                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-1856


GREGORY JEROME MILLER,

                Plaintiff - Appellant,

          v.

CAROLINAS HEALTHCARE SYSTEM,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.    Robert J. Conrad,
Jr., District Judge. (3:12-cv-00314-RJC-DSC)


Submitted:   November 27, 2013            Decided:   March 13, 2014


Before GREGORY, AGEE, and THACKER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Gregory Jerome Miller, Appellant Pro Se.      Kevin V. Parsons,
SMITH, PARSONS & VICKSTROM, PLLC, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Gregory     Jerome    Miller        appeals     the    district       court’s

order, accepting in part the magistrate judge’s recommendation,

and dismissing, pursuant to Fed. R. Civ. P. 12(b)(6), Miller’s

action alleging violations of Title VII of the Civil Rights Act

of    1964,   as   amended      (“Title       VII”),    42    U.S.C.A.      §§     2000e   to

2000e–17 (West 2003 & Supp. 2013).                     Miller, an African-American

male,    alleged      that    his   employer,       Carolinas        HealthCare       System

(“CHS”), discriminated and retaliated against him in violation

of Title VII.         Specifically, Miller asserted (1) discrimination

based on sex, age, race, and color; (2) blacklisting, invasion

of privacy, and violation of North Carolina Recording Law; (3)

failure to promote based on race; (4) hostile work environment;

and     (5)    retaliation.             The       magistrate        judge        recommended

dismissing      all     but    Miller’s       Title     VII    claims       of    disparate

treatment based on race, failure to promote, and retaliation.

In granting CHS’s motion to dismiss for failure to state a claim

upon which relief may be granted on all claims, the district

court    held      that      Miller’s    allegations          were    insufficient         to

support a prima facie case under Title VII.                           For the reasons

that follow, we affirm in part, vacate in part, and remand.

              This court reviews de novo a district court’s order

dismissing a complaint for failure to state a claim, assuming

that all well-pleaded nonconclusory factual allegations in the

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complaint are true.           Aziz v. Alcolac, Inc., 658 F.3d 388, 391

(4th Cir. 2011).           A Rule 12(b)(6) motion challenges the legal

sufficiency of the complaint.                Francis v. Giacomelli, 588 F.3d

186, 192 (4th Cir. 2009).

             “To    survive    a    motion    to    dismiss      pursuant      to   Rule

12(b)(6), plaintiff’s ‘[f]actual allegations must be enough to

raise a right to relief above the speculative level,’ thereby

‘nudg[ing]       their    claims    across    the   line    from     conceivable       to

plausible.’”        Aziz, 658 F.3d at 391 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)).                 While a court must accept

the material facts alleged in the complaint as true, Edwards v.

City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999), statements

of bare legal conclusions “are not entitled to the assumption of

truth”     and   are     insufficient    to   state    a    claim.          Ashcroft   v.

Iqbal, 556 U.S. 662, 679 (2009); see also Giacomelli, 588 F.3d

at   193    (4th    Cir.    2009)    (“[N]aked      assertions         of    wrongdoing

necessitate      some     factual    enhancement      within     the    complaint      to

cross      the     line    between      possibility        and    plausibility         of

entitlement to relief.”) (internal quotation marks omitted).

             “Although the Supreme Court has . . . made clear that

the factual allegations in a complaint must make entitlement to

relief plausible and not merely possible, what Rule 12(b)(6)

does not countenance are dismissals based on a judge’s disbelief

of a complaint’s factual allegations.”                McLean v. United States,

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566 F.3d 391, 399 (4th Cir. 2009) (internal quotation marks,

alteration, and citations omitted).                       “Moreover, claims lacking

merit may be dealt with through summary judgment under Rule 56.”

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002).                               Finally,

a pro se complaint “is to be liberally construed, . . . and

. . .      must      be   held      to   less     stringent    standards       than    formal

pleadings drafted by lawyers.”                    Erickson v. Pardus, 551 U.S. 89,

94 (2007) (internal quotation marks and citations omitted).

