United States Court of Appeals

for 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: 03/09/2023
No. 22-50411

2

only relevant document attached to the pleading is a memorandum sent 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 attached Lopez’s EEO complaint to their motion 

to dismiss. That documentstatesthat 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. 

The defendants also attached an EEO counselor’s report to support a timebased 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. See 29 C.F.R. § 1614.105(a)(1) (45-day requirement for reporting). 

Neither 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, the 

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. The district court adopted the recommendation and 

dismissed Lopez’s claims. Lopez now appeals. Because we conclude that 

the district court misapplied the Rule 12(b)(6) standard, we reverse and 

remand.

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: 03/09/2023
No. 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 [his] claim”). 

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

requirement, failure 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,” when 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. Tammany 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 

motion 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: 03/09/2023
No. 22-50411

4

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

deadline required by statute[.]” 

But in dismissing Lopez’s claims, the district court relied on

documents, 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 those documents, the 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. Neither Lopez’s civil complaint nor the

Air Force memorandum attached to it mention the August 6 EEO contact. 

And even assuming that Lopez’s EEO complaint was appropriately 

considered in deciding the defendants’ motion to dismiss, that document

does not refer to an August 6 contact, either. The EEO complaint merely

includes a checkmark indicating that Lopez “discussed [his] complaint with 

an [EEO] counselor.” Therefore, the district court appears to have plucked 

August 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 determining 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 it, 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 this 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 contact, the district court could not 

rely upon Lopez’s EEO complaint alone. 

Case: 22-50411 Document: 00516670933 Page: 4 Date Filed: 03/09/2023
No. 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 dismissal 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