                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 2, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 06-50098
                          Summary Calendar



TIMOTHY L CARTER

                Plaintiff - Appellant

     v.

RMH TELESERVICES, INC

                Defendant - Appellee



            Appeal from the United States District Court
                  for the Western District of Texas
                        USDC No. 5:04-CV-1130


Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Plaintiff-appellant Timothy Carter appeals the district

court’s orders granting defendant-appellee RMH Teleservices,

Inc.’s motion for partial dismissal and motion for summary

judgment.   For the reasons stated, we AFFIRM.

                I. FACTUAL AND PROCEDURAL BACKGROUND

     This case involves a dispute between plaintiff-appellant


     *
        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that this opinion should not be published and is not precedent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.

                                 1
Timothy L. Carter and his former employer RMH Teleservices, Inc.

(“RMH”).    Carter worked as a customer service representative for

RMH for thirty-two months, when he was suspended for being

unprofessional to a customer.   Three days later, Carter resigned

voluntarily.

     Before Carter resigned, his supervisors had given him a

final warning for poor performance, unprofessional conduct, and

chronic absenteeism and had informed him that he could not take

further calls until he attended mandatory professionalism

training.   Carter resigned rather than attend the training.

Carter’s disciplinary history includes at least nine write-ups

during his employment at RMH.

     More than a month before he resigned, Carter filed a charge

of discrimination against RMH with the Texas Commission on Human

Rights and the Equal Employment Opportunity Commission (“EEOC”).

Carter later amended his charge of discrimination to include an

allegation that RMH retaliated against him because of his charge.

     The EEOC closed its file on Carter’s charge because it was

“unable to conclude that the information obtained establishes

violations of the statutes.”    Carter then filed suit against RMH

for alleged violations of Title VII, 42 U.S.C. § 2000e, et seq.,

the Employment Retirement Income Security Act (“ERISA”), 9 U.S.C.

§ 1140; the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12, et seq.; and the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621, et seq.    Carter later amended his

                                  2
complaint to allege state and federal constitutional claims.

     The district court granted RMH’s motion to dismiss Carter’s

Title VII race claim, ERISA claim, and constitutional claims.

The ADA and ADEA claims remained.      RMH later moved for summary

judgment on Carter’s remaining claims.      The district court

granted RMH’s motion for summary judgment and entered final

judgment dismissing Carter’s suit and denying all pending

motions.   Carter now appeals both the partial dismissal and the

grant of summary judgment.

                    II. Rule 12(b)(6) DISMISSAL

A.   Standard of Review

     This court reviews de novo the grant of a motion to dismiss

under Rule 12(b)(6).     Martin K. Eby Constr. Co. v. Dallas Area

Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (citing Gregson

v. Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th Cir. 2003)).       We

“accept all well-pleaded facts as true, viewing them in the light

most favorable to the plaintiff.”      Jones v. Greninger, 188 F.3d

322, 324 (5th Cir. 1999) (per curiam) (citing Doe v. Hillsboro

Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996)).      “[T]he

court should not dismiss the claim unless the plaintiff would not

be entitled to relief under any set of facts or any possible

theory that [it] could prove consistent with the allegations in

the complaint.”   Id. (citing Vander Zee v. Reno, 73 F.3d 1365,

1368 (5th Cir. 1996)).    “Dismissal is proper if the complaint


                                   3
lacks an allegation regarding a required element necessary to

obtain relief . . . .”              Rios v. City of Del Rio, 444 F.3d 417,

421 (5th Cir. 2006) (omission in original) (quoting Campbell v.

City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995)).

B.     Analysis

       Carter contends that the district court’s dismissal of his

ERISA claim was improper because he needed more time for

discovery.1        Discovery would not have benefitted Carter because

the review of a motion to dismiss for failure to state a claim is

limited to the complaint and does not look at the evidence.2                                  See

Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996).                             Therefore, we

review Carter’s complaint to determine whether it states a claim

for discrimination under § 510 of ERISA.

       If we “accept all well-pleaded facts as true, viewing them

in the light most favorable to the plaintiff,” Jones, 188 F.3d at

324, Carter’s complaint only states that RMH had to modify its

401(k) plan in order to preserve its tax-qualified status and



       1
           RMH argues that Carter’s appeal of the order granting RMH’s partial motion to dismiss
is time-barred because Carter did not file a notice of appeal within thirty days of the order. That
is not the case. Because an interlocutory appeal was not available here, the final judgment rule
required Carter to wait to file the notice of appeal until the court entered a final judgment
disposing of all claims in the case. See 28 U.S.C. § 1291. Carter timely filed a notice of appeal,
within thirty days of the final judgment in this case. See FED. R. APP. 4(a)
       2
           Although district court’s order used Rule 56 language with regard to the ERISA claim,
the district court misdescribed its action, that is to review the motion under Rule 12(b)(6).
Because no party had as yet filed matters related to the ERISA claim outside the pleadings, this
order cannot be treated as a Rule 56 summary judgment. See FED. R. CIV. P. 12(b).

