                    Case: 12-11747         Date Filed: 10/30/2012   Page: 1 of 9




                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                             No. 12-11747
                                         Non-Argument Calendar
                                       ________________________

                             D.C. Docket No. 4:11-cv-00423-WS-WCS



MCCARROL PAGE,

llllllllllllllllllllllllllllllllllllllll                            Plaintiff-Appellant,

                                                 versus

POSTMASTER GENERAL AND CHIEF
EXECUTIVE OFFICER OF THE UNITED
STATES POSTAL SERVICE,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellee.


                                      ________________________

                            Appeal from the United States District Court
                                for the Northern District of Florida
                                  ________________________

                                           (October 30, 2012)

Before BARKETT, JORDAN and FAY, Circuit Judges.

PER CURIAM:
              Case: 12-11747     Date Filed: 10/30/2012   Page: 2 of 9

      McCarrol Page, an African-American man, appeals the district court’s

dismissal of his employment discrimination complaint against his former

employer, the Postmaster General of the U.S. Postal Service (“the Postal Service”),

that alleged race and disability discrimination in violation of 42 U.S.C. § 2000e-16

(“Title VII”), and 29 U.S.C. §§ 791, 794 (“the Rehabilitation Act”).

      On appeal, Page argues that the district court erred by granting the Postal

Service’s renewed motion to dismiss the complaint as time-barred because the

Postal Service’s final agency decision was not served on him by certified mail,

and, thus, no evidence existed that he or anyone connected to him received the

document. Additionally, the district court ignored the fact that Page was

represented by counsel, which the Postal Service knew when it sent its decision to

Page’s last known address. Relying on Stallworth v. Wells Fargo Armored Servs.

Corp., 936 F.2d 522 (11th Cir. 1991), Page argues that he notified the

administrative law judge assigned to his case, and the attorney for the Postal

Service, that he was cancelling his Equal Employment Opportunity Commission

(“EEOC”) administrative proceedings and desired a final agency decision so that

he could file suit in the district court. Furthermore, on April 27, 2011, Page’s

counsel sent a fax to the attorney for the Postal Service requesting the agency’s

final decision. Finally, Page maintains that the district court prematurely dismissed

the case without allowing the parties to develop the record, and that he was entitled


                                          2
               Case: 12-11747     Date Filed: 10/30/2012    Page: 3 of 9

to equitable tolling based on his attorney’s efforts to ensure that the final decision

would be sent to his attorney’s office.

      We review de novo a district court’s grant of a Fed.R.Civ.P. 12(b)(6) motion

to dismiss for failure to state a claim. See Lopez v. Target Corp., 676 F.3d 1230,

1232 (11th Cir. 2012). To survive a motion to dismiss, a plaintiff must plead “only

enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).

The allegations in the complaint must be accepted as true, and the facts must be

construed in the light most favorable to the plaintiff. Lopez, 676 F.3d at 1232.

Exhibits attached to the complaint are treated as part of the complaint for Rule

12(b)(6) purposes. Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d

1211, 1215-16 (11th Cir. 2012); Thaeter v. Palm Beach Cnty. Sheriff’s Office, 449

F.3d 1342, 1352 (11th Cir. 2006) (“When considering a motion to dismiss . . . the

court limits its consideration to the pleadings and all exhibits attached thereto.”

(quotations omitted)).

      “If matters outside the pleadings are presented by the parties and considered

by the district court, the Rule 12(b)(6) motion must be converted into a

[Fed.R.Civ.P.] 56 summary judgment motion.” Speaker v. U.S. Dep’t of Health &

Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th

Cir. 2010); see also Fed.R.Civ.P. 12(d). Nevertheless, “[i]n ruling upon a motion


                                           3
               Case: 12-11747     Date Filed: 10/30/2012    Page: 4 of 9

to dismiss, the district court may consider an extrinsic document if it is (1) central

to the plaintiff’s claim, and (2) its authenticity is not challenged.” Speaker, 623

F.3d at 1379 (quotation omitted). In adjudicating a motion to dismiss, the district

court may not resolve factual disputes. See Chappell v. Goltsman, 186 F.2d 215,

218 (5th Cir. 1950); cf. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)

(indicating that, under Rule 12(b)(6), the existence of disputed material facts

precludes the district court from granting a motion to dismiss).

