Unpublished Disposition, 902 F.2d 38 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 38 (9th Cir. 1987)

Margaret T. BROOKS, Plaintiff-Appellant,v.Bethany HOME, Defendant-Appellee.

No. 87-4312.

United States Court of Appeals, Ninth Circuit.

Submitted April 13, 1990.* Decided May 8, 1990.



Appellant Margaret Brooks appeals pro se the district court's dismissal of her Title VII action against Bethany Home on summary judgment based on Brooks' failure to exhaust her administrative remedies in a timely fashion. Because the district court mischaracterized the means of dismissal of Brooks' action, and thus failed to afford her an opportunity to amend her complaint, we reverse the court's order and remand to give Brooks an opportunity to correct her pleading deficiencies.

Brooks worked as a nurses aide at the Bethany Home for the Aged from April 1983 until her termination on April 24, 1985. The parties dispute the circumstances underlying her dismissal. Bethany Home claims that it fired Brooks due to her increasingly unsatisfactory job performance in the early spring of 1985. Brooks counters that Bethany Home's stated rationale serves as merely a pretext for its actual motivation for her termination--race discrimination. Brooks recounts in her pleadings numerous instances in which, she alleges, Bethany Home and certain of its employees harassed and mistreated her on account of her race. Such instances of discrimination, Brooks concludes, culminated in the termination of her employment with Bethany Home in April 1985.

Brooks subsequently filed a charge of discrimination with the Washington State Human Rights Commission ("WSHRC") and the Equal Employment Opportunity Commission ("EEOC") on March 30, 1987. On April 4, 1985, Brooks received a form letter from the EEOC declining to investigate her charge of race discrimination on the ground that she had filed her claim with the Commission too long after Bethany Home's challenged conduct.

After receiving the EEOC's right-to-sue letter, Brooks brought a pro se action against Bethany Home in the district court alleging that Bethany Home and nine named individual employees terminated her from her position as a nurses aide on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. Brooks filed her Title VII suit on a four-page form complaint prepared by the court which provided blanks in certain spaces for complainants to fill in dates, charges, and other relevant information. Attached to her complaint were photocopies of the EEOC's right-to-sue-letter and her original discrimination claim filed with the EEOC in March 1987. Brooks also filed a motion for appointment of counsel pursuant to 42 U.S.C. § 2000e-5(f) (1) (B) and for leave to proceed in forma pauperis. Before directing service of process, the district court granted her request to proceed in forma pauperis and referred the case to a magistrate.1 

On August 31, 1987, Bethany Home responded to Brooks' Title VII suit by filing what it termed "Defendant's Motion for Summary Judgment" requesting the district court to dismiss her complaint pursuant to F.R.Civ.P. 56(b). Bethany Home attached to its motion for summary judgment a one-page affidavit from Richard Waters, one of the directors of Bethany Home and its attorney, stating that Brooks' action should be dismissed for failure to file her charge of discrimination with the EEOC within 300 days of the alleged discriminatory conduct as required by 42 U.S.C. § 2000e-5(e). One day later, Bethany Home filed an answer to Brooks' complaint also raising, by way of affirmative defense, the issue of the timeliness of her complaint. Brooks responded to Bethany Home's motion for summary judgment by denying any wrongdoing while employed at Bethany Home and realleging that her termination had been animated by race-based discrimination.

The magistrate thereafter ruled against Brooks with respect to both Bethany Home's motion for summary judgment and her motion for appointment of counsel. In recommending that Bethany Home's motion for summary judgment be granted, the magistrate noted that (1) Sec. 2000e-5(e) requires plaintiffs in deferral states to file administrative charges of employment discrimination within 300 days of the employer's unlawful conduct, and that (2) Brooks filed her claim with the EEOC nearly two years after her termination from Bethany Home. The magistrate also observed that Brooks, when responding to Bethany Home's motion, "argue [d] only the merits of her claim and fail [ed] to respond in any way to the claim that charges were not timely filed." Finding no genuine issue of material fact, the magistrate recommended dismissal of Brooks' complaint with prejudice. Finally, the magistrate denied by separate order Brooks' motion for appointment of counsel on the grounds that her search for paid counsel was insufficiently diligent and that her complaint lacked merit due to the untimely filing of her discrimination charge.

Adopting the magistrate's report, the district court granted Bethany Home's motion for summary judgment. Brooks, appearing pro se, appeals both the denial of her motion for appointment of counsel and the dismissal of her Title VII complaint with prejudice. We review grants of summary judgment under a de novo standard. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629 (9th Cir. 1987). Denial of a motion for appointment of counsel is reviewed for abuse of discretion. Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301, 1318 (9th Cir. 1981).

