                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-1589


MICHAEL RODRIGUEZ,

                    Plaintiff - Appellant,

             v.

ELON UNIVERSITY,

                    Defendant - Appellee.



Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Loretta C. Biggs, District Judge. (1:17-cv-00165-LCB-JLW)


Submitted: October 30, 2018                                 Decided: November 30, 2018


Before WYNN and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Eugene E. Lester, SHARPLESS & STAVOLA, PA, Greensboro, North Carolina, for
Appellant. Richard Rainey, Charlotte, North Carolina, Beth Tyner Jones, Rebecca C.
Fleishman, Samuel B. Hartzell, WOMBLE BOND DICKINSON (US) LLP, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

         Michael Rodriguez appeals the district court’s order granting summary judgment

to his former employer, Elon University, on his discrimination claim raised pursuant to

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17

(West 2012 & Supp. 2018), and 42 U.S.C. § 1981 (2012). We affirm the district court’s

order.

         We “review[] de novo [a] district court’s order granting summary judgment.”

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 565 n.1 (4th Cir. 2015). “A

district court ‘shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

Id. at 568 (quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable jury

could return a verdict for the nonmoving party.” Id. (internal quotation marks omitted).

In determining whether a genuine dispute of material fact exists, “we view the facts and

all justifiable inferences arising therefrom in the light most favorable to . . . the

nonmoving party.” Id. at 565 n.1 (internal quotation marks omitted). However, “the

nonmoving party must rely on more than conclusory allegations, mere speculation, the

building of one inference upon another, or the mere existence of a scintilla of evidence.”

Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013).




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       To establish a failure to promote claim under Title VII, * a plaintiff must first make

a prima facie showing “that he (1) is a member of a protected class; (2) applied for the

position in question; (3) was qualified for the position; and (4) was rejected for the

position under circumstances giving rise to an inference of unlawful discrimination.”

Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 189 (4th Cir. 2004). Rodriguez

contends that the district court erred in concluding that he failed to establish his prima

facie case, arguing that the department chair contacting a white candidate to replace him

as Director of the Sales Center and Elon promoting another professor with allegedly

lesser credentials gives rise to an inference of discrimination.

       We conclude that the district court found that this evidence does not create an

inference of discrimination. A Title VII plaintiff can establish a prima facie case by

showing that his position “remained open or was filled by similarly qualified applicants

outside the protected class.” Miles v. Dell, Inc., 429 F.3d 480, 485 (4th Cir. 2005).

However, as Elon correctly argues, the department chair recommended granting

Rodriguez tenure. This negates any discriminatory inference from the chair contacting a

white candidate to replace Rodriguez. See Proud v. Stone, 945 F.2d 796, 797 (4th Cir.

1991). Additionally, the professor who received a promotion whom Rodriguez alleges

was less qualified than him was not a tenure-track professor and thus does not qualify as

an adequate comparator. See Ruiz v. Cty. of Rockland, 609 F.3d 486, 494 (2d Cir. 2010)


       *
        Title VII and § 1981 claims are governed by the same standard. Guessous v.
Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016).


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(“[T]he comparator must be similarly situated to the plaintiff in all material respects.”

(internal quotation marks omitted)).

       Next, Rodriguez argues that the district court erred in rejecting his constructive

discharge claim. To establish constructive discharge, Rodriguez was required to show

“(1) the deliberateness of [Elon]’s actions, motivated by [discriminatory] bias, and (2) the

objective intolerability of the working conditions.” Freeman v. Dal-Tile Corp., 750 F.3d

413, 425 (4th Cir. 2014) (internal quotation marks omitted). Mere “dissatisfaction with

work assignments, a feeling of being unfairly criticized, or difficult or unpleasant

working conditions are not so intolerable as to compel a reasonable person to resign.”

Honor, 383 F.3d at 187 (internal quotation marks omitted).

       We conclude that the district court correctly rejected Rodriguez’s constructive

discharge claim. Elon followed its customary policy of offering Rodriguez a one-year

terminal contract when it denied him tenure. The fact that it offered Rodriguez a terminal

contract shows that it did not intend for him to resign. Moreover, the mere fact that

Rodriguez may have felt unwelcome after he was denied tenure is not sufficient to show

that he suffered from intolerable working conditions. See Williams v. Giant Food Inc.,

370 F.3d 423, 434 (4th Cir. 2004) (concluding allegations that plaintiff’s “supervisors

yelled at her, told her she was a poor manager and gave her poor evaluations, chastised

her in front of customers, and once required her to work with an injured back” failed to

establish constructive discharge claim).

       Finally, Rodriguez contends that the district court erred in failing to consider his

retaliation claim. We have consistently held that plaintiffs are “not required to use any

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precise or magical words in their pleading.” Stevenson v. City of Seat Pleasant, 743 F.3d

411, 418 (4th Cir. 2014). Instead, a claim must “afford the opposing party fair notice of

the nature and basis or grounds of the claim and a general indication of the type of

litigation involved.”   Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995) (internal

quotation marks omitted). However, “[i]t is [equally] well-established that parties cannot

amend their complaints through briefing or oral advocacy.” S. Walk at Broadlands

Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir.

2013).

         Here, Rodriguez’s complaint only alleged a discrimination claim and included no

facts supporting a retaliation claim. While Rodriguez contends that he only learned of

evidence of retaliation during discovery, he failed to file a motion to amend his

complaint. See Drager v. PLIVA USA, Inc., 741 F.3d 470, 474-75 (4th Cir. 2014)

(holding that district court did not abuse its discretion in denying motion to amend when

plaintiff did not file motion to amend or proposed amended complaint).          Although

Rodriguez contends that his evidence of retaliation can support his properly pled

discrimination claim, Title VII contains two different statutory provisions, one

prohibiting discrimination and another retaliation. 42 U.S.C.A. §§ 2000e-2, 2000e-3(a).

Moreover, the district court correctly found that Rodriguez failed to exhaust this claim

because his EEOC charge only alleged facts supporting a discrimination claim. See

Miles, 429 F.3d at 492 (holding that plaintiff failed to exhaust administrative remedies

when she “did not check the retaliation box on her charge form, and the narrative

explaining her charge made no mention of retaliation”).

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      Accordingly, we affirm the district court’s order. 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




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