      Title 42 U.S.C. § 2000e-16 prohibits federal agencies, including the Postal

Service, from making personnel actions that discriminate “based on race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). After pursuing

administrative remedies concerning alleged discrimination by a federal employer, a

plaintiff may request an immediate final decision from the agency concerning his

complaint of discrimination. See 29 C.F.R. § 1614.110(b). The agency is required

to issue the decision within 60 days of receiving notification that a final decision

has been requested. Id. “Within 90 days of receipt of notice of final action taken

by [the agency] . . . an employee or applicant for employment, if aggrieved by the

final disposition of his complaint . . . may file a civil action as provided in section

2000e-5.” 42 U.S.C. § 2000e-16(c). Section 2000e-5, in turn, allows an employee

to file an action in the district court within 90 days of receiving a final agency

decision or right-to-sue letter. See id. § 2000e-5(f)(1); see also Norris v. Fla.


                                           4
              Case: 12-11747      Date Filed: 10/30/2012   Page: 5 of 9

Dep’t of Health & Rehabilitative Servs., 730 F.2d 682, 682 (11th Cir. 1984); 29

C.F.R. § 1614.407.

      Similarly, the Rehabilitation Act prohibits the Postal Service from

discriminating against any qualified individual with a disability solely on the basis

of his disability. 29 U.S.C. § 794(a). The statute provides that the remedies,

procedures, and rights established in 42 U.S.C. § 2000e-5 are available to any

person suing under the Rehabilitation Act. 29 U.S.C. § 794a(a). Thus, “[a]

complainant who has filed an individual complaint . . . is authorized under . . . the

Rehabilitation Act to file a civil action in an appropriate United States District

Court” within 90 days of receiving the final agency decision. See 29 C.F.R.

§ 1614.407(a).

      We have explained that the 90-day statute of limitations for filing a suit in

the district court commences upon receipt of a right-to-sue letter. Stallworth, 936

F.2d at 524. “However, a plaintiff is required to assume some minimal

responsibility to ensure receipt.” Id. We have “adopted a case-by-case approach

in determining what constitutes receipt and when the time is triggered.” Id. This

case-by-case approach allows us “to fashion a fair and reasonable rule for the

circumstances of each case” that requires plaintiffs “to assume some minimum

responsibility in resolving their claims” without conditioning the plaintiff’s right to

sue “on fortuitous circumstances or events.” Zillyette v. Capital One Fin. Corp.,


                                           5
               Case: 12-11747      Date Filed: 10/30/2012    Page: 6 of 9

179 F.3d 1337, 1342 (11th Cir. 1999) (quotation omitted). In addition, traditional

equitable tolling rules are applicable in employment discrimination actions against

government employers. See id. at 1340.

      We have considered when the 90-day deadline commences and the

plaintiff’s burden to ensure receipt of a right-to-sue letter in the context of

discrimination suits against private employers. For instance, in Lewis v. Conners

Steel Co., 673 F.2d 1240, 1241 (11th Cir. 1982), the plaintiff wrote to the EEOC

requesting a right-to-sue letter, and gave a return address in Birmingham,

Alabama, where he was temporarily living with a friend. Nearly one month later,

the EEOC sent a right-to-sue letter to the plaintiff at the Birmingham address, but,

in the interim, the plaintiff had moved to Dolomite, Alabama. Id. After holding a

hearing, the district court indicated that it believed that the right-to-sue letter had

gone to the plaintiff’s last known address in Birmingham, and dismissed the suit in

part based on the plaintiff’s failure to supply the EEOC with his current address in

Dolomite so as to assure receipt of the letter. Id. at 1242-43.

      In reversing and remanding to the district court for an evidentiary hearing,

we explained that it was “fair and reasonable for the plaintiff . . . to assume the

burden of advising the EEOC of address changes or to take other reasonable steps

to ensure delivery of the notice to his current address.” Id. at 1243.




