                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          October 11, 2005
                             FOR THE TENTH CIRCUIT
                                                                            Clerk of Court

    FREDERICK MARTIN,

                 Plaintiff-Appellant,

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

                 Defendant-Appellee.


                              ORDER AND JUDGMENT           *




Before EBEL , HARTZ , and McCONNELL , Circuit Judges.



          After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

          Plaintiff Frederick Martin, a black man, who is a prisoner at the Lansing,

Kansas, Correctional Center, filed a pro se complaint in district court against his


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
former employer, defendant Central States Emblems, Inc. (CSE), a private

corporation operating a business at the prison, alleging racial discrimination in

violation of Title VII of the Civil Rights Act of 1964, 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 bring a Title VII claim and

failed to name the proper party for the § 1981 claim. 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 record sufficient to permit

conclusions of law, even grounds not relied upon by the 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 business from a building at the

Lansing Correctional Center and to employ inmates at the business. The

Agreement stated that CSE’s operations could not unreasonably disrupt the

normal routine and management of the prison. Also, the Agreement provided that

the Department of Corrections would determine the number of inmates available



1
       Because Mr. Martin has proceeded pro se at all times, we liberally construe
his court filings. See Haines v. Kerner , 404 U.S. 519, 520 (1972).

                                             -2-
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 working was subject to

termination. The Department of Corrections provided correctional officers to

supervise inmates employed by CSE.

      If an employee failed to report for work or left work earlier than permitted,

the Agreement required CSE to notify the Department of Corrections

immediately. Also, CSE personnel were required to report violations of prison

rules to the Department of Corrections, write appropriate 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” until regular hours were




                                         -3-
restored.   2
                CSE accepted that request, and its shop manager informed Mr. Martin

“that he may not be able to call him back to work when the regular hours were

restored,” R., Vol. 1, Doc. 1 at 2. As required, CSE reported this development to

the Department of Corrections. Prison officials initiated disciplinary proceedings

against Mr. Martin and decided that his actions violated Kan. Admin. Reg.

§ 44-12-401(a), which precludes an inmate from interfering with, delaying,

sabotaging, or disrupting work in progress. He received a reduced classification

level for his refusal to work overtime, resulting in a loss of certain privileges.

       Thereafter, Mr. Martin filed a complaint in district court alleging race

discrimination by CSE in violation of Title VII and § 1981. He alleged two types

of discrimination: (1) that he “was terminated because 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 similar 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 transferred to another job without

being disciplined.     Id. at 2.




2
       Mr. Martin defines “laid in” as “not required to report to work, but not
fired or quit.” Aplt. Br. at 2.

                                           -4-
       After filing his complaint, Mr. Martin filed a charge with the Equal

Employment Opportunity Commission (EEOC), alleging race discrimination. The

charge stated only that Mr. Martin “was subjected to disciplinary measures by

[CSE] . . . for the same or similar alleged allegation that a similarly-situated

Caucasian employee also committed, but the Caucasian employee was not

similarly disciplined for his infraction.”      Id. , Doc. 12, Attach. 2. The charge did

not indicate that CSE terminated Mr. Martin’s employment. 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 EEOC charge and notice of

right-to-sue, which the court apparently did.      3




3
        An employee may bring a Title VII claim in federal court after filing a
timely EEOC charge and receiving and acting on a right-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 letter 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, there 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 the 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 defect”).


                                             -5-
       After the EEOC proceedings had ended, CSE filed a motion 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 VII claims because Mr. Martin

never asserted that he was terminated in his discrimination charge and that

Mr. Martin failed to state a claim upon which relief 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 disciplined for work performance because

he objected to working overtime and that he asked to be “laid in” because he did

not want to work overtime. He also revealed that the white worker complained

about the long hours and his health problems and requested a job transfer after

regular working hours had been restored. Mr. Martin 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 not request, another job. Also

attached to the motion to dismiss was a letter from the 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 insufficient evidence; the EEOC was

unable to corroborate that Mr. Martin was disciplined due to race and

Mr. Martin’s and the white employee’s situations were dissimilar or not

comparable.


                                            -6-
       Mr. Martin responded to the motion to dismiss, admitting 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 EEOC. To support his response,

he attached documents which he “incorporate[d] by reference . . . into the

pleadings of his complaint.”    Id. , Doc. 17 at 1. One attachment was his EEOC

intake questionaire indicating that both his termination 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 discrimination 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 dismissal for failure to state

claim and concluding plaintiff could not pursue discrimination claim under Title

VII, because he was not employee as his relationship with prison official

defendants arose out of his status as inmate, not as employee), and (2) he had

sued the wrong party with respect to his § 1981 claim. Thereafter, Mr. Martin

filed a motion to alter or amend the judgment, which the district court denied.

This appeal followed.




                                           -7-
II. Analysis

       A. Dismissal

       Mr. Martin argues the district court erred in granting CSE’s motion to

dismiss, because CSE and he had an employer-employee relationship and CSE

terminated his employment, resulting in prison discipline. 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 jurisdictional prerequisite to

suit under Title VII.”    Jones v. Runyon , 91 F.3d 1398, 1399 (10th Cir. 1996)

(quotation omitted). “[A] plaintiff normally may not bring a Title VII action

based upon claims that were not part of a timely-filed 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 administrative remedies, neither this court

nor the district court had jurisdiction to consider his Title VII termination claim.

