                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 November 19, 2008
                            FOR THE TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

    CHRISTOPHER C. CARSON,

                Plaintiff-Appellant,

    v.                                                    No. 07-6199
                                                    (D.C. No. 07-CV-421-T)
    CUDD PRESSURE CONTROL, INC.,                          (W.D. Okla.)
    a foreign corporation; RPC INC.,
    a foreign corporation,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before O’BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.



         Plaintiff Christopher C. Carson was employed as a well control specialist at

Cudd Pressure Control, Inc. for twenty years. In 2002, he was diagnosed with a

chronic condition and began taking a prescription medication that limited his

ability to function. Mr. Carson was relieved of his job duties, placed on



*
       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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
disability, and finally terminated from his employment. In submissions to the

Equal Employment Opportunity Commission (EEOC), Mr. Carson claimed that

his discharge violated the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12101-12213. He filed this suit upon receipt of a right-to-sue letter

from the EEOC.

      The district court determined that Mr. Carson’s EEOC filing was untimely,

calculating from the date the EEOC issued its formal Charge of Discrimination,

rather than the date Mr. Carson initiated the administrative process. It dismissed

the case for failure to demonstrate timely exhaustion of administrative remedies.

After reviewing the district court’s order de novo, see Harms v. IRS, 321 F.3d

1001, 1009 (10th Cir. 2003), we reverse and remand for further proceedings based

on the principles expressed in Federal Express Corp. v. Holowecki, 128 S. Ct.

1147 (2008).

                                          I.

      For Mr. Carson’s ADA claims to be timely, he must have filed an

administrative “charge” within three hundred days after his November 30, 2004,

discharge: that is, by September 26, 2005. See 42 U.S.C. § 2000e-5(e)(1). 1 In



1
       The ADA incorporates § 2000e-5(e)(1), which is a Title VII provision
applicable to deferral states like Oklahoma. 42 U.S.C. § 12117(a); see also
Proctor v. United Parcel Serv., 502 F.3d 1200, 1206 & n.3 (10th Cir. 2007)
(explaining filing times in deferral states, which are those states that have “an
agency empowered to investigate employment discrimination”).

                                         -2-
his complaint, Mr. Carson alleged that he had “exhausted his administrative

remedies by filing a Charge of Discrimination with the EEOC, the Charge being

issued on February 3, 2006.” Aplt. App. at 7.

      Defendants moved for dismissal. They argued that, according to the plain

language of the complaint, Mr. Carson’s EEOC charge was filed after the 300-day

deadline. 2 Thus, they asserted, Mr. Carson’s case was time-barred and should be

dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which

relief can be granted.

      Mr. Carson responded by submitting additional background information on

the filing of his charge. He proffered documents indicating that, on September 9,

2005 (within 300 days of his discharge), he had completed, signed, and delivered

three verified EEOC questionnaires and an affidavit stating claims of

discrimination based on a disability or a perceived disability. To augment and

clarify his complaint, Mr. Carson stated that “the EEOC charge was not filed with



2
       Defendants’ motion also noted that the EEOC formal charge did not name
defendant RPC, Inc., Cudd’s parent company, and did not mention a failure-to-
accommodate theory. According to defendants, these omissions meant that the
district court lacked subject-matter jurisdiction over all claims against RPC and
any claims against Cudd except for wrongful termination. Although these issues
are discussed in the parties’ appellate briefs, the district court reached its decision
without analyzing them. Particularly in the absence of a developed record, we do
not “examin[e] and resolv[e] the merits of these contentions.” Evers v. Regents of
Univ. of Colo., 509 F.3d 1304, 1310 (10th Cir. 2007). Instead, “we adopt the
better practice of leaving the matter to the district court in the first instance.” Id.


                                          -3-
the EEOC on February 3, 2006. Rather, the EEOC charge was issued” on that

date. Aplt. App. at 38. He also provided instances in which the EEOC referred to

his September 2005 filing as a “charge.” Id. at 40-41.

      The district court ruled in favor of defendants. Although the district court

order discussed the initial EEOC documents, it nevertheless found that

Mr. Carson had not filed a timely charge. 3 Based on that finding, the district

court dismissed the case under Fed. R. Civ. P. 12(b)(6). 4

                                           II.

