author: PER CURIAM:

text:
    Joseph CHHIM, Plaintiff-Appellant v. UNIVERSITY OF TEXAS AT AUSTIN, Defendant-Appellee
    No. 16-50200
    Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed September 2, 2016

      Joseph Chhim, Houston TX, pro se. Michael James Patterson, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Defendant-Appellee.
    Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
   PER CURIAM:

Joseph Chhim, a pro se plaintiff, appeals the district court’s dismissal of his case on motions to dismiss filed by the University of Texas at Austin (the “University”). The district court dismissed Chhim’s claim for age discrimination under the Age Discrimination in Employment Act (“ADEA”) for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and Chhim’s claims for unlawful employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964 for failure to state a plausible claim under Federal Rule of Civil Procedure 12(b)(6). Finding no error, we AFFIRM.

We review de novo a district court’s dismissal of claims under Rules 12(b)(1) and 12(b)(6). See Machete Prods., L.L.C. v. Page, 809 F.3d 281, 287 (5th Cir. 2015). Under the Federal Rules of Civil Procedure and relevant precedent, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The allegations pleaded must show “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We take the well-pleaded factual allegations in the complaint as true, but we do not credit conclusory allegations or allegations that merely restate the legal elements of a claim. See id. We hold pro se plaintiffs to a more lenient standard than lawyers when analyzing complaints, but pro se plaintiffs must still plead factual allegations that raise the right to relief above the speculative level. See Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); see also Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

The district court properly dismissed Chhim’s ADEA claim because the University is a state university, see Tex. Educ. Code § 67.01, and neither Congress nor Texas have waived Texas’s sovereign immunity from ADEA claims, see Sullivan v. Univ. of Tex. Health Sci. Ctr. at Hous. Dental Branch, 217 Fed.Appx. 391, 395 (5th Cir. 2007). While Chhim asserts that an exception to sovereign immunity applies in this case, we disagree. See id.; see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (“[I]n the ADEA, Congress did not validly abrogate the States’ sovereign immunity to suits by private individuals.”).

We also affirm the dismissal of Chhim’s claim for discrimination based on race, col- or, and national origin under Title VII. See 42 U.S.C. § 2000e-2(a)(l) (prohibiting such discrimination). Although Chhim’s claims can be somewhat difficult to discern, he seems to aver that because of his Cambodian origin, race, and color, the University hired a Hispanic applicant instead of Chhim for a Building Services Supervisor position. Chhim acknowledges in his allegations that the University’s given reason for not hiring Chhim was because he was not the most qualified candidate for the job, including that he did not display excellent writing skills and communication abilities. Chhim baldly alleges that this explanation is pretextual. He avers that the University hired a custodian from within its own department who had over 25 years of experience and speculates that the custodian was “less qualified” than Chhim.

' Although Chhim did not have to submit evidence to establish a prima facie .case of discrimination at this stage, he had to plead sufficient facts on all of the ultimate elements of a disparate treatment claim to make his case plausible. See Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013); see also Stone v. La. Dep’t of Revenue, 590 Fed.Appx. 332, 339 (5th Cir. 2014), cert. denied, — U.S. -, 135 S.Ct. 2814, 192 L.Ed.2d 849 (2015). In that inquiry, it can be helpful to reference the McDonnell Douglas framework, on which Chhim would continue to rely if he based his claim on circumstantial evidence, and under which Chhim would ultimately have to show that; (1) he is a member of a protected class; (2) he was qualified and applied for the job; (3) the employer rejected him for the job despite his qualifications; and (4) a similarly situated applicant outside the protected class was hired. See Haskett v. T.S. Dudley Land Co., 648 Fed. Appx. 492, 495 (5th Cir. 2016) (unpublished); Mitchell v. Crescent River Port Pilots Ass’n, 265 Fed.Appx. 363, 370 (5th Cir. 2008).

Ultimately, Chhim fails to plead sufficient facts to make a plausible claim that the University rejected his application for the Building Services Supervisor position because of his race, color, or national origin. See Raj, 714 F.3d at 331. Chhim’s allegations turn on the assertion that the University discriminatorily hired a less qualified, similarly situated applicant over Chhim. However, even taking Chhim’s allegations as true and construing them liberally, we cannot “draw the reasonable inference that the [University] is liable for the misconduct alleged.” Stone, 590 Fed. Appx. at 339; see also Taylor, 296 F.3d at 378.

