                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-1650


DESHANE A. MCCASKEY,

                Plaintiff - Appellant,

          v.

JANA HENRY; YMCA OF GREATER CHARLOTTE,

                Defendants - Appellees.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Graham C. Mullen,
Senior District Judge. (3:10-cv-00390-GCM)


Submitted:   November 22, 2011            Decided:   January 17, 2012


Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


DeShane A. McCaskey, Appellant Pro Se.    Homer Bernard Tisdale,
III, Michael Lawrence Wade, Jr., OGLETREE, DEAKINS, NASH, SMOAK
& STEWART, PC, Charlotte, North Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

             DeShane A. McCaskey appeals the district court’s order

granting the Defendants’ motion to dismiss her complaint.                              In

her     complaint,         McCaskey         alleged      that       the     Defendants

discriminated       against     her    by    failing    to     promote     her   and   by

terminating her employment.                 For the reasons that follow, we

affirm in part and vacate and remand in part.

             We review de novo the grant of a Fed. R. Civ. P.

12(b)(6)     motion       to   dismiss      for   failure      to   state    a   claim.

Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th

Cir. 2010).         “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) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).                    Pro se parties’ pleadings

are to be construed liberally.               Erickson v. Pardus, 551 U.S. 89,

94 (2007) (per curiam).

             Title VII makes it “an unlawful employment practice

for    an   employer . . .       to    discriminate      against     any    individual

with    respect      to    [her]      compensation,      terms,      conditions,       or

privileges     of    employment,       because    of    such    individual’s      race,

color, religion, sex, or national origin.”                      42 U.S.C. § 2000e-

2(a) (2006).         In order to establish a prima facie claim of a

discriminatory failure to promote under Title VII, a plaintiff

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must show that:             “(1) she is a member of a protected group,

(2) there was a specific position for which she applied, (3) she

was qualified for that position, and (4) [her employer] rejected

her    application         under       circumstances      that     give       rise    to   an

inference of discrimination.”                 Williams v. Giant Food Inc., 370

F.3d 423, 430 (4th Cir. 2004).

                  The district court found that McCaskey met the first

two elements and declined to rule on the third.                               It dismissed

McCaskey’s complaint because it found that she had failed to

plead facts that gave rise to an inference of discrimination.

We disagree.             In her filings, McCaskey, who is black, asserts

that       she    was    denied    a    promised      promotion    to     a    supervisory

position and that, thereafter, a white female was promoted into

the supervisory position.                 A showing that a member outside of

the    protected          class    received       a    promotion       instead       of    the

plaintiff           is     sufficient       to        create      an      inference        of

discrimination.            Carter v. Ball, 33 F.3d 450, 458 (4th Cir.

1994).           McCaskey has thus alleged facts that give rise to an

inference of discrimination sufficient to survive a motion to

dismiss.          We therefore vacate the district court’s dismissal of

her failure to promote claim. *                   On remand, the district court


       *
       By this disposition, we indicate no view of the ultimate
resolution of McCaskey’s claim of discrimination.



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should determine whether McCaskey sufficiently pleaded that she

was qualified for the position.

            McCaskey’s        complaint         also        alleged    that    she      was

wrongfully      terminated     as    a    result       of    racial    discrimination.

McCaskey’s filings state that a black man was promoted to fill

her position after her termination.                    A claim of discriminatory

termination requires a showing that the position remained open

after the plaintiff’s termination or was filled by an applicant

outside    of    the    protected        class.        Hill     v.    Lockheed      Martin

Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en

banc).     McCaskey identified racial discrimination as the sole

basis of her complaint.             The district court properly found that

her claim of discriminatory termination fails because a member

of her protected class was promoted into her position after her

termination.

            Accordingly, we affirm the district court’s dismissal

of   McCaskey’s        wrongful     termination         claim.         We    vacate    the

dismissal of her failure to promote claim and remand so that the

district court may rule in the first instance on the alternative

grounds set forth in the Defendants’ motion to dismiss.                                 We

dispense     with      oral   argument       because         the     facts    and     legal




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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                AFFIRMED IN PART,
                                                 VACATED IN PART,
                                                     AND REMANDED




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