To maintain a private action under Title VII, an aggrieved party must first file an employment discrimination claim with the EEOC within 180 days of the alleged act of discrimination, or file with a state or local antidiscrimination agency, such as the WSHRC, within 300 days of such act. See, e.g., Domingo v. New England Fish Co., 727 F.2d 1429, 1442 (9th Cir. 1984); 42 U.S.C. § 2000e-5(e). Compliance with this filing period is not a jurisdictional prerequisite to filing a Title VII suit, but rather a requirement akin to a statute of limitations subject to equitable modification through waiver, estoppel, and tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also Learned v. City of Bellevue, 860 F.2d 928, 931 (9th Cir. 1988), cert. denied, 109 S. Ct. 1530 (1989); Equal Employment Opportunity Comm'n v. Nevada Resort Ass'n, 792 F.2d 882, 887 (9th Cir. 1986). In holding that Title VII's filing periods were subject to equitable modification, the Zipes Court observed that technical reading of Title VII was an inappropriate method of statutory construction given that the statute is remedial legislation dependent for its enforcement on laymen untrained in legal technicalities and processes. 455 U.S. at 397 (quoting Love v. Pullman, 404 U.S. 522, 527 (1972)).

Brooks unquestionably failed to meet Title VII's 300-day filing period. By filing her initial charge of discrimination with the WSHRC-EEOC in March 1987 for discrimination allegedly arising out of her termination from Bethany Home in April 1985, Brooks missed the statutory filing period by over one year. Thus, the district court correctly determined that Brooks failed to timely exhaust her administrative remedies. The district court incorrectly concluded, however, that Brooks' failure to file timely charges with the EEOC warranted the granting of Bethany Home's motion for summary judgment and subsequent dismissal of her complaint with prejudice. The court fundamentally misconceived the nature of Bethany Home's motion, thereby denying Brooks an opportunity to amend her Title VII claim to overcome her pleading deficiencies, if possible, with facts supporting equitable modification of the 300-day filing period.

Bethany Home's characterizations notwithstanding, we conclude that their motion of August 31, 1987 should have been treated as a motion to dismiss for failure to state a claim pursuant to F.R.Civ.P. 12(b) (6) rather than a motion for summary judgment. A number of factors militate in favor of this conclusion. First, Bethany Home's motion attacked the legal sufficiency, rather than the substantive merit, of Brooks' Title VII action.2  Such facial challenges to a plaintiff's statement of her claim are the hallmarks of a motion to dismiss under Rule 12(b) (6). See, e.g., North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983); 5 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1356 (1969).

Review of the magistrate's report reveals, moreover, that the court went no farther than the face of Brooks' pleading in ruling on Bethany Home's motion. Though couched in summary judgment terms, the bases for the report's dismissal recommendation rested solely on matters, such as the accrual date of Brooks' claims and the filing date of her WSHRC-EEOC discrimination charge, presented in the pleadings or case record.3  The court neither made additional factual determinations nor referenced any matters outside the pleadings. See Baker v. McNeil Island Corrections Center, 859 F.2d 124, 127 (9th Cir. 1988) (motion properly characterized as motion to dismiss rather than summary judgment when magistrate looked, inter alia, only to face of complaint and made no additional factual findings).

Finally, our conclusion that Bethany Home's motion of August 31 is more appropriately treated as a motion to dismiss comports well with the remedial nature of Title VII. That Brooks gave the district court no explanation for the untimely filing of her WSHRC-EEOC charge of discrimination is not surprising given the fact that, at no point in the proceedings, was she ever informed that Title VII's 300-day filing period stood as less than an absolute bar to tardy claims. Both the EEOC's right-to-sue letter and the district court's Title VII form complaint omitted any reference to equitable considerations.4  In addition, the magistrate's report recommended dismissal of Brooks' claim due, in part, to her failure to "respond in any way" to Bethany Home's allegation of untimeliness without reference to the equitable considerations underlying Title VII's filing requirements. To accord dispositive weight to such procedural missteps of pro se Title VII plaintiffs undermines the remedial nature of Title VII. Federal courts long ago rejected the view that "pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accepted the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley v. Gibson, 355 U.S. 41, 48 (1957). This principle takes on particular significance in the context of civil rights litigation. Courts must act with special care when dismissing an action alleging denial of basic constitutional liberties brought by an indigent person lacking formal legal training. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc).

