaliation claim was improper

and that the district court converted the Department’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) to a motion for summary

judgment by considering documents outside the pleadings. Generally,

if the district court is presented with materials outside the pleadings

and does not exclude them, "the motion shall be treated as one for

summary judgment . . . and all parties shall be given reasonable

opportunity to present all material made pertinent to such motion by

Rule 56." Fed. R. Civ. P. 12(b); see Gay v. Wall, 761 F.2d 175, 177-

78 (4th Cir. 1985). 

2 GRADY v. NORTH CAROLINA DEP’T OF TRANSPORTATION
In ruling upon Grady’s retaliation claim, the district court considered letters from the Department offering Grady positions within the

Division of Motor Vehicles that the Department attached to its motion

to dismiss. The district court specifically states that "plaintiff had the

option of returning to the Nash County office and refused," a conclusion apparently based upon the Department’s Exhibit 3, which offered

Grady the opportunity to "remain in her current position" with an

adjusted pay and grade level. Based on our review of the record, we

conclude the district court converted the motion to dismiss to a

motion for summary judgment. Because the motion should have been

treated as one for summary judgment, the court should have given the

parties a reasonable opportunity to present all material made pertinent

by Rule 56. See Gay, 761 F.2d at 177. 

Accordingly, we vacate the portion of the district court’s order dismissing Grady’s retaliation claims under Rule 12(b)(6) and remand

for further proceedings consistent with this opinion. 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 IN PART AND REMANDED

GRADY v. NORTH CAROLINA DEP’T OF TRANSPORTATION 3