     Case: 14-20167      Document: 00512802665         Page: 1    Date Filed: 10/14/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-20167
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 14, 2014
JOSEPH CHHIM,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

ALDINE INDEPENDENT SCHOOL DISTRICT,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-2623


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Joseph Chhim, proceeding pro se, moves for leave to proceed in forma
pauperis (IFP) on appeal from the dismissal of his amended complaint, through
which he sought relief under Title VII of the Civil Rights Act of 1964 for
discrimination on the basis of race, color, and national origin. Chhim, an Asian
male originally from Cambodia, alleged that he was dismissed from his work
as a substitute custodian with the Aldine Independent School District (Aldine)


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-20167

after he advised a supervisor that he did not know how to operate a weed eater
and that other substitute custodians outside his protected class were treated
more favorably than he was treated. Chhim also complained about Aldine’s
opposition to his receipt of unemployment benefits through the Texas
Workforce Commission, and he made a hostile work environment claim.
      The district court dismissed the amended complaint for failure to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the court
denied Chhim’s request for IFP status on appeal.     By moving to proceed IFP
on appeal, Chhim challenges the district court’s certification. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      We review de novo a dismissal under Rule 12(b)(6). Bass v. Stryker
Corp., 669 F.3d 501, 506 (5th Cir. 2012). “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, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
complaint need not contain “detailed factual allegations” but must state “more
than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555.
      Chhim first complains that his due process rights were violated when
the district court dismissed his case with prejudice without allowing any
discovery regarding his factual allegations. This argument is without merit in
light of the scope and purpose of Rule 12(b)(6). See Sullivan v. Leor Energy,
LLC, 600 F.3d 542, 546 (5th Cir. 2010).
      Chhim failed to state a claim for disparate treatment under Title VII.
His complaint and amended complaint did not allege any facts, direct or
circumstantial, that would suggest Aldine’s actions were based on Chhim’s
race, color, or national origin or that Aldine treated similarly situated



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                                   No. 14-20167

employees of other races or national origin more favorably. See Kanida v. Gulf
Coast Med. Personnel LP, 363 F.3d 568, 576 (5th Cir. 2004). Instead, for the
first time on appeal, he alleges specifically that two other substitute
custodians—a Hispanic female and a black male—were assigned to “inside
only” work to support his claim that he was subjected to disparate treatment.
This court generally does not review arguments raised for the first time on
appeal. Celanese Corp. v. Martin K. Eby Constr. Co., 620 F.3d 529, 531 (5th
Cir. 2010).
      Similarly, Chhim failed to state a claim that Aldine’s alleged
discrimination against him created a hostile work environment, as he did not
allege any facts linking alleged harassment with his race or national origin.
See Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002). Accordingly,
because Chhim “failed to raise [his] right to relief above the speculative level,”
the district court did not err in dismissing his amended complaint under Rule
12(b)(6). Bass, 669 F.3d at 506.
      For the first time on appeal, Chhim makes an age discrimination claim,
but it is too late to raise this claim now. See Celanese, 620 F.3d at 531.
      Chhim’s appeal lacks arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion for leave to
proceed IFP is denied and the appeal is dismissed as frivolous. See Baugh, 117
F.3d at 202 n.24; 5TH CIR. R. 42.2. His motion for the appointment of counsel
also is denied.
      MOTIONS DENIED; APPEAL DISMISSED.




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