                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 13a0128n.06

                                            No. 12-1691
                                                                                            FILED
                               UNITED STATES COURT OF APPEALS                            Feb 04, 2013
                                    FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk

ROGERS A. NWABUE,                                      )
                                                       )
        Plaintiff-Appellant,                           )
                                                       )
v.                                                     )       ON APPEAL FROM THE UNITED
                                                       )       STATES DISTRICT COURT FOR
WAYNE STATE UNIVERSITY SCHOOL                          )       THE EASTERN DISTRICT OF
OF MEDICINE; DETROIT MEDICAL                           )       MICHIGAN
CENTER; THEODORE B. JONES, M.D.,                       )
                                                       )
        Defendants-Appellees.                          )



        Before: MARTIN and SUTTON, Circuit Judges; HOOD, District Judge.*


        PER CURIAM. Rogers A. Nwabue, a pro se Michigan resident, appeals the district court’s

dismissal of his civil rights complaint filed pursuant to 42 U.S.C. § 2000e et seq. (Title VII), and the

Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., for failure to state a claim

upon which relief could be granted.

        In September 2011, Nwabue sued Wayne State University School of Medicine, Detroit

Medical Center, and Dr. Theodore Jones, contending that he was discriminated against based on his

age and his Nigerian national origin. Nwabue claimed that the defendants refused to hire him as a

post-graduate year three (PGY3) resident when he applied for the position on July 28, 2009.

Nwabue asserted that the defendants lied to him and told him that the position had been filled.

However, it had in fact remained vacant until June 2011. Nwabue asserted in documents filed with


       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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the Equal Employment Opportunity Commission (EEOC) that Jones “emphasized” his age. The

defendants subsequently hired Pedro Argoti, who was thirty years old and Hispanic, during “the

same year” as a transfer student. Nwabue stated that he “c[ould] only conclude” that he was not

hired due to his age, his Nigerian national origin, “and in retaliation for complaining of a protected

activity.”

        On November 16, 2011, the defendants moved to dismiss the complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6). On November 17, 2011, Nwabue moved for a default judgment.
On November 21, 2011, the district court clerk denied Nwabue’s motion for a default judgment

because the defendants had filed a dispositive motion on November 16, 2011. Nwabue then filed

a response to the defendants’ motion to dismiss. He also moved for a default and/or summary

judgment, along with a request for injunctive relief.

        The district court denied Nwabue’s motion and granted the defendants’ motion to dismiss.

The district court determined that Nwabue had not proved hiring discrimination because he had not

alleged that he was qualified for the position and his allegations were merely conclusory assertions.

        In his timely appeal, Nwabue argues that the district court abused its discretion in denying

his motion for a default judgment. He contends that the defendants engaged in fraud and

misrepresentation because he had not waived service of process, as alleged by the defendants. Thus,
the defendants’ November 16, 2011, motion to dismiss, which was due no later than October 31,

2011, was late. However, because the defendants already had “plead[ed] or otherwise defend[ed]”

by filing their motion to dismiss before Nwabue filed his default motion, the district court clerk

properly denied Nwabue’s motion. See Fed. R. Civ. P. 55(a).

        Nwabue also argues that the district court erred in dismissing his civil rights claims pursuant

to 42 U.S.C. §§ 1981, 1983, and 1985. Nwabue first alleged violations of §§ 1981, 1983, and 1985

in his motion for summary judgment. This motion was filed after the defendants had filed their

motion to dismiss. Nwabue did not seek to amend his complaint to include these civil rights claims.
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Further, the district court did not address these claims in its dismissal of Nwabue’s complaint.

Therefore, we need not consider these claims on appeal. See Guzman v. U.S. Dep’t of Homeland

Sec., 679 F.3d 425, 429–30 (6th Cir. 2012).

        Regarding Nwabue’s Title VII and ADEA claims, we review the district court’s decision de

novo. Benzon v. Morgan Stanley Distribs., Inc., 420 F.3d 598, 605 (6th Cir. 2005). The complaint

will survive a motion to dismiss if it “contain[s] 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)).

        To establish a Title VII or an ADEA employment discrimination claim, a plaintiff must

present either direct evidence of discrimination, or circumstantial evidence permitting an inference

of discriminatory treatment. Carter v. Univ. of Toledo, 349 F.3d 269, 272-73 (6th Cir. 2003). Direct

evidence of discrimination is evidence that, “if believed, requires the conclusion that unlawful

discrimination was at least a motivating factor in the employer’s actions.” Wexler v. White’s Fine

Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (internal quotation marks and citation omitted).

To establish a prima facie case of hiring discrimination based on circumstantial evidence, a plaintiff

must show “(1) that he is a member of a protected class; (2) that he applied for, and did not receive,

a job; (3) that he was qualified for the job; and (4) that a similarly-situated person who was not in
the plaintiff’s protected class received the job.” Seay v. Tenn. Valley Auth., 339 F.3d 454, 463 (6th

Cir. 2003).

        Nwabue contends that he filed a well-pleaded complaint that contained sufficient facts to

meet Twombly’s plausibility standard. However, Nwabue’s alleged facts and arguments are simply

conclusory.    He has failed to allege facts sufficient to support a reasonable inference of

discrimination based on circumstantial evidence or retaliation. See Iqbal, 556 U.S. at 678; Seay, 339

F.3d at 463.
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                                               -4-

       Nwabue has asserted both in his complaint and on appeal that the PGY3 position was never

filled. He claims in his appellate brief that Argoti was hired in February 2009, which was before he

allegedly applied for the position in July 2009. Thus, Nwabue has not alleged any facts indicating

that a similarly situated person obtained the particular position for which he applied. See Seay, 339

F.3d at 463. Furthermore, although Nwabue contends on appeal that he was qualified for the PGY3

position, he made this assertion for the first time in his response to the defendants’ motion to

dismiss. Nwabue did not move to amend his complaint to include this claim. Therefore, the district
court did not consider the argument and we need not consider it on appeal. See Guzman, 679 F.3d

at 429–30. Finally, Nwabue did not allege any facts or arguments in his complaint indicating that

he was engaging in a protected activity that resulted in retaliation by the defendants. See Lindsay

v. Yates, 578 F.3d 407, 418 n.10 (6th Cir. 2009).

       The district court’s judgment is affirmed.
