UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1018

SANJEEV MALHOTRA,

Plaintiff - Appellant,

versus

KCI TECHNOLOGIES, Inc., et. al and/or its

assignees,

Defendant - Appellee.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Richard D. Bennett, District Judge.

(CA-05-1661-RDB)

Submitted: May 26, 2006 Decided: July 11, 2007

Before WILLIAMS, Chief Judge, and WILKINSON and KING, Circuit

Judges.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

Sanjeev Malhotra, Appellant Pro Se. Jay Robert Fries, KRUCHKO &

FRIES, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

In this employment discrimination suit, Sanjeev Malhotra

appeals from the district court’s orders dismissing certain claims

for failure to exhaust administrative remedies and dismissing the

remainder of the suit without prejudice for failure to comply with

Fed. R. Civ. P. 26(a) and the court’s scheduling order. Both

orders were brief and devoid of reasoning. We affirm the former

order, but vacate the latter and remand for further proceedings.

I.

Malhotra, a man of East Indian ancestry, filed suit

against his former employer, KCI Technologies, Inc. (“KCI”),

alleging wrongful termination, retaliation, harassment, and

discrimination on the basis of sex, age and national origin. KCI

moved to dismiss the claims of sex discrimination, retaliation and

harassment, as Malhotra’s initial charge of discrimination filed

with the Maryland Commission on Human Relations (“MCHR”) stated

only age and national origin as the basis of his employment

discrimination claims of pay disparity and wrongful discharge.

Malhotra responded, asserting that MCHR prepared the charge and he

understood that his summary, which was attached to the charge,

would also be considered during the investigation. The district

court granted KCI’s motion to dismiss. 

On August 31, 2005, the court entered a scheduling order,

stating that initial disclosures under Fed. R. Civ. P. 26(a)(1)
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were due by October 31. The order did not specify what sanctions

would be appropriate if the order was disregarded. On November 11,

KCI’s counsel sent Malhotra a letter, reminding him of the

scheduling order and enclosing a copy of Rule 26(a)(1) to describe

the information that must be disclosed. On November 23, counsel

called Malhotra and left a message regarding the Rule 26

disclosures. On December 2, KCI filed a motion for sanctions.

On December 7, Malhotra filed a document “in reference to

Initial Disclosure pursuant to Rule 26(a).” The document was date

stamped at the district court drop box, and KCI admits that it

received a copy of the filing. However, the document is not noted

on the district court’s docket sheet, and it appears that it was

returned to Malhotra under the mistaken belief that it was either

discovery material or a discovery motion made without a certificate

stating that there had been an attempt to resolve the dispute as

required by Md. R. 104.7. In this document, Malhotra stated that

he believed, as a pro se litigant, that he was exempt from Rule

26(a). He also listed names of staff at KCI involved in his

complaint and stated that he planned to respond to KCI’s motion for

sanctions by December 24. 

On December 21, the district court dismissed Malhotra’s

complaint without prejudice for failure to comply with discovery
1

While the complaint was dismissed without prejudice, the

effect of the dismissal was with prejudice, because the statute of

limitations had already run. See 42 U.S.C. § 2000e-5(f)(1) (2000)

(providing lawsuit must be filed within ninety days of receipt of

the EEOC right-to-sue letter).

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orders.1 The district court’s order included no reasoning. On

December 27, Malhotra filed a response to KCI’s motion for

sanctions, stating that KCI’s motion was moot based on his

December 7 filing. The district court construed the filing as a

motion for reconsideration and denied it without discussion.

Malhotra timely appealed. 

II.

A plaintiff must exhaust administrative remedies with the

EEOC before filing suit under Title VII. Smith v. First Union

Nat’l Bank, 202 F.3d 234, 247 (4th Cir. 2000). “The EEOC charge

defines the scope of the plaintiff’s right to institute a civil

suit.” Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir.

2002). An administrative charge of discrimination does not

strictly limit the Title VII suit that may follow; rather, the

scope of the civil action is confined by the scope of the

administrative investigation that can reasonably be expected to

follow the charge. Id. However, “[o]nly those discrimination

claims stated in the initial charge, those reasonably related to

the original complaint, and those developed by reasonable

investigation of the original complaint may be maintained in a
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subsequent Title VII lawsuit.” Evans v. Techs. Applications &

Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996).

