     Case: 16-50200      Document: 00513664166         Page: 1    Date Filed: 09/02/2016




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

                                    No. 16-50200                               FILED
                                  Summary Calendar                     September 2, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk
JOSEPH CHHIM,

              Plaintiff - Appellant

v.

UNIVERSITY OF TEXAS AT AUSTIN,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:15-CV-919


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Joseph Chhim, a pro se plaintiff, appeals the district court’s dismissal of
his case on motions to dismiss filed by the University of Texas at Austin
(the “University”).      The district court dismissed Chhim’s claim for age
discrimination under the Age Discrimination in Employment Act (“ADEA”) for
lack of subject matter jurisdiction under Federal Rule of Civil Procedure



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50200
12(b)(1) and Chhim’s claims for unlawful employment discrimination and
retaliation under Title VII of the Civil Rights Act of 1964 for failure to state a
plausible claim under Federal Rule of Civil Procedure 12(b)(6). Finding no
error, we AFFIRM.
       We review de novo a district court’s dismissal of claims under Rules
12(b)(1) and 12(b)(6). See Machete Prods., L.L.C. v. Page, 809 F.3d 281, 287
(5th Cir. 2015). Under the Federal Rules of Civil Procedure and relevant
precedent, a complaint must contain sufficient factual matter, accepted as
true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The allegations pleaded must show “more
than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). We take the well-pleaded factual allegations
in the complaint as true, but we do not credit conclusory allegations or
allegations that merely restate the legal elements of a claim. See id. We hold
pro se plaintiffs to a more lenient standard than lawyers when analyzing
complaints, but pro se plaintiffs must still plead factual allegations that raise
the right to relief above the speculative level. See Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002); see also Twombly, 550 U.S. at 555.
       The district court properly dismissed Chhim’s ADEA claim because the
University is a state university, see TEX. EDUC. CODE § 67.01, and neither
Congress nor Texas have waived Texas’s sovereign immunity from ADEA
claims, see Sullivan v. Univ. of Tex. Health Sci. Ctr. at Hous. Dental Branch,
217 F. App’x 391, 395 (5th Cir. 2007). 1 While Chhim asserts that an exception




       1  Although Sullivan is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
Chhim’s complaint initially seemed to allege age discrimination under Title VII, but he
clarified before the district court and has continued to assert on appeal that his age
discrimination claim was made pursuant to the ADEA. We therefore analyze this claim
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                                       No. 16-50200
to sovereign immunity applies in this case, we disagree. See id.; see also Kimel
v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (“[I]n the ADEA, Congress did not
validly abrogate the States’ sovereign immunity to suits by private
individuals.”). 2
       We also affirm the dismissal of Chhim’s claim for discrimination based
on race, color, and national origin under Title VII. See 42 U.S.C. § 2000e-
2(a)(1) (prohibiting such discrimination). Although Chhim’s claims can be
somewhat difficult to discern, he seems to aver that because of his Cambodian
origin, race, and color, the University hired a Hispanic applicant instead of
Chhim for a Building Services Supervisor position. 3 Chhim acknowledges in
his allegations that the University’s given reason for not hiring Chhim was
because he was not the most qualified candidate for the job, including that he
did not display excellent writing skills and communication abilities. Chhim
baldly alleges that this explanation is pretextual. He avers that the University



