* This order and judgment is not binding precedent, e xcept under the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

### October 11, 2005

Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

FREDERICK MARTIN,

Plaintiff-Appellant,

v. CENTRAL STATES EMBLEMS, INC., Defendant-Appellee. No. 04-3417 (D.C. No. 03-CV-3363-JTM)

(D. Kan.)

ORDER AND JUDGMENT *

Before EBEL , HARTZ , and McCONNELL , Circuit Judges.

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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff Frederick Martin, a black man, who is a p risoner at the Lansing, Kansas, Correctional Center, filed a pro se complai nt in district court against his1 Because Mr. Martin has proceeded pro se at all time s, we liberally construe

his court filings. See Haines v. Kerner , 404 U.S. 519, 520 (1972). -2- former employer, defendant Central States Emblems, Inc. (CSE), a private corporation operating a business at the prison, all eging racial discrimination in violation of Title VII of the Civil Rights Act of 1 964, 42 U.S.C. § 2000e through § 2000e-17, and 42 U.S.C. § 1981. 1 The district court granted CSE’s motion to dismiss, concluding Mr. Martin lacked standing to b ring a Title VII claim and failed to name the proper party for the § 1981 clai m. We affirm, but for different reasons than those given by the district court. See United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994) (“We are free to affirm a district court decision on any grounds for which there is a recordsufficient to permit conclusions of law, even grounds not relied upon bythe district court.” (quotations omitted)). I. Factual and Procedural Background CSE entered into a Lease Agreement with the Kansas Department of Corrections to operate a manufacturing-related busi ness from a building at the Lansing Correctional Center and to employ inmates at the business. The Agreement stated that CSE’s operations could not un reasonably disrupt the normal routine and management of the prison. Also, the Agreement provided that the Department of Corrections would determine the n umber of inmates available-3-

to CSE as employees. The Department of Corrections would screen inmate applicants and make those deemed eligible available for hiring. CSE had discretion to make job assignments and to terminate inmate employees. But the Department of Corrections retained authority to terminate an inmate’s employment if necessary for security, custody, and class considerations. Any inmate refusing to report to work when CSE was work ing was subject to termination. The Department of Corrections provide d correctional officers to supervise inmates employed by CSE. If an employee failed to report for work or left wo rk earlier than permitted, the Agreement required CSE to notify the Departmentof Corrections immediately. Also, CSE personnel were required to report violations of prison rules to the Department of Corrections, write appro priate disciplinary reports, and testify at proceedings if requested to do so. The Department of Corrections, however, retained the sole authority to discipline inmates for violations of the prison rules. During his incarceration, Mr. Martin began working at CSE. At some point, he was required to work overtime. After working the overtime hours for a period of time, Mr. Martin asked to be “laid in” un til regular hours were2 Mr. Martin defines “laid in” as “not required to re port to work, but not

fired or quit.” Aplt. Br. at 2. -4- restored. 2CSE accepted that request, and its shop manager i nformed Mr. Martin “that he may not be able to call him back to work w hen the regular hours were restored,” R., Vol. 1, Doc. 1 at 2. As required, C SE reported this development to the Department of Corrections. Prison officials in itiated disciplinary proceedings against Mr. Martin and decided that his actions vio lated Kan. Admin. Reg. § 44-12-401(a), which precludes an inmate from inte rfering with, delaying, sabotaging, or disrupting work in progress. He rec eived a reduced classification level for his refusal to work overtime, resulting i n a loss of certain privileges. Thereafter, Mr. Martin filed a complaint in distric t court alleging race discrimination by CSE in violation of Title VII and§ 1981. He alleged two types of discrimination: (1) that he “was terminated bec ause of his race and not for good cause in connection with his employment,” and (2) that he “[wa]s being punished for conduct which did not give rise to sim ilar sanctions when engaged in by [CSE’s] non-Black employees.” R., Vol. 1, Doc. 1 at 3. He asserted that a white employee, who asked to be “let go” after the regular hours had been restored, but because of the “long hours,” was tran sferred to another job without being disciplined. Id. at 2.3 An employee may bring a Title VII claim in federal court after filing a

