     Case: 14-50050      Document: 00512842657         Page: 1    Date Filed: 11/19/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-50050                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
C. MICHAEL KAMPS,                                                       November 19, 2014
                                                                           Lyle W. Cayce
                                   Plaintiff - Appellant                        Clerk

v.

BAYLOR UNIVERSITY; KENNETH WINSTON STARR, In His Official
Capacity as President of Baylor University; ELIZABETH DAVIS, In Her
Official Capacity as Executive Vice President and Provost of Baylor
University; DAVID SWENSON, In His Official Capacity as Chair of the
Admissions Committee and Chair of the Scholarship Committee of Baylor
Law School; UNNAMED MEMBERS, Of the Law School's Admissions
Committee and of the Law School's Scholarship Committee,

                                   Defendants - Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CV-929


Before STEWART, Chief Judge, and JONES and HIGGINSON, Circuit
Judges.

EDITH H. JONES, Circuit Judge:*
       C. Michael Kamps, a law school applicant over the age of 50, sued Baylor
University and its administrators for violations of the Age Discrimination Act


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50050
of 1975 (“ADA”). 42 U.S.C. § 6101 et seq. The district court referred the case
to a magistrate judge, who recommended dismissing Kamps’s claims. The
district court adopted the magistrate judge’s report and recommendation.
Kamps appealed. This court has considered his appeal in light of the briefs
and pertinent portions of the record. We find no reversible error of law or fact
in the magistrate judge’s well-reasoned report and recommendation.
                                     BACKGROUND
        Kamps’s age discrimination claim relies not on the fact that the law
school rejected him, but that it did not admit him for his preferred terms.
Kamps wanted to matriculate in the Fall of 2010. The law school wait-listed
him for the fall, but offered him a seat in the Summer 2010 or Spring 2011
class. Kamps declined. The following year, Kamps applied for the Fall 2011
term. Again, the law school wait-listed him, but offered him a seat in the
Spring 2012 class. Again, Kamps declined. Kamps also complains that he did
not receive the Nance Scholarship in 2011 because of his age, and that, in
response to a formal complaint, the University retaliated against him when it
rejected his Fall 2012 application.            Based on these acts, Kamps brought
disparate treatment, disparate impact, and retaliation claims against the
University and its administrators.
                              STANDARD OF REVIEW
       This court reviews de novo a district court’s dismissal under Rule
12(b)(6), accepting as true all well-pleaded facts and viewing those facts most
favorably to the plaintiff. 1 Warren v. Chesapeake Exploration, L.L.C., 759 F.3d



       1   On appeal, Kamps argues that the magistrate’s report and recommendation
erroneously accepted the defendants’ allegations as true. It plainly did not. The report
considered exhibits that Kamps himself attached to the complaint. Those exhibits included
a letter from David Swenson, Chair of Baylor Law School’s Admissions Committee. When a
plaintiff attaches documents to the complaint, courts are not required to accept the plaintiff’s
interpretation of those documents. If “an allegation is contradicted by the contents of an
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413, 415 (5th Cir. 2014). “To survive a [ ] motion to dismiss, plaintiff[] must
plead enough facts to state a claim for relief that is plausible on its face.” Id.
(internal citation omitted). When considering a motion to dismiss, this Court
holds pro se litigants to a less stringent standard than those represented by
counsel. Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002).
Nevertheless, “conclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to dismiss.”                    Id.
(internal citation and quotation marks omitted).
                                     DISCUSSION
       The magistrate judge recommended dismissing Kamps’s claims because:
Kamps did not exhaust administrative remedies for the 2010 claims; Kamps
did not state a plausible claim for intentional discrimination for the 2011
claims; and the ADA does not allow disparate impact or retaliation claims. In
addition to the magistrate judge’s report and recommendation, we restate a
few additional points for emphasis.
       I.     Exhaustion of Remedies
       Kamps has not exhausted administrative remedies for the 2010
admission and scholarship claims. Under the ADA “[n]o action . . . shall be
brought . . . if administrative remedies have not been exhausted.”
42 U.S.C. § 6104(e)(2).         Interpreting comparable language in the Prison
Litigation Reform Act, the Supreme Court has held that administrative
exhaustion requires proper exhaustion, utilizing “all steps that the agency




