Melanie Brown v. Titan Protection & Consulting

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
MELANIE BROWN,
Plaintiff - Appellant,
v.
TITAN PROTECTION & CONSULTING,
Defendant - Appellee.
No. 21-3122
(D.C. No. 2:21-CV-02122-SAC-TJJ)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, BALDOCK, and EID, Circuit Judges.
_________________________________
Melanie Brown, pro se, appeals the district court’s order dismissing her claims
for discrimination and retaliation under Title VII of the Civil Rights Act of 1964
(Title VII) and the Age Discrimination in Employment Act of 1967 (ADEA).
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
April 5, 2022
Christopher M. Wolpert
Clerk of Court
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I. BACKGROUND
Ms. Brown worked as a security guard for Titan Protection & Consulting
(Titan) from June 3, 2019, until August 16, 2019, when her employment was
terminated. Her complaint alleged that on August 16, “[t]he defendant advise[d]
m[e] to come into the office on my day off and we had a conference meeting about
questions resulting to my unemploy[]ment. I, then responded with, no I have not
filed unemployment, but I did with a different employer other than, Titan Protection
& Consulting.” R., Vol. 1 at 8. Attached to the complaint was the administrative
complaint Ms. Brown filed on September 17, 2019, with the Kansas Human Rights
Commission (KHRC), in which she alleged that her employment was “terminated due
to my race, African-American, my color, medium skin toned, my sex, female, my
age, fifty-eight (58), and as acts of retaliation for having openly opposed acts and
practices forbidden by [Kansas law]. Id. at 12.
Titan filed a motion to dismiss for failure to state a claim under Fed. R. Civ. P.
12(b)(6). In her response in opposition, Ms. Brown explained her discrimination
claim was based on Titan’s actions on August 16 when it fired her because she “filed
for unemployment through [Titan],” when the only unemployment she filed was
“through [her] previous employer Allied Protection Security.” Id. at 37. However,
an exhibit attached to Ms. Brown’s response revealed that Titan terminated her
employment when it received information from a “DOL examiner[] [who]
determine[ed] [on] 8/6/19 . . . that [Ms. Brown] provided false documentation with
the purpose of unlawfully obtaining unemployment insurance benefits” from her
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previous employer. R., Vol. 2 at 7. And as grounds for her retaliation claim,
Ms. Brown stated that Titan “retaliated because of a [claim for unemployment she
filed against a previous employer] through the Kansas Dep[artment] of [L]abor.” Id.
at 11.
After considering the complaint and the factual allegations in her response, the
district court found that Ms. Brown failed to state plausible claims for relief and
granted Titan’s motion to dismiss. 1 Ms. Brown appeals.
II. STANDARD OF REVIEW
“We review a district court’s dismissal under . . . Rule . . . 12(b)(6) de novo.”
Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). Also relevant to
our review is the requirement that “[a]n appellant’s opening brief must identify
appellant’s contentions and the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies.” Bronson v. Swensen, 500 F.3d
1099, 1104 (10th Cir. 2007) (internal quotation marks omitted). This requirement
applies to pro se litigants. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840-41 (10th Cir. 2005). As a result, “we routinely have declined to consider
arguments that are not raised, or are inadequately presented, in an appellant’s
opening brief.” Bronson, 500 F.3d at 1104.
1 See Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001) (recognizing
that a “court [can] consider additional facts or legal theories asserted in a response
brief to a motion to dismiss if they [are] consistent with the facts and theories
advanced in the complaint”).
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Ms. Brown fails to advance any adequately developed arguments on appeal.
For example, she never discusses the grounds on which the district court granted
Titan’s motion to dismiss, nor does she cite to any legal authority. But even if
Ms. Brown had not waived the issues, our review reveals no error.
III. DISCUSSION
A. Rule 12(b)(6)
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain ‘a
short and plain statement of the claim showing that the pleader is entitled to relief.’”