                                            6
              Case: 12-11747     Date Filed: 10/30/2012   Page: 7 of 9

      Thus, if the plaintiff

      did not contribute that minimum assistance to the process, he
      should not be heard to complain that he did not receive the
      letter delivered to the last address known to the EEOC, unless
      he can show . . . that other fortuitous circumstances or events
      beyond his control intervened, and that he through no fault of
      his own failed to receive the suit letter.

Id. (citation and quotations omitted). We were unable to determine, however,

whether the plaintiff so notified the EEOC “without knowing what his evidence

may be,” and the dismissal could not “be allowed to stand on the present record.”

Id.

      In Stallworth, the plaintiff filed a charge of discrimination with the EEOC

with a cover sheet requesting that all communications and correspondence be

directed to her attorney. Stallworth, 936 F.2d at 523. Seven months later,

Stallworth’s attorney sent a letter to the EEOC requesting a right-to-sue letter and

instructing the EEOC to send the letter to him. Id. Subsequently, the EEOC sent a

right-to-sue letter to Stallworth’s Birmingham address, which she had listed on the

EEOC charge, but did not send a copy to her attorney. Id. Stallworth’s nephew

signed for the letter, but never gave it to Stallworth. Id. While temporarily living

away from the Birmingham residence, Stallworth checked the mail at the

Birmingham address on six occasions during the month when the letter was

delivered, but never received or knew about the right-to-sue letter. Id. at 523-24.

After Stallworth’s attorney contacted the EEOC a second time, the agency sent

                                          7
               Case: 12-11747     Date Filed: 10/30/2012    Page: 8 of 9

another letter, and Stallworth filed a lawsuit within 90 days of receiving the second

letter. Id. at 524. Following an evidentiary hearing, the district court found that

the 90-day deadline for filing suit commenced on the date when Stallworth’s

nephew received the first right-to-sue letter, and dismissed her Title VII claim as

untimely. Id. at 523-24.

      In concluding that the district court erred in dismissing Stallworth’s Title VII

claim, we explained that Stallworth satisfied the minimum burden of ensuring

receipt of the right-to-sue letter, and “[m]ost significantly, she requested the EEOC

to mail a copy of the right-to-sue letter to her attorney at his address.” Id. at 525.

Explaining that the primary fault for the failed delivery rested upon the EEOC

because it did not mail a copy of the right-to-sue letter to Stallworth’s attorney,

which Stallworth expressly requested, we vacated the district court’s dismissal of

Stallworth’s Title VII claims, and remanded for further proceedings. Id.

      In this case, the district court prematurely dismissed Page’s complaint. As

in Lewis, it is impossible for us to determine on appeal whether Page exercised his

minimal responsibility to inform the Postal Service of his changes of address

“without knowing what his evidence may be.” See Lewis, 673 F.2d at 1243. The

record contains only copies of envelopes and forms from 2009 and 2010. These

documents are not probative of where Page was residing in April 2011, nor are

they probative of whether he informed the Postal Service of his most recent


                                           8
               Case: 12-11747     Date Filed: 10/30/2012    Page: 9 of 9

address. In granting the Postal Service’s renewed motion to dismiss, the district

court concluded that the record contained no evidence that Page advised the Postal

Service that he no longer resided at his previous address. The district court,

however, did not hold an evidentiary hearing, nor did it inform the parties that it

intended to convert the motion to dismiss into a motion for summary judgment. In

addition, the district court did not address Page’s arguments in his response brief

that his attorney asked the Postal Service to send its final agency decision to the

attorney.

      Given the evidentiary deficiencies, the district court’s explicit reliance on the

lack of evidence to dismiss Page’s complaint, its failure to address Page’s

arguments concerning his counsel’s requests for the final agency decision, and the

fact that the district court is not allowed to resolve disputes of fact in adjudicating a

motion to dismiss, the dismissal cannot “be allowed to stand on the present

record.” See Lewis, 673 F.2d at 1243; see also Chappell, 186 F.2d at 218; cf.

Lawrence, 919 F.2d at 1529. Accordingly, upon review of the record and

consideration of the parties’ briefs we vacate the district court’s order granting the

Postal Service’s renewed motion to dismiss and remand for the court to hold an

evidentiary hearing or to allow the case to proceed so that the record may be more

fully developed.

      VACATED AND REMANDED.


                                            9
