     Case: 15-30491      Document: 00513306232         Page: 1    Date Filed: 12/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-30491                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        December 14, 2015
MELISSA G. DURHAM,                                                         Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

ASCENSION PARISH SCHOOL BOARD,

              Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:14-CV-445


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Melissa Durham, proceeding pro se, appeals the district court’s dismissal
of her claims for age and disability discrimination, and her laundry list of
additional federal and state violations. We affirm.
       Durham was employed as a science teacher at Gonzalez Middle School.
After approximately six months of teaching, the school principal recommended



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30491
firing Durham because of unsatisfactory teaching performance, an inability to
properly manage her classroom, and repeated disregard for school policies. The
Ascension Parish School Board (“APSB”) superintendent agreed and
terminated Durham’s employment. Durham filed a complaint with the United
States Equal Employment Opportunity Commission (“EEOC”), asserting that
APSB discriminated against her because of her age and “mental disability,”
and failed to reasonably accommodate her with respect to “extremely
disruptive and violent students.” The EEOC gave Durham notice of a right to
sue.
        Durham filed suit. The entirety of her complaint consists of the following
statement: “APSB subjected me to unfair discipline and harassment and
neglected to provide accomedations [sic] for such. Injured on the job during a
fight and received a write up and reprimand for students behavior.” The
district court construed Durham’s claims as arising under the Age
Discrimination in Employment Act (“ADEA”) and the Americans with
Disabilities Act Amendments Act of 2008 (“ADAAA”). In a subsequent filing,
which the court treated as an amended complaint, Durham reiterated her
ADAA claim and recited a bullet point list of additional violations. 1 APSB filed
a motion to dismiss, which the district court granted. Durham timely appealed.
        We review a district court’s grant of a motion to dismiss de novo. Haase
v. Countrywide Home Loans, Inc., 748 F.3d 624, 630 (5th Cir. 2014). “To survive
a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.



        The district court read Durham’s amended complaint to list violations of the First
        1

Amendment, the Notification and Federal Employee Antidiscrimination and Retaliation Act
of 2002, the Fair Labor Standards Act, the Family Medical Leave Act, and Louisiana’s
Teacher Rights.
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                                 No. 15-30491
544, 570 (2007)). Pro se plaintiffs are held to less stringent standards than
lawyers, but “conclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to dismiss.” Taylor v.
Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citation omitted). The
plaintiff must “plead[] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678; see Lormand v. US Unwired, Inc., 565 F.3d 228, 257
(5th Cir. 2009).
      Durham asserts that she was discriminated against on account of her
age in violation of the ADEA, but she fails to provide facts that support her
claim. She does not allege that she was qualified for the position, that she was
terminated as a result of her age, or that she was replaced by someone
younger—factual allegations that are necessary to establish a prima facie
discrimination case. See Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 378
(5th Cir. 2010) (explaining that ADEA claims require a showing that, inter
alia, the plaintiff was “replaced by someone younger, or [] otherwise discharged
because of [her] age” (citation omitted)). Durham’s assertion of discrimination
is a legal conclusion that is insufficient to withstand a motion to dismiss. See
Iqbal, 556 U.S. at 678–79.
      Durham’s ADAAA claim similarly fails. To make an ADAAA failure-to-
accommodate claim, Durham must allege facts demonstrating that she is a
“qualified individual with a disability,” that her disability and its limitations
were known to her employer, and that her employer failed to accommodate her
limitations. Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 247 (5th Cir. 2013).
In her EEOC filing, Durham states that APSB “was fully aware of [her] mental
disability and continued to put unnecessary requirements on [her],” and that
APSB denied her requests for reasonable accommodations to assist with
disruptive students. See Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d
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757, 763 (5th Cir. 2011) (“[A] court ruling on a 12(b)(6) motion may rely on the
complaint, its proper attachments, documents incorporated into the complaint
by reference, and matters of which a court may take judicial notice.” (internal
quotation marks and citation omitted)). But Durham’s allegations are wholly
conclusory, and amount to purely legal conclusions. She neglects to offer facts
that set forth the requisite prima facie case.
      In her amended complaint, Durham merely lists additional federal and
state laws that she believes APSB violated. She offers, however, neither factual
support nor any explanation for these purported violations. Such bald
assertions “devoid of further factual enhancement” are entirely insufficient to
withstand dismissal. Doe v. Robertson, 751 F.3d 383, 387 (5th Cir. 2014)
(quoting Iqbal, 556 U.S. at 678).
      Finally, Durham maintains that the district court improperly denied her
an opportunity to amend her complaint before dismissing her suit with
prejudice. We review this contention under the abuse of discretion standard.
Brewster v. Dretke, 587 F.3d 764, 767–68 (5th Cir. 2009). Durham’s argument
is without merit. Durham filed both a complaint and an amended complaint,
along with two response briefs opposing APSB’s motion to dismiss. The district
court provided her numerous opportunities to remedy the deficiencies of her
pleadings, and liberally construed her pleadings and attached exhibits.
Moreover, on appeal, Durham fails to identify previously pled factual
allegations that would establish a prima facie case on any of her claims.
Neither we nor the district court can excuse the dearth of factual allegations
and Durham’s failure to raise her right to relief “above the speculative level.”
Twombly, 550 U.S. at 555. The district court properly dismissed her complaint,
and we AFFIRM.




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