UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TIMOTHY I. BENNETT,

Plaintiff-Appellant,

v.

No. 00-1037

ST. MARY'S COUNTY SHERIFF'S

DEPARTMENT,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Frederic N. Smalkin, District Judge.

(CA-99-1480-S)

Submitted: July 31, 2000

Decided: August 14, 2000

Before WIDENER, MOTZ, and TRAXLER, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Joe C. Ashworth, Leonardtown, Maryland, for Appellant. Daniel

Karp, Victoria M. Shearer, ALLEN, JOHNSON, ALEXANDER &

KARP, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Timothy I. Bennett appeals the district court's order granting

Defendant's motion to dismiss his complaint of discrimination under

the Americans with Disabilities Act for failure to state a claim under

Fed. R. Civ. P. 12(b)(6). We vacate and remand to the district court

for further proceedings.

We review Fed. R. Civ. P. 12(b)(6) dismissals de novo, accept as

true factual allegations of the complaint, and view the complaint in

the light most favorable to Bennett. See Mylan Labs., Inc. v. Matkari,

7 F.3d 1130, 1134 (4th Cir. 1993). Bennett's complaint alleged he

filed an administrative charge of discrimination with the Equal

Employment Opportunity Commission 298 days after the alleged act

of discrimination by Defendant. The record before us is silent as to

whether, and if so, when, the EEOC transferred the complaint to the

Maryland Commission on Human Relations ("MCHR"). The district

court, citing EEOC v. Techalloy Maryland, Inc. , 894 F.2d 676 (4th

Cir. 1990), found Bennett's complaint failed to state a claim upon

which relief could be granted because his administrative charge of

discrimination was not timely filed.

We disagree with the district court's reading of Techalloy Maryland. In Techalloy Maryland, an administrative charge of discrimination was filed with the EEOC 281 days after the alleged act of

discrimination. The administrative charge was received by the MCHR

on the 299th day following the alleged act of discrimination. Upon

these facts, we found the complaint in Techalloy Maryland to be

timely filed. Because receipt of the charge by both the EEOC and the

MCHR occurred within 300 days of the alleged act of discrimination,

"we decline[d] to decide whether the charge should be considered as

filed on the date the EEOC received it or on the date it was received

by MCHR." Id. at 678 n.4. Here, Bennett's complaint states that he

filed his administrative charge with the EEOC within 300 days of the

alleged act of discrimination. If further proceedings reveal that his

administrative charge was also received by the MCHR within 300

days of the alleged act of discrimination, the facts in this case will be

indistinguishable from those in Techalloy Maryland. Thus, it is not

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clear as a matter of law that no relief can be granted under any set of

facts that can be proved consistent with Bennett's allegations. See

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

Further, even if Bennett's administrative charge was not received

by the MCHR within 300 days of the alleged act of discrimination,

it is not plain that the district court lacked jurisdiction to entertain his

complaint. While Techalloy Maryland explicitly declined to decide

whether filing of the administrative charge with the EEOC alone

within 300 days would have been timely, thus leaving that question

unresolved, at least one other district court in Maryland has applied

Techalloy Maryland to find that "a charge is deemed timely if it is

sent to the EEOC within 300 days after the alleged unlawful practice." Francis v. Board of Sch. Comm'rs, 32 F. Supp. 2d 316, 321 (D.

Md. 1999).

Accordingly, while we express no opinion as to either the threshold

question of whether Bennett's administrative charge was timely filed

or the ultimate merits of his complaint of discrimination, we vacate

the district court's order dismissing his complaint and remand for 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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