                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 15-2067


LAKESHA RUFFIN,

                  Plaintiff - Appellant,

          v.

LOCKHEED MARTIN CORPORATION,

                  Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:13-cv-02744-WDQ)


Submitted:   August 30, 2016               Decided:   September 13, 2016


Before NIEMEYER, KEENAN, and THACKER, Circuit Judges.


Affirmed in part; affirmed in part as modified by unpublished
per curiam opinion.


James C. Strouse, STROUSE LEGAL SERVICES, Columbia, Maryland,
for Appellant. Michael J. Murphy, Denise E. Giraudo, OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, P.C., Washington, D.C., for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Lakesha Ruffin appeals from the district court’s August 24,

2015, order granting judgment on the pleadings under Fed. R.

Civ. P. 12(c) to Lockheed Martin Corporation (Lockheed) on her

claims     for   race   discrimination    (count    I),   sexual    harassment

(count II), and a hostile work environment (count III) under

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§§ 2000e to 2000e-17 (2012) (Title VII), dismissing for lack of

subject matter jurisdiction her claim (count IV) for a violation

of   the   Americans    with   Disabilities   Act   of    1990,    as   amended,

42 U.S.C. §§ 12101 to 12213 (2012) (ADA), 1 and denying her motion

for leave to amend the complaint. 2         We affirm in part and affirm

in part as modified.


      1Invoking Fed. R. Civ. P. 12(h)(3), Lockheed argued in its
motion for judgment that subject matter jurisdiction over count
IV   was   lacking  based   on   Ruffin’s  failure   to  exhaust
administrative remedies.   The district court agreed, relying on
lack of subject matter jurisdiction over count IV that was not
cured by the proposed amended complaint in rendering judgment
with respect to this count.
      2Ruffin’s notice of appeal states that she wishes to appeal
the district court’s August 15, 2015, decision.      The district
court’s order granting judgment on the pleadings, dismissing
Ruffin’s ADA claim, and denying Ruffin’s motion for leave to
amend was entered on the district court’s docket on August 24,
2015.    There is no August 15, 2015, order in this case.
Although “we do not commend the careless formulation of
[Ruffin’s] notice of appeal,” Bogart v. Chapell, 396 F.3d 548,
555 (4th Cir. 2005), we conclude that intent to appeal the
August 24 order is readily inferable. The district court clerk
(Continued)

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       We review de novo a district court’s ruling on a motion for

judgment on the pleadings under Rule 12(c), applying the same

standard of review as we apply to a Fed. R. Civ. P. 12(b)(6)

motion to dismiss for failure to state a claim.                           Butler v.

United     States,     702      F.3d     749,     751-52      (4th     Cir.    2012).

Specifically, we look to determine whether the complaint alleges

“facts    sufficient       to   raise     a     right    to    relief     above     the

speculative level, thereby nudging the claims across the line

from conceivable to plausible.”                  Burnette v. Fahey, 687 F.3d

171,     180   (4th   Cir.      2012)     (internal        quotation     marks      and

alterations omitted).           In undertaking this review, although we

“must accept the truthfulness of all factual allegations, we

need not assume the veracity of bare legal conclusions.”                            Id.

(internal      quotation     marks     omitted).        Rather,   we    must   accept

conclusions     the   plaintiff        draws    from    the   facts    “only   to   the




docketed the notice as appealing the August 24 order, and Ruffin
devotes her brief on appeal to arguing that the district court
reversibly erred in that order. Lockheed had the opportunity to
fully brief relevant issues, including whether any deficiencies
in the notice of appeal deprived this court of jurisdiction over
the August 24 order.     It chose instead to explain why the
district court did not commit reversible error in the August 24
order. Lockheed thus was not prejudiced by this deficiency, and
we may properly consider the August 24 order in this appeal.
See id.



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extent they are plausible based on the factual allegations.”

Id.

       “Under Federal Rule of Civil Procedure 15(a)(2), the grant

or denial of an opportunity to amend is within the discretion of

the district court.”                Drager v. PLIVA USA, Inc., 741 F.3d 470,

474 (4th Cir. 2014) (internal quotation marks omitted).                                    We thus

review the district court’s denial of leave to amend for abuse

of discretion.            Id.        “A district court’s denial of leave to

amend is appropriate when (1) the amendment would be prejudicial

to the opposing party; (2) there has been bad faith on the part

of    the    moving      party;      or    (3)     the    amendment            would     have   been

futile.”       Id. (internal quotation marks omitted).

