Gilbert Amis, III v. Alejandro Mayorkas ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1544
GILBERT H. AMIS, III,
Plaintiff - Appellant,
v.
ALEJANDRO MAYORKAS, Secretary, U.S. Department of Homeland Security,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Frank D. Whitney, District Judge. (3:20-cv-00541-FDW-DCK)
Submitted: December 28, 2021 Decided: April 12, 2022
Before DIAZ, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Kristen E. Finlon, ESSEX RICHARDS, P.A., Charlotte, North Carolina; A.
Marques Pitre, PITRE & ASSOCIATES, LLC, Washington, D.C., for Appellant. William
T. Stetzer, Acting United States Attorney, Elizabeth Greenough, Assistant United States
Attorney, James M. Sullivan, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gilbert H. Amis, III, appeals the district court’s order dismissing his complaint
which raised discrimination and retaliation claims pursuant to Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. §§ 2000e to 2000e-17, the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §§ 621 to
634, and the Rehabilitation Act of 1973 (RA), as amended, 29 U.S.C. §§ 701 to 796l, and
a retaliation claim under Title VII. Finding no reversible error, we affirm.
We review de novo a district court’s order granting a motion to dismiss under Fed.
R. Civ. P. 12(b)(6), “accept[ing] the factual allegations in the complaint as true and
constru[ing] them in the light most favorable to the nonmoving party.” Rockville Cars,
LLC v. City of Rockville, 891 F.3d 141, 145 (4th Cir. 2018). 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) (internal
quotation marks omitted). In other words, “a plaintiff must provide sufficient detail to
show that he has a more-than-conceivable chance of success on the merits.” Upstate
Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 645 (4th Cir. 2018)
(cleaned up), vacated on other grounds, 140 S. Ct. 2736 (2020). And we may “affirm on
any grounds supported by the record.” Attkisson v. Holder, 925 F.3d 606, 624 (4th Cir.
2019) (internal quotation marks omitted).
A plaintiff is not required to plead a prima facie case of discrimination to survive a
motion to dismiss. See McCleary-Evans v. Md. Dep’t of Transp., 780 F.3d 582, 584-85
(4th Cir. 2015). Instead, Amis must allege enough facts to show that he was not promoted
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because of his sex, age, or disability. Id. at 585. A plaintiff does not state a claim if his
allegations of discrimination “stop short of the line between possibility and plausibility of
entitlement to relief.” Id. at 586 (cleaned up).
We conclude that Amis failed to meet this standard. Amis alleged that he was more
qualified than the person who received the promotion. However, that was a conclusory
allegation we need not accept. Amis did not allege any facts about the position other than
the desired experience that the employer sought. And his complaint discusses only one of
three requirements for an applicant to qualify for the position. Moreover, he failed to allege
anything about the job duties that might raise an inference of discriminatory animus. After
all, both he and the person who received the promotion worked for the employer in
supervisory roles.
Furthermore, Amis was 1 of 39 qualified individuals who applied for the position
and did not receive an interview. Based on Amis’ theory, any of these 39 individuals could
state a claim for discrimination simply by alleging that they were more qualified. And
while it is reasonable to infer that the interview panel knew Amis’ sex based on his first
name, Amis did not allege in his complaint that he disclosed his age or disability on his
employment application. Thus, there is no basis to conclude that the interview panel was
aware of Amis’ sex, age, or disability when they selected candidates to interview.
Turning to the retaliation claim, to state a prima facie case of retaliation, a plaintiff
must allege “(1) that he engaged in protected activity; (2) that his employer took an adverse
action against him; and (3) that a causal connection existed between the adverse activity
and the protected action.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 578 (4th
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Cir. 2015) (cleaned up). A plaintiff may attempt to demonstrate that a protected activity
caused an adverse action through two routes. First, a plaintiff may establish that the
adverse act bears sufficient temporal proximity to the protected activity. See Clark Cnty.
Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (per curiam). Second, a plaintiff may
establish the existence of other facts that suggest the adverse employment action occurred
because of the protected activity. See Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir.
2007) (recognizing that “other relevant evidence may be used to establish causation” where
temporal proximity is missing). While Amis was not required to plead facts to establish a
prima facie case, he must “allege facts to satisfy the elements of a cause of action created
by” Title VII. See McCleary-Evans, 780 F.3d at 585.
The district court correctly determined that Amis failed to allege a plausible
retaliation claim. Amis does not allege when he engaged in prior protected activity and
thus may not proceed through the temporal proximity method. Moreover, Amis did not
sufficiently allege that the relevant decisionmakers in this case were aware that he had
engaged in prior protected activity. His allegation that many managerial personnel were
aware of the activity and that the decisionmakers were managerial personnel is not enough
to infer a retaliatory animus. Amis does not allege how many managerial personnel knew
about his protected activity, let alone how many managerial personnel there are in total.
Without more, we can’t find a “more-than-conceivable chance” that the decisionmakers
knew of his protected activity. Upstate Forever, 887 F.3d at 645.
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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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