     Case: 13-30416      Document: 00512425056         Page: 1    Date Filed: 10/30/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-30416
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 30, 2013
KEITH MCCLAINE,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellant
v.

BOEING COMPANY,

                                                 Defendant - Appellee



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:11-cv-2447


Before KING, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
       Keith McClaine appeals the district court’s judgment dismissing with
prejudice his complaint for employment discrimination against Boeing
Company and denying him leave to amend his complaint. For the reasons that
follow, we AFFIRM the judgment of the district court.
                   I.     Factual and Procedural Background
       Keith McClaine, an African-American, is a trained friction stir welder
(“FSW”), and he worked for Lockheed Martin as an FSW until his employment


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 13-30416
was terminated. While at a job fair on January 29, 2010, McClaine applied for
two different Manufacturing Technology Analyst (“MTA”) positions with
Boeing Company. Each MTA listing was identified by a specific requisition
number: No. XX-XXXXXXX and No. XX-XXXXXXX. 1                In April 2010, McClaine
purportedly learned that Boeing hired four white individuals to fill No. 09-
1016874.
       McClaine filed a complaint with the EEOC alleging that Boeing
discriminated against him on the basis of race, and he received a right-to-sue
letter from the Commission. He timely filed this lawsuit on September 28,
2011, alleging racial discrimination in violation of Title VII of the Civil Rights
Act, 42 U.S.C. § 2000e, et seq. In response to the complaint, Boeing sent
McClaine a letter advising him that on April 7, 2010, it had cancelled both
requisition No. XX-XXXXXXX and No. XX-XXXXXXX and had not hired anyone to
fill the positions. McClaine amended his complaint, this time alleging that
Boeing hired four white individuals as FSWs, none of whom had any
experience.
       Boeing moved to dismiss the first amended complaint for failure to state
a claim.    The district court granted the motion, dismissing the complaint
without prejudice. It explained that McClaine failed to allege sufficient facts
to support a prima facie claim of employment discrimination under Title VII.
Specifically, McClaine’s complaint had not pled that he had applied to a job for
which the employer was seeking applicants, that Boeing rejected him despite
his qualifications, or that Boeing filled the position with someone not in his
protected class. The order invited McClaine to move to amend his complaint.




      1  While not explicitly stated by the parties, it appears as if a requisition number
identifies a category of employment, not just an individual position. Thus, Boeing may hire
multiple individuals under a single requisition number.
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                                No. 13-30416
      McClaine timely moved to amend, and the court granted his motion,
permitting him to file a second amended complaint. The second amended
complaint once again acknowledges that both positions were cancelled, but it
also asserts that McClaine “believes, but does not know, that Requisition [N]o.
XX-XXXXXXX was filled by at least one white male.” He further states that on
April 22, 2010, McClaine learned that Boeing hired six white individuals as
FSWs, and that of the six, three had no experience and one had only limited
experience as an FSW. Additionally, he alleges that as an FSW, he was
qualified for a position under No. XX-XXXXXXX.
      For a second time, Boeing moved to dismiss the complaint for failure to
state a claim; for a second time, the court granted the motion. The district
court held that the complaint did not contain sufficient facts to show that
McClaine was qualified for the MTA positions. Also, since the positions to
which McClaine applied had been cancelled, “it would have been impossible for
the positions to have been filled by anyone, much less someone outside of
[McClaine’s] protected class.” McClaine’s belief that one of the positions was
filled by a white male was insufficient, since it directly controverted his
admission that Boeing cancelled the positions. The court dismissed McClaine’s
complaint with prejudice and expressly considered whether it would once again
invite McClaine to amend his complaint. It ultimately declined to do so. The
court explained that McClaine had already had two opportunities to correct his
errors, the amendment would be futile, and additional leave to amend would
prejudice Boeing.




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                                       No. 13-30416
       McClaine timely appeals the district court’s order dismissing his second
amended complaint with prejudice and denying him leave to file a third
amended complaint. 2
                               II.     Standard of Review
       We review de novo the dismissal of a complaint for failure to state a
claim, construing the complaint liberally in favor of the plaintiff and accepting
all well-pleaded facts as true. 3 Harrington v. State Farm Fire & Cas. Co., 563
F.3d 141, 147 (5th Cir. 2009). The Federal Rules of Civil Procedure require
that a pleading contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The
“[f]actual allegations must be enough to raise a right to relief above the



       2 McClaine originally appealed the dismissal of both his first amended complaint and
his second amended complaint, but in his reply brief, he abandoned his appeal of the court’s
dismissal of the first amended complaint.

       3  McClaine comments briefly that the underlying motion should be treated as one for
summary judgment because his arguments to the district court included “matters outside the
pleadings” and the district court allegedly considered those matters. “[W]hen matters outside
the pleadings are considered, a motion for dismissal based on failure to state a claim is
converted into a motion for summary judgment . . . .” Fernandez-Montes v. Allied Pilots Ass’n,
987 F.2d 278, 283 n.7 (5th Cir. 1993). If the district court converts a motion to dismiss to a
motion for summary judgment sua sponte, it must provide notice to the parties and an
opportunity to respond. Id. However, the district court did not convert the motion, either
sua sponte or on the motion of either party. While both parties attached exhibits to their
briefs, it is permissible for the court to consider “documents attached to the complaint[] and
any documents attached to the motion to dismiss that are central to the claim and referenced
by the complaint,” in addition to the complaint itself. Lone Star Fund V (US), LP v. Barclays
Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). Moreover, the district court did not consider
anything outside of the second amended complaint as a basis for granting Boeing’s motion to
dismiss. Thus, we consider this an appeal of an order granting a motion to dismiss for failure
to state a claim.


