     Case: 13-30812   Document: 00512560058   Page: 1     Date Filed: 03/13/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                               13-30812                         March 13, 2014
                            Summary Calendar
                                                                 Lyle W. Cayce
                                                                      Clerk


CYNTHIA GILLIE,

                                                        Plaintiff - Appellant
v.

THE LOUISIANA DEPARTMENT OF STATE CIVIL SERVICE; THE
LOUISIANA DEPARTMENT OF CHILDREN AND FAMILY SERVICES;
THE LOUISIANA DEPARTMENT OF CHILD SUPPORT ENFORCEMENT;
SHANNON TEMPLET, Director of Louisiana Department of State Civil
Service, officially and in her individual capacity; RUTH JOHNSON,
Secretary of Louisiana Department of Children and Family Services,
officially and in her individual capacity; LISA ANDRY, Manager of Louisiana
Department of Child Support Enforcement, officially and in her individual
capacity; ROBBIE ENDRIS, Director of Louisiana Department of Child
Support Enforcement, officially and in her individual capacity; CHRISTINE
LOWE, Human Resource Supervisor, officially and in her individual capacity;
WANDA RABER, Director of Human Resources, officially and in her
individual capacity; SHELLY JOHNSON, Human Resource Specialist,
officially and in her individual capacity; BOBBY JINDAL, Louisiana
Governor, officially and in his individual capacity,

                                                        Defendants - Appellees



                Appeal from the United States District Court
                    for the Middle District of Louisiana
                          USDC No. 3:12-CV-262
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                                      No. 13-30812
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Cynthia Gillie appeals the district court’s grant of the Defendants’
motion to dismiss her claims under the Age Discrimination in Employment Act
(“ADEA”), Title VII, and the Family Medical Leave Act (“FMLA”).                         We
AFFIRM.
                                     I. Background
       Gillie was an employee at the Louisiana Department of Child Support
Enforcement. A supervisor requested that Gillie deliver a termination letter
to an employee’s home, and Gillie refused. She alleges that after refusing to
deliver the letter, her supervisor began to avoid her and refused to speak with
her. A few months later, Gillie received complaints in her performance plan
review and was transferred to the Department of Children and Family Services
Central Human Resources (“DCFSHR”) following a re-organization of her
department. Gillie claims that she was not given proper training for her new
position. She received a “needs improvement” on her performance plan review
from the DCFSHR.
       That same year, Gillie’s physician ordered her to spend three weeks on
bed rest for diabetic ulcers on her feet. Gillie went on medical leave and began
applying for extended leave under the FMLA.                  One week later, Gillie’s
supervisor notified her that she was being terminated pursuant to a governor-
sponsored layoff plan due to budget cuts. Her supervisor further informed her
that she was ineligible for rehiring due to her recent performance plan review
rating. Later, co-workers informed Gillie that the governor-sponsored layoff



       * 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. 13-30812
plan was never approved, and performance ratings were not a basis for the
layoffs.
      Gillie filed a complaint with the United States Equal Employment
Opportunity Commission (“EEOC”), and she was given notice that she had a
right to sue under Title VII. Gillie filed this suit, and the Defendants filed an
unopposed motion to dismiss, which the district court granted. Gillie timely
appealed.
                                 II. Discussion
      We review a district court’s grant of a motion to dismiss de novo. Kane
Enters. v. MacGregor (USA) Inc., 322 F.3d 371, 374 (5th Cir. 2003). “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. 544, 570 (2007)). While a pro se plaintiff is held to less stringent
standards than lawyers, “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 and internal quotation marks omitted).
      Gillie asserts that she was terminated on account of her race, sex, and
color in violation of Title VII, but her complaint does not set forth any factual
allegations to support her claims. She does not allege that her position was
filled by an individual outside her class or that she was treated less favorably,
which is required to establish a prima facie discrimination case. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).              Her assertion of
discrimination is a legal conclusion that is not sufficient to withstand a motion
to dismiss. See Iqbal, 556 U.S. at 678–79. Gillie’s ADEA claim suffers the
same flaw: she does not allege that she was terminated as a result of her age
or that she was replaced by someone younger.            See Jackson v. Cal-W.
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                                      No. 13-30812
Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010) (ADEA claims require a
showing that, inter alia, the plaintiff was “replaced by someone younger, or [ ]
otherwise discharged because of [her] age”). Thus, the district court properly
dismissed Gillie’s Title VII and ADEA claims.
       Gillie’s claim for retaliation under the ADEA fails because she does not
allege facts sufficient to establish that she participated in statutorily protected
activity, which she must show to establish a prima facie case. See Mayberry v.
Vought Aircraft Co., 55 F.3d 1086, 1092 (5th Cir. 1995). Gillie’s retaliation
claim hinges on her allegation that her refusal to deliver a termination letter
triggered retaliatory acts. However, refusal to deliver a termination letter is
not a statutorily protected activity. 1           Thus, the district court properly
dismissed Gillie’s retaliation claim. 2
       Finally, the district court properly dismissed Gillie’s FMLA claim. To
make an FMLA claim, Gillie must allege facts demonstrating, inter alia, that
her leave was interfered with or that she was denied restoration to her position
pursuant to valid FMLA leave. See 29 U.S.C. § 2614(1); see also Mauder v.
Metro. Transit Auth. of Harris Cnty., Tex., 446 F.3d 574, 580 (5th Cir. 2006).
Gillie’s complaint merely contains conclusory statements, without any facts
alleged, that her entitlement to take leave was interfered with and that she
was denied restoration following valid FMLA leave, which is not sufficient to
defeat a motion to dismiss. See Iqbal, 556 U.S. at 678–79.
       AFFIRMED.



       1 While her EEOC complaint would be a statutorily protected activity, it was not filed
until after the facts giving rise to the retaliation claim.

       2On appeal, Gillie raises for the first time a claim of First Amendment retaliation.
“We do[ ] not review issues raised for the first time on appeal.” Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993).

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