### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-30213 Summary Calendar

BARBARA A. CARTER, Plaintiff-Appellant

v. TARGET CORPORATION, Defendant-Appellee

Appeal from the United States District Court for the Western District of Louisiana USDC No. 3:12-cv-01541

Before JOLLY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM: * This appeal considers whether the district c ourt properly granted D e f e n d a n t’s motion to dismiss Plaintiff’s Title VII claims of retaliation a nd ra c i al discrimination. We affirm the dismissal, but vacate part of the di strict court’s order. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D October 4, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances set f orth in 5 T H C I R

. R. 47. 5. 4. Case: 13-30213 Document: 00512397102 Page: 1 Date Filed: 10/04/201313-30213 FACTS AND PROCEEDINGS Defendant T arget Corporation (“Tar g et”) employed Plaintiff Barbara Carter (“Carter”) from 2 002 until 2011. In earl y 2 0 1 0 , C arter’s supervisor allegedly asked Carter—a black female—to file f a l se negative reports against two other black employees. Carter refused the supervisor’s request a nd claims her workload subsequently in c r e a s e d. S he then submitted a c o mplaint to the T a r get employee hotline (“Hotline Complaint”) about her increased worklo a d

. As a result of the Hotline C omplaint, Carter avers that she c ontinued to receive

an increased workl o a d , a s well as false disciplinary actions and poor performance evaluations. On August 26, 2010, Carter filed a formal c omplaint—Charge Number 27A-2010-00043 (“Charge 43”)—with the Equal Employment O pportunity Commission ( “EEOC”) and the Louisiana Commission on H uman Rights (“LCHR”), alleging that T arget retaliated a gainst her for filing the Hotline Complaint. Charge 43 alleges discrimination based upon retaliation, and lists the last day on which discrimination took place a s J uly 2, 2010. It did not allege racial discrimination, and nothing in the complaint references the r ace o f either Carter, her co-workers, or her supervisors. Carter was fired on Marc h 2 3 , 2 0 1 1. On May 28, 2 011, Carter filed two documents w ith the EEOC and LCHR. First, she amended Charge 43 t o include allegations of racial discrimination. A s w ith the original charge, amended Charge 4 3 lists the last d ay of discrimination as July 2, 2 010. And second, Carter filed Cha rge Number 27A-2011-00020 (“Charge 20”), alleging that she

was fired i n retaliation for filing Charge 43. Charge 43 w as dismissed b y t he EEOC, and Carter received a right-to-sue letter. Carter has n ot presented—and does not allege the existence of—a right-to-sue letter for Charge 20.

2 Case: 13-30213 Document: 00512397102 Page: 2 Date Filed: 10/04/201313-30213

Carter filed suit in the Western District of Louisiana. Count I, based on EEOC Charge Number 27A-2010-00023 (“Charge 23”), alleges (i) retaliation for refusing to file negative reports against her co-workers, (ii) retaliation for the Hotline Complaint, and (i i i) r acial discrimination. Carter has since admitted that Charge 23 does not exist. 1 Count II, based on Charge 43, asserted t hat Carter was fired in retaliation for filing the EEOC claim in C ount I. No charging documents were a ttached to Carter’s complaint. Target f i l e d a m otion to dismiss. As p art of its motion, Target a ttached two EEOC charging documents—Charge 43 and C harge 20—which p urport to be the actual EEOC c h a r g e s r e ferenced i n Carter’s c omplaint. Carter argues that these documents constitute materials outside the complaint and cannot be considered on a motion to dismiss. The di strict court conside r e d th e c h a r gi n g d o c u m e n t s a n d d e t e r m i n e d th a t , contrary to the allegations in Carter’s complaint, (i) Count I was based on Charge 43, not Charge 23, and (ii) C ount II was based on C harge 20, not Charge 43. E valuating Target’s motion under this framework, the district court dismissed Count I on t he racial discrimination and failure to promote claims, finding them t ime barred. Originally, t he district court did n o t dismiss Count I’s claim of retaliatory treatment in the form of excessive workload a nd negative performance reviews. However, on Target’s motion for reconsideration, the district court also dismissed that claim because t h e a l leged unlawful

1 While Target w as able to p rod uce Charges 43 and 20, the record contained no evid ence d etailing the allegation in Charge 23—the alleged bas i s f or Count I of Carter’s com p laint. Faced w ith this d is crep ancy, w e reques ted that Carter s up p lem ent the record w ith a cop y of Charge 23. Carter’s attorney res p ond ed to our reques t as follow s : “The r e i s n o E E O [ s ic] charge f i led by Barbara Carter w ith the L oui si a na Com m issi on on Hum a n Ri ghts nor the Equa l Em

p loym ent O

pp ortuni t

y Com m i ssi on bearing the cas e Num ber 27A- 2010- 00023. T he
s ole charges are thos e provid ed in the Records Exc e r p t s f iled w ith Ap p ellant’s Brief

