     Case: 18-20053      Document: 00514882806         Page: 1    Date Filed: 03/21/2019




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

                                                                                  FILED
                                      No. 18-20053                          March 21, 2019
                                                                             Lyle W. Cayce
SHIRLEY DAVIS,                                                                    Clerk


                            Plaintiff - Appellant

v.

TEXAS HEALTH AND HUMAN SERVICES COMMISSION,

                             Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CV-1579


Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
PER CURIAM:*
       Shirley Davis appeals the district court’s dismissal of her fourth attempt
to plead discrimination and retaliation claims against her former employer,
the Texas Health and Human Services Commission. We affirm the district
court’s dismissal.




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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

                                       A.
      Davis is a sixty-three-year-old African American woman, residing in
Houston, Texas. Beginning in 2007, she worked as an Independent Living
Worker for the Texas Health and Human Services Commission’s (THHSC)
Department of Assistive and Rehabilitative Services. In 2014, Davis was
assigned a new supervisor, who Davis alleges “continuously subjected Davis to
disparate treatment in comparison to her similarly situated counterpart.”
Beginning in January 2016, Davis “filed multiple grievances” within THHSC
“complaining of [her supervisor’s] discriminatory conduct.”
      In the summer of 2016, THHSC was reorganizing its Department of
Assistive and Rehabilitative Services, and Davis alleges that her supervisor
and “other management officials, denied Davis transfer and reassignment for
a new position” as part of that reorganization. Davis was not selected for
positions within the agency, did not receive communications regarding pending
applications, and throughout the summer, her supervisor “conceal[ed]” new
positions from Davis. Her supervisor meanwhile transferred Davis’s colleague
to a “new assignment,” “instead of Davis.” Like Davis, this colleague was an
Independent Living Worker under the same supervisor; unlike Davis, he was
a Hispanic male in his thirties. Davis allegedly was “more qualified than [her
colleague] because she had more experience and qualifications.”
      After working at THHSC for almost ten years with “a satisfactory or
above performance record,” Davis was terminated. Following Davis’s
termination, her supervisor falsely communicated to state agencies that Davis
had retired. Davis is currently jobless.
                                       B.
      Davis filed her original complaint on May 23, 2017. In the following
months, the district court three times granted Davis leave to amend her
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                                        No. 18-20053
complaint to cure pleading deficiencies. Her Third Amended Complaint
purports to bring claims against THHSC for discrimination on the basis of race
and sex as well as unlawful retaliation, in violation of Title VII of the Civil
Rights Act of 1964, seeking damages and attorney’s fees.
      THHSC moved to dismiss the Third Amended Complaint for failure to
state a claim upon which relief could be granted. The district court granted the
motion. In a memorandum order, the district court explained that Davis’s
“scant descriptions of the allegedly discriminatory actions fail to include any
details about how the events she alleges were discriminatory” or that she faced
retaliation for Title VII protected activity. Rather than alleging facts, Davis
relied on conclusory legal statements. In light of the unsuccessful efforts to
plead sufficiently, the court deemed continued attempts futile, and dismissed
Davis’s complaint with prejudice. Davis appeals the district court’s dismissal
of her sex- and race-discrimination claims and her retaliation claim.

                                              II.

      We have appellate jurisdiction over this appeal from a final judgment of
the district court. 1 The complaint raises a federal question, alleging violations
of Title VII of the Civil Rights Act of 1964. We review the district court’s order
on a Rule 12(b)(6) motion de novo, 2 and accept the well-pleaded facts as true
and consider them in the light most favorable to the plaintiff. 3
                                              A.
      To begin, Davis argues the district court erred in applying an
“evidentiary standard” when evaluating the sufficiency of her Third Amended



