* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 29 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

TERRY W. MOBLEY and CHERYL E. MOBLEY,

Plaintiffs-Appellants,

v. DILLON COMPANIES, INC., doing business as King Soopers, Inc., doing business as Group Life and Health Plan for King Soopers Employees-- Oil, Chemical, and Atomic Workers International Union Local 2-920, a Kansas corporation; JOHNELLA JOHNSON; DOUG MALENOSKI; OIL, CHEMICAL & ATOMIC WORKERS UNION-INDUSTRY PENSION FUND,

Defendants-Appellees. No. 97-1411 (D.C. No. 97-WY-1220-AJ) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , LOGAN , and LUCERO , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiffs Terry W. and Cheryl E. Mobley commenced this action against Ms. Mobley’s employer, her union, pension fund, andtwo individuals. The Mobleys alleged violations of the Employee Retireme nt Income Security Act (ERISA), 42 U.S.C. § 1981, and various state laws. Ms. Mobley also alleged gender and race discrimination in violation of Titl e VII of the Civil Rights Act of 1964 and age discrimination in violation of 29 U.S. C. § 623. The district court granted defendants’ motions to d ismiss pursuant to Fed. R. Civ. P. 12(b)(6). The Mobleys raise various cla ims of error, including the district court’s holding that Mr. Mobley did not have standing to sue. Ms. Mobley also contends that the district court erred when it determined she could not sue her union or pension plan, could not assertclaims under ERISA, and could not sue the individual defendants. Ms. Moble y also argues that the Age Discrimination in Employment Act (ADEA) does not re quire filing with the Equal Employment Opportunity Commission (EEOC) prior to b ringing suit in federal court. Finally, Ms. Mobley contends the district c ourt erred in dismissing the action under Rule 12(b)(6) after considering materi als outside of the pleadings-3-

and without giving notice that it was treating thos e pleadings as summary judgment motions. In deciding whether to dismiss a complaint under Ru le 12(b)(6), the court must base its decision solely on materials containe d in the pleadings. If matters outside the pleadings are considered, the court mus t treat the motion as one for summary judgment under Fed. R. Civ. P. 56. See Rule 12(b). In its order, the district court quoted from the ch arges Ms. Mobley filed with the EEOC attached to her employer’s motion to dismiss. The court’s inclusion of these documents in its deliberations d id not mandate conversion of the motions to dismiss to ones for summary judgment . “[I]f a plaintiff does not incorporate by reference or attach a document to it s complaint, but the document is referred to in the complaint and is central to the plaintiff’s claim, a defendant may submit an indisputably authentic copy to the co urt to be considered on a motion to dismiss.” GFF Corp. v. Associated Wholes ale Grocers, Inc. , 130 F.3d 1381, 1384 (10th Cir. 1997). The EEOC charges were matters of public record, were referred to by number in plaintiffs’ amended c omplaint, were integral to the claims alleged, and their authenticity was uncontes ted. No conversion occurred and the district court properly ruled on the motionunder Rule 12(b)(6). We will uphold a Rule 12(b)(6) dismissal only if itappears the plaintiff can prove no set of facts to support the claims that wo uld warrant relief. See Fuller v.-4-

Norton , 86 F.3d 1016, 1020 (10th Cir. 1996). We “accept[ ] the well-pleaded allegations of the complaint as true and constru[e] them in the light most favorable to the plaintiff.” Id. We construe a pro se litigant’s pleadings liberallyholding the litigant to a less stringent standard than pleadings drafted bylawyers. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). To state a claim, how ever, even pro se litigants must support their allegations with well-pleaded fa ctual contentions, not just conclusory allegations. See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). “[A] pro se plaintiff requires no special l egal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which rel ief can be granted.” Id. The defendant employer hired Ms. Mobley as a pharma cist in 1977. In 1991, she left her employment to care for her termi nally ill grandparents. The incidents alleged in the complaint began in 1993 wh en she returned to her job. Ms. Mobley maintained she should have been reinstat ed with full seniority rights, rather than treated as a new hire. She filed a gri evance on that issue. In her complaint, she alleged that, as a result of the gri evance, her employer took retaliatory actions by reducing her work hours and subjecting her to hostile and harassing conditions. Ms. Mobley also alleged her employer retaliated after she filed a complaint with the State Board of Pharmacy regarding some allegedly-5-

