                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-1298


KATHRYN LEA HARMAN,

                  Plaintiff – Appellant,

             v.

UNISYS CORPORATION,

                  Defendant – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:08-cv-00542-GBL-TRJ)


Submitted:    October 27, 2009              Decided:   December 4, 2009


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Kathryn Lea Harman, Appellant Pro Se.    Frank Charles Morris,
Jr., Brian Steinbach, EPSTEIN, BECKER & GREEN, PC, Washington,
DC, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Kathryn Lea Harman brought this action against Unisys

Corporation (“Unisys”) and several of its employees asserting,

in part, claims of gender discrimination and retaliation, in

violation of Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006) (“Title VII”);

age    discrimination          and    retaliation,       in       violation     of    the    Age

Discrimination in Employment Act of 1967, as amended, 29 U.S.C.

§§     621   to    634     (2006)      (“ADEA”);        overtime         compensation        and

retaliation,       in     violation      of     the    Fair       Labor      Standards      Act,

29 U.S.C. § 216(b) (2006) (“FLSA”); and race discrimination and

retaliation,       in     violation     of    42      U.S.C.      §   1981    (2006).        The

district court granted Defendants’ motion to dismiss all of her

claims except the FLSA overtime compensation claim.                                 That claim

proceeded     to    a    jury    trial.       After      the      jury    determined        that

Unisys properly classified Harman as an exempt administrative

employee     under       the   FLSA    and    returned        a    verdict     in    favor    of

Unisys, the district court entered judgment in Unisys’s favor

and Harman timely appealed.

             On appeal, Harman asserts that: (i) the district court

misconstrued Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007),

when it granted Unisys’s motion to dismiss her Title VII, ADEA

and § 1981 claims against it; (ii) this court should overrule

Ball    v.   Memphis       Bar-B-Q       Co.,      Inc.,       228    F.3d     360,     363-65

                                              2
(4th Cir.    2000)    (holding      that     the    “testimony”         clause       of    the

FLSA’s     retaliation      provision      only     applies       to       procedures      in

judicial     or    administrative        tribunals,        not    informal         internal

discussions       about    what   testimony       might    be    if    a     lawsuit      were

filed), and recognize a FLSA retaliation cause of action based

on informal internal complaints; and (iii) the district court

abused     its    discretion      when     it     denied    Harman’s          motion       for

sanctions against Unisys and its counsel based on the latter’s

electronic       posting    of    Harman’s      address     and       date    of     birth. 1

Having reviewed Harman’s contentions, we affirm in part, and

vacate in part and remand for further proceedings.

            We find that the magistrate judge 2 did not abuse its

discretion when it denied Harman’s motion for sanctions.                                  Cf.

Chaudhry    v.     Gallerizzo,     174     F.3d    394,     410       (4th    Cir.     1999)



     1
       We reject Harman’s assertion that the district court
abused its discretion when it allowed Unisys to file its
opposition to Harman’s summary judgment motion one day out of
time. See Fed. R. Civ. P. 6(b)(2) (allowing a district court to
extend filing deadlines if “the failure to act was the result of
excusable neglect”); Pioneer Inv. Servs. Co. v. Brunswick
Assocs., 507 U.S. 380, 391-92 (1993) (“Although inadvertence,
ignorance of the rules, or mistakes construing the rules do not
usually constitute ‘excusable’ neglect, it is clear that
‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic
concept’ and is not limited strictly to omissions caused by
circumstances beyond the control of the movant.”).
     2
        The district court designated a magistrate judge to
determine pretrial matters in this case, in accordance with
28 U.S.C. § 636(b)(1)(A) (2006).



                                           3
(reviewing the imposition of sanctions pursuant to Fed. R. Civ.

P. 11 for abuse of discretion).                The record establishes that

Defendants’ posting of Harman’s address and date of birth was a

mere oversight, that the information was posted online for less

than one week, and that as soon as Harman made Defendants aware

of the error, Defendants moved to remedy the error and seal the

document.         Accordingly,      Harman     was     not       entitled       to   have

sanctions imposed upon Defendants.

              Second, we decline Harman’s invitation to reverse our

holding      in   Ball.      Even     assuming       that    Ball        bars    a   FLSA

retaliation claim based on an informal internal complaint like

the one made by Harman, one panel of this court may not overrule

a decision of another panel.               See, e.g., Scotts Co. v. United

Indus. Corp., 315 F.3d 264, 271-72 n.2 (4th Cir. 2002).

              We also reject Harman’s contention that the district

court erred when it granted Unisys’s motion to dismiss her Title

VII, ADEA and § 1981 disparate treatment claims.                         We review de

novo    a    district   court’s     Rule   12(b)(6)     dismissal,         “focus[ing]

only on the legal sufficiency of the complaint.”                         Giarratano v.

Johnson, 521 F.3d 298, 302 (4th Cir. 2008).                  “[W]hen ruling on a

defendant’s motion to dismiss, a judge must accept as true all

of     the    factual     allegations      contained        in     the     complaint.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).