Chhim pleads no facts that suggest the applicant hired by the University was less qualified than Chhim or was similarly situated. Chhim claims he possessed more relevant experience than the applicant chosen, but this seems based on the implicit assumption that the other applicant only had custodial experience with the University, and no relevant supervisory experience or superior writing and communication skills. The document Chhim attached and that he often refers to from the TWC states that the person hired “was Hispanic, Mexican-American, age 42 and has more than 25 years of experience working in the [University’s] custodial department.” This does not preclude the applicant from having worked in supervisory roles with the University or elsewhere, and it does not suggest that Chhim is better qualified than this applicant.

Additionally, Chhim’s complaint acknowledges that the University’s “preferred qualifications” included a “[Remonstrated ability to write complex documents” and “[excellent written and oral communication skills,” and that the University’s expressed reason for not hiring Chhim was that he did not meet these requirements. Yet, Chhim’s complaint contains no facts plausibly suggesting that Chhim was better or equally qualified for the supervisory position than the person the University hired, by these metrics or others. Cf. Mitchell, 265 Fed.Appx. at 370. In sum, Chhim’s complaint “did not allege any facts, direct or circumstantial, that would suggest [the University’s] actions were based on [Chhim’s] race or national origin or that [the University] treated similarly situated [applicants] of other races or national origin more favorably.” Raj, 714 F.3d at 331. We affirm the dismissal of Chhim’s Title VII claim.

The district court also dismissed Chhim’s retaliation allegations for failure to state a plausible claim. Chhim avers that the University did not hire him for the Building Services Supervisor position, about which Chhim was notified on March 7, 2014, in retaliation for grievances or charges Chhim filed claiming that the University was discriminating against him. First, the district court correctly dismissed any attempt to argue that the charge submitted in November 2014 or the grievance submitted on March 21, 2014, could plausibly provide a basis for retaliation in the decision not to hire Chhim on March 7,-2014. The University could not have refused to hire Chhim in retaliation for grievances he had not yet filed. See, e.g., Stone, 590 Fed.Appx. at 341 (concluding a complaint failed to state a claim for retaliation when the adverse action occurred before grievances were filed, and thus the plaintiff failed to show “a causal connection between the protected activity and the adverse employment action”). This same logic applies to the grievance Chhim filed on March 7, 2014, after he was told that he was not hired for the Building Services Supervisor position. See id. That leaves only Chhim’s complaints of discrimination that he alleges he made in December 2018 and January 2014.

We cannot consider these allegations because he failed to exhaust these claims. In order to give notice to defendants of potential claims and to ensure that the Equal Employment Opportunity Commission (“EEOC”) can investigate and obtain voluntary compliance with the law, Title VII requires that claims be brought with the EEOC before courts may consider them. See generally Pacheco v. Mineta, 448 F.3d 783, 788-89 (5th Cir. 2006) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466-67 (5th Cir. 1970)). We construe EEOC claims liberally, but we will not consider claims that were not asserted before the EEOC or that do not fall within “the scope of the EEOC investigation which ‘can reasonably be expected to grow out of the charge of discrimination’ ” a plaintiff makes before the EEOC. Id. (citation omitted).

In this case, Chhim only mentioned one grievance that he made with the University in his charge of discrimination before the EEOC — the grievance he filed in September 2014. Chhim’s failure to mention any grievances that were filed before the University’s decision not to hire him in March 2014 means that the scope of his retaliation charge before the EEOC arid the scope of the EEOC’s investigation could not reasonably be expected to reach those claims. See id. Chhim failed to exhaust his retaliation claims based on grievances filed in December 2013 and January 2014. We therefore affirm the district court’s decision to dismiss Chhim’s retaliation allegations.

AFFIRMED.

      . Although Sullivan is not “controlling precedent,” it "may be [cited as] persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R. 47.5.4). Chhim's complaint initially seemed to allege age discrimination under Title VII, but he clarified before the district court and has continued to assert on appeal that his age discrimination claim was made pursuant to the ADEA. We therefore analyze this claim under the ADEA. Any claim Chhim may have wished to assert under Title VII has been waived. See generally Mick Haig Prods. E.K. v. Does 1-670, 687 F.3d 649, 652 (5th Cir. 2012).

      . Chhim argues that his claims fall within the Ex parte Young exception to sovereign immunity. See 209 U.S. 123, 155-56, 28 S.Ct. 441, 52 L.Ed. 714 (1908). "To fall within the Ex parte Young exception to sovereign immunity, however, a plaintiff must name individual state officials as defendants in their official capacities.” Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013) (citing Kentucky v. Graham, 473 U.S. 159, 169 n.18, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). Chhim did not sue individual state official defendants in their official capacities in this suit; therefore, the Ex parte Young exception does not apply to defeat Texas’s sovereign immunity from suit.