timely EEOC charge and receiving and acting on a ri ght-to-sue letter from the EEOC. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 798 (1973). However, “the failure to obtain a right-to-sue lett er prior to the commencement of a suit is a curable defect.” Jones v. Am. State Bank , 857 F.2d 494, 499 (8th Cir. 1988). “A Title VII complainant may file an action prior to receiving [a] right to sue letter, provided there is not evidence showing that the premature filing precluded the [EEOC] from performing its administrative duties or that the defendant was prejudiced by such filing.” Edwards v. Occidental Chem. Corp. , 892 F.2d 1442, 1445 n.1 (9th Cir. 1990). Here, the re is no evidence that the EEOC was hampered or that CSE was prejudiced by the premature filing of the district court action. Thus, the right-to-sue letter cured the premature filing. See Kane v. State of Iowa Dep’t of Human Servs. , 955 F. Supp. 1117, 1137 (N.D. Iowa 1997) (holding “no refiling or amendment of th e complaint to state that the right-to-sue letter had been received was required; mere ‘receipt’ of the right-to-sue letter was sufficient to cure the defe ct”).

-5- After filing his complaint, Mr. Martin filed a char ge with the Equal Employment Opportunity Commission (EEOC), alleging race discrimination. The charge stated only that Mr. Martin “was subjected t o disciplinary measures by [CSE] . . . for the same or similar alleged allegat ion that a similarly-situated Caucasian employee also committed, but the Caucasia n employee was not similarly disciplined for his infraction.” Id. , Doc. 12, Attach. 2. The charge did not indicate that CSE terminated Mr. Martin’s emplo yment. The EEOC issued Mr. Martin a notice of right-to-sue. Id. , Attach. 1. Mr. Martin asked that the district court supplement his complaint with the EE OC charge and notice of right-to-sue, which the court apparently did. 3-6-

After the EEOC proceedings had ended, CSE filed a m otion to dismiss under Fed. R. Civ. P. 12(b)(1) and (6), alleging, among other things, that the court lacked subject matter jurisdiction over the Title V II claims because Mr. Martin never asserted that he was terminated in his discri mination charge and that Mr. Martin failed to state a claim upon which relie f could be granted with respect to all other claims. CSE attached to its motion to dismiss a letter that Mr. Martin sent to the EEOC before the charge was filed. R., Vol. 1, Doc. 14, Ex. E. In that letter, Mr. Martin clarified that he was discipline d for work performance because he objected to working overtime and that he asked t o be “laid in” because he did not want to work overtime. He also revealed that t he white worker complained about the long hours and his health problems and re quested a job transfer after regular working hours had been restored. Mr. Marti n admitted that he did not know of any other inmates who had complained about the forced overtime and admitted that he did not want, and therefore did no t request, another job. Also attached to the motion to dismiss was a letter fromthe EEOC to Mr. Martin that was sent with the notice of right-to-sue. Id. , Ex. F. This letter indicated that an investigation would not be continued due to insuffi cient evidence; the EEOC was unable to corroborate that Mr. Martin was disciplin ed due to race and Mr. Martin’s and the white employee’s situations we re dissimilar or not comparable.-7-

Mr. Martin responded to the motion to dismiss, admi tting that he had not wanted to be transferred to another job at the time he was “laid in,” and arguing that he did assert a termination claim before the E EOC. To support his response, he attached documents which he “incorporate[d] by r eference . . . into the pleadings of his complaint.” Id. , Doc. 17 at 1. One attachment was his EEOC intake questionaire indicating that both his termin ation and discipline were racially discriminatory. Id. at Ex. 7. The district court granted CSE’s motion to dismiss, concluding that (1) Mr. Martin lacked standing to sue for race disc rimination under Title VII because his status was that of an inmate and not an employee, citing Williams v.
Meese , 926 F.2d 994, 997 (10th Cir. 1991) (affirming dis missal for failure to state claim and concluding plaintiff could not pursue dis crimination claim under Title VII, because he was not employee as his relationshi p with prison official defendants arose out of his status as inmate, not a s employee), and (2) he had sued the wrong party with respect to his § 1981 cla im. Thereafter, Mr. Martin filed a motion to alter or amend the judgment, whic h the district court denied. This appeal followed.-8-

II. Analysis
A. Dismissal Mr. Martin argues the district court erred in grant ing CSE’s motion to dismiss, because CSE and he had an employer-employe e relationship and CSE terminated his employment, resulting in prison disc ipline. He contends that the termination and prison discipline were based on CSE ’s intentional racial discrimination.