While a plaintiff’s statement of his claim “need only give the

                                           4
defendant fair notice of what the . . . claim is and the grounds

upon     which    it   rests,”       id.    at      93      (citations       and   internal

quotation marks omitted), a complaint may survive a motion to

dismiss only if it “states a plausible claim for relief” that

“permit[s] the court to infer more than the mere possibility of

misconduct”       based     upon     “its     judicial        experience         and     common

sense.”         Ashcroft     v.    Iqbal,     129      S.    Ct.    1937,     1950       (2009)

(internal citation omitted).

             Under the notice pleading requirements of Fed. R. Civ.

P.     8(a)(2),    a   complaint       must       contain      only      a   “short       plain

statement of the claim showing that the pleader is entitled to

relief.”        Moreover, although the plaintiff need not plead facts

that    constitute     a     prima    facie       case      under     the    framework       of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in order

to survive a motion to dismiss, Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 510-15 (2002), a civil rights plaintiff retains

the    burden     of   alleging       facts       sufficient        to    state     a    claim

entitling her to relief.              See Jordan v. Alternative Res. Corp.,

458 F.3d 332, 346-47 (4th Cir. 2006).

            Harman’s disparate treatment allegations tell a story

about     her     repeated    challenges          to     management’s        actions       and

business        decisions     and     summarily          assume       that       with     each

challenge, “upon information and belief,” Unisys believed that a

younger,    African        American    or     male       employee        would     not    have

                                              5
challenged      their        actions     or    would        have      been     more     easily

influenced      to     abide     by    their       decisions.            Such       conclusory

allegations      are       insufficient       to    defeat       a    motion    to    dismiss.

Twombly, 550 U.S. at 555.

              Viewing the complaint in its entirety, see Tellabs,

Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)

(holding    that       a    court     must    “consider       the      complaint       in   its

entirety” when ruling on a Rule 12(b)(6) motion to dismiss), we

find   that     the        district    court       correctly         held    that     Harman’s

allegations failed to establish that she suffered an adverse

employment      action       sufficient       to    state    a       claim   for     disparate

treatment based on her race, age or gender.                           See Page v. Bolger,

645 F.2d 227, 233 (4th Cir. 1981) (holding that for purposes of

a disparate treatment claim, an adverse employment action must

be an act that affects hiring, granting leave, promoting and

compensating).

            We nonetheless find that the district court erred when

it granted the motion to dismiss her Title VII, ADEA and § 1981

retaliation claims against Unisys.                     Assuming Harman’s factual

allegations are true, see Erickson v. Pardus, 551 U.S. 89, 94

(2007), we cannot conclude, as a matter of law, that Harman

failed     to   allege        that     she     suffered       a       materially       adverse

employment action after she complained of discrimination.                                   See

Burlington N. & Sante Fe Ry. v. White, 548 U.S. 53, 68 (2006)

                                               6
(holding      that     to    establish    an       adverse    employment         action    for

purposes of a Title VII retaliation claim, “a plaintiff must

show that a reasonable employee would have found the challenged

action materially adverse, which in this context means it well

might       have     dissuaded     a    reasonable          worker    from       making     or

supporting a charge of discrimination”) (internal quotations and

citations omitted).

              Harman’s       complaint    is       cumbersome    and       voluminous      and

contains       numerous      irrelevant       allegations.       Moreover,         Harman’s

complaint could have been more succinct and more specific with

regard to when some of the challenged actions took place, and

which individuals she alleged were her comparators for purposes

of    her    retaliation       claims.         We     nonetheless         hold    that     the

district      court     should     have   allowed       Harman       an    opportunity      to

refine      her    Title    VII,   ADEA   and       § 1981    retaliation         claims    by

amending her complaint, rather than dismiss those claims with

prejudice.         Ostrzenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir.

1999) (recognizing that rather than dismiss a defective pleading

with prejudice, a plaintiff should “be given every opportunity

to cure a formal defect in his pleading[,] . . . even though the

court       doubts    that    plaintiff       will     be    able     to    overcome       the

defects”); see also Teachers’ Retirement System Of LA v. Hunter,

477   F.3d     162,    170    (4th     Cir.    2007)    (“[U]nder         this    scheme   of

notice pleading and broad discovery, consideration of a motion

                                               7
to dismiss must account for the possibility that a noticed claim

could become legally sufficient if the necessary facts were to

be developed during discovery.”).

           Accordingly, we vacate that portion of the district

court’s order granting Unisys’s motion to dismiss Harman’s Title

VII, ADEA and § 1981 retaliation claims against it, and remand

to the district court for further proceedings. 3           We nonetheless

affirm   the   remainder   of   the   district   court’s   judgment.      We

dispense   with   oral     argument    because   the   facts   and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                       AFFIRMED IN PART,
                                                        VACATED IN PART,
                                                            AND REMANDED




     3
        By this disposition, we intimate no view as                  to the
appropriate resolution of Harman’s retaliation claims                against
Unisys.



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