illegal practices engaged in by her employer. Ms. Mobley alleged that she was physically assaulted by a white woman at work, and that her employer attempted to cover up the incident with the police. She also alleged her employer arranged to have a black female pharmacy manager supervise h er. We have reviewed the record on appeal and the parti es’ briefs and for substantially the reasons stated in the district co urt’s order of September 29, 1997, we affirm the dismissal of Mr. Mobley for lac k of standing and the dismissal of Ms. Mobley’s ADEA claims, her employme nt contract and pension plan claims, and her charges against the individual defendants under Title VII. The statute of limitations bars Ms. Mobley’s § 1981 claims. As § 1981 does not specify a time period in which claims unde r that statute must be brought, we look to analogous state law for a limitations pe riod. See 42 U.S.C. § 1988(a); Johnson v. Railway Express Agency, Inc. , 421 U.S. 454, 462 (1975). We apply Colorado’s residual two-year statute of limitations for personal injury actions, Colo. Rev. Stat. § 13-80-102(1)(i); Reynolds v. Sch ool Dist. No. 1 , 69 F.3d 1523, 1532 n.12 (10th Cir. 1995). Ms. Mobley complains o f events occurring in 1993 and 1994. She filed her complaint in 1997. Thus h er § 1981 claims are untimely. Title VII prohibits employment discrimination basedon race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a)(1). To determine whether a Title VII violation has occurred we must inquire “whether the1 Federal courts lack jurisdiction to hear Title VII claims not first raised to

the EEOC. See Seymore v. Shawver & Sons, Inc. , 111 F.3d 794, 799 (10th Cir.), cert. denied , 118 S. Ct. 342 (1997). -6- defendant intentionally discriminated against the p laintiff.” United States Postal Serv. Bd. of Governors v. Aikens , 460 U.S. 711, 715 (1983) (quotation omitted). For sexual or racial harassment to be actionable, “ it must be sufficiently severe or pervasive to alter the conditions of the [plaintiff]’s employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 67 (1986) (quotation omitted) (sexual harassment); see also Bolden
v. PRC Inc. , 43 F.3d 545, 551 (10th Cir. 1994) (racial harassm ent). “General harassment if not racial or sexual is not actionabl e.” Id. Further, a “plaintiff must show more than a few isolated incidents of rac ial enmity.” Id. (quotation omitted). Ms. Mobley alleged to the EEOC 1 that, due to her sex and race, her employer denied her long term leave and scheduled h ours and a white pharmacy manager cut her hours. She also alleged she was di sciplined in retaliation for opposing her employer’s allegedly illegal practices and for filing a prior EEOC complaint. Neither these allegations, nor the othe r facts Ms. Mobley contained in her complaint establish that any of the alleged ill egal actions were taken due to her race or gender or in retaliation for statutoril y protected activities. Ms. Mobley has merely stated that it is her belief thes e actions were so motivated. A-7-

plaintiff’s personal beliefs are insufficient to st ate a Title VII claim. Cf. Holt v. KMI-Continental, Inc. , 95 F.3d 123, 130 (2d Cir. 1996) (Title VII plaint iff cannot establish pretext by relying on personal beliefs), cert. denied , 117 S. Ct. 1819 (1997). AFFIRMED. Ms. Mobley’s request for en banc review of the district court’s dismissal of her claims against the individual defendants is DENIED. Ms. Mobley has failed to comply with the requirements of Fed. R. App. P. 35.

Entered for the Court

James K. Logan Circuit Judge