___________ No. 95-2950

___________ Rodney Tyrone Hopkins, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Tannery West, * * [UNPUBLISHED] Appellee. *

___________ Submitted: March 6, 1996 Filed: March 11, 1996

___________ Before FAGG, BOWMAN, and HANSEN, Circuit Judges.

___________
PER CURIAM. Rodney Tyrone Hopkins filed this action against Tannery West pu rsuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e17 (1988 & Supp. V 1993), alleging that Tannery West unlawfull y dis criminated against him on the basis of his race and his sex b y terminating him, failing to promote him, failing to interview him for an open position, and harassing him. Tannery West moved to dismiss Hopkins's complaint for failure to state a claim, arguing Hopkins did not file this action within ninety days of the Equal Employmen t Opportunity Commission's (EEOC ) determination notifying him of his right to sue, as required b y section 2000e-5(f)(1). The District Court agreed that Hopkins's action wa s untimel y, and granted Tannery West's motion. Hopkins appeals, and w e reverse.

### -2- The EEOC issued Hopkins a right-to-sue letter on November 10, 1994. Hopkins alleged in his complaint that he did not receive this letter until Dec ember 15, 1994. On March 10, 1995, the District Court receive d Hopkins's complaint, in forma pauperis (IFP) application, and motion for appointment of counse l; a copy of his right-to-sue letter was attached to his complaint. The District Court, however, did not file Hopkins' s complaint until March 24 when it granted IFP status to Hopkins.
We review de novo a dismissal for failure to state a claim uponwhich relief can be granted under Fed. R. Civ. P. 12(b )(6), and will affirm only if the complaint contains facts which bar recovery or the plaintiff ca n pro ve no set of facts allowing recovery. Ring v. First Interstat e Mortgage, Inc. , 984 F.2d 924, 926 (8th Cir. 1993).

The nine ty-day filing period for bringing a Title VII action bega n to run on the day the EEOC's right-to-sue letter was received by Hopkins. See Anderson v. Unisys Corp. , 47 F.3d 302, 307-08 (8th Cir.), cert. denied , 116 S. Ct. 299 (1995). Accepting as true, as we must when reviewing a Rul e 12(b)(6) dismissal, Hopkins's allegation that he received the right-to-sue letter on December 15, 1994, see Westcott v. Cit y of Omaha , 901 F.2d 1486, 148 8 (8th Cir. 1990), Hopkins had until March 15, 1995, to bring thi s action. Hopkins's action thus does not appear from the complaint to b e untime ly, because the district court received the complaint, the IF P application, and the motion for appointment of counsel on March 10. Cf. Baldwin County Welcome Ctr. v. Brown , 466 U.S. 147, 151 (1984) (per curiam ) (where motion for appointment of counsel was pending, "equity would justif y tolling the statutory period until the motion [w as] acted upon"). We note that in the proceedings thus far Tannery West has not disputed Hopkins's allegation that he re ceived the right-to-sue letter on December 15, 1994.

### -3- Accordingly, we reverse and remand for further proceedings cons istent with this decision.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.