Khalik, 671 F.3d at 1190. “[T]o withstand a Rule 12(b)(6) motion to dismiss, a
complaint must contain enough allegations of fact, taken as true, ‘to state a claim to
relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (Rule 8(a)(2)
“does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” (internal quotation
marks omitted)). “[I]n examining a complaint under Rule 12(b)(6), we will disregard
conclusory statements and look only to whether the remaining, factual allegations
plausibly suggest the defendant is liable.” Khalik, 671 F.3d at 1191.
“While the 12(b)(6) standard does not require that [the] [p]laintiff establish a
prima facie case in her complaint, the elements of each alleged cause of action help
to determine whether [p]laintiff has set forth a plausible claim.” Id. at 1192.
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B. The Failure to Plead Plausible Claims for Relief
“Title VII makes it unlawful ‘to discharge any individual, or otherwise to
discriminate against any individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.’” Id. (quoting 42 U.S.C. § 2000e-2(a)(1)). “A
plaintiff proves a violation of Title VII either by direct evidence of discrimination or
by following the burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 . . . (1973).” Id. Because there is no direct evidence of discrimination
in Ms. Brown’s case, the burden-shifting framework applies.
Under McDonnell Douglas, a three-step analysis requires the plaintiff first
prove a prima facie case of discrimination. To set forth a prima facie case
. . . , a plaintiff must establish that (1) she is a member of a protected class,
(2) she suffered an adverse employment action, (3) she qualified for the
position at issue, and (4) she was treated less favorably than others not in
the protected class.
Id. (citation omitted). The fourth element is sometimes described as the requirement
to show that “the challenged action took place under circumstances giving rise to an
inference of discrimination.” EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir.
2007).
“Title VII also makes it unlawful for an employer to retaliate against an
employee ‘because she has opposed any practice made an unlawful employment
practice by this subchapter.’” Khalik, 671 F.3d at 1192 (brackets omitted) (quoting
42 U.S.C. § 2000e-3(a)). “A plaintiff can . . . establish retaliation either by directly
showing that retaliation played a motivating part in the employment decision, or
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indirectly by relying on the three-part McDonnell Douglas framework.” Id. To state
a prima-facie retaliation claim at the first step, “a plaintiff must show (1) that she
engaged in protected opposition to discrimination, (2) that a reasonable employee
would have found the challenged action materially adverse, and (3) that a causal
connection existed between the protected activity and the materially adverse action.”
Id. at 1193 (brackets and internal quotation marks omitted).
Last, under the ADEA, it is “unlawful for an employer . . . to fail or refuse to
hire or to discharge any individual or otherwise discriminate against any individual
with respect to [her] compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). The McDonnell Douglas
three-step framework likewise applies to claims of discrimination under the ADEA
based on circumstantial evidence. See Jones v. Okla. City Pub. Schs., 617 F.3d 1273,
1278 (10th Cir. 2010). To prove a prima facie case at step one, the plaintiff must
show, among other things, that: (1) she belongs to the class protected by the ADEA;
(2) she suffered an adverse employment action; and (3) she was treated less favorably
than others not in the protected class. See id. at 1279.
The district court found that Ms. Brown failed to plead plausible claims of
race, gender, or age discrimination. We agree. As the court explained, “[t]here are
no factual allegations [in either the complaint or her responses to Titan’s motion to
dismiss] supporting Ms. Brown’s conclusion that her termination was unequal or
unfair or that she was treated disparately as to give rise to a[n] . . . inference of
unlawful discrimination or retaliation.” R., Vol. 1 at 61. Because Ms. Brown’s
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“complaint offers nothing more than legal conclusions that discrimination was behind
Titan’s employment decision,” it fails to state plausible claims for discrimination. Id.
We also agree with the district court that Ms. Brown failed to plead a plausible
claim for retaliation because her “complaints about being terminated for a prior
unemployment benefit application and the fairness of the termination do not show
any protected [opposition to discrimination].” Id. at 62.
IV. CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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