1. Termination
a. Title VII “Exhaustion of administrative remedies is a jurisdi ctional prerequisite to suit under Title VII.” Jones v. Runyon , 91 F.3d 1398, 1399 (10th Cir. 1996) (quotation omitted). “[A] plaintiff normally may n ot bring a Title VII action based upon claims that were not part of a timely-fi led EEOC charge for which the plaintiff has received a right-to-sue letter.” Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs ., 165 F.3d 1321, 1326 (10th Cir. 1999). Thus, if Mr. Martin did not exhaust his administrat ive remedies, neither this court nor the district court had jurisdiction to considerhis Title VII termination claim. In addressing whether dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction is appropriate, we may considerdocuments submitted by the parties to resolve any jurisdictional fact questions. See Sizova v. Nat’l Institute of-9-

Standards & Tech. , 282 F.3d 1320, 1324-25 (10th Cir. 2002) (requirin g conversion to motion for summary judgment under Fed . R. Civ. P. 56 only when jurisdictional question is intertwined with merits of case; recognizing that jurisdictional issue of exhaustion of Title VII adm inistrative remedies is not aspect of substantive claim of discrimination). Co mparison of Mr. Martin’s district court complaint and his EEOC charge reveal s that he did not exhaust administrative remedies on a termination claim. In his complaint, Mr. Martin specifically alleged that CSE terminated him on the basis of race, and that termination resulted in prison disciplinary proceed ings. In contrast, in his EEOC charge, Mr. Martin alleged only that he was discrim inated against by the prison discipline; he clearly did not allege termination d ue to race discrimination. Mr. Martin, however, argued in his response to the motion to dismiss that he did assert discrimination based on termination b efore the EEOC. To support his argument, he attached the questionnaire he file d with the EEOC, in which he asserted that he had been terminated based on his r ace. R., Vol. 1, Doc. 17, Ex. 7
at 3. The questionnaire itself, however, does not lead us to believe that it was a charge. On its face, it does not suggest that it w as a charge. The preprinted privacy statement information on the questionnaire stated that typically the questionnaire would be considered a charge if it wa s the sole timely written-10-

statement of allegations of employment discrimination. Id. at 4. Timeliness, however, is not at issue in this case where there w as a timely filed formal charge. In addition, the privacy statement information indi cated that the questionnaire was to be used “to provide such charge filing counseling as is appropriate.” Id. Furthermore, the EEOC did not treat the questionnai re as a formal charge. Rather, the EEOC sent Mr. Martin a copy of a draft charge of employment discrimination prepared by the EEOC along with a le tter directing him to review the draft charge for correctness, to contact his intake officer before making any revisions, and to initial any changes. R., Vol. 1, Doc. 17, Ex. 5; see also Edelman v. Lynchburg College , 535 U.S. 106, 115 n.9 (2002) (“The general practi ce of EEOC staff members is to prepare a formal charge of discrimination for the complainant to review and to verify, once the alleg ations have been clarified.”). The letter also directed Mr. Martin to sign the cha rge. R., Vol. 1, Doc. 17, Ex. 5. Mr. Martin signed the draft charge, but he did not make any changes despite the fact that the charge did not mention termination based on race. Id. , Doc. 12, Attach. 2. Recognizing a distinction between merel y making allegations in the questionnaire and asserting formal charges, the EEO C issued Mr. Martin a right-to-sue letter only after he filed a formal ch arge. Under the circumstances of this case, “it is the ch arge rather than the questionnaire that matters.” Novitsky v. Am. Consulting Eng’rs, L.L.C. , 196 F.3d-11-

699, 702 (7th Cir. 1999). Mr. Martin cannot supple ment his formal charge with allegations in the questionnaire when he could have included those allegations in his charge. See id. Thus, the questionnaire alone was not sufficient to exhaust administrative remedies in light of the later filed and more limit ed formal charge. We conclude this claim was appropriately dismissed for lack of subject matter jurisdiction–on the ground that Mr. Martin did not exhaust his administrative remedies. See
Jones , 91 F.3d at 1401.