under the ADEA. Any claim Chhim may have wished to assert under Title VII has been
waived. See generally Mick Haig Prods. E.K. v. Does 1-670, 687 F.3d 649, 652 (5th Cir. 2012).
       2  Chhim argues that his claims fall within the Ex parte Young exception to sovereign
immunity. See 209 U.S. 123, 155–56 (1908). “To fall within the Ex parte Young exception to
sovereign immunity, however, a plaintiff must name individual state officials as defendants
in their official capacities.” Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013) (citing
Kentucky v. Graham, 473 U.S. 159, 169 n.18 (1985)). Chhim did not sue individual state
official defendants in their official capacities in this suit; therefore, the Ex parte Young
exception does not apply to defeat Texas’s sovereign immunity from suit.
       3  In attempting to construe Chhim’s complaint liberally, see Taylor, 296 F.3d at 378,
we have considered Chhim’s explanation of the allegations in his complaint in his briefing
before the district court. We have also considered documents Chhim incorporated into the
complaint by reference or attached to the complaint or to his responses to the motion to
dismiss, such as: right to sue letters from the Equal Employment Opportunity Commission
(“EEOC”) and Texas Workforce Commission (“TWC”); documents showing the dates on which
Chhim applied to various positions with the University; a grievance that Chhim filed against
the University on March 7, 2014; and documents frequently referenced and quoted in
Chhim’s complaint that contain the results of the TWC’s investigation into Chhim’s
allegations. See generally Lormand v. US Unwired, Inc., 565 F.3d 228, 251 (5th Cir. 2009)
(noting that in ruling on Rule 12(b)(6) motions, courts may examine documents incorporated
into the complaint by reference).
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                                       No. 16-50200
hired a custodian from within its own department who had over 25 years of
experience and speculates that the custodian was “less qualified” than Chhim.
       Although Chhim did not have to submit evidence to establish a prima
facie case of discrimination at this stage, he had to plead sufficient facts on all
of the ultimate elements of a disparate treatment claim to make his case
plausible. See Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013); see also
Stone v. La. Dep’t of Revenue, 590 F. App’x 332, 339 (5th Cir. 2014), cert. denied,
135 S. Ct. 2814 (2015). In that inquiry, it can be helpful to reference the
McDonnell Douglas 4 framework, on which Chhim would continue to rely if he
based his claim on circumstantial evidence, and under which Chhim would
ultimately have to show that: (1) he is a member of a protected class; (2) he
was qualified and applied for the job; (3) the employer rejected him for the job
despite his qualifications; and (4) a similarly situated applicant outside the
protected class was hired. See Haskett v. T.S. Dudley Land Co., No. 14-41459,
2016 WL 2961790, at *2 (5th Cir. May 20, 2016) (unpublished); Mitchell v.
Crescent River Port Pilots Ass’n, 265 F. App’x 363, 370 (5th Cir. 2008). 5
      Ultimately, Chhim fails to plead sufficient facts to make a plausible
claim that the University rejected his application for the Building Services
Supervisor position because of his race, color, or national origin. See Raj, 714
F.3d at 331. Chhim’s allegations turn on the assertion that the University
discriminatorily hired a less qualified, similarly situated applicant over
Chhim. However, even taking Chhim’s allegations as true and construing
them liberally, we cannot “draw the reasonable inference that the [University]




       4   McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
       5 Although Haskett and Mitchell are not “controlling precedent,” they “may be [cited
as] persuasive authority.” Ballard, 444 F.3d at 401 n.7 (citing 5TH CIR. R. 47.5.4).
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is liable for the misconduct alleged.” Stone, 590 F. App’x at 339; see also Taylor,
296 F.3d at 378.
       Chhim pleads no facts that suggest the applicant hired by the University
was less qualified than Chhim or was similarly situated. Chhim claims he
possessed more relevant experience than the applicant chosen, but this seems
based on the implicit assumption that the other applicant only had custodial
experience with the University, and no relevant supervisory experience or
superior writing and communication skills. The document Chhim attached
and that he often refers to from the TWC states that the person hired “was
Hispanic, Mexican-American, age 42 and has more than 25 years of experience
working in the [University’s] custodial department.” This does not preclude
the applicant from having worked in supervisory roles with the University or
elsewhere, and it does not suggest that Chhim is better qualified than this
applicant. 6
       Additionally, Chhim’s complaint acknowledges that the University’s
“preferred qualifications” included a “[d]emonstrated ability to write complex
documents” and “[e]xcellent written and oral communication skills,” and that
the University’s expressed reason for not hiring Chhim was that he did not
meet these requirements. Yet, Chhim’s complaint contains no facts plausibly
suggesting that Chhim was better or equally qualified for the supervisory
position than the person the University hired, by these metrics or others. Cf.
Mitchell, 265 F. App’x at 370. In sum, Chhim’s complaint “did not allege any
facts, direct or circumstantial, that would suggest [the University’s] actions
were based on [Chhim’s] race or national origin or that [the University] treated