exhibit attached to the pleading, then indeed the exhibit and not the allegation controls.”
U.S. ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 377 (5th Cir. 2004) (internal
citation and quotation marks omitted). It makes no difference that a defendant authored the
document; the court may consider it without violating the 12(b)(6) standard. Quite simply,
Kamps cannot complain that the magistrate judge considered a document that he referenced
in his complaint; that he attached as an exhibit; and that he contends supports his
discrimination claim—even if a defendant authored it.
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holds out, and doing so properly.”                 Woodford v. Ngo, 548 U.S. 81, 90,
126 S. Ct. 2378, 2385 (2006) (emphasis in original) (internal citation and
quotation marks omitted). “Proper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules . . . .” Id. “Pre-filing
exhaustion is mandatory, and the case must be dismissed if available
administrative remedies were not exhausted.” Gonzalez v. Seal, 702 F.3d 785,
788 (5th Cir. 2012).
       The Department of Education (“DOE”) requires all complaints to be filed
“within 180 days from the date the complainant first had knowledge of the
alleged discrimination.” 34 C.F.R. § 110.31(a). The law school denied Kamps’s
2010 application on February 17, 2010, but Kamps did not complain to the
DOE until over a year later—on October 27, 2011. Because Kamps did not
complain about the 2010 admission and scholarship decisions within the 180-
day window, he did not exhaust administrative remedies as to those claims.
       II.    Intentional Discrimination
       Kamps’s 2011 admission claim fails for two reasons. 2 First, there are no
facts in his complaint showing that Baylor used applicants’ college grade point
average (“GPA”) to discriminate against older applicants generally or Kamps
in particular. Kamps alleges that the defendants have known about grade
inflation, and therefore, “knew, or should have known, the effect that grade
inflation would have when comparing []GPAs earned in different eras.” But
knowing that GPA disadvantages older applicants does not mean Baylor used
GPA in order to disadvantage older applicants.                  Second, Kamps was not