. ” Res p . to C ourt D irective, D o c . 3 3

. C a r ter’s res p ons e to our d irective d id not exp lain how Carter attained a “Right to Sue N otice” f or charge n u m ber 27A- 2010- 00023 w hen no s uch charge exis ts

. 3 Case: 13-30213 Document: 00512397102 Page: 3 Date Filed: 10/04/201313-30213

employment practices ( excessive workload, etc.) were not taken in response to a “protected activity” under Title VII. The district court also dismissed Count II, which alleged t h at Carter was fired for filing Charge 23. As with Count I, the district co u r t d i s regarded the complaint’s assertion that C ount II w a s f o u n d ed on Charge 43 a nd analyzed Count II on the facts of Charge 20. It dismissed Count II without prejudice for failure to provide a r ight-to-s u e notice. It also held in the alternative that beca u s e C h a r g e 4 3 did not allege a colorable violation of T itle VII, it could not serve as a proper basis f o r C harge 20’s allegation of retaliation. The dismissal on the alternative grounds was with prejudice.

STANDARD OF REVIEW We review the grant of a motion to dismiss de novo. B u stos v. Martini Club, Inc. , 599 F .3d 458, 461 (5th Cir. 2010). I n d oing s o, w e a re “ n ot r e stricted to ruling on t he district court’s reasoning,” Gulf Guar. Life Ins. Co. v. Conn. Gen. L if e Ins. Co. , 304 F.3d 476, 486 (5th C ir. 2002) (internal quotation mark s omitted), but rather “may affirm a district c o urt’s dismissal b a s e d o n rule 12(b)(6) on any b asis supported by the record,” Ferrer v. Chevron C o rp. , 484 F.3d 776, 780-81 (5th Cir. 2007). To survive a motion to dismiss, a complaint must contain enough facts to state a c l aim t o relief that is plausible on i ts face. Bel l A t l. Corp. v. Twombly , 550 U.S. 544, 570 ( 2007). F acial plausibility requires facts that allow the court “to draw the reasonable inference that the d e fendant is liable f or the misconduct alleged.” Ashcroft v . Iqbal , 556 U.S. 6 62, 678 (2009) (internal citations omitted). This is a context-specific inquiry, “requir[ing] the r eviewing court to draw on its experience a n d common sense.” Id. at 679. Furthermore, the court n eed not accept legal conclusions as true. Id. at 678. “Threadbare recitals of t he elements

o f a c a use of action, supported by mere conclusory statements, do not suffice.” Id.
4 Case: 13-30213 Document: 00512397102 Page: 4 Date Filed: 10/04/201313-30213

DISCUSSION A. Consideration of Carter’s EEOC Charging Documents Is Appropriate As a preliminary m a t t er, Carter argues that a c ourt’s inquiry must be limited to its complaint and attach m e n t s , a n d t herefore may not c onsider the contents of her charges before the E EOC a nd LCHR, which were attached to Target’s motion t o dismiss. T his claim lacks m erit. It is well-established that “[d]ocu m ents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim.” Collins v. Morgan Stanley Dean Witter , 224 F.3d 4 96, 498- 99 (5th Cir. 2000) (internal quotation m arks omitted) (alteration i n original). “In

so attaching, t he defendant merely assists the plaintiff i n e stablishing the basis of the suit, and t h e court in making the e lementary determination of whether a claim has been stated.” Id. at 499

. The documents at issue here—Carter’s two EEOC C h arges—were referenced in her c omplaint and are central to her claim. The i r c ontents are essential to determining ( i) whether the EEOC a nd LCHR Charges were filed within t h e applicable statute of limitations, and (ii) w hether the allegations contained in those complaints allege a colorable violation o f Tit l e VII. These issues a re central t o Carter’s p leadings, and her failure to include them does not allow her complaint to bypass Target’s motion to dismiss unexamined. See, e.g. , Cortec Indus., Inc. v. Sum Holding L.P. , 949 F.2d 42, 47 (2d Cir. 1991). We will review Target’s motion to dismiss with the benefit of Carter’s EEOC and LCHR charges. B. Count I Before bringing a claim under Title VII, a plaintiff must first file a charge with the EEOC. I f that charge is denied by the EEOC, the EEOC issues a rightto-sue letter, after which p laintiff has 90 days—or 300 days in a deferral state—to file a Title VII act i o n . Se e Price v. Choctaw G love & Safety Co. , 459
5 Case: 13-30213 Document: 00512397102 Page: 5 Date Filed: 10/04/201313-30213