b. § 1981 Unlike Title VII claims, § 1981 claims can be comme nced without exhaustion of administrative remedies. See Taylor v. Safeway Stores, Inc. , 524 F.2d 263, 274 (10th Cir. 1975), overruled on other grounds by Ruckelshaus v. Sierra Club , 463 U.S. 680 (1983). The legal sufficiency of Mr . Martin’s § 1981 complaint allegations is a question of law. Sutton v. Utah State Sch. for Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). “The court ’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc. , 336 F.3d 1194, 1201 (10th Cir. 2003) (quotation omi tted). “We accept as true all well-pleaded facts, as distinguished from conclusory allegations, and view those-12-

facts in the light most favorable to the nonmoving party.” Beedle v. Wilson , 422 F.3d 1059, 1063 (10th Cir. 2005) (quotation omi tted). “Dismissal is inappropriate ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [his] claim that would entitle [him] to relief.’” Murrell v. Sch.
Dist. No. 1 , 186 F.3d 1238, 1244 (10th Cir. 1999) (quoting Conley v. Gibson , 355 U.S. 41, 45-46 (1957)). In deciding a Rule 12(b)(6) motion, a federal courttypically may only consider facts alleged in the complaint. County of Santa Fe v. Pub. Serv. Co. of
N.M. , 311 F.3d 1031, 1035 (10th Cir. 2002). There are exceptions to this rule; these exceptions will not convert a Rule 12(b)(6) m otion into a motion for summary judgment under Rule 56. First, a court mayreview the arguments in a memorandum in opposition to a motion to dismiss. County of Santa Fe , 311 F.3d at 1035. Second, a court may review documents refe rred to in a complaint if the document is central to the plaintiff’s claim and th e parties do not dispute the authenticity of the documents. Id. With respect to the second exception, we consider the documents from the EEOC proceedings as undisputed documents referenced in the complaint as amended and central to Mr. Martin’s claim without requiring that this case be decided on a summary ju dgment motion rather than a motion to dismiss. See Rogan v. Giant Eagle, Inc. , 113 F. Supp. 2d 777, 782 (W.D. Pa. 2000), aff’d , 276 F.3d 579 (3d Cir. Oct. 22, 2001) (unpublished ).4 Section 1981(a) provides that “[a]ll persons withinthe jurisdiction of the

United States shall have the same right in every St ate and Territory to make and enforce contracts . . . and to the full and equal b enefit of all laws and proceedings for the security of persons and property as is enjo yed by white citizens . . . .”

5 Although Mr. Martin stated in his complaint that he worked in a small, unventilated room using harsh chemicals, he did notargue that he left his employment due to health reasons until his response to the motion to dismiss. This belated assertion is conclusory. -13- Section 1981 4prohibits “discrimination in private employment onthe basis of race.” Johnson v. Ry. Express Agency, Inc. , 421 U.S. 454, 459-60 (1975). Federal courts evaluate the merits of a § 1981 clai m under the allocation burdens set out in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). Salguero v. City of Clovis , 366 F.3d 1168, 1175 (10th Cir. 2004). To establi sh a prima facie case of termination on the basis of race, a plainti ff must show that (1) he is a member of a protected class; (2) he is qualified fo r the job and was performing the job satisfactorily; and (3) he was terminated u nder circumstances giving rise to an inference of discrimination. Id

. Although Mr. Martin meets the first two requirement s, he does not meet the third. The circumstances here do not give rise to an inference of discrimination. Unlike the white employee, he did not mention health problems 5 or request to be transferred to another job. Also dissimilar is the fact that Mr. Martin requested to be “laid in” while overtime hours were in effect, b ut the white employee made his request to be “let go” after regular hours had resu med. Under the circumstances,6 Mr. Martin implicitly referred to this Agreement in his complaint. See R.,

Vol. 1, Doc. 1 at 2 (noting CSE “operates a prison based private industry production plant at the Lansing facility”). CSE attached a copy of this Agreement to the motion to dismiss. Id. , Doc. 14, Ex. B, Ex. 1. In his response to the motion to dismiss, Mr. Martin “[did] not deny that [CSE] entered into a Lease Agreement with the Lansing Correctional Facility.” Id ., Doc. 17 at 1. Because the Agreement was implicitly referred to in the complaint and the parties do not dispute its authenticity, we may consider it in deciding this appeal. See Mishler v. Clift , 191 F.3d 998, 1008 n.7 (9th Cir. 1999) (deciding that where complaint did not specifically refer to document or discuss its c ontents, and district court (continued...) -14- we conclude Mr. Martin’s complaint fails to state aclaim for which relief may be granted under § 1981 for racial discrimination in t ermination.