       In addressing whether dismissal under Rule 12(b)(1) for lack of subject

matter jurisdiction is appropriate, we may consider documents submitted by the

parties to resolve any jurisdictional fact questions.         See Sizova v. Nat’l Institute of


                                                 -8-
Standards & Tech. , 282 F.3d 1320, 1324-25 (10th Cir. 2002) (requiring

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 administrative remedies is not

aspect of substantive claim of discrimination). Comparison of Mr. Martin’s

district court complaint and his EEOC charge reveals 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 proceedings. In contrast, in his EEOC

charge, Mr. Martin alleged only that he was discriminated against by the prison

discipline; he clearly did not allege termination due to race discrimination.

        Mr. Martin, however, argued in his response to the motion to dismiss that

he did assert discrimination based on termination before the EEOC. To support

his argument, he attached the questionnaire he filed with the EEOC, in which he

asserted that he had been terminated based on his race. 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 was a charge. The preprinted

privacy statement information on the questionnaire stated that typically the

questionnaire would be considered a charge if it was the sole timely written


                                          -9-
statement of allegations of employment discrimination.         Id. at 4. Timeliness,

however, is not at issue in this case where there was a timely filed formal charge.

In addition, the privacy statement information indicated that the questionnaire was

to be used “to provide such charge filing counseling as is appropriate.”       Id.

       Furthermore, the EEOC did not treat the questionnaire 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 letter 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 practice of

EEOC staff members is to prepare a formal charge of discrimination for the

complainant to review and to verify, once the allegations have been clarified.”).

The letter also directed Mr. Martin to sign the charge. 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 merely making allegations in the

questionnaire and asserting formal charges, the EEOC issued Mr. Martin a

right-to-sue letter only after he filed a formal charge.

       Under the circumstances of this case, “it is the charge rather than the

questionnaire that matters.”    Novitsky v. Am. Consulting Eng’rs, L.L.C.     , 196 F.3d


                                            -10-
699, 702 (7th Cir. 1999). Mr. Martin cannot supplement 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 limited 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 commenced 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 omitted). “We accept as true all

well-pleaded facts, as distinguished from conclusory allegations, and view those


                                              -11-
facts in the light most favorable to the nonmoving party.”         Beedle v. Wilson ,

422 F.3d 1059, 1063 (10th Cir. 2005) (quotation omitted). “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 court typically 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) motion into a motion for

summary judgment under Rule 56. First, a court may review 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 referred to in a complaint if the

document is central to the plaintiff’s claim and the 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 judgment 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).


                                             -12-
       Section 1981   4
                          prohibits “discrimination in private employment on the basis

of race.” Johnson v. Ry. Express Agency, Inc.       , 421 U.S. 454, 459-60 (1975).

Federal courts evaluate the merits of a § 1981 claim 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 establish a prima facie

case of termination on the basis of race, a plaintiff must show that (1) he is a

member of a protected class; (2) he is qualified for the job and was performing

the job satisfactorily; and (3) he was terminated under circumstances giving rise

to an inference of discrimination.     Id.

       Although Mr. Martin meets the first two requirements, 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, but the white employee made his

request to be “let go” after regular hours had resumed. Under the circumstances,

4
       Section 1981(a) provides that “[a]ll persons within the jurisdiction of the
United States shall have the same right in every State and Territory to make and
enforce contracts . . . and to the full and equal benefit of all laws and proceedings
for the security of persons and property as is enjoyed by white citizens . . . .”

5
      Although Mr. Martin stated in his complaint that he worked in a small,
unventilated room using harsh chemicals, he did not argue that he left his
employment due to health reasons until his response to the motion to dismiss.
This belated assertion is conclusory.

                                             -13-
we conclude Mr. Martin’s complaint fails to state a claim for which relief may be

granted under § 1981 for racial discrimination in termination.

              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 necessarily requires

conduct by an employer,     see Williams , 926 F.2d at 997 (“Title VII protections

apply only where there is some connection with an employment relationship.”)

(quotation omitted). Mr. Martin does not argue that CSE had the authority to

discipline him or actually did discipline him. Indeed, 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,    6
                                                           and the discipline was imposed


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 contents, and district court
                                                                             (continued...)

                                            -14-
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 request to be “laid in” to the State,

as it was required to do. Under these circumstances, 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 discipline was not contract-related

action by CSE as is required for a § 1981 claim. Accordingly, for the reasons

discussed above, we conclude Mr. Martin failed to state 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 denying his motion to alter or

amend judgment, which the court treated as filed under 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



6
 (...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 general rule that
district court only considers facts alleged in complaint when addressing motion to
dismiss).

                                             -15-
CSE was due to his employment, not his incarceration.       See Williams , 926 F.2d at

997 (holding that plaintiff could not pursue discrimination claim, because he was

not an employee, since his relationship with defendant prison officials arose out

of his status as inmate, not as employee). Even assuming 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 not 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 counsel, because there was little

likelihood Mr. Martin would prevail on the merits even with counsel, the facts

and issues in the case are not complicated, Mr. Martin failed to show special

circumstances preventing him from presenting his claims, 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).


                                          -16-
      The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.

                                                Entered for the Court



                                                Michael W. McConnell
                                                Circuit Judge




                                     -17-