       After    review        of    the    record       and    the       parties’      briefs,    we

conclude      that      the    district         court    did       not    reversibly        err   in

granting      judgment        on     the    pleadings         to     Lockheed       on    Ruffin’s

counts I, II, and III or in denying Ruffin’s motion for leave to

amend       those       counts.           The     original         and     proposed        amended

complaints did not articulate facts that, when accepted as true,

demonstrate         a   plausible         claim    under      Title       VII    that     Lockheed

terminated      Ruffin’s           employment      because         of    her    race.       See   42

U.S.C. § 2000e-2(a)(1); McCleary-Evans v. Md. Dep’t of Transp.,

State   Highway         Admin.,      780    F.3d      582,     584-86       (4th    Cir.    2015),

cert. denied, 136 S. Ct. 1162 (2016).                         The original and proposed



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amended      complaints   also   fail    to   articulate    facts       that,   when

accepted as true, demonstrate plausible claims under Title VII

for       sexual   harassment    and     a     hostile     work        environment.

See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277-78

(4th Cir. 2015) (en banc); Bonds v. Leavitt, 629 F.3d 369, 385

(4th Cir. 2011); Hartsell v. Duplex Prods., Inc., 123 F.3d 766,

771-73 (4th Cir. 1997).           Accordingly, we affirm the district

court’s order with respect to its disposition of counts I, II,

and III.      Ruffin v. Lockheed Martin Corp., No. 1:13-cv-02744-WDQ

(D. Md. Aug. 24, 2015). 3

      With respect to count IV, we review a dismissal for lack of

subject      matter   jurisdiction      de    novo.      Balas    v.    Huntington

Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013).                         The

ADA incorporates Title VII’s enforcement provisions, including

the   requirement     that   a   plaintiff      exhaust    her    administrative

remedies by filing an administrative charge of discrimination

before pursuing a suit in federal court.                   Sydnor v. Fairfax

Cty., Va., 681 F.3d 591, 593 (4th Cir. 2012).                     A plaintiff’s


      3In this regard, we reject as flatly contradicted by the
record Ruffin’s argument that the district court erred by
imposing on her a pleading standard more rigorous than required
by Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), in
requiring her to plead a prima facie case of discrimination and
Ruffin’s other arguments on appeal with respect to counts I, II,
and III.



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failure to exhaust her administrative remedies deprives a court

of subject matter jurisdiction over the claim.                               Jones v. Calvert

Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009).                                    In determining

whether        jurisdiction        exists,             courts        are     to     regard       the

allegations in the complaint as “mere evidence” and may properly

consider evidence outside the pleadings without converting the

proceeding          into    one   for     summary          judgment.              See    Richmond,

Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d

765, 768 (4th Cir. 1991).

     We conclude after review of the record that Ruffin failed

to include in her administrative charge of discrimination the

claim     of        termination        from    employment             while        on    long-term

disability          leave   underlying         count       IV    in        the    complaint      and

proposed amended complaint.                    The district court thus properly

concluded that it lacked subject matter jurisdiction over count

IV, and we reject Ruffin’s arguments on appeal to the contrary.

The court’s dismissal of that count, however, should be without

prejudice.          See S. Walk at Broadlands Homeowner’s Assoc., Inc.

v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir.

2013).         We    therefore     modify          the    district          court’s      order    to

reflect    that       the   dismissal         of       count    IV    for    lack       of   subject

matter     jurisdiction           is     without          prejudice          and     affirm      the

dismissal as modified.             See 28 U.S.C. § 2106 (2012); MM ex rel.



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DM v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 536 (4th Cir.

2002)   (“[W]e    are    entitled    to   affirm    the    court’s   judgment    on

alternate     grounds,     if   such      grounds   are     apparent   from     the

record.”).

     We dispense with oral argument because the facts and legal

contentions      are    adequately   presented      in    the   materials   before

this court and argument would not aid the decisional process.


                                                          AFFIRMED IN PART;
                                               AFFIRMED IN PART AS MODIFIED




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