                                                 4
that as a result all telephone service representatives cannot

participate in the plan.    Carter’s complaint does not state a

cognizable claim under ERISA because he does not allege that RMH

specifically retaliated against him by terminating his 401(k)

contributions or that RMH interfered with his right to receive

pension benefits.     See 29 U.S.C. § 1140.

     Carter contends that the district court’s dismissal of his

Title VII race claim was improper because he was not required to

exhaust all administrative remedies before filing suit.    We agree

with the dismissal for the reasons stated by the district court.

Carter failed to raise his race discrimination claim in the EEOC

charge with the specificity required to exhaust administrative

remedies and satisfy that condition precedent to a civil action

under Title VII.    See Sanchez v. Standard Brands, Inc., 431 F.2d

455, 460 (5th Cir. 1970); Teffera v. N. Texas Tollway Auth., 121

F. App’x. 18, 21 (5th Cir. 2004) (per curiam) (unpublished).

     Carter also contends that because EEOC employees misled him

about his rights, under National Railroad Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002), his Title VII claims should be

tolled rather than dismissed.    However, that case held that the

time period for filing a charge is subject to equitable

doctrines, which is not the issue here.       See id.

                    III. Grant of Summary Judgment

A.   Standard of Review



                                   5
     Summary judgment is reviewed de novo, under the same

standards used by the district court to determine whether summary

judgment is appropriate in the first instance.    Riverwood Intern

Corp. v. Employers Ins. of Wausau, 420 F.3d 378, 382 (5th Cir.

2005).   Summary judgment is proper when, viewing the evidence in

the light most favorable to the nonmovant, “there is no genuine

issue of any material fact” and the moving party is “entitled to

judgment as a matter of law.”   Brooks, Tarlton, Gilbert, Douglas

& Kressler v. United States, 832 F.2d 1358, 1364 (5th Cir. 1987);

FED. R. CIV. P. 56(c).

     Once the moving party establishes that there is no genuine

issue, the burden shifts to the nonmoving party to produce

evidence of the existence of a genuine issue for trial.     Celotex

Corp. v. Catrett, 477 U.S. 317, 321 (1986).    The nonmoving party

cannot satisfy his summary judgment burden with conclusory

statements, speculation, and unsubstantiated assertions.

Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th

Cir. 1996) (en banc).

B.   Analysis

     Carter first contends that the district court’s grant of

summary judgment against him was improper because the complaint

complied with FED. R. CIV. P. 8(a).   Carter incorrectly posits

that compliance with Rule 8 precludes summary judgment under Rule




                                 6
56(c).3      Rule 8(a) standards do not apply to Rule 56 motions for

summary judgment.           See Sw. Bell Tel. Co., No. 03-5079, 2004 WL

790299, at *2 (10th Cir. 2004).                   The purpose of Rule 8(a) is to

focus litigation on the merits of a claim.                        See Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 514 (2002).                      “This simplified notice

pleading standard relies on liberal discovery rules and summary

judgment motions to define disputed facts and issues to dispose

of unmeritorious claims.”                Id. at 512.        Rule 56, on the other

hand, focuses on the evidence, not the adequacy of the pleading.

FED. R. CIV. P. 56.          Thus, even though Carter complied with the

formal pleading requirements, summary judgment was nevertheless

proper because Carter did not produce evidence of a genuine issue

of material fact.

       Carter next asserts that summary judgment was improper

because the district court “abused its discretion by failing to

address [his] retaliation claims.”4                    To the contrary, the

district court’s order granting RMH’s motion for summary judgment

analyzes the record evidence and concludes that Carter’s

affidavit was not “sufficient evidence to raise a genuine issue


       3
         Carter also contends that the district court should only have applied Rule 8(a) and not
Rule 56 because summary judgment was impossible as no depositions, answers to interrogatories,
or admissions were on file. Rule 56 has not been interpreted as requiring parties to engage in
each type of discovery prior to summary judgment. See Washington v. Allstate Ins. Co., 901
F.2d 1281, 1285 (5th Cir. 1990) (“Rule 56 does not require that any discovery take place before
summary judgment can be granted.”).
       4
        Carter incorrectly concludes that an abuse of discretion is the standard of review for
summary judgment.

                                                7
of material fact” to overcome RMH’s legitimate, nondiscriminatory

reasons for its employment decisions.   After a de novo review of

the record, we hold that the district court properly granted

summary judgment for RMH because Carter could not rebut RMH’s

legitimate, nondiscriminatory reasons for its employment actions.

                         III. CONCLUSION

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.




                                8
