# United States Court of Appeals

f or the Fifth Circuit

No. 22

- 50411

Arturo S. Lopez, Sr.,

Plaintiff

— Appellant ,

versus

Frank Kendall, III, Secretary of the Air Force ; Mary D. Garcia, Human Resource Specialist, Employee Relations Labor, Laughlin Air Force Base ,
Defendants

— Appellees

.

Appeal from the United States District Court for the Western District of Texas USDC No. 5:21

- CV

- 646

Before Clement, Oldham, and Wilson, Circuit Judges

. Per Curiam : *
Arturo S. Lopez, Sr., brought retaliation claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. , against the Secretary of the Air Force and Mary Garcia, an Air Force Human Resources Specialist. Lopez ’s civil complaint alleges that Garcia retaliated against him for engaging in protected activity in violation of Title VII. The

* This opinion is not designated for publication. See 5th Cir. R. 47.5

. United States Court of Appeals

Fifth Circuit 

### FILED March 9, 2023
Lyle W. Cayce Clerk Case: 22-50411 Document: 00516670933 Page: 1 Date Filed: 03/09/2023No. 22

- 50411

2 only relevant document attached to the pleading i s a memorandum sen t by the Air Force to Lopez informing him that he could file a federal suit because an investigation into his Equal Employment Opportunity (“ EEO ”) complaint had not been completed within 180 days.

The defendants moved to dismiss Lopez’s civil complaint under Federal Rule of Civil Procedure 12(b)(6) on administrative exhaustion grounds. The defendants attach ed Lopez’s EEO complaint to their motion

to dismiss

. Th at document states that Garcia “discriminated against [Lopez] on May 14, 2020[,] when [ Lopez ] was made aware through [an] e[

- ]mail that [he] received [from] the

. . . Merit Systems [P]rotection [B]oard” that Garcia “intentionally and maliciously made and falsified entries” on his records.

T he defendants also attached an EEO c ounselor ’s r eport to support a time

based affirmative defense that Lopez did not contact an EEO counselor until August 6, 2020, which was past the statutorily required period for reporting

his claim

. S

ee 29 C.F.R. § 1614.105(a)(1) (45

- day requirement for reporting).

N either the EEO report nor the alleged facts on which defendants based their
affirmative defense were expressly referenced in Lopez’s civil complaint or contained in the documents attached thereto

. Relying on the EEO complaint and EEO counselor’s report , t he magistrate judge recommended that the district court dismiss Lopez’s civil complaint because Lopez failed timely to contact an EEO counselor before filing suit

. See id. T he district court adopted th e recommendation and dismissed Lopez’s claims . Lopez now appeals. Because we conclude that the district court misapplied the Rule 12(b)(6) standard, we r everse and

r emand

.
Our review is de novo

. Pacheco v. Mineta , 448 F.3d 783, 788 (5th Cir. 2006). And, like the district court, our consideration is “limited to the complaint, any documents attached to the complaint, and any documents Case: 22-50411 Document: 00516670933 Page: 2 Date Filed: 03/09/2023No. 22

- 50411

3 attached to the motion to dismiss that are central to the claim and referenced by the complaint .” Lone Star Fund V (U.S.), LP v. Barclays Bank PLC , 594 F.3d
383, 387 (5th Cir. 2010) (emphasis added); see also Collins v. Morgan Stanley

Dean Witter , 224 F.3d 496, 499 (5th Cir. 2000) (defendants may attach documents to a motion to dismiss to “assist[] the plaintiff in establishing the basis of the suit” if the documents “are referred to in the plaintiff’s complaint

and are central to [ h is] claim”).

