Nichelson v. Untd Dominion Realty, et al

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 8, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10235
Summary Calendar
GREGORY A. NICHELSON,
Plaintiff-Appellant,
versus
UNITED DOMINION REALTY TRUST; TOM TOOMEY; CHERYL PUCCI;
DENISE ROCHE; SANDRA KELLER; PEGGY COVEY; JAIME LACAZE; DOES
1 THROUGH 6,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CV-462-R
--------------------
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Gregory A. Nichelson has appealed the district court’s order
and judgment dismissing his pro se amended complaint, against
United Dominion Realty Trust (“UDRT”) and six individuals, for
failure to state a claim upon which relief may be granted. This
court reviews de novo a district court’s dismissal under FED.
R. CIV. P. 12(b)(6) for failure to state a claim. Brown v.
NationsBank Corp., 188 F.3d 579, 585 (5th Cir. 1999).

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A complaint may not be dismissed under Rule 12(b)(6) unless it
appears certain that the plaintiff cannot prove any set of facts
in support of his claim that would entitle him to relief. Id.
“[R]egardless of whether the plaintiff is proceeding pro se or is
represented by counsel, conclusory allegations or legal
conclusions masquerading as factual conclusions will not suffice
to prevent a motion to dismiss.” Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quotation marks
omitted).
“[I]n deciding a motion to dismiss for failure to state a
claim, courts must limit their inquiry to the facts stated in the
complaint and the documents either attached to or incorporated in
the complaint.” Lovelace v. Software Spectrum Inc., 78 F.3d
1015, 1017 (5th Cir. 1996). Nichelson’s original appellate brief
and reply brief are replete with factual assertions and legal
claims that were not made in the amended complaint. We have not
considered those new factual assertions and legal claims in
reviewing whether the district court’s erred in dismissing the
amended complaint.
In his amended complaint, Nichelson asserted that UDRT’s
“Directors and Human Resources Managers” had conspired
fraudulently to terminate his employment with UDRT, while he was
on leave because of the terminal illness of his grandmother, in
violation of the Family and Medical Leave Act (“FMLA”).
Nichelson complained that he had been blacklisted because of

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untrue negative information in his personnel file, i.e., that he
was ineligible to be rehired. Nichelson complained he had been
unable to secure employment in the property management field
because two individual defendants had conveyed that false
information to other would-be employers. Nichelson complained
that he had earned commissions that were not paid at the time of
his termination.
These conclusional allegations do not state a claim upon
which relief can be granted and there is no reason to believe on
the basis of the amended complaint alone that Nichelson could
cure the deficiencies in his complaint through further amendment.
See Taylor, 296 F.3d at 378. To establish a prima facie case of
retaliation under the FMLA, a plaintiff must establish (1) that
he engaged in protected activity, (2) that he suffered an adverse
employment decision, and (3) that a causal connection existed
between the protected activity and the adverse employment
decision. Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319
(5th Cir. 1999). The third element may be satisfied by showing
either that “the plaintiff was treated less favorably than an
employee who had not requested leave under the FMLA,” or that
“the adverse decision was made because of the plaintiff’s request
for leave.” Bocalbos v. National Western Life Ins. Co., 162 F.3d
379, 383 (5th Cir. 1998). Nichelson did not allege adequately in
his amended complaint that there was a causal connection between
his FMLA protected leave and the adverse employment decision.

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See Chaffin, 179 F.3d at 319. There was also no factual
explication of the state-law liable and conversion claims. The
district court did not err in granting the motion to dismiss.
We contrue Nichelson’s “Notice of Emergency Reversal of
Order,” filed after entry of the order of dismissal but before
entry of the judgment, as a motion for relief from the order of
dismissal under FED. R. CIV. P. 60(b)(6). Under Rule 60(b)(6),
the district court may relieve a party from an order “upon such
terms as are just” and for any “reason justifying relief.” FED.
R. CIV. P. 60(b)(6). “A court may grant relief under [Rule]
60(b)(6) only under extraordinary circumstances.” Heirs of
Guerra v. United States, 207 F.3d 763, 767 (5th Cir. 2000). The
district court’s order denying the Rule 60(b)(6) motion is
reviewed for an abuse of discretion. Maddox v. Runyon, 139 F.3d
1017, 1020 (5th Cir. 1998).
Nichelson contended in his Rule 60(b)(6) motion that there
were outstanding discovery requests and his responses to those
requests would clarify the nature of those claims. Nichelson
attached to his “Notice,” copies of correspondence apparently
related to a complaint filed with the Equal Employment
Opportunity Commission. In the attached documents, Nichelson
complained that he was terminated wrongfully for job abandonment.
He stated that, while on approved family leave, he had attempted
unsuccessfully to communicate with his employer. Nichelson
complained that he was the victim of unlawful gender and racial

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discrimination because a female employee had been treated
differently and because the adverse job action occurred after
UDRT learned that he was in a bi-racial marriage. Nichelson
complained also that he had earned commissions and vacation pay
that were withheld from him improperly.
Although these conclusional assertions elaborate to some
degree on the nature of Nichelson’s claims, they do not
demonstrate that extraordinary relief was warranted in that
Nichelson would be able to assert a prima facie case of
retaliation under the FMLA if given another opportunity to amend
his complaint. See Chaffin, 179 F.3d at 319. There was no
mention of gender or racial discrimination in the amended
complaint. The district court did not abuse its discretion in
denying the Rule 60(b)(6) motion. See Maddox, 139 F.3d at 1020.
Previously, the clerk granted Nichelson’s motion for leave
to file record excerpts in excess of 40 pages, subject to
reconsideration by this panel. Because the record excerpts
include documents that are not in the record, the clerk’s order
is VACATED and the motion is DENIED. Nichelson has moved for
leave to amend his complaint and for appointment of counsel.
Those motions are DENIED. The appellees have moved for a
protective order and for an award of attorneys’ fees. That
motion is DENIED. The appeal is DISMISSED AS FRIVOLOUS. See
FED. R. APP. P. 34(a)(2)(A).
APPEAL DISMISSED; MOTIONS DENIED.

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