                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                  April 28, 2004
                      _____________________
                                                         Charles R. Fulbruge III
                             No. 03-30957                        Clerk
                           Summary Calendar
                        _____________________

                          BRIJ M. JANMEJA,

                        Plaintiff/Appellant,

                               versus

      BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND
                AGRICULTURAL AND MECHANICAL COLLEGE;
 WILLIAM JENKINS, Individually and in his capacity as President
                 Louisiana State University System;
   WILLIAM J. NUNEZ, III, Individually and in his capacity as
         Chancellor Louisiana State University at Eunice;
     STEPHEN R. GUEMPEL, Individually and in his capacity as
                Vice-Chancellor for Academic Affairs
               Louisiana State University at Eunice;
  THERESA A. DEBECHE, Individually and in her capacity as Head,
               Division of Nursing and Allied Health
               Louisiana State University at Eunice;
 JACKIE BUSH, Individually and in her capacity as Former Program
                    Director of Respiratory Care
               Louisiana State University at Eunice,

                      Defendants/Appellees.
________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
                 District Court Cause No. 02-CV-382
_________________________________________________________________

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1

PRADO, Circuit Judge.

     This appeal arises from the district court’s dismissal of

     1
     Pursuant to 5th Cir. R. 47.5, this 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that this opinion should not be published and is not precedent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.

                                  1
the appellant’s Title VII employment discrimination claims.      In

his complaint, the appellant, Brij M. Janmeja, alleged that the

appellees, Louisiana State University at Eunice, et al.,

discriminated against him based on his race by denying him

adequate pay increases.    The appellees moved to dismiss the

appellant’s claims on grounds the claims were time-barred.      In

the alternative, the appellees moved for summary judgment.      After

considering the motion, the district court found the appellant’s

claims were time-barred and dismissed the appellant’s claims.

The appellant challenges that action in this appeal.

                          Standard of Review

     This Court reviews the district court's dismissal under Rule

12(b)(6) de novo and therefore applies the same rules as the

district court.2   In considering a motion to dismiss, the

district court must accept the allegations presented by the

plaintiff as true and determine whether those allegations state a

claim for which relief can be granted.3    The court will grant a

motion to dismiss only when it appears the plaintiff can prove no

set of facts in support of his claim that would entitle him to




     2
     See Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996);
Eason v. Holt, 73 F.3d 600, 601 (5th Cir. 1996).
     3
     See Rankin v. City of Wichita Falls, Tex., 762 F.2d 444,
446 (5th Cir. 1985).

                                  2
relief.4   When matters outside the pleadings are presented to the

court and not excluded, the court must treat the motion as one

seeking summary judgment and must give the opposing party the

opportunity to present summary judgment evidence in opposition.5

     In this case, the district court relied on a document

outside the pleadings–specifically, a copy of the appellant’s

EEOC charge.   The district court, however, extended the time for

discovery and did not dismiss the appellant’s claims until months

after the discovery deadline passed.    As a result, this Court

will uphold the dismissal of the appellant’s claims so long as no

genuine issue of material fact exists about whether the

appellant’s claims are time-barred.6

           Whether the Appellant’s Claims Are Time-Barred

     The district court determined the appellant’s claims are

time-barred because the appellant complained about conduct that

did not occur within the 300 days preceding the filing of the

appellant’s EEOC charge.    In his first issue, the appellant

maintains the district court erred in dismissing his claims

because the date shown on his EEOC complaint is not the actual

date he filed his charge.    Although his EEOC charge is dated



     4
     See Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th
Cir. 1995).
     5
      See FED. R. CIV. P. 12(b).
     6
      See FED. R. CIV. P. 56.

                                   3
August 9, 2001, the appellant contends he actually filed his

charge on April 25, 2000.    To support that claim, the appellant

relies on a letter and answers to an EEOC questionnaire that he

purportedly sent to the EEOC on April 22, 2000 and that were

received by the EEOC on April 25, 2000.

     Generally, a Title VII plaintiff must file a charge with the

EEOC within a certain time frame after the alleged conduct.7    In

a deferral state like Louisiana where the appellant’s lawsuit was

filed, a plaintiff must file his charge within 300 days of the

complained-of conduct.8    As a result, the plaintiff must file his

charge with the EEOC within 300 days of the alleged

discriminatory conduct.

