     Case: 10-20142     Document: 00511240943          Page: 1    Date Filed: 09/22/2010




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

                                                  FILED
                                                                        September 22, 2010

                                     No. 10-20142                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



JOSEPH CHHIM,

                                                   Plaintiff - Appellant

v.

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-3032


Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Joseph Chhim appeals the district court’s dismissal of his case for failure
to state a claim. We find no error and AFFIRM.
        Chhim filed suit under Title VII of the Civil Rights Act of 1964, alleging
that the Spring Branch Independent School District discriminated against him
on the basis of race, national origin, and age. Chimm is an Asian male originally



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-20142

from Cambodia. He was 63-years old when the acts of alleged discrimination
started.
      The crux of Chhim’s complaint was that Spring Branch engaged in
unlawful employment discrimination when it refused to hire him for a custodial
supervisor position. Spring Branch’s position description stated that language
skills in “Spanish and English” were “highly desirable.” Chhim does not speak
Spanish and was not hired. The position was filled by a Hispanic female fluent
in both Spanish and English.
      Chhim’s complaint stated that Spring Branch engaged in racial and
national original discrimination, arguing: “Because of the plaintiff’s race and his
national origin the defendant has failed to employ the plaintiff or to hire the
plaintiff because he has no ability to speak, write, read, and to translate fluently
in Spanish languages which are the custodial supervisor’s qualifications . . . .”
      The district court granted Spring Branch’s motion to dismiss for failure to
state a claim. See Fed. R. Civ. Pro. 12(b)(6). The district court held that Chhim
“failed to state a claim for national origin or race discrimination. Non-bilingual
individuals are not a protected class under Title VII. Moreover, a preference, or
even requirement, that employees have bilingual ability does not give rise to a
discrimination claim based on national origin or race.”
      We review de novo a dismissal under Rule 12(b)(6). In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). “To survive a Rule
12(b)(6) motion to dismiss, a complaint does not need detailed factual
allegations, but must provide the plaintiff’s grounds for entitlement to relief –
including factual allegations that when assumed to be true raise a right to relief
above the speculative level.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007) (internal quotations and citation omitted).
      An employer may not discriminate based on the “race, color, religion, sex,
or national origin”of its applicants for employment. 42 U.S.C. § 2000e-2(a)(1).

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                                   No. 10-20142

A person’s language is not a listed category. We once noted that language
requirements could be used as “a covert basis for national origin discrimination,”
but also required evidence that discrimination was the purpose or result. Garcia
v. Gloor, 618 F.2d 264, 268, 270 (5th Cir. 1980).
      Spring Branch’s preference for bilingual employees did not discriminate
on the basis of race or national origin.
      Chhim argues that he should have been allowed discovery to determine
whether speaking Spanish was only a preference as Spring Branch argues or
was actually a requirement. The district court held, though, that neither a
preference nor a requirement of bilingual ability would constitute discrimination
based on race or national origin. We agree. The requested discovery would not
have provided any evidence relevant to the resolution of the case.
      For the first time on appeal, Chhim makes a disparate treatment
argument. It is too late to raise it now. Stewart Glass & Mirror, Inc. v. U.S.
Auto Glass Discount Centers, Inc., 200 F.3d 307, 316-17 (5th Cir. 2000).
      Finally, Chhim presents an age discrimination claim on appeal. Chhim’s
district court pleadings contain no age discrimination claims. His complaint,
first amended complaint, second amended complaint, Response to Defendant’s
Motion to Dismiss, and Motion for Reconsideration discuss only race and
national origin. It is too late for that claim, too. Id.
      The judgment of the district court is AFFIRMED.




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