2. Prison Discipline
a. Title VII Title VII prohibits an employer from discriminating based on race in the terms and conditions of employment. See 42 U.S.C. § 2000e-2(a)(1). Thus, for a Title VII action, there must be an adverse employment practice, Hillig v. Rumsfeld , 381 F.3d 1028, 1033 (10th Cir. 2004), which neces sarily requires conduct by an employer, see Williams , 926 F.2d at 997 (“Title VII protections apply only where there is some connection with an e mployment relationship.”) (quotation omitted). Mr. Martin does not argue that CSE had the authority to discipline him or actually did discipline him. Ind eed, nothing in the record indicates that CSE disciplined Mr. Martin. Under the Agreement, the institutional discipline was at the behest of the State, not CSE, 6and the discipline was imposed6 (...continued)

implicitly accepted document as part of pleadings, appellate court could consider document when deciding whether complaint failed to state claim); see also County of Santa Fe, 311 F.3d at 1035 (setting forth exception to genera l rule that district court only considers facts alleged in comp laint when addressing motion to dismiss). -15- due to Mr. Martin’s violation of a prison rule and his status as a prisoner, not as an employee. CSE had no authority to discipline Mr . Martin, and did not attempt to do so. CSE merely reported Mr. Martin’s requestto be “laid in” to the State, as it was required to do. Under these circumstance s, we therefore conclude that Mr. Martin failed to state a claim under Title VII for which relief may be granted.

b. § 1981 Just as the prison discipline was not an adverse-employment action by CSE as is required for a Title VII claim, the prison di scipline was not contract-related action by CSE as is required for a § 1981 claim. A ccordingly, for the reasons discussed above, we conclude Mr. Martin failed to s tate a claim upon which relief may be granted under § 1981. B. Motion to Alter or Amend Judgment Mr. Martin argues the district court erred in denyi ng his motion to alter or amend judgment, which the court treated as filed un der both Fed. R. Civ. P. 59(e) and 60(b). He asserted before the district court, and continues to assert on appeal, that the district court improperly applied Williams , because his association with-16-

CSE was due to his employment, not his incarceration. See Williams , 926 F.2d at 997 (holding that plaintiff could not pursue discri mination claim, because he was not an employee, since his relationship with defend ant prison officials arose out of his status as inmate, not as employee). Even as suming that the district court misapplied Williams , in light of our holding that dismissal was warranted on other legal grounds, we conclude the district court did n ot abuse its discretion in denying Mr. Martin’s motion. See Servants of Paraclete v. Does , 204 F.3d 1005, 1009 (10th Cir. 2000) (reviewing denial of Rule 60( b) motion for abuse of discretion); Anaeme v. Diagnostek, Inc. , 164 F.3d 1275, 1284 (10th Cir. 1999) (reviewing denial of Rule 59(e) motion for abuse of discretion). C. Appointment of Counsel Finally, Mr. Martin argues that the district court erred in denying his motion for appointment of counsel, because counsel could have clarified his claims. The district court denied appointment of c ounsel, because there was little likelihood Mr. Martin would prevail on the merits e ven with counsel, the facts and issues in the case are not complicated, Mr. Martin failed to show special circumstances preventing him from presenting his cl aims, and he failed to present compelling evidence that he was diligent in seeking counsel. We conclude the denial of appointment of counsel was not an abuse of discretion. See Rucks v. Boergermann , 57 F.3d 978, 979 (10th Cir. 1995).-17-

The judgment of the district court is AFFIRMED. Th e mandate shall issue forthwith. Entered for the Court

Michael W. McConnell Circuit Judge