       2Kamps seeks declaratory and injunctive relief, and monetary damages. The ADA,
however, allows suit only for injunctive relief and attorneys’ fees. See 42 U.S.C. § 6104(e)(1).
To the extent Kamps seeks monetary damages and declaratory relief, those claims must be
dismissed.
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                                  No. 14-50050
excluded from Baylor Law. Baylor admitted him for the Spring 2012 term and
he declined to attend.
      Kamps’s 2011 scholarship claim fails for similar reasons. His complaint
references no facts supporting his conclusion that the law school changed the
Nance Scholarship’s criteria to disadvantage him. In fact, his complaint shows
the opposite.   The law school’s strategic planning committee changed the
scholarship eligibility criteria in Spring 2009, long before Kamps applied. The
committee simply could not have changed the criteria to disadvantage Kamps.
Kamps has not alleged that the scholarship committee knew that he would
subsequently apply, so his 2011 scholarship claim fails.
      Overarching these claims is the fact that the law school’s use of GPA falls
within one of the ADA’s exceptions to liability. It is not a violation of the ADA
to take an otherwise prohibited action if “the differentiation made by such
action   is     based     upon    reasonable     factors   other    than    age.”
42 U.S.C. § 6103(b)(1)(B). A factor other than age is one that bears “a direct
and substantial relationship to the normal operation of the program or
activity . . . .” 34 C.F.R. § 110.13. Use of GPA in post-secondary school
admission decisions is a reasonable non-age-based factor. Nearly every law
school in the country uses GPA when evaluating candidates. According to
documents contained in Kamps’s complaint, it is “one of the best quantitative
predictors of academic success in law school.” And the use of GPA is directly
related to the law school’s normal operation. Therefore, the use of GPA to
evaluate potential students and scholarship recipients is a reasonable factor
other than age and the school cannot be liable under the ADA.
      III.    Disparate Impact
      The ADA does not prohibit policies that have a disparate impact. When
Congress wants to allow disparate impact claims, it uses particular language.
For example, Title VII of the Civil Rights Act states: “It shall be an unlawful
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                                   No. 14-50050
employment practice for an employer—to limit, segregate, or classify his
employees or applicants for employment in any way which would deprive or
tend to deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such individual’s
race . . . .” Civil Rights Act of 1964, Title VII, § 703, 42 U.S.C. § 2000e-2(a)(2)
(emphasis added). The Supreme Court identified the “otherwise adversely
affects” language as prohibiting policies that have a disparate impact. Watson
v. Fort Worth Bank and Trust, 487 U.S. 977, 991, 108 S. Ct. 2777, 2787 (1988).
Similarly, the Age Discrimination in Employment Act (“ADEA”) makes it
unlawful for an employer “to limit, segregate, or classify his employees in any
way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because
of such individual’s age[.]” Age Discrimination in Employment Act of 1967
§ 4, 29 U.S.C. § 623(a)(2) (emphasis added). As with Title VII, the Court held
that this “otherwise adversely affects” language prohibits polices that have a
disparate impact.    Smith v. City of Jackson, Miss., 544 U.S. 228, 233-40,
125 S. Ct. 1536, 1540-45 (2005).
      The ADA lacks any such language. The ADA states “no person in the
United States shall, on the basis of age, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under, any program or
activity receiving Federal financial assistance.” 42 U.S.C. § 6102. Unlike Title
VII and the ADEA, nowhere does the ADA use “otherwise adversely affects”
language. Moreover, the ADA’s prohibition is almost identical to Title VI of
the Civil Rights Act, which prohibits only intentional discrimination. See Civil
Rights Act of 1964, Title VI, §601, 42 U.S.C. § 2000d (“No person in the United
States shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.”);
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Alexander v. Sandoval, 532 U.S. 275, 280, 121 S. Ct. 1511, 1516 (2001) (holding
that Title VI “prohibits only intentional discrimination”).
      Further, although the DOE’s regulations purport to prohibit policies that
have a disparate impact, no implied private cause of action exists to enforce
them. “[A] private plaintiff cannot enforce a regulation . . . if the regulation
imposes an obligation or prohibition that is not imposed [ ] by the controlling
statute.” Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 906
(6th Cir. 2004) (citing Sandoval, 532 U.S. at 284-85); see also Lonberg v. City
of Riverside, 571 F.3d 846, 852 (9th Cir. 2009) (holding that “under Sandoval,
[the regulation] is not enforceable” through a private cause of action because
the “obligations it imposes are nowhere” to be found in the statute). Therefore,
“if a statutory provision prohibits only intentional discrimination . . .
regulations adopted to effectuate the provision may be enforceable through its
private cause of action only to the extent that they, too, prohibit intentional
discrimination.” Ability Ctr. of Greater Toledo, 385 F.3d at 906.
      IV.   Retaliation
      Kamps’s retaliation claim fails for the same reason as his disparate
impact claim. Under Sandoval, a regulation provides a private cause of action
only if it effectuates an express statutory provision. Id. The ADA prohibits
only intentional discrimination.      See 42 U.S.C. § 6102.         Because the
regulations—not the statute—prohibit retaliation, Kamps has no cause of
action for retaliation. See id.; 34 C.F.R. § 110.34. Kamps’s retaliation claim
was correctly dismissed.
      V.    Dismissal with Prejudice
      Kamps argues last that dismissal with prejudice was unwarranted.
Ordinarily, a court “should not dismiss the complaint except after affording
every opportunity (for) the plaintiff to state a claim upon which relief (can) be
granted.” Hitt v. City of Pasadena, 561 F.2d 606, 607 (5th Cir. 1977) (internal
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citation and quotation marks omitted). But here amendment would be futile.
Most of Kamps’s claims are barred because he did not exhaust administrative
remedies or because the statute does not allow disparate impact and
retaliation claims. Regarding his claims of intentional discrimination, his
allegations are wholly conclusional; in the case of Baylor’s use of GPA, plainly
non-age-related; and are trumped by the fact that he was offered admission on
several occasions. These allegations plainly fail under Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (holding a complaint “demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”),
and Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007)
(holding that “[f]actual allegations must be enough to raise a right to relief
above the speculative level . . . .”).
                                  CONCLUSION
      For these reasons, we AFFIRM the district court’s dismissal of Kamps’s
complaint with prejudice.




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