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                                  No. 13-30416
speculative level . . . on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Twombly, 550 U.S. at 555.
      We review a district court’s order denying leave to file an amended
complaint for abuse of discretion. See City of Clinton v. Pilgrim’s Pride Corp.,
632 F.3d 148, 152 (5th Cir. 2010). When the court’s decision is based solely on
futility, we review the matter de novo, using the standard for a motion to
dismiss for failure to state a claim. See Wilson v. Bruks-Klockner, Inc., 602
F.3d 363, 368 (5th Cir. 2010). However, we will not review a court’s refusal to
grant the plaintiff leave to amend when the plaintiff has not expressly
requested leave. United States ex rel. Willard v. Humana Health Plan of Tex.
Inc., 336 F.3d 375, 387 (5th Cir. 2003).
                                 III.   Discussion
A. Motion to Dismiss
      We analyze claims of racial discrimination under Title VII using a
modified McDonnell Douglas framework. Jackson v. Watkins, 619 F.3d 463,
466 (5th Cir. 2010) (per curiam). A plaintiff must first establish a prima facie
case of discrimination at hiring, which includes four elements: (1) the plaintiff
is a member of a protected class; (2) the plaintiff applied and was qualified for
an available position; (3) the plaintiff was rejected; and (4) the position was
filled by an individual not in the plaintiff’s protected class. Cf. Blow v. City of
San Antonio, 236 F.3d 293, 296 (5th Cir. 2001); Grimes v. Tex. Dep’t of Mental
Health & Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). If the plaintiff
satisfies all four elements, then the employer must “articulate a legitimate,
nondiscriminatory reason” for its decision. Jackson, 619 F.3d at 466 (citations
omitted). Should the employer meet this burden, the burden shifts back to the
plaintiff to show that the employer’s legitimate, nondiscriminatory reasons are
pretextual. Id.


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                                    No. 13-30416
       The district court correctly held that McClaine has not pled facts
sufficient to state a prima facie case for employment discrimination. At the
fourth prong, McClaine must show that the employer hired an applicant who
was not a member of McClaine’s protected class. Yet, Boeing cancelled the
positions to which McClaine applied. McClaine cannot show that non-African
Americans were hired for the MTA positions if no one was hired for those
positions. McClaine’s subsequent statement that he “believes, but does not
know,” that Boeing filled one of the positions under No. XX-XXXXXXX with a
white individual, still fails to establish the fourth prong.          His “belief” is
speculative and directly contradicts his admission that both positions were
cancelled.
       McClaine alternatively analogizes the duties and responsibilities of an
MTA under No. XX-XXXXXXX 4 to an FSW, arguing that the two are similar and
that by filling the FSW positions, Boeing functionally filled the MTA positions
under No. XX-XXXXXXX. This argument is unavailing. Even if we accept that
MTA positions under No. XX-XXXXXXX are similar to an FSW positions, they are
not the same. The fact remains that McClaine did not apply to work as an
FSW.       Furthermore, there is no indication that Boeing considered the
applications that it received for requisition No. XX-XXXXXXX when hiring
employees to fill the open FSW positions. It is irrelevant for our purposes that
Boeing filled its FSW positions with white workers since McClaine never
applied to work as an FSW. To hold that Boeing should consider applicants for
positions that are similar to the position to which the applicant originally
applied is not required by our Title VII jurisprudence.




       4McClaine’s briefs refer to requisition No. 09-10167874, but we assume this is a
typographical error and that he is referring to No. XX-XXXXXXX.
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                                 No. 13-30416
      McClaine failed to plead facts necessary to establish the fourth element
of a Title VII discrimination claim. This is basis enough to affirm the judgment
of the district court. Accordingly, we need not review the district court’s
holding that McClaine did not allege that he was qualified for the MTA
position.
B. Motion to Amend
      “A party who neglects to ask the district court for leave to amend cannot
expect to receive such a dispensation from the court of appeals.” Willard, 336
F.3d at 387 (citation omitted). While the plaintiff need not file a formal motion
to fill this requirement, “[a] bare request in an opposition to a motion to
dismiss—without any indication of the particular grounds on which the
amendment is sought—does not constitute a motion within the contemplation
of Rule 15(a).” Id. (quotation and internal citation omitted).
      McClaine never moved for leave to file a third amended complaint, nor
did he request leave to amend in his response brief in opposition to Boeing’s
motion to dismiss. The district court’s consideration of whether leave to amend
was appropriate appears to have been sua sponte, but this does not resuscitate
the claim. The district court’s unsolicited discussion of whether to invite a
plaintiff to move to amend is distinctly different from a plaintiff’s actual
request for, and argument in favor of, such relief. See id. Since McClaine did
not request leave to amend his complaint, we may not consider this matter on
appeal.
                                IV.   Conclusion
      For the aforementioned reasons, the district court’s judgment is
AFFIRMED.




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