Black v. MS State Dept ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-60515
Summary Calendar
_____________________
REVES BLACK, JR.,
Plaintiff-Appellant,
versus
MISSISSIPPI STATE DEPARTMENT OF
HEALTH,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Mississippi
(3:97-CV-34LN)
_________________________________________________________________
January 23, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Reves Black, Jr. appeals the district court’s order
dismissing his Title VII race discrimination action because he
failed to timely file his complaint. Finding no error, we
affirm.
I
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Black filed a charge of racial discrimination with the Equal
Employment Opportunities Commission (“EEOC”) on May 15, 1996,
alleging that he had been passed over for a promotion on the
basis of his race and in retaliation for his filing of a previous
discrimination charge. The EEOC issued Black a right to sue
letter on October 21, 1996, notifying him of his ninety-day
window in which to commence suit. We presume that Black received
the letter on October 24, three days after it was mailed. See
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1, 104
S.Ct. 1723, 1724 n.1, 80 L.Ed.2d 196 (1984); Fed.R.Civ.P. 6(e).1
Black filed his complaint on January 24, 1997--ninety-two days
after receipt of the notice.
The Mississippi State Department of Health (“MSDH”) filed a
motion to dismiss on February 27, 1997, citing Black’s failure to
file suit within the ninety-day window. Black never filed a
response and the district court granted the motion and dismissed
the action with prejudice on July 25, 1997. Black appeals that
order.
II
We review de novo a district court’s ruling on a motion to
dismiss under Federal Civil Procedure Rule 12(b)(6). United
1
Black does not dispute the date on which he received the
notice.
2
States v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 901 (5th
Cir. 1997) (citing Morin v. Caire, 77 F.3d 116, 120 (5th Cir.
1996)). “The question . . . is whether in the light most
favorable to the plaintiff and with every doubt resolved in his
behalf, the complaint states any valid claim for relief.” Lowrey
v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). When
an affirmative defense bars relief on the face of the complaint,
the suit may be dismissed for failure to state a cause of action.
Bank of New Orleans & Trust Co. v. Monco Agency, Inc., 823 F.2d
888, 891 (5th Cir. 1987) (citing Mann v. Adams Realty Co., 556
F.2d 288, 293 (5th Cir. 1977)); Kaiser Aluminum v. Avondale
Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert.
denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983).
III
Title VII provides that upon receipt of a right to sue letter,
“a civil action may be brought . . . within ninety days after the
giving of such notice.” 42 U.S.C. § 2000e-5(f)(1). This court has
consistently held that an untimely action may be dismissed in the
absence of conditions amenable to application of equitable
doctrines such as tolling. Brown, 466 U.S. at 149-52, 104 S.Ct. at
1723-25; Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir.
1992); Huff v. International Longshoremen’s Ass’n, 799 F.2d 1087,
1090 (5th Cir. 1986); Ringgold v. National Maintenance Corp., 796
3
F.2d 769, 770 (5th Cir. 1986); Firle v. Mississippi State Dep’t of
Educ., 762 F.2d 487, 488-89 (5th Cir. 1985); Espinoza v. Missouri
Pacific R. Co., 754 F.2d 1247, 1249 (5th Cir. 1985) (noting ninety-
day requirement is not jurisdictional, but more akin to statute of
limitations).
The record contains no evidence demonstrating that the
doctrine of equitable tolling (or any other equitable doctrine)
should apply. The evidence establishes that Black received his
right to sue letter that notified him of the ninety-day deadline
and that he simply failed to meet that deadline.2 The district
2
Black included in the appendix submitted with his brief
correspondence between he and the clerk conducted prior to the
filing of his complaint. According to a letter to the clerk dated
January 18, 1997, Black mailed to the clerk the EEOC’s notice of
right to sue, a copy of the discrimination charge, a motion for
more time in which to file his complaint, and a motion for
appointment of an attorney. The Supreme Court held in Brown that
the filing of the right to sue letter was insufficient to comply
with the rules of civil procedure for the filing of a complaint.
Brown, 466 U.S. at 149-50, 104 S.Ct. at 1725; Fed.R.Civ.P. 3,
8(a)(2). This court addressed a similar situation and held the
filing of the right to sue notice along with a request for
appointment of counsel insufficient to meet the strictures set out
in Brown. Firle, 762 F.2d at 489. Although the language in Firle
could be read to suggest that we would find sufficient as an
initial pleading a statement of the claim--”however informal (such
as by a letter)”--, we have never explicitly so held. Id.; but see
Brown, 466 U.S. at 150 n.4, 104 S.Ct. at 1725 n.4; Judkins v. Beech
Aircraft Corp., 745 F.2d 1330, 1332 (holding sufficient the filing
of the right-to-sue notice and request for counsel along with the
initial EEOC discrimination charge). We need not reach this issue
here because the correspondence documents included in the appendix
attached to Black’s brief are not part of the record before us.
Black never responded to the motion to dismiss and those papers
were never placed before the district court. Hence, we may not
4
court correctly dismissed this action as untimely and, for the
foregoing reasons, we AFFIRM.
A F F I R M E D.
consider them. Fed.R.App.P. 10(a) (“The record on appeal consists
of the original papers and exhibits filed in the district
court . . . .”); United States v. Hatch, 926 F.2d 387, 395 (5th
Cir.), cert. denied, 500 U.S. 943, 111 S.Ct. 2239, 114 L.Ed.2d 481(1991); Sweet Life v. Dole, 876 F.2d 402, 408 (5th Cir. 1989)
(noting “this court is barred from considering filings outside the
record on appeal, and attachments to briefs do not suffice.”).
5