Malhotra’s failure to allege in his charge that he was

discriminated against on the basis of sex or that he was retaliated

against or harassed precludes him from making these claims in his

Title VII action. Even if the summary that was attached to the

charge is considered, as he claims it should be, only Malhotra’s

allegation that a black woman was promoted when he was fired comes

close to showing employment discrimination based on a protected

classification. However, even in his summary, Malhotra does not

state that he was denied a promotion because he was a male.

Moreover, Malhotra’s charge stated that he claimed only age and

national origin discrimination, and the woman in question had a

different national origin than Malhotra. Thus, a reasonable

investigation would not focus on sex discrimination merely because

Malhotra identified the sex of certain involved persons. In

addition, Malhotra’s summary, even liberally construed, does not

raise claims of retaliation or harassment. Thus, we affirm the

district court’s order dismissing Malhotra’s sex discrimination,

retaliation, and harassment claims for failure to exhaust. See

Miles v. Dell, Inc., 429 F.3d 480, 491-92 (4th Cir. 2005) (finding

retaliation claim was not reasonably related to EEOC charge when

retaliation box on charge was not checked and the narrative

referenced only sex and pregnancy discrimination).
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III.

A district court may impose sanctions, including

dismissal, if a party fails to comply with a discovery order. Fed.

R. Civ. P. 37(b)(2)(C). Prior to imposing the sanction of

dismissal, the district court must consider four factors:

(1) whether the noncomplying party acted in bad faith; (2) the

degree of prejudice suffered by the other party or parties as a

result of the failure to comply; (3) the deterrence value of

dismissal as a sanction for noncompliance; and (4) the efficacy of

a less drastic sanction. Mutual Fed. Sav. & Loan Ass’n v. Richards

& Assocs., 872 F.2d 88, 92 (4th Cir. 1989). Additionally, we have

stated that, before dismissing a case with prejudice, the district

court must give the noncomplying party a “explicit and clear”

warning of the consequences of failing to satisfy the court’s

conditions and orders. Choice Hotels Int’l, Inc. v. Goodwin &

Boone, 11 F.3d 469, 472 (4th Cir. 1993); Lolatchy v. Arthur Murray,

Inc., 816 F.2d 951, 954 n.2 (4th Cir. 1987) (stating that warning

was a “salient fact” that distinguished cases in which default

judgment was appropriate sanction for discovery abuse under Rule

37).

Rule 26(a)(1) requires parties to provide to other

parties prior to any discovery requests: (1) the name, address, and

telephone number of each individual with information that may be

used to support the party’s claims; (2) a copy of all documents
2

While the Rule exempts pro se litigants in the custody of the

United States, Malhotra is not in prison. See Fed. R. Civ. P.

26(a)(1)(E)(iii). Malhotra stated that he believed the Rule

exempted all pro se litigants.

3Malhotra referenced the document in his motion for

reconsideration, but he did not attach a copy. In addition, the

court provided no reasoning in its denial of Malhotra’s motion, so

it is impossible to tell whether the document was considered.

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that may be used to support the party’s claims; and (3) a

computation of damages. Here, Malhotra was indisputably untimely

in responding to the district court’s scheduling order, and he

ignored inquiries from KCI until the motion for sanctions was

filed. Malhotra then responded, asserting that he was exempt from

the requirement of Rule 26 disclosures2 and listing the names of

numerous KCI employees related to the case. This document was

untimely and did not disclose everything required by Rule 26.

However, because this document was returned to Malhotra, it is

unlikely that it was considered by the court before dismissal.3

Because the court has provided no reasoning, it is

unclear whether all relevant filings and factors were considered.

See Brewster of Lynchburg, Inc. v. Dial Corp., 33 F.3d 355, 367

(4th Cir. 1994) (noting that an unexplained order denies the

appellate court the tools of review and “conceals what the court

did and why and leaves the appeals court, like the proverbial blind

hog, scrambling through the record in search of an acorn . . .

[which is] antithetical to proper performance of the review

function”). Moreover, after brief consideration of the Mutual
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Federal factors, we cannot say that they unequivocally weigh in

favor of dismissal, especially in light of the absence of notice by

the court that failure to respond could result in dismissal. Thus,

while we express no opinion on whether the district court’s

sanction was appropriate, we vacate the district court’s dismissal

of Malhotra’s complaint and remand for consideration of KCI’s

motion for sanctions in light of Malhotra’s December 7 filing and

the Mutual Federal factors.

IV.

Based on the foregoing, we affirm the dismissal of

Malhotra’s claims of sex discrimination, harassment and

retaliation, and vacate the dismissal of the complaint for failure

to comply with the district court’s scheduling order. We remand

for further consideration 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 AND REMANDED IN PART