Because it is a mandatory claims processing rule, not a jurisdictional requirement, f

ailure to exhaust administrative remedies under Title VII is an
affirmative defense. See Ft. Bend Cnty. v. Davis , 139 S. Ct. 1843, 1850

– 51 (2019). “[D]ismissal under [R] ule 12(b)(6) may be appropriate based on a
successful affirmative defense
, ” whe n the defense “appear[s] on the face of the complaint.” EPCO Carbon Dioxide Prods., Inc. v. JP Morgan Chase Bank , 467 F.3d 466, 470 (5th Cir. 2006) ; see also Stevens v. St. Tam many Par. Gov ’ t , 17 F.4th 563, 571 (5th Cir. 2021) (“[T] he [affirmative] defense is abundantly clear on the face of the pleadings, which incorporate and repeatedly refer to the state court litigation. Therefore, it was properly considered here at the

moti on to dismiss stage. ”).

To exhaust his administrative remedies prior to bringing a Title VII

action in federal court, Lopez was required to “initiate contact with [an EEO] [c]ounselor within 45 days of the date of the matter alleged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1). Indeed, “[f]ailure to notify the EEO counselor in a timely fashion may bar a claim” unless the claimant successfully asserts “a defense of waiver, estoppel, or equitable tolling.”
Pacheco v. Rice , 966 F.2d 904, 905 (5th Cir. 1992). Relevant here, the 45

- day
time limit is extended when the claimant “shows that

. . . he or she did not know and reasonably should not have [] known that the discriminatory matter or personnel action occurred.” 29 C.F.R. § 1614.105(a)(2). The district court dismissed Lopez’s claims because he failed timely to exhaust his Case: 22-50411 Document: 00516670933 Page: 3 Date Filed: 03/09/2023No. 22

- 50411

4 administrative remedies , i.e., his “EEO counseling exceed[ed] the 45

- day deadline required by statute[.]”

But i n dismissing Lopez’s claim s , t he district court relied on document s , the EEO complaint and the EEO counselor’s report, that were

not attached to or explicitly referenced by the civil complaint

. See Lone Star
Fund V , 594 F.3d at 387

. 1 Relying on th ose document s , t he district court
concluded that Lopez had access to information about the alleged retaliation

on May 14, 2020 , yet failed to contact an EEO counselor until August 6,

2020 , well more than 45 days later . N either Lopez’s c ivil complaint nor the

Air Force memorandum attached to i t mention the August 6 EEO contact

. And e ven a ssuming that Lopez’s EEO complaint was appropriate ly considered in deciding the defendants’ motion to dismiss, that document
does not refer to an August 6 contact, either. T he EEO complaint merely

includes a checkmark indicating that Lopez “discussed [his] complaint with an [EEO] counselor.” Therefore, the district court appear s to have plucked Augus t 6 as Lopez’s initial EEO contact solely from the EEO counselor’s

report, which was not attached to or referenced in Lopez’s civil complaint or the documents attached to it.
The district court thus improperly relied upon the EEO counselor’s report in determin ing that the defendants’ administrative exhaustion defense appeared “on the face of the complaint

. ” EPCO Carbon Dioxide Prods. , 467

1 It is at least arguable that the EEO complaint is “ referenced by the complaint” and by the Air Force memorandum attached to i t, Lone Star Fund V , 594 F.3d at 387 , and it is certainly central to Lopez’s civil complaint, as Garcia’s alleged discrimination is the subject of both the EEO complaint and th is action . But our decision does not turn on the EEO complaint. To glean both the initial date Lopez purportedly had knowledge of the alleged discrimination and the date of his initial EEO con tact, the district court could not rely upon Lopez’s EEO complaint alone. Case: 22-50411 Document: 00516670933 Page: 4 Date Filed: 03/09/2023No. 22

- 50411

5 F.3d at 470; cf. Lone Star Fund V , 594 F.3d at 387

. Doing so ran afoul of the Rule 12(b)(6) standard, such that d ismissal on the pleadings was premature

. Accordingly, the judgment of the district court is REVERSED , and
the case is REMANDED for further proceedings. Case: 22-50411 Document: 00516670933 Page: 5 Date Filed: 03/09/2023