Properly treated as a Rule 12(b) (6) motion, the district court should not have summarily dismissed the complaint without first affording Brooks those special procedural safeguards due pro se litigants in constitutional or statutory civil rights cases. In such cases, the district court judge is obliged to advise the pro se litigant of the deficiencies in his complaint and allow him the opportunity to amend. See, e.g., Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988) (district court must allow pro se plaintiff to amend his pleading to allege that he received a right-to-sue letter, where his civil rights claims were based on 42 U.S.C. § 1981, forbidding racial discrimination in both public and private contracts, and Title VII, forbidding racial discrimination in private employment); Jones v. Bechtel, 788 F.2d 571, 573 (9th Cir. 1986) (district court must allow pro se litigant in Title VII case to amend complaint).

Thus Brooks should have been given the opportunity to amend her complaint unless "absolutely clear" that such amendment would not cure her pleading defects. Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (" [P]ro se plaintiffs proceeding in forma pauperis must ... be given an opportunity to amend their complaints unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.' ") (citations omitted); see also Karim-Panahi, 839 F.2d at 626; Eldridge, 832 F.2d at 1135-36; Noll v. Carlson, 809 F.2d 1446, 1447-48 (9th Cir. 1987).

While Brooks' complaint does not presently state a claim for Title VII relief, we cannot say with absolute certainty that her pleading deficiencies could not be cured by appropriate amendment given the lack of facts in the record concerning the circumstances underlying the untimely filing of her WSHRC-EEOC charge. See supra p. 8-9. We thus reverse the district court's order dismissing Brooks' complaint with prejudice and remand to give Brooks an opportunity to amend her Title VII claim. On remand, the court should advise Brooks of the necessity of alleging facts addressed to equitable considerations which could modify the statutory 300-day filing period.

The district court properly exercised its discretion in denying Brooks' motion for appointment of counsel.5  Applying the three-part test set forth in Bradshaw v. Zoological Soc'y of San Diego, 662 F.2d 1301, 1318 (9th Cir. 1981), the court reasonably concluded that Brooks' circumstances did not satisfy the requirements for court-appointed counsel in Title VII cases. See 42 U.S.C. § 2000e-5(f) (1) (B). We note, however, that the court should reconsider Brooks' motion for appointment of counsel should her amended complaint state a claim for relief under Title VII.



This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


In ruling on Brooks' in forma pauperis motion, the district court dismissed as frivolous her complaint with respect to the nine Bethany Home employees named as defendants since Title VII does not generally cover discriminatory actions of individual employees. See 42 U.S.C. § 2000e-5. Brooks does not contest the dismissal of these defendants in this appeal


Since the Waters Affidavit attached to Bethany Home's motion contained little of substance and addressed no matters outside the scope of the pleadings, we decline to treat the attachment of this affidavit as converting this motion into a request for summary judgment. See Amfac Mortgage Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426, 430 & n. 3 (9th Cir. 1978) (no conversion of Rule 12(b) (6) motion by attachment of affidavit which "contains little of substance, and nothing which was needed by this court or impliedly by the district court, to arrive at a decision"). As we recently emphasized in Baker v. McNeil Island Corrections Center, 859 F.2d 124, 127 (9th Cir. 1988): " [A defendant] is not entitled to summary judgment against a pro se litigant merely by attaching an affidavit to its motion."


When ruling on a motion to dismiss under Rule 12(b) (6), a court may properly look beyond the complaint to items in the case record or to matters of general public record. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988). Additionally, attachments to a complaint become part of that pleading for all purposes including motions to dismiss. Amfac, 583 F.2d at 429-30


Indeed, the court's prepared complaint form merely directs the aggrieved party to enter the dates on which she (1) filed charges with the WSHRC-EEOC, and (2) received a right-to-sue letter without indicating that these dates would be used to assess the timeliness of that complaint or providing any space for explanation of the factual circumstances surrounding these statutorily significant dates


Liberally construed, Brooks' pro se pleading filed with this court entitled "Motion for Court Appointed Counsel--Why You Can't Represent Yourself" can be interpreted as both challenging the district court's denial of her motion for appointment of counsel and requesting appointment of appellate counsel. To the extent that Brooks moves for court-appointed appellate counsel, we deny her request in light of our disposition of her appeal. See United States v. 30.64 Acres of Land, 795 F.2d 796, 798-804 (9th Cir. 1986) (discussing appointment of counsel under 28 U.S.C. § 1915(d))