      After the district court issued its order, the Supreme Court resolved two

issues directly relevant to this case: “what is a charge” in an


3
       In his response, Mr. Carson asked the district court to treat the dismissal
motion as a summary judgment motion and to consider his proffered EEOC
documents. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment under Rule
56,”and the parties must be given “a reasonable opportunity to present all the
material that is pertinent to the motion”.). The district court did not follow the
general rule that “a motion to dismiss should be converted to a summary judgment
motion if a party submits, and the district court considers, materials outside the
pleadings.” Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007)
(quotation omitted). This procedural issue, however, is not specifically raised on
appeal.
4
        The district court also dismissed the action for lack of jurisdiction under
Fed. R. Civ. P. 12(b)(1). As we have previously stated, the filing of a charge is
jurisdictional, but the timeliness of that charge is not. See Beaird v. Seagate
Tech., Inc., 145 F.3d 1159, 1174-75 (10th Cir. 1998) (“[T]imely filing of a
discrimination charge with the EEOC is not a jurisdictional prerequisite to a suit
in federal court;” instead, “it is best likened to a statute of limitations . . . subject
to waiver, estoppel and equitable tolling.”).

                                           -4-
employment-discrimination matter “[a]nd were [the plaintiff’s EEOC intake

documents] a charge?” Holowecki, 128 S. Ct. at 1153. On the first issue, the

Court gave deference to the EEOC’s statutory interpretation and determined that,

to be considered a charge, a plaintiff’s documents must provide “the information

required by the regulations, i.e., an allegation and the name of the charged party,”

and also “it must be reasonably construed as a request for the agency to take

remedial action to protect the employee’s rights or otherwise settle a dispute

between the employer and the employee.” Id. at 1157-58. The Court

acknowledged “that under this permissive standard a wide range of documents

might be classified as charges,” but found this result “consistent with the design

and purpose of the ADEA,” particularly because most charges were filed by

laypersons. Id. at 1158. The standard would also serve to “separate information

requests from enforcement requests.” Id. at 1157.

      The Court resolved the second question in favor of the Holowecki plaintiff,

determining that his completed intake form and accompanying affidavit provided

all of the necessary information and, properly construed, amounted to “a request

for the agency to act.” Id. at 1159-60. It did not matter that the plaintiff

subsequently filed a formal, but untimely, charge. Id. at 1160.

      In this case, Mr. Carson filled out forms similar to those discussed in

Holowecki. His EEOC submissions included his allegations of discrimination and

the name of his employer. Additionally, his stated “expectations” of “back pay,

                                          -5-
front pay, reinstatement of stock incentives,” demonstrate an intent to seek EEOC

assistance in enforcing his perceived rights. Aplt. App. at 52. Under the

Holowecki standard, Mr. Carson’s intake forms constitute a charge.

      And we are unpersuaded by defendants’ argument that we should disregard

these forms because the complaint did not mention them. This court has noted

that “it might be appropriate for a court to consider additional facts or legal

theories asserted in a response brief to a motion to dismiss if they were consistent

with the facts and theories advanced in the complaint.” Hayes v. Whitman,

264 F.3d 1017, 1025 (10th Cir. 2001). Mr. Carson’s allegation that the charge

“was issued” on February 3, 2006, does not contradict or rule out the later

assertion that the EEOC received his intake forms on September 9, 2005. In light

of the significance that the Supreme Court has accorded these documents, it is

appropriate to consider them in our review of the district court’s ruling.

      “Dismissal is appropriate only if the complaint, viewed in the light most

favorable to plaintiff, lacks ‘enough facts to state a claim to relief that is plausible

on its face.’” United States ex rel. Conner v. Salina Reg’l Health Ctr., 543 F.3d

1211, 1217 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955,

1974 (2007) (further quotation omitted)). Mr. Carson’s complaint, along with his

filing in response to defendants’ dismissal motion, set out plausible indications of

timely exhaustion of administrative remedies. We conclude that the district court



                                           -6-
erred in dismissing Mr. Carson’s action and therefore REVERSE and REMAND

for further proceedings consistent with this order and judgment.



                                      Entered for the Court



                                      Michael W. McConnell
                                      Circuit Judge




                                        -7-
