ALD-289                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2005
                                       ___________

                                    CALIPH ALJA-IZ,
                                               Appellant
                                          v.

       UNITED STATES VIRGIN ISLANDS DEPARTMENT OF EDUCATION

                       ____________________________________

                 On Appeal from the District Court of the Virgin Islands
                            (D.C. Civil No. 3-14-cv-00042)
                     District Judge: Honorable Curtis V. Gómez
                     ____________________________________

Submitted for Possible Dismissal Due to a Jurisdictional Defect, Dismissal Pursuant to 28
  U.S.C. § 1915(e)(2)(B), or Summary Action Pursuant to Third Circuit LAR 27.4 and
                                      I.O.P. 10.6
                                   August 6, 2015
             Before: CHAGARES SCIRCA and RENDELL, Circuit Judges

                                 (Filed: August 28, 2015)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM

       Pro se appellant Caliph Alja-Iz (“Alja-Iz”) brought an employment-discrimination

suit against the Virgin Islands Department of Education (“the Department”). He now


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
appeals the District Court’s order dismissing his complaint for failure to state a claim.

Because that appeal presents no substantial question, we will summarily affirm the

District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

                                             I.

       Alja-Iz filed a complaint alleging that the Department failed to hire him for a

teaching position in violation of several federal statutes: (1) the Americans with

Disabilities Act (ADA), as amended, 42 U.S.C. § 12112; (2) the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. § 623; (3) the Equal Pay Act (EPA), 29 U.S.C. §

206; (4) Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; and (5) Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2. The Department moved to dismiss

the complaint for failure to state a claim upon which relief could be granted, and the

District Court granted that motion. In its order dismissing the complaint, the District

Court gave Alja-Iz 15 days to file an amended complaint. Instead of amending his

complaint, Alja-Iz appealed the dismissal.

                                             II.

       First, we must consider our jurisdiction to hear the appeal because Alja-Iz’s

decision to appeal from a dismissal that gave him leave to amend his complaint presents a

potential jurisdictional issue. With some exceptions, we have jurisdiction over appeals

only from final decisions of the district courts. See 28 U.S.C. § 1291. “Generally, an

order which dismisses a complaint without prejudice is neither final nor appealable

because the deficiency may be corrected by the plaintiff without affecting the cause of
                                              2
action.” Borelli v. City of Reading, 

, 951 (3d Cir. 1976) (per curiam).

“Only if the plaintiff cannot amend or declares his intention to stand on his complaint

does the order become final and appealable.” 

Although there is no “clear rule

for determining when a party has elected to stand on his or her complaint,” Hagan v.

Rogers, 

, 151 (3d Cir. 2009), we have exercised jurisdiction when a plaintiff

fails to amend within the time provided by the District Court, see Batoff v. State Farm

Ins. Co., 

, 851 n.5 (3d Cir. 1992).

       Here, we will infer Alja-Iz’s intention to stand on his complaint. The District

Court dismissed Alja-Iz’s complaint and granted Alja-Iz 15 days to amend it. Instead of

filing an amended complaint, Alja-Iz filed a notice of appeal 21 days later. As a result,

the District Court’s order is a final, appealable order. See 

to the merits, we discern no error in the District Court’s decision to

dismiss Alja-Iz’s complaint because the complaint lacked sufficient factual material to

state a discrimination claim based on the Department’s alleged failure to hire Alja-Iz for

the position he sought.

       Our review of the District Court’s dismissal order is plenary. See Huertas v.

Galaxy Asset Mgmt., 

, 32 (3d Cir. 2011); Monroe v. Beard, 

,

205 (3d Cir. 2008). “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.’ A

claim has facial plausibility when the plaintiff pleads factual content that allows the court
                                               3
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 

, 678 (2009) (quoting and citing Bell Atl. Corp. v.

Twombly, 

, 556, 570 (2007)). We may summarily affirm a District Court’s

order if there is no substantial question presented in the appeal, see 3d Cir. L.A.R. 27.4;

I.O.P. 10.6, and we may rely on any grounds supported by the record, see Hughes v.

Long, 

, 122 n.1 (3d Cir. 2001).

       Although a pro se plaintiff like Alja-Iz is given some leeway in meeting the

Federal Rules’ pleading requirements, see Dluhos v. Strasberg, 

, 369 (3d

Cir. 2003), even under that relaxed standard, there is no substantial question that the

complaint failed to state a claim, see Fantone v. Latini, 

, 193 (3d Cir. 2015)

(holding that a pro se complaint must still meet Twombly and Iqbal’s plausibility

standard).