      . In attempting to construe Chhim’s com.plaint liberally, see Taylor, 296 F.3d at 378, we have considered Chhim’s explanation of the allegations in his complaint in his briefing before the district court. We have also considered documents Chhim incorporated into the complaint by reference or attached to the complaint or to his responses to the motion to dismiss, such as: right to sue letters from the Equal Employment Opportunity Commission ("EEOC”) and Texas Workforce Commission (VTWC”); documents showing the dates on which Chhim applied to various positions with the University; a grievance that Chhim filed against the University on March 7, 2014; and documents frequently referenced and quoted in Chhim’s complaint that contain the results of the TWC’s investigation into Chhim’s allegations. See generally Lormand v. US Unwired, Inc., 565 F.3d 228, 251 (5th Cir. 2009) (noting that in ruling on Rule 12(b)(6) motions, courts may examine documents incorporated into the complaint by reference).

      . McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

      . Although Haskett and Mitchell are not "controlling precedent,” they "may be [cited as] persuasive authority.” Ballard, 444 F.3d at 401 n.7 (citing 5th Cir. R. 47.5.4).

      . Chhim briefed before the district court that his experience includes several years of training from Houston Community College and San Jacinto College in housekeeping, management, and maintenance technology, and that he has more'than 17 years of experience as a custodian and custodial supervisor.

      . Chhim also mentions other applications he submitted to the University before March 20, 2014, but explained repeatedly before the district court that he only challenges the University's failure to hire him on March 20, 2014. Additionally, Chhim's complaint and briefing refer often to a position he applied for on March 20, 2014, and seem to confuse his claims for disparate treatment and retaliation with his application on March 20. It is clear from his pleadings and the documents incorporated by reference that the Hispanic applicant to whom Chhim refers was hired instead of Chhim for the "Building Services Supervisor — Night Shift” position, for which Chhim was notified that he was not hired on March 7, 2014. His allegations and documentation do not indicate that Chhim has been formally rejected regarding the position to which he applied on March 20, 2014, as "Building Attendant Leader.”

      . Although Chhim did not clearly allege in his initial pleadings that he made the complaints in January 2014 and on March 7, 2014, nor that his retaliation claim was based on these complaints, we construe his pleadings liberally in light of Chhim's explanatory statements in briefing before the district court. See Taylor, 296 F.3d at 378.


source: Caselaw Access Project

author: STEPHEN A. HIGGINSON, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gelacio LARA-MARTINEZ, Defendant-Appellant.
    No. 15-41497
    United States Court of Appeals, Fifth Circuit.
    September 6, 2016

      Paul Eunkuk Kim, Renata Ann Gowie, Jimmy Eric Pardue, U.S. Attorney’s Office, Houston, TX, for, Plaintiff-Appellee.
    Marjorie A. Meyers, Laura Fletcher Leavitt, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

Gelacio Lara-Martinez pleaded guilty to illegal reentry after being previoúsly deported. He appeals the district court’s determination that his underlying Missouri conviction for sexual misconduct involving a child qualified as a crime of violence, specifically sexual abuse of a minor, under the Sentencing Guidelines.

I. Background

On June 19, 2015, U.S. Border Patrol agents apprehended Lara-Martinez in Brooks County, Texas. A records check revealed that Lara-Martinez had been previously removed to Mexico in October 2010. He had no legal right to be in the United States and was arrested. Lara-Martinez was charged with and pleaded guilty to illegal reentry. His presentence report (PSR) assigned a base level of eight, added sixteen levels for being previously deported after committing a crime of violence, and subtracted three levels for acceptance of responsibility, for a total offense level of twenty-one.

The crime of violence enhancement was based on Lara-Martinez’s 2010 conviction for sexual misconduct involving a child in violation of Missouri Statute section 566.083 (2008). The PSR determined that the conviction qualified as an enumerated crime of violence, specifically, “sexual abuse of a minor” under U.S.S.G. section 2L1.2 cmt. l(B)(iii). Lara-Martinez objected to the sixteen-level enhancement, claiming that his “prior conviction is not sexual abuse of a minor, because the Missouri offense does not require that a minor be involved at all.” Under sections 566.083, Lara-Martinez argued, a peace officer pretending to be a child suffices for a conviction. Because “[t]he Fifth Circuit has repeatedly interpreted the term ‘abuse’ in this context to include a component of harm to a minor,” Lara-Martinez contended, Missouri’s statute was “broader than the generic, contemporary meaning of sexual abuse of a minor and does not constitute a crime of violence.” The district court overruled his objection, and sentenced him to a below-Guidelines sentence of thirty-six months in prison and thirty-six months of supervised release.