       6 Chhim briefed before the district court that his experience includes several years of
training from Houston Community College and San Jacinto College in housekeeping,
management, and maintenance technology, and that he has more than 17 years of experience
as a custodian and custodial supervisor.
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                                       No. 16-50200
similarly situated [applicants] of other races or national origin more
favorably.” Raj, 714 F.3d at 331. We affirm the dismissal of Chhim’s Title VII
claim.
       The district court also dismissed Chhim’s retaliation allegations for
failure to state a plausible claim. Chhim avers that the University did not hire
him for the Building Services Supervisor position, about which Chhim was
notified on March 7, 2014, in retaliation for grievances or charges Chhim filed
claiming that the University was discriminating against him. 7 First, the
district court correctly dismissed any attempt to argue that the charge
submitted in November 2014 or the grievance submitted on March 21, 2014,
could plausibly provide a basis for retaliation in the decision not to hire Chhim
on March 7, 2014. The University could not have refused to hire Chhim in
retaliation for grievances he had not yet filed. See, e.g., Stone, 590 F. App’x at
341 (concluding a complaint failed to state a claim for retaliation when the
adverse action occurred before grievances were filed, and thus the plaintiff
failed to show “a causal connection between the protected activity and the
adverse employment action”). This same logic applies to the grievance Chhim
filed on March 7, 2014, after he was told that he was not hired for the Building




       7  Chhim also mentions other applications he submitted to the University before
March 20, 2014, but explained repeatedly before the district court that he only challenges the
University’s failure to hire him on March 20, 2014. Additionally, Chhim’s complaint and
briefing refer often to a position he applied for on March 20, 2014, and seem to confuse his
claims for disparate treatment and retaliation with his application on March 20. It is clear
from his pleadings and the documents incorporated by reference that the Hispanic applicant
to whom Chhim refers was hired instead of Chhim for the “Building Services Supervisor –
Night Shift” position, for which Chhim was notified that he was not hired on March 7, 2014.
His allegations and documentation do not indicate that Chhim has been formally rejected
regarding the position to which he applied on March 20, 2014, as “Building Attendant
Leader.”
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                                    No. 16-50200
Services Supervisor position. See id. That leaves only Chhim’s complaints of
discrimination that he alleges he made in December 2013 and January 2014. 8
      We cannot consider these allegations because he failed to exhaust these
claims. In order to give notice to defendants of potential claims and to ensure
that the Equal Employment Opportunity Commission (“EEOC”) can
investigate and obtain voluntary compliance with the law, Title VII requires
that claims be brought with the EEOC before courts may consider them. See
generally Pacheco v. Mineta, 448 F.3d 783, 788–89 (5th Cir. 2006) (citing
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466–67 (5th Cir. 1970)). We
construe EEOC claims liberally, but we will not consider claims that were not
asserted before the EEOC or that do not fall within “the scope of the EEOC
investigation which ‘can reasonably be expected to grow out of the charge of
discrimination’” a plaintiff makes before the EEOC. Id. (citation omitted).
      In this case, Chhim only mentioned one grievance that he made with the
University in his charge of discrimination before the EEOC—the grievance he
filed in September 2014. Chhim’s failure to mention any grievances that were
filed before the University’s decision not to hire him in March 2014 means that
the scope of his retaliation charge before the EEOC and the scope of the
EEOC’s investigation could not reasonably be expected to reach those claims.
See id. Chhim failed to exhaust his retaliation claims based on grievances filed
in December 2013 and January 2014. We therefore affirm the district court’s
decision to dismiss Chhim’s retaliation allegations.
      AFFIRMED.




      8  Although Chhim did not clearly allege in his initial pleadings that he made the
complaints in January 2014 and on March 7, 2014, nor that his retaliation claim was based
on these complaints, we construe his pleadings liberally in light of Chhim’s explanatory
statements in briefing before the district court. See Taylor, 296 F.3d at 378.
                                           7