       To establish a prima facie case for relief in an employment-discrimination case

alleging a failure to hire, an applicant must establish that: (1) he belongs to the protected

category; (2) he applied for and was qualified for a position for which the covered

employer was seeking applicants; (3) despite his qualifications, he was not hired; and (4)

after his rejection, the position remained open, or was filled in a manner giving rise to an

inference of discrimination. See Smith v. City of Allentown, 

, 689-90 (3d

Cir. 2009) (age discrimination under the ADEA); Sarullo v. United States Postal Serv.,

, 797 (3d Cir. 2003) (per curiam) (race, color, religion, sex, or national

origin discrimination under Title VII); Olson v. General Elec. Astrospace, 

,
                                              4
951 (3d Cir. 1996) (disability discrimination under the ADA); cf. also Rashdan v.

Geissberger, 

, 1182 (9th Cir. 2014) (adopting Title VII scheme of proof for

Title VI disparate-treatment claims and recognizing that the Third Circuit has used that

scheme of proof in Title VI cases) (citing Gazarov ex rel. Gazarov v. Diocese of Erie, 80

F. App’x 202, 203-05 (3d Cir. 2003) (nonprecedential)). The plaintiff need not establish

the elements of a prima facie case in his complaint, “but instead, need only put forth

allegations that raise a reasonable expectation that discovery will reveal evidence of the

necessary element.” Fowler v. UPMC Shadyside, 

, 213 (3d Cir. 2009)

(internal quotations marks omitted).

       Here, Alja-Iz’s complaint at least pleaded the legal conclusion that he was not

hired because of his alleged disability and age.1 But beyond that legal conclusion, Alja-Iz

did not plead any facts concerning whether the position (if there even was one) remained

open or was filled in a manner giving rise to an inference of discrimination. See Matczak

v. Frankford Candy & Chocolate Co., 

, 939-40 (3d Cir. 1997) (discussing

the kinds of facts relevant to the final element of a prima facie case of discrimination); cf.

also Anderson v. Wachovia Mortg. Corp., 

, 275 (3d Cir. 2010) (holding that

to make out a prima facie case of discrimination, facts are needed to show “a causal

nexus between the harm suffered and the plaintiff’s membership in a protected class,

from which a reasonable juror could infer, in light of common experience, that the


       1
        That is, Alja-Iz failed to mention discrimination on the basis of race or sex in
even a conclusory way, and he instead merely cited to statutes that bar discrimination on
                                              5
defendant acted with discriminatory intent”). Alja-Iz’s complaint asserted only the facts

that he applied, that he was qualified, that he received “negative” email responses, and

that he was told he would not be hired. As a result, Alja-Iz’s allegations did not raise a

reasonable expectation that discovery would show that the Department did not hire him

based on improper consideration of any protected characteristic. See 

.

       Alja-Iz’s retaliation claim fares no better. To advance a prima facie case of

retaliation a plaintiff must show that: (1) he engaged in a protected activity; (2) the

employer took an adverse employment action after or contemporaneous with the

protected activity; and (3) a causal link exists between the employee’s protected activity

and the employer’s adverse action. See Abramson v. William Paterson Coll. of N.J., 

, 286 (3d Cir. 2001). Here, Alja-Iz pleaded himself out of court, as his

complaint alleged that the Department made its hiring decision before he purportedly

engaged in the protected activity of filing a complaint. See Glanzman v. Metro. Mgmt.

Corp., 

, 516 (3d Cir. 2004) (observing that it is not possible to meet the

retaliation standard when the adverse action precedes the protected activity).

       Finally, Alja-Iz’s claim under the Equal Pay Act also fails. The Equal Pay Act

applies to sex-distinction-based pay-discrimination claims for employees; here, Alja-Iz’s

allegation was that he was not hired for the position he sought, not that he was an




those bases.
                                              6
employee who was paid less for equal work than employees of the opposite sex were

paid. See generally Stanziale v. Jargowsky, 

, 107 (3d Cir. 2000) (discussing

proof of Equal Pay Act claims).

       Perhaps Alja-Iz could have corrected these pleading deficiencies in an amended

complaint, but after the District Court granted him leave to amend his complaint, he

declined to do so and instead stood on his complaint as it was initially written. Because

his complaint pleaded no viable claim, this appeal presents us with no substantial

question. We will therefore affirm the District Court’s order dismissing Alja-Iz’s

complaint.




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