Lara-Martinez timely appeals, again arguing that his state conviction does not fall within the Guidelines’ definition of sexual abuse of a minor because “[ujnder Missouri law, a person can be convicted of ‘sexual misconduct involving a child’ even if the other person is a police officer masquerading as a child.” After a review of the briefs, record, and applicable caselaw, we affirm.

II. Discussion

We review de novo whether a prior conviction qualifies as a crime of violence under the Guidelines. United States v. Rodriguez, 711 F.3d 541, 548 (5th Cir. 2013) (en banc).

The Guidelines impose a sixteen-level enhancement if the defendant was deported previously after committing a crime ' of violence. U.S.S.G. § 2L1.2(b)(l)(A)(ii). The definition of a “crime of violence” contains a list of enumerated offenses, including “sexual abuse of a minor.” Id. §2L1.2, cmt. l(B)(iii). “When determining whether a prior conviction qualifies as a crime of violence under the Guidelines, we [use] the categorical approach that the Supreme Court first outlined in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).” Rodriguez, 711 F.3d at 549 (parallel citations omitted). Under this analysis, we look to the elements of the statute of conviction rather than to the defendant’s specific conduct. Id. “If the defendant was convicted under a statute that is ‘narrower than the generic crime’ or that mirrors the generic definition with only ‘minor variations,’ the enhancement may stand.” United States v. Hernandez-Rodriguez, 788 F.3d 193, 195-96 (5th Cir. 2015) (quoting United States v. Herrera, 647 F.3d 172, 176 (5th Cir. 2011)). But if the relevant statute “encompasses prohibited behavior that is not within the plain, ordinary meaning of the enumerated offense, the conviction is not a crime of violence as a matter of law.” Id. at 196 (quoting United States v. Esparza-Perez, 681 F.3d 228, 230 (5th Cir. 2012)). A defendant who argues that the relevant statute encompasses conduct that is broader than an enumerated offense must show that there is “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of the crime.” United States v. Albornoz-Albornoz, 770 F.3d 1139, 1141 (5th Cir. 2014) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)).

If the underlying statute contains disjunctive elements, as here, we employ the modified categorical approach to determine which subpart of the statute formed the basis of the conviction. See Duenas-Alvarez, 549 U.S. at 186-87, 127 S.Ct. 815; see also Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). Under the modified categorical approach, we consider “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); see also United States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005).

Lara-Martinez was convicted of sexual misconduct involving a child under section 566.083 of the Missouri Statutes. When Lara-Martinez committed his offense in 2008, section 566.083 read:

1. A person commits the crime of sexual misconduct involving a child if the person:

(1) Knowingly exposes his or her genitals to a child less than fifteen years of age under circumstances in which he or she knows that his or her conduct is likely to cause affront or alarm to the child;

(2) Knowingly exposes his or her genitals to a child less than fifteen years of age for the purpose of arousing or gratifying the sexual desire of any person, including the child; or

(3) Knowingly coerces or induces a child less than fifteen years of age to expose the child’s genitals for the purpose of arousing or gratifying the sexual desire of any person, including the child.

2. The provisions of this section shall apply regardless of whether the person violates the section in person or via the Internet or other electronic means.

3. It is not an affirmative defense to prosecution for a violation of this section that the other person was a peace officer masquerading as a minor.

4. Sexual misconduct involving a child or attempted sexual misconduct involving a child is a class D felony unless [there are other circumstances not present here], in which case it is a class C felony.

Mo. Rev. Stat. § 566.083 (2008).

Lara-Martinez was convicted of “knowingly inducting] O.V., a child less than fourteen years of age, to expose O.V.’s genitals for the purpose of arousing the sexual desire of any person.” The modified categorical approach is appropriate because this statute has “multiple alternative elements.” Mathis, 136 S.Ct. at 2249; see also United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006). A defendant violates subparts (1) or (2) by exposing him or herself to the minor; a defendant violates subpart (3) by coercing or inducing the minor to expose him or herself. Lara-Martinez’s conviction' arose under section 566.083.1(3), and he does not dispute that his offense involved sexual abuse; rather, he argues that the Missouri statute did not require the presence of a minor.

