In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1119

Marshall Covington,

Plaintiff-Appellant,

v.

Illinois Security Service, Incorporated,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 1986--William J. Hibbler, Judge.

Argued September 5, 2001--Decided October 22, 2001


  Before Flaum, Chief Judge, and Posner, and
Ripple, Circuit Judges.

  Flaum, Chief Judge. Marshall Covington
appeals the district court’s decision
which dismisses his lawsuit against the
appellee. For the reasons stated herein,
we reverse the decision of the district
court and remand this case for further
proceedings not inconsistent with this
opinion.

I.   BACKGROUND

  Marshall Covington ("Covington") was
employed as a security guard for Illinois
Security Service, Incorporated ("ISS").
After he allegedly had been found
sleeping on the job, ISS terminated
Covington. On May 24, 1999, Covington
filed a charge against ISS with the EEOC,
claiming that he had been subjected to
racial slurs while on the job and that
his discharge had been racially
motivated.

  After an EEOC mediation process failed
to resolve the matter, Covington was
verbally informed by an EEOC investigator
that his charge would likely be dismissed
and that he would receive a Right-to-Sue
letter in short order. Covington was also
informed that he would have ninety days
from the receipt of the Right-to-Sue
letter to file suit against ISS. On
October 20, 1999, the EEOC sent Covington
a letter, via certified mail, dismissing
his charge. In that letter, the EEOC
informed Covington that he would have
ninety days to file a lawsuit against
ISS. A copy of Covington’s Right-to-Sue
letter was received by ISS on October 22,
1999.

  This appeal centers around the Right-to-
Sue letter which was sent to Covington
via certified mail. The postal service
unsuccessfully attempted to deliver that
letter to Covington’s address. Covington
asserts that he received no notice that
the postal service had attempted
delivery. According to postal procedures,
when a recipient is not present to sign
for a certified piece of mail, notice is
left at the recipient’s address,
informing him that the letter is being
held at the post office. After five days,
a second notice is left at the
recipient’s address, and ten days after
that, if the letter has not been picked
up by the recipient, it is returned to
the sender. Covington’s Right-to-Sue
letter remained unclaimed and was
eventually returned to the EEOC on
December 27, 1999. The following day, the
EEOC sent Covington a copy of the letter
via first class mail. Covington
acknowledges that he received the first
class letter on January 4, 2000. The
first class letter received by Covington
was stamped with the following notation:
"Received EEOC Dec 27 1999 Chicago
District Office." On March 31, 2000,
eighty-seven days after he had received
the first class letter from the EEOC,
Covington filed suit against ISS,
alleging that he was discharged in
violation of Title VII of the Civil
Rights Act.

  ISS filed a motion to dismiss
Covington’s complaint as untimely,
pursuant to Federal Rule of Civil
Procedure 12(b)(6). In response to ISS’s
motion, Covington filed a brief stating
that he had acted diligently in bringing
his lawsuit. In support of this
responsive pleading, Covington attached
an affidavit in which he swore that he
"first received notice of the Right-to-
Sue letter by regular mail on or about
January 4, 2000," and that he "was never
told by anyone at the EEOC or by
Defendant that service had been
previously attempted." See Covington
Affidavit para.para. 8, 13.
  The district court granted ISS’s motion
to dismiss and concluded that Covington
had been negligent in his failure to
retrieve his certified letter from the
post office.

II.   DISCUSSION

  When a district court is presented with
a 12(b)(6) motion to dismiss a
plaintiff’s complaint, "if . . . matters
outside the pleading are presented to and
not excluded by the court, the motion
shall be treated as one for summary
judgment and disposed of as provided in
Rule 56, and all parties shall be given
reasonable opportunity to present all
material made pertinent to such a motion
by Rule 56." Fed. R. Civ. P. 12(b).

  In dismissing Covington’s case, the
district court concluded that Covington
had been negligent in his "failure . . .
to pick up his certified mail," and, as a
result of his negligence, he should be
barred from proceeding with his lawsuit.
Whether Covington was negligent in
retrieving his certified letter from the
EEOC involves a factual inquiry that
extends beyond the four corners of the
pleadings and is within the province of
Rule 56. The district court, however, did
not treat ISS’s motion as one for summary
judgment. It did not allow the parties to
engage in discovery and did not extend
the appropriate deference to the
nonmoving party. Instead, while making
factual determinations about Covington’s
conduct, the district court chose,
without comment, to give more credence to
the ISS version of the events and to
disregard those contained in Covington’s
affidavit./1

  Although we have at times allowed the
conversion of a motion to dismiss into
one for summary judgment to be implicit,
"reversal of such a ruling may become
necessary if the district court has not
provided the adversely affected party
with notice and an opportunity to
respond." Alioto v. Marshall Field & Co.,
et al., 

, 936 (7th Cir. 1996).
Particularly in this case, where
Covington’s affidavit creates a material
factual dispute over his alleged
negligence in retrieving his certified
mail, the district court should permit
the parties to engage in discovery
beforeconverting (for all intents and
purposes) a motion to dismiss into one
for summary judgment. Furthermore,
considering the deferential standard
governing summary judgment, the district
court should supply some rationale as to
why it disregarded Covington’s affidavit
in favor of the ISS version of the
events.

III.   CONCLUSION

  For the reasons stated herein, we Reverse
the decision of the district court and
Remand this case for further proceedings
not inconsistent with this opinion.

FOOTNOTE

/1 The need for fuller explanation of the district
court’s rationale is particularly acute in light
of the standard under Rule 56, which requires
courts to construe facts and make inferences from
those facts in favor of the nonmoving party. See,
e.g., Central States, Southeast & Southwest Areas
Pension Fund v. Fulkerson, 

, 894 (7th
Cir. 2001).