F.3d 595, 598 & n .7 (5th C ir. 2006). A plaintiff must exhaust the administrative
process and receive her statutory notice of right-to-sue before filing a c ivil action in federal court. Taylor v. Books A Million, Inc. , 2 96 F.3d 376, 3 78-79 (5th Cir. 2002). Failure t o file a charge with the EEOC and exhaust a dmin i s t r a t i ve remedies before filing a T itle VII action will r e sult in dismissal. Dao v . Auchan Hypermarket , 96 F.3d 787, 788-89 (5th Cir. 1996). Count I asserts that C a r t er (i) filed Charge 23, alleging racial discrimination and r etaliation, with t h e EEOC and LCHR on August 1 9, 2010 and (ii) received her right-to-sue notice on March 13, 2012. H o w e v e r , she has since admitted, and t h e r e c o r d corroborates, that no such charge exists in relation to t his cas e . W h i l e it is true that w e m ust accept all well-pleaded factual allegations as true for the purpose o f a motion to dismiss, “[c]onclusory allegations a nd unwarranted deductions of f act are not admitted a s true, especially when such conclusions are contradicted b y facts disclosed by a document appended to the c omplaint.” Associated Builders, Inc. v. Ala. Power Co. , 505 F.2d 97, 100 (5th Cir. 1974) (internal citation omitted). Because Charge 23 does not exist, we need n ot accept as t r ue Carter’s assertions that she filed and received her right-to-sue n o tice f or Ch a r g e 23. Further, we need not accept as true C ount I’s legal conclusion t hat “Defendant’s actions d e p r i v e d P laintiff of equal o pportunity in the terms and c onditions of

e m p loyment because of her race.” Absent any well-pled facts suggesting that s h e has exhausted her administrative remedies, we cannot r e a s onably infer that Target has committed a v i o l a t i o n of T itle VII. Accordingly we affirm the dismissal of Count I. C. Count II (1) Retaliation Count II of Carter’s c omplaint—which purports to be based on Charge 43—alleges that she was fired in retaliati o n for filing the E EOC and LCHR charge referenced i n C ount I, i.e., Charge 23. A valid retaliation c laim requires
6 Case: 13-30213 Document: 00512397102 Page: 6 Date Filed: 10/04/201313-30213

that t he plaintiff demonstrate “(1) that she engaged i n activity protected by Title VII, (2) that an adverse employment action o ccurred, and (3) t hat a casual link existed between the protected activity and the a dverse employment ac t i o n.” Evans v . City of Houston , 2 46 F.3d 344, 352 (5th Cir. 2001) (internal quotation marks o mitted). An individual engaged in a protected activity if she: (i) “‘made

a charge, testified, assisted, or participated in any m anner in an investigation, proceeding, or hearing’ under Ti t l e V II,” or (ii) “ opposed any practice made an unlawful employment practice” by T itle VII. Haynes v. Pennzoil Co. , 207 F.3d 296, 299 (5th Cir. 2000) (citing 42 U.S.C. §2000e-3(a)) .

a. EEOC Charges Generally, a plaintiff who files a complaint w i t h t h e EEOC e ngages i n a protected activity. H

aire v. Bd. of S upervisors of La. State Univ. , 719 F.3d 356, 367 (5th Cir. 2 013). But as a lready discussed, C harge 2 3 d o es not exist. The alleged filing of a fictitious EEOC charge c annot constitute a p rotected activity under Title VII. The only other EEOC charge referenced in Carter’s c o mplaint is Charge 43, which was filed nearly seven months b efore Carter w as fired and does not reference any p rev i o u s E EOC c harges. C harge 43 c annot p lausibly allege t hat Carter was fired in retaliation for filing her E EOC a n d LCHR complaints. 2

b. Opposing a Practice Made Unlawful by Title VII Charge 43, within t he context of the c omplaint as a whole, can al so be interpreted as alleging that Carter’s excessive workload, false disciplinary actions, and poor performance e valuations were retaliation f or (i) filing the

2 G enerally, a court m ay rely only on the com p laint and its attachm ents to rule
on a m otion to d is m is s . D orsey v . Portf ol i o Equi ti es, In c . , 540 F. 3d 333, 338 ( 5th Cir. 2008)

. But “[ d] ocum ents that a d ef end ant attaches to a m otion to d is m is s are cons id ered p art of the p lead ings if they are ref erred t o i n t h e p l a intif f 's com plaint and are central to her claim

. ” Col l i ns , 224 F. 3d at 498- 99. B ecaus e Carter’s com p laint neither ref ers to nor bas es any claim up on Charge 20, w e f

ind Charge 20 beyond the s cop e of our cons id eration and tak e no p os ition on its m erits

. To the extent that the d is trict court m ad e any rulings related to Charge 20, that p ortion of the d ecis ion is VACATED