For “purposes of the crime-of-violence enhancement under § 2L1.2(b)(l)(A)(ii), the meaning of ‘minor’ in ‘sexual abuse of a minor’ is a person under the age of majority — which we conclude to be eighteen.” Rodriguez, 711 F.3d at 544. Missouri defines a child for purposes of section 566.083.1(3) as “less than fifteen years of age.” Lara-Martinez suggests, however, that the offense can be committed against a peace officer masquerading as a child. He argues that the statute does not require proof that the victim was a child and, thus, does not fall within the generic definition of sexual abuse of a minor. We disagree.

The Supreme Court and this circuit require “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of the crime.” Albornoz-Albornoz, 770 F.3d at 1141 (quoting Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815). Lara-Martinez has not met this showing. “At a minimum, the defendant must point to cases in which a state court has applied the statute in a broader manner.” Id. In an attempt to satisfy this requirement, Lara-Martinez points to State v. Hall, 321 S.W.3d 453 (Mo. Ct. App. 2010). In that case, a Missouri Court of Appeals looked at a crime under subpart (2) of the same statute at issue here. Id. at 455. The defendant in Hall argued that there was insufficient evidence “to show that he ‘knowingly’ exposed his genitals to a child ... because he actually exposed his genitals over the internet to a sheriffs deputy posing as a child.” Id. at 454. The court disagreed, concluding that “the legislature intended to say that it is not a defense to the crime that the intended victim was a police officer masquerading as a minor.... [T]he legislature intended to criminalize exposure of a defendant’s genitals to a child or someone that the defendant believed to be a child.” Id. at 455.

Importantly, however, Hall dealt with a subpart (2) crime. Lara-Martinez has not pointed to a single case where any court has applied the peace officer affirmative defense provision to a subpart (3) charge, his charge of conviction. These crimes differ: subpart (2) criminalizes an individual exposing his/her own genitals to a minor, while subpart (3) criminalizes coercing or inducing a minor to expose their genitals to someone else. In cases like Hall, a defendant could easily expose his/her own genitals to a peace officer masquerading as a minor, especially given that the statute explicitly applies to conduct over the Internet and via other electronic means (via text message, for example). However, it is much more difficult — if not impossible — to imagine a case unfolding like Lara-Martinez urges us to consider: a defendant who was convicted for coercing or inducing an of-age peace officer to actually expose his/her genitals for a defendant’s arousal or gratification.

And while Missouri does recognize the crime of attempted sexual misconduct involving a child, the cases we have found are all subpart (1) or (2) crimes where the defendant exposed his/her own genitals to a child (or a person the defendant thought was a child). See, e.g., State v. Jeffrey, 400 S.W.3d 303, 306-07 (Mo. 2013) (en banc); State v. Howell, 454 S.W.3d 386, 389 (Mo. Ct. App. 2015); State v. Mauchenheimer, 342 S.W.3d 894, 895 (Mo. Ct. App. 2011). This makes sense given that Missouri has a separate “enticement” crime. Indeed, Missouri charges enticement or attempted enticement regularly, many times in To Catch a Predator situations like Lara-Martinez identifies. See, e.g., State v. Craig, 498 S.W.3d 459, 463-64, 2016 WL 2731575, at *3 (Mo. Ct. App. May 10, 2016); State v. Anderson, 467 S.W.3d 378, 380-81 (Mo. Ct. App. 2015); State v. Doubenmier, 444 S.W.3d 921, 923 (Mo. Ct. App. 2014). Thus, Lara-Martinez has not identified a case where Missouri charged a defendant with attempted sexual misconduct involving a child under subpart (3) likely because attempting to “coerce[ ] ■ or induce[ ] a child less than fifteen years of age to expose the child’s genitals” would fit the elements of enticement. Mo. Rev. Stat. § 566.083.1(3). Lara-Martinez has not shown a “realistic probability ... that [Missouri] would apply its statute to conduct that falls outside the generic definition of [sexual abuse of a minor]” based on the peace officer provision. Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815.

The judgment of the district court is AFFIRMED.

      . Missouri Statute section 566.083 is not an enticement crime. Subpart (2) requires the defendant to expose his/her genitals to a minor, and subpart (3) requires the defendant to “coerce[] or induce! ] a child less than fifteen years of age to expose the child’s genitals."
        (emphasis added). Cf. State v. Mashek, 336 S.W.3d 478, 482 & n.4 (Mo. Ct. App. 2011).

      . Mo. Rev. Stat. § 566.151.