     In his complaint, the appellant complained about conduct

that occurred outside of the 300-day filing period.

Specifically, the appellant complained about a comment made in a

performance evaluation dated May 19, 1999; a March 9, 2000 email

allegedly referring to him as a disgruntled faulty member; and a

March 13, 2000 meeting in which he maintains he was harassed.

None of these events occurred within the 300 days preceding the

date reflected on the appellant’s EEOC charge–i.e, August 9,

2001.    As a result, no question exists about whether the

appellant’s claims are time-barred.


     7
        See 42 U.S.C § 2000e-5(e)(1).
     8
        See id.

                                  4
     Although the appellant maintains he actually filed his

charge on April 25, 2000, he presented this argument to the

district court after the district court dismissed his claims.

Instead of raising the issue in his response to the appellees’

motion, the appellant raised the argument in a motion for

reconsideration of the dismissal of his claims.   In considering

the motion for reconsideration, the district court observed the

appellant failed to present the argument earlier, and failed to

explain the 16-month gap between his April 22, 2000 letter and

the date of his EEOC charge.   To clarify the issue, the district

court requested additional briefing.   In response to the request,

the appellant still failed to explain why he did not raise the

argument earlier, but suggested additional discovery was

required.   After considering that subtle suggestion, the district

court determined the appellant had not been diligent in seeking

additional discovery and denied the appellant’s motion for

reconsideration.   To the extent the appellant challenges that

determination on appeal, this Court agrees with the district

court’s assessment.

     Although problems with limitations were apparent from the

face of the plaintiff’s complaint, the appellees placed the

appellant on notice that they intended to challenge the

timeliness of the appellant’s claims in their answer.   In

particular, the appellees answered that the appellant’s “Title

VII claims arising more that 300 days prior to his EEOC charge

                                 5
are also time-barred/ prescribed.”    The appellees raised the

issue again in the parties’ Rule 26(f) report.    In that report,

the appellees maintained the appellant’s “claims occurred outside

of the applicable statutory limitations and/or prescriptive

periods.”   The appellees then moved to dismiss the appellant’s

claim based on limitations period.    Oddly enough, the appellant

did not address the timeliness of his claims in his response to

the motion to dismiss.

     The district court, however, denied the motion initially

because there was no evidence in the record the appellant had

exhausted his administrative remedies and ordered the attorneys

to file documentation showing the appellant had exhausted his

administrative remedies.    After the appellees presented the

appellant’s right to sue letter, the district court reconsidered

the motion and dismissed the appellant’s claims.    Under these

circumstances, a plaintiff does not act with diligence in seeking

additional discovery.    As a result, the district court properly

denied the motion for reconsideration.

            Whether the Continuing Tort Doctrine Applies

     In his second issue, the appellant contends the EEOC time

limit should not be applied to his claims because of the

continuing tort doctrine.   “The continuing violation theory

relieves a plaintiff of establishing that all of the complained-

of conduct occurred within the actionable period if the plaintiff


                                  6
can show a series of related acts, one or more of which falls

within the limitations period.”9       None of the conduct that the

appellant complains about, however, occurred within the

limitations period.   As a result, the continuing violation

doctrine does not apply.

                            Conclusion

     To survive the appellees’ motion, the appellant was required

to submit evidence that raised a genuine issue of material fact

about whether his claims were time-barred.       The appellant,

however, failed to present such evidence.       Instead of presenting

competent summary-judgment evidence, the appellant presented a

copy of a letter that he purportedly sent to the EEOC.       Notably,

the letter was not supported by any indicia of reliability.         Even

though competent evidence may exist that the appellant initiated

a charge with the EEOC on April 25, 2000, the appellant did not

present that evidence to the district court.       As a result, the

district court properly found that no question exists about

whether the appellant’s claims are time-barred.       Because the

conduct the appellant complained about is time-barred, the

continuing tort doctrine does not apply to the appellant’s

claims.   Because the appellant’s claims are time-barred, this

Court AFFIRMS the judgment of the district court dismissing the



     9
     Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 351
(5th Cir. 2001).

                                   7
appellant’s claims and denying the motion for reconsideration.

AFFIRMED.




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