                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-1689
                                   ___________

George H. Williams,                     *
                                        *
             Appellant,                 * Appeal from the United States
                                        * District Court for the Eastern
      v.                                * District of Missouri.
                                        *
Target Stores,                          * [UNPUBLISHED]
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: June 29, 2012
                                Filed: July 12, 2012 (CORRECTED 7/19/12)
                                 ___________

Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
                          ___________

PER CURIAM.


     George Williams appeals following the district court’s dismissal of his pro se
employment-discrimination complaint as untimely. This court reverses.

       Williams filed a form Title VII complaint seeking damages against his former
employer, Target Stores (Target) for failing to promote him and for treating him less
favorably than others in the terms and conditions of his employment, all on account
of his race, African American. In the section of the form complaint asking when the
discrimination occurred, Williams wrote “June 2009.” In the narrative section of the
complaint, he alleged that after one year of employment with Target, he applied to be
a team leader. Target denied him the promotion and about a month later, Williams
learned that a white coworker was given the position. He became so uncomfortable
working at Target that in May 2010, he took a leave of absence. Williams attached
a charge of discrimination that he had filed with the Equal Employment Opportunity
Commission (EEOC) and the Missouri Commission on Human Rights (MCHR). The
charge, dated May 27, 2010, alleged that Williams had applied for the team-leader
position in “July/August 2009,” but the position was given to a white male; that
Williams was denied a requested transfer, and shortly thereafter, his hours were
reduced; and that the discriminatory conduct occurred from June 1, 2009, until May
12, 2010.

      Upon Target’s resisted motion, the district court dismissed the complaint as
time-barred. The court agreed with Target that, because the complaint alleged that
the unlawful employment practice occurred on June 30, 2009, Williams’s May 27,
2010 EEOC charge was not timely filed.

       On appeal, Williams argues that the district court erred by using the June 2009
date written on his form complaint, because the attached charge of discrimination
described the discrimination as occurring between June 1, 2009, and May 12, 2010.
Target argues that allegations in a discrimination charge should not supersede express
allegations in the complaint.

       This court reviews de novo a dismissal for failure to exhaust. See Coons v.
Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005). Under Title VII, an employee has 300
days from the date of the alleged discrimination to file a charge of discrimination with
the EEOC if the employee, as Williams did in this case, instituted proceedings with
an appropriate state or local agency. See 42 U.S.C. § 2000e-5(e)(1); see also Holland
v. Sam’s Club, 487 F.3d 641, 643 n.3 (8th Cir. 2007) (MCHR is appropriate state
agency). The key issue before this court is not, as Target suggests, whether

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allegations in a discrimination charge should supersede express allegations in the
complaint, but rather whether a plaintiff must be held to the date of discrimination
cited in a Title VII form complaint where an attachment to the pleading recites other
dates of discrimination as well.

       Complaints, including pro se complaints, must be liberally construed. See
Johnson v. Arden, 614 F.3d 785, 798 (8th Cir. 2010) (pro se pleadings afforded
liberal construction) (citations omitted). Further, federal rules require that the charge
of discrimination and the complaint be read together. See Fed. R. Civ. P. 10(c) (copy
of written instrument that is exhibit to pleading is part of pleading for all purposes).
The district court did not liberally construe the entire complaint, because the court
drew from both the charge of discrimination and the complaint in describing the
alleged discriminatory conduct, but then relied exclusively on the face of the form
complaint in determining whether the discrimination charge was timely filed – despite
the existence of more expansive dates contained in the attached charge of
discrimination. See Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008)
(when ruling on motion to dismiss, court should construe complaint liberally in light
most favorable to plaintiff).

       To the extent that there existed doubt as to whether Williams had timely
exhausted his administrative remedies, it was Target’s burden to prove its affirmative
defense of lack of exhaustion, and any doubt on the issue must be resolved in favor
of Williams. See Salas v. Wis. Dep’t of Corr., 493 F.3d 913, 922 (7th Cir. 2007)
(failure to exhaust is affirmative defense that is defendant’s burden to prove; “tie must
go to the plaintiff”); Miles v. Bellfontaine Habilitation Ctr., 481 F.3d 1106, 1107 (8th
Cir. 2007) (per curiam) (though failure to exhaust administrative remedies is not
jurisdictional prerequisite, it is treated as affirmative defense); Williams v. Runyon,
130 F.3d 568, 573 (3d Cir. 1997) (defendant bears burden of pleading and proving
that plaintiff has failed to exhaust administrative remedies).



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        The parties also address whether the complaint was sufficient to state a claim
upon which relief may be granted. That issue was not decided below, however, and
is a matter best left to the district court to consider in the first instance on remand.
See Lafarge N. Am., Inc. v. Discovery Grp. L.L.C., 574 F.3d 973, 986 n.9 (8th Cir.
2009) (declining to affirm on alternative theories not addressed by district court in the
first instance).

      This court reverses and remands for further proceedings consistent with this
opinion.
                      ______________________________




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