                Miller’s       complaint        must    include    only    “a    short   and

plain statement of the claim showing that [he] is entitled to

relief.”          Fed. R. Civ. P. 8(a)(2).                As the Supreme Court has

recognized, specific facts are not necessary in a pleading, and

a plaintiff need only “give the defendant fair notice of what

the    .    .   .    claim     is     and   the    grounds     upon    which    it    rests.”

Erickson, 551 U.S. at 93 (internal quotation marks and citations

omitted).           Indeed, the Supreme Court has cautioned that a Title

VII plaintiff is not required to plead facts that constitute a

prima      facie       case.        See     Swierkiewicz,       534     U.S.    at    510-15.

However,        this      court     has     recognized     that       Swierkiewicz      “left

untouched the burden of a plaintiff to allege facts sufficient

to state all the elements of her claim.”                          Jordan v. Alternative

Res.       Corp.,      458     F.3d      332,     346   (4th    Cir.    2006)    (internal

quotation marks omitted).



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            Under      this       analysis,           we    conclude     that   the     district

court properly granted CHS’s motion to dismiss all claims except

Miller’s    claims      of    discrimination                based   on    race,    failure     to

promote, and retaliation.                  In analyzing Miller’s discrimination

and     retaliation         claims       under        the     burden-shifting          framework

adopted    by    the    Supreme          Court    in        McDonnell     Douglas      Corp.   v.

Green,     411    U.S.       792,        802-04        (1973),      the     district        court

essentially required Miller to allege a prima facie case as to

these     claims.           With        respect        to     Miller’s     claim       of    race

discrimination, the district court determined that dismissal was

appropriate because Miller offered no facts to support that he

was performing his job in a satisfactory manner.                                  The district

court also dismissed Miller’s failure to promote claim on the

ground that Miller failed to plead facts sufficient to address

the   second     element          of    his   prima         facie   case    which      requires

identification         of     a        specific       position. *          As     to    Miller’s

retaliation claim, the district court concluded Miller failed to

sufficiently allege that CHS had knowledge that he engaged in



      *
        In his amended complaint, Miller stated that CHS
discriminated against him when it failed to promote him to a
supervisor’s position.   Miller offered no other details with
respect to the position. We conclude Miller provided CHS “fair
notice of what the . . . claim is and the grounds upon which it
rests.” Erickson, 551 U.S. at 93 (internal quotation marks and
citations omitted).



                                                  5
protected      behavior     of    the     type     that     would     invoke      legal

protections of Title VII.

              In the employment discrimination context, however, a

plaintiff need not establish a prima facie case under McDonnell

Douglas in order to survive a motion to dismiss.                       Swierkiewicz,

534 U.S. at 510–11 (concluding that “the prima facie case . . .

is   an   evidentiary      standard,      not    a    pleading       requirement.”).

Complaints in such cases therefore “must satisfy only the simple

requirements of Rule 8(a).”            Id. at 513.

              Taking the allegations in Miller’s amended complaint

as true, we conclude that the district court erred in finding

Miller insufficiently pleaded a claim of race discrimination,

failure   to    promote,    and       retaliation.         We   conclude      Miller’s

amended complaint as to these three claims was sufficient to

survive   a    Rule   12(b)(6)    dismissal,         particularly      in    light   of

Miller’s pro se status.

              For   the   foregoing      reasons,     we    affirm     the    district

court's       dismissal     of    Miller’s         claims       of    hostile      work

environment, discrimination based on sex, age, and color; and

blacklisting,       invasion     of     privacy,     and    violation        of   North

Carolina Recording Law.           However, we hold that Miller’s claims

under Title VII for discrimination based on race, retaliation,

and failure to promote are sufficient to withstand Rule 12(b)(6)



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dismissal.      Accordingly, we vacate the judgment dismissing those

claims and remand for further proceedings.

           In    holding    that   these    claims   survive     a   motion    to

dismiss   under    Rule    12(b)(6),   we    express    no    opinion   on    the

ultimate merits of these claims.            On remand and after discovery,

the district court must determine whether issues of triable fact

exist on the elements of Miller’s claims.              We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                             AFFIRMED IN PART,
                                                              VACATED IN PART,
                                                                  AND REMANDED




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