. 7 Case: 13-30213 Document: 00512397102 Page: 7 Date Filed: 10/04/201313-30213

Hotlin e C o m p l aint or (ii) refusing t o file false negative reports against her

cowor k e r s . Besides EEOC charges, an i n dividual may engage in protected activity by opposing any p ractice made unlawful by Title VII. 3 Haynes , 207 F.3d at 300. But an e m ployee cannot simply complain that she r eceived unfair or undesirable treatment. R i chard v. Cingular Wireless LLC, 233 F. App’x 334, 338 (5t h Cir. 2007). A vague complaint that d oes not reference a discriminatory employment practice does n ot constitute a protected activity. D a v is v . Dallas Indep. Sch. Dist. , 448 F. App’x 485, 493 (5th Cir. 2011). I n Moore v. United Parcel Service, Inc. , 1 50 F. App’x 315 ( 5th C i r . 2 005), for example, t his court held that a delivery d river’s grievance—alleging that the company violated the union agreement w hen it fired him—was not a protected activity under Title VII. I d. at 319. The court reasoned that the drive r w as not e ngaged in a protected activity because the grievance “made no mention of race discrimination.” Id

. Here, Carter’s H otline Complaint did not oppose an unlawful practice under Title VII. C arter’s complaint stated that she “s u b m i t t e d a report on [Target’s] hotline that a w hite employee’s w ork tasks were being diverted to her, and that she was subjected to an excessive workload.” C harge 43 merely asserts Carter “reported various issues to a company hotline which include[d] but [were] not limited to excessive workload; negative no t es of m y performance; low performance s core of 6 9 out of 100 and two corrective actions.” While an excessive workload and negative performance reviews may be undesirable, the protections of Title VII do not extend to such concerns. Indeed, Carter did not make a n y reference to a discriminatory practice in her Hotline Complaint. C h a r g e 4 3 m ay also b e construed as a lleging t hat Target retaliated agains t her for refusing to falsify performance reports. B u t n o t hing in Carter’s complaint or Charge 43 indicates that her refusal was an a ctivity protected by

3 T i t l e V I I provid es that an unlaw f ul p ractice is “d is crim inat[ ion] agains t a n y ind ivid ual w ith res p ect to [ her] com p ens ation, term s , cond itions , or p rivileges of em p loym ent” becaus e of race. 42 U

. S. C. §2000e- 2( a) ( 1)

. 8 Case: 13-30213 Document: 00512397102 Page: 8 Date Filed: 10/04/2013Title VII. See Richards v. JRK Prop. Holdings , 405 F. App’x 8 29, 8 31 (5th Cir.

2010) (dismissing b e c ause plaintiff did not a llege that h er failure to falsify documents was an activity p rotected by Title VII.). The m e r e f a c t t hat Carter mentioned the race of the two em p l o y e e s in h er complaint—race is not mentioned in Charge 43—is i nsufficient to indicate th a t t h e r e quest to falsify performance reports was racially motivated. The district court’s dismissal of Carter’s retaliation claims is affirmed. (2) Racial Discrimination Finally, if read with the complaint a s a whole, Charge 43 can be understood as a l leging racial discrimination. A Title VII plaintiff must file a charge of discrimination with the EEOC no more t han 180 days—300 d ays in a deferral state such as Louisiana—after t he a lleged discriminatory employment action occurred. See C onnor v. La. Dep’t of H e a l t h & Hosp. , 2 47 F. App’x 480, 481 (5th Cir. 2007). Amended Charge 43 a lleges that the last unlawful practice occurred on Ju l y 2 , 2 0 1 0

. C arter did not amend C harge 43 t o a llege racial discrimination until May 28, 2011—330 days after the l ast a l leged unlawful practice. Carter’s racial discrimina t i on claim i s t ime barred unless it “relates back” to August 26, 2010; the date Charge 43 was originally filed. This court has explained t hat the purpose of an EEOC claim is to notify the employer of the nature of a pending charge. Manning v. Chevron Chem. Co. , 3 3 2 F.3d 874, 879 (5th Cir. 2 003). An amendment that p r ovides a n e w l e g a l theory of discrimination does not relate back t o the o riginal charge. Id. at 878. An a mendment o n ly relates back to the original charge if it c ures technical defects or clarifies the original charge. See 29 C.F.R. §1 6 0 1 .12(b). Here, amended Charge 4 3 does n ot r e l a t e back to the original c laim. It presents an entirely new legal theory because Carter alleges f or the first time th a t Target racially discriminated against her. Carter neither mentioned race nor checked the “race” discrimination b ox on her original Charge 43 filing. C a r t e r ’ s racial discrimination claim does not relate back to Charge 43 and is time barred.

9 Case: 13-30213 Document: 00512397102 Page: 9 Date Filed: 10/04/2013CONCLUSION

The district court’s dismissal of Counts I and I I is AFFIRMED. T h e portions of its opinion regarding Charge 27A-2011-00020 are VACATED.

10 Case: 13-30213 Document: 00512397102 Page: 10 Date Filed: 10/04/2013