      1   28 U.S.C. § 1291.
      2   Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (per curiam).
      3   Id.
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Complaint. Davis instead invokes a “notice pleading standard,” arguing “there
is no requirement that specific facts are necessary,” but that she nonetheless
pleaded sufficient facts to state plausible claims for Title VII discrimination
and retaliation. We disagree. The district court applied the correct standard,
citing Bell Atlantic Corporation v. Twombly for the requirement that to survive
a Rule 12(b)(6) motion, a complaint must allege sufficient “facts to state a claim
to relief that is plausible on its face.” 4
                                              B.
      Title VII of the 1964 Civil Rights Act prohibits an employer from
“fail[ing] or refus[ing] to hire or . . . discharg[ing] any individual, or otherwise
to discriminate against any individual with respect to his [or her]
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 5 While at this
juncture, a plaintiff need not submit evidence to establish the prima facie case
for discrimination, she must plead sufficient facts on all of the ultimate
elements of the claim to make her case plausible. 6 For a claim of disparate
treatment, she must at least include facts giving rise to a reasonable inference
of plausibility that (1) she belongs to a protected class; (2) she applied for and
was qualified for a position for which applicants were being sought; (3) she was
rejected; and (4) a person outside of her protected class was hired for the
position. 7 When the plaintiff made no application, she must plead facts “that
such an application would have been a futile gesture.” 8



      4   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
      5   42 U.S.C. § 2000e–2(a)(1).
      6   Chhim, 836 F.3d at 470.
      7   Id.
      8   Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 406 (5th Cir. 1999).
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                                    No. 18-20053
      Davis cannot survive the motion to dismiss because she has not pleaded
facts giving rise to a reasonable inference that she applied for and was qualified
for the position that ultimately went to her colleague. Davis alleges she applied
for positions within THHSC but without specifying when and for what
positions. She alleges that during the agency’s reorganization she was denied
reassignment and was not selected for positions within THHSC, again without
alleging the positions for which she was not selected. Davis alleges that during
the period she was applying for positions within the agency, her supervisor
transferred her colleague—a Hispanic male—to a “new assignment” “instead
of Davis”—an African American woman. But Davis does not identify the
position nor whether Davis and her colleague both applied for it. Davis alleges
no facts from which the district court could plausibly infer she had applied for
the unnamed position, or alternatively that her application would have been
futile. Davis’s pleading leaves the key relations between applications,
positions, and decisions ambiguous—where addressed at all.
      Davis was given multiple chances to plead her claim adequately, with
the district court specifically instructing counsel to include “specific allegations
on the dates and positions the plaintiff applied for and did not receive.” On her
fourth attempt Davis still fails to plead the bare minimum to sustain her claim.
The district court did not err in granting the motion to dismiss this claim.
                                         C.
      Title VII also prohibits employers from retaliating against an employee
who opposes, complains, or files a charge raising her employer’s discrimination
on the basis of race, color, religion, sex, or national origin. 9 The prima facie
elements for retaliation are that (1) the plaintiff engaged in activity protected


      9   42 U.S.C. § 2000e-3(a).


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                                        No. 18-20053
by Title VII; (2) that she was subject to an adverse employment action; and
(3) a causal connection between her participation in the protected activity and
the adverse employment decision. 10 “‘[A] vague complaint, without any
reference to an unlawful employment practice under Title VII, does not
constitute protected activity.’” 11 To survive a Rule 12(b)(6) motion, the plaintiff
must at least plead facts giving rise to a reasonable inference of the claim’s
plausibility.
       Davis’s Third Amended Complaint alleges she was an employee of the
THHSC’s Department of Assistive and Rehabilitative Services. Davis alleges
her supervisor subjected her “to disparate treatment in comparison to her
similarly situated counterpart,” and that beginning in January 2016 Davis
“filed multiple grievances” complaining of her supervisor’s “discriminatory
conduct.” Davis does not allege facts regarding the alleged discrimination (note
that the alleged discriminatory hiring decision occurred later, in the summer
of 2016). Nor does she plead facts demonstrating “disparate treatment” relative
to her “similarly situated counterpart” nor how this differential treatment
relates to Title VII discrimination (i.e. the characteristics with respect to which
Davis and her counterpart were similarly situated but differentially treated).
The complaint requires more to plausibly describe Title VII discrimination.
The district court did not err in dismissing this claim.

                                               III.

       We AFFIRM the district court’s dismissal of Davis’s discrimination and
retaliation claims.




       10   Shackelford, 190 F.3d at 407–08.
       11Paske v. Fitzgerald, 785 F.3d 977, 986 (5th Cir. 2015) (quoting Davis v. Dall. Indep.
Sch. Dist., 448 F. App’x. 485, 493 (5th Cir. 2011) (per curiam)).
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