*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-60515

Summary Calendar

_____________________

REVES BLACK, JR.,

Plaintiff-Appellant,

versus

MISSISSIPPI STATE DEPARTMENT OF

HEALTH,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Mississippi

(3:97-CV-34LN)

_________________________________________________________________

January 23, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Reves Black, Jr. appeals the district court’s order

dismissing his Title VII race discrimination action because he

failed to timely file his complaint. Finding no error, we

affirm.

I
1Black does not dispute the date on which he received the

notice.

2

Black filed a charge of racial discrimination with the Equal

Employment Opportunities Commission (“EEOC”) on May 15, 1996,

alleging that he had been passed over for a promotion on the

basis of his race and in retaliation for his filing of a previous

discrimination charge. The EEOC issued Black a right to sue

letter on October 21, 1996, notifying him of his ninety-day

window in which to commence suit. We presume that Black received

the letter on October 24, three days after it was mailed. See

Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1, 104

S.Ct. 1723, 1724 n.1, 80 L.Ed.2d 196 (1984); Fed.R.Civ.P. 6(e).1

Black filed his complaint on January 24, 1997--ninety-two days

after receipt of the notice.

The Mississippi State Department of Health (“MSDH”) filed a

motion to dismiss on February 27, 1997, citing Black’s failure to

file suit within the ninety-day window. Black never filed a

response and the district court granted the motion and dismissed

the action with prejudice on July 25, 1997. Black appeals that

order.

II

We review de novo a district court’s ruling on a motion to

dismiss under Federal Civil Procedure Rule 12(b)(6). United
3

States v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 901 (5th

Cir. 1997) (citing Morin v. Caire, 77 F.3d 116, 120 (5th Cir.

1996)). “The question . . . is whether in the light most

favorable to the plaintiff and with every doubt resolved in his

behalf, the complaint states any valid claim for relief.” Lowrey

v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). When

an affirmative defense bars relief on the face of the complaint,

the suit may be dismissed for failure to state a cause of action. 

Bank of New Orleans & Trust Co. v. Monco Agency, Inc., 823 F.2d

888, 891 (5th Cir. 1987) (citing Mann v. Adams Realty Co., 556

F.2d 288, 293 (5th Cir. 1977)); Kaiser Aluminum v. Avondale

Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert.

denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983).

III

Title VII provides that upon receipt of a right to sue letter,

“a civil action may be brought . . . within ninety days after the

giving of such notice.” 42 U.S.C. § 2000e-5(f)(1). This court has

consistently held that an untimely action may be dismissed in the

absence of conditions amenable to application of equitable

doctrines such as tolling. Brown, 466 U.S. at 149-52, 104 S.Ct. at

1723-25; Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir.

1992); Huff v. International Longshoremen’s Ass’n, 799 F.2d 1087,

1090 (5th Cir. 1986); Ringgold v. National Maintenance Corp., 796
2Black included in the appendix submitted with his brief

correspondence between he and the clerk conducted prior to the

filing of his complaint. According to a letter to the clerk dated

January 18, 1997, Black mailed to the clerk the EEOC’s notice of

right to sue, a copy of the discrimination charge, a motion for

more time in which to file his complaint, and a motion for

appointment of an attorney. The Supreme Court held in Brown that

the filing of the right to sue letter was insufficient to comply

with the rules of civil procedure for the filing of a complaint.

Brown, 466 U.S. at 149-50, 104 S.Ct. at 1725; Fed.R.Civ.P. 3,

8(a)(2). This court addressed a similar situation and held the

filing of the right to sue notice along with a request for

appointment of counsel insufficient to meet the strictures set out

in Brown. Firle, 762 F.2d at 489. Although the language in Firle

could be read to suggest that we would find sufficient as an

initial pleading a statement of the claim--”however informal (such

as by a letter)”--, we have never explicitly so held. Id.; but see

Brown, 466 U.S. at 150 n.4, 104 S.Ct. at 1725 n.4; Judkins v. Beech

Aircraft Corp., 745 F.2d 1330, 1332 (holding sufficient the filing

of the right-to-sue notice and request for counsel along with the

initial EEOC discrimination charge). We need not reach this issue

here because the correspondence documents included in the appendix

attached to Black’s brief are not part of the record before us.

Black never responded to the motion to dismiss and those papers

were never placed before the district court. Hence, we may not

4

F.2d 769, 770 (5th Cir. 1986); Firle v. Mississippi State Dep’t of

Educ., 762 F.2d 487, 488-89 (5th Cir. 1985); Espinoza v. Missouri

Pacific R. Co., 754 F.2d 1247, 1249 (5th Cir. 1985) (noting ninetyday requirement is not jurisdictional, but more akin to statute of

limitations).

The record contains no evidence demonstrating that the

doctrine of equitable tolling (or any other equitable doctrine)

should apply. The evidence establishes that Black received his

right to sue letter that notified him of the ninety-day deadline

and that he simply failed to meet that deadline.2 The district
consider them. Fed.R.App.P. 10(a) (“The record on appeal consists

of the original papers and exhibits filed in the district

court . . . .”); United States v. Hatch, 926 F.2d 387, 395 (5th

Cir.), cert. denied, 500 U.S. 943, 111 S.Ct. 2239, 114 L.Ed.2d 481

(1991); Sweet Life v. Dole, 876 F.2d 402, 408 (5th Cir. 1989)

(noting “this court is barred from considering filings outside the

record on appeal, and attachments to briefs do not suffice.”).

5

court correctly dismissed this action as untimely and, for the

foregoing reasons, we AFFIRM.

A F F I R M E D.