DLD-139                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                        No. 10-4732
                                       ____________

                                    IFEDOO ENIGWE,
                                                Appellant,

                                             v.

         U.S. AIRWAYS/U.S. AIRWAYS EXPRESS; PIEDMONT AIRLINES
                    __________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (D.C. Civ. No. 10-cv-01003)
                     District Judge: Honorable Mitchell S. Goldberg
                       __________________________________

                         Submitted for Possible Summary Action
                    Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     March 17, 2011

                  Before: BARRY, FISHER and ROTH, Circuit Judges

                               (Opinion filed July 20, 2011)
                                     ____________

                                         OPINION
                                       ____________


PER CURIAM

       Appellant Ifedoo Enigwe filed a complaint pro se in the United States District

Court for the District of Arizona against U.S. Airways Express and Piedmont Airlines,

alleging discrimination on the basis of race in violation of Title VII of the Civil Rights

Act of 1964. The complaint, D.C. Civ. No. 09-cv-01280, was dismissed without
prejudice pursuant to a motion filed by Piedmont for, among other reasons, failure to

exhaust administrative remedies. Enigwe filed an amended complaint, dropping the Title

VII claim and alleging instead breach of contract and a violation of his constitutional civil

rights. In the amended complaint, Enigwe asserted that, on May 26, 2009, he applied for

a position as a ramp agent with Piedmont Airlines, Inc., d/b/a as U.S. Airways Express, in

Philadelphia, Pennsylvania. He completed a written job application and was offered the

job. The application asked whether he had been convicted of a felony in the past 10

years. Although he had a conviction for importation of a controlled substance, it

occurred in August, 1992, and so he answered “No.”

       Enigwe was interviewed for the ramp agent position by Rick Miler, and, following

the interview, Miler handed him a piece of paper, which stated:

       Congratulations and welcome aboard! We are certainly delighted that you
       have accepted our offer of employment and look forward to you joining the
       Piedmont Airlines team. Your offer is contingent upon a favorable
       background investigation, drug test, and driving record.

Amended Complaint, at ¶ 9. During its background check, Piedmont discovered the

1992 controlled substances conviction. When asked about it, Enigwe verified the age of

the conviction by providing Piedmont with a copy of the criminal judgment, but,

thereafter, Enigwe was told not to report for orientation, and this civil action followed.

Enigwe sought $1,000,000.00 in compensatory and punitive damages.

       After Enigwe filed his amended complaint, the case was transferred by order of

court to the United States District Court for the Eastern District of Pennsylvania, where

the events occurred. Piedmont moved to dismiss the amended complaint. In an order



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entered on November 19, 2010, the District Court granted the motion and dismissed the

amended complaint. Enigwe filed his notice of appeal on December 22, 2010.

       Our Clerk advised the parties that the appeal was subject to summary action under

Third Cir. LAR 27.4 and I.O.P. 10.6. Enigwe was invited to submit argument in writing,

and he has done so. In his written response, he contends that he should have been

permitted to present an expert witness to show that his prior conviction does not render

him unable to perform the job of ramp agent, see El v. Southeastern Pa. Transp. Auth.,

479 F.3d 232 (3d Cir. 2007); 18 Pa. Cons. Stat. Ann. § 9125(b) (“Felony and

misdemeanor convictions may be considered by the employer only to the extent to which

they relate to the applicant‟s suitability for employment in the position for which he has

applied.”).

       We have jurisdiction under 28 U.S.C. § 1291.1 Under Third Circuit LAR 27.4 and

I.O.P. 10.6, we may summarily dispose of an appeal when it clearly appears that no

substantial question is presented by the appeal. We exercise plenary review over the

District Court‟s order dismissing a complaint under Rule 12(b)(6). See Nami v. Fauver,

82 F.3d 63, 65 (3d Cir. 1996). “[W]hen ruling on a defendant‟s motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6), a judge must accept as true all of

the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94

1
  Although Enigwe‟s notice of appeal was filed more than 30 days after entry of the
District Court‟s order, see Fed. R. App. Pro. 4(a)(1)(A), the appeal is timely because the
court‟s order explains in full its reasons for dismissing the amended complaint, and is
thus not a separate judgment under Fed. R. Civ. Pro. 58(a). The judgment is deemed
entered when “150 days have run from entry of the order in the civil docket.” Fed. R.
App. Pro. 4(a)(7)(A)(ii). Enigwe‟s appeal has been filed within the 150-day period. See
id. at 4(a)(7)(B) (“A failure to set forth a judgment or order on a separate document when
required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an
appeal from that judgment or order.”)
                                                3
(2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “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, 129 S.

Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 570).

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal. We note as a threshold matter that the District Court

may consider certain narrowly defined types of material without converting the motion to

dismiss to a summary judgment motion, including items that are integral to or explicitly

relied upon in the complaint. In re Rockefeller Center Properties, Inc. Securities Litig.,

184 F.3d 280, 287 (3d Cir. 1999). A court may also consider an “undisputedly authentic

document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff‟s

claims are based on the document.” Pension Benefit Guar. Corp. v. White Consol.

Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). In support of its motion to dismiss the

original complaint, Piedmont attached the item referenced in Enigwe‟s complaint -- a

signed copy of his Piedmont Airlines Employment Application. In addition, Piedmont

explained that, as a subcontractor to a United States postal contract, its Philadelphia ramp

agent employees are required to have Postal Service security clearances to handle United

States mail. Accordingly, Piedmont also attached a copy of the Security Personnel

Screening sections of the relevant Postal Contract to its motion to dismiss. The District

Court properly considered these two items without converting the motion to dismiss to a

summary judgment motion. In re Rockefeller Center Properties, Inc. Securities Litig.,

184 F.3d at 287; Pension Benefit Guar. Corp., 998 F.2d at 1196.


                                               4
       In its motion to dismiss the amended complaint, Piedmont stated that, pursuant to

its hiring policies, it terminated Enigwe‟s conditional offer of employment on June 3,

2009 because the postal contract‟s security requirements prohibit Piedmont from

employing ramp agents who have felony or misdemeanor drug convictions, or are on

probation for any felony charges. In addition to the felony drug conviction, which was

not in dispute, Piedmont‟s background check revealed that Enigwe was incarcerated from

1992 until 2007 for the felony drug conviction, and that he is on probation for the drug

charges until April 26, 2014 (a fact Enigwe also apparently does not dispute).2

       The District Court reasoned that no contract was breached and we agree. The

employment offer was contingent upon a background check. Enigwe was hired

conditionally as an at-will employee and he did not pass the background check. The

piece of paper Enigwe was handed after his interview plainly stated: “Your offer is

contingent upon a favorable background investigation.” Also, the employment

application signed by Enigwe included a “Declarations” section, which read in relevant

part: “I understand that Piedmont Airlines will make a thorough investigation of my

entire work and personal history, to include … criminal history…. I understand that

omission or falsification of data given or other derogatory information discovered as a

result of this investigation will prevent my being hired, or if hired, will subject me to

immediate dismissal.” The Security Personnel Screening sections of the relevant Postal

Contract indicate that subcontractors and their employees must obtain a security

clearance from the Postal Service, and Piedmont must certify, without regard to the age


2
 Enigwe appears to be serving a term of supervised release, but supervised release is the
equivalent of probation.
                                           5
of the conviction, that its employees have not been convicted of serious drug charges and

are not on parole or probation for any felony. Piedmont‟s background investigation into

Enigwe‟s criminal history revealed the existence of the serious controlled substances

violation and the fact that Enigwe is still serving a term of probation.3 Enigwe was hired

contingent upon his ability to obtain a background security clearance, and, without a

favorable background check, he did not have an offer of employment. The denial of a

security clearance rendered him unqualified for the job.

       Enigwe does not seriously contest the breach of contract issue. Instead, he

contends that his rights to substantive due process and equal protection under the law

were violated when Piedmont conspired with the United States Postal Service to

implement a policy that prevents people with felony drug convictions from working as

ramp agents. In evaluating this Fifth Amendment claim, the District Court correctly held

that convicted felons are not a suspect class. See City of Cleburne v. Cleburne Living

Center, 473 U.S. 432, 440 (1985) (listing classes receiving heightened scrutiny as race,

alienage, and national origin). In addition, Enigwe does not allege that the security

clearance restriction on those who handle the U.S. mail implicates a fundamental

constitutional right for which the Supreme Court has granted heightened scrutiny.

Accordingly, where there is no fundamental right or suspect class at issue, governmental

action survives a Fifth Amendment due process or equal protection challenge so long as

the challenged classification is rationally related to a legitimate government purpose.




3
 Enigwe also falsely stated on his application that he was “self-employed” from 1992
until 2007, when he actually was incarcerated.
                                             6
See Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457-58 (1988); Plyler v. Doe,

457 U.S. 202, 216-17 (1982).

       Assuming that Piedmont‟s obligations stemming from its postal contract could be

considered governmental action, Piedmont need only demonstrate that the policy of not

hiring people with prior felony drug convictions is rationally related to a legitimate

governmental purpose. We agree with the District Court that the policy of not hiring

those with prior felony drug convictions is rationally related to the legitimate interest of

preventing the use of the United States mail to distribute illegal drugs or the proceeds

from illegal drug transactions. Because the policy is rationally related to a legitimate

purpose, the amended complaint was properly dismissed. In El, 479 F.3d 232, a Title VII

case, the District Court granted summary judgment in favor of the employer, concluding

that it had established that its policy of not hiring anyone with a prior conviction for a

violent crime was consistent with business necessity. See id. at 235. We affirmed

because the employee did not present evidence to rebut the employer‟s expert testimony.

See id. Enigwe‟s amended complaint, however, did not allege a violation of Title VII

that necessitated expert testimony. His case alleged substantive due process and equal

protection claims that subjected Piedmont‟s policy only to a rationality test, an issue that

does not require expert testimony. Enigwe‟s case thus was properly dismissed for

“failure to state a claim upon which relief can be granted.” Fed. R. Civ. Pro. 12(b)(6).

       For the foregoing reasons, we will summarily affirm the order of the District Court

dismissing Enigwe‟s amended complaint.




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