UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-50706
Summary Calendar
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VAN DAVIS (deceased); Et Al.,
Plaintiffs,
LAWRENCE J. WEBB,
Plaintiff-Appellant,
versus
TOBACCO COMPANY OF PRODUCTS, Kool, Newport,
Pall Mall, and Marlboro,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. SA-96-CV-782
_________________________________________________________________
January 8, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Lawrence J. Webb, suing on behalf of his deceased
friend, Van Davis, appeals from the district court’s denial of
his motion to proceed in forma pauperis (IFP) on appeal from the
dismissal of his 42 U.S.C. § 1983 civil rights complaint as
frivolous. This court must examine the basis of its own
*
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this opinion should not be published and is not precedent except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.
jurisdiction if necessary. Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987). In its order denying IFP on appeal, the
district court noted that the notice of appeal was filed more
than 30 days after the entry of judgment. Webb’s notice of
appeal is therefore untimely, and his appeal is DISMISSED for
lack of jurisdiction. See Fed. R. App. P. 4(a)(1); Mosley, 813
F.2d at 660. Webb’s motion for IFP status on appeal is DENIED.
MOTION DENIED; APPEAL DISMISSED.
Davis filed a complaint in the district court
apparently attempting to charge the appellees with discrimination
based on sex, race, and/or age. After filing her complaint in
the district court, the appellees filed a Motion to Dismiss and
for a More Definite Statement. While denying the Motion to
Dismiss, the court granted the appellees’ Motion for a More
Definite Statement, requesting that Davis replead her complaint
to include “the specific acts and/or omissions of each and every
defendant named in Plaintiff’s complaint.” She was warned that
failure to do so could result in dismissal of her case.
Davis filed an amended complaint. Shortly thereafter
and upon motion of the appellees, the court dismissed Davis’s
claims, stating that, although the court does not hold a pro se
plaintiff to the same standard expected of practicing attorneys,
Davis had failed to supply any specific allegations of wrongdoing
against any specific defendant. Davis timely appealed.
2
This court reviews de novo a district court’s dismissal
of a plaintiff’s case on the pleadings pursuant to FED. R. CIV. P.
12(b)(6). See Eason v. Holt, 73 F.3d 600, 601 (5th Cir. 1996).
“Dismissal is not proper unless it appears, based solely on the
pleadings, that the plaintiff can prove no set of facts in
support of [her] claim which would entitle [her] to relief.” Id.
Davis, appearing pro se in both the district court and
before this court, attempted to plead claims under Title VII for
sex and race discrimination and under the ADEA for age
discrimination.2 In order to establish a prima facie case of
discrimination under Title VII, a plaintiff must plead facts
sufficient to establish that (1) she is a member of a class
protected under Title VII; (2) she was qualified for the position
that she held; (3) she was discharged; and (4) after being
discharged, her employer replaced her with a person not a member
of a protected class. See Meinecke v. H & R Block of Houston, 66
F.3d 77, 83 (5th Cir. 1995). If an employer discharges the
plaintiff and does not replace her, the plaintiff must establish
as the fourth element of her prima facie claim that, after being
discharged, others who are not members of the protected class
remained in similar positions. See id. Similarly,
[t]he first three elements of a prima facie case of age
discrimination under the ADEA are identical to the
first three elements of a Title VII prima facie case.
The fourth element is similar, although we have worded
2
Because the requirements for establishing a claim under
either of these statutes is similar, we will analyze them together.
See Meinecke v. H & R Block of Houston, 66 F.3d 77, 83 (5th Cir.
1995).
3
it somewhat differently: The plaintiff must show that
“[s]he was either I) replaced by someone outside the
protected class, ii) replaced by someone younger, or
iii) otherwise discharged because of [her] age.”
Id. (internal citations omitted; quoting Bodenheimer v. PPG
Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)).
We have reviewed the pleadings and agree with the
district court that Davis has failed to plead facts in support of
her claims which would entitle her to relief. Although she
claims in her pleadings to be a black, female who was “illegally
terminated” for “improperly changed medical records,” Davis does
not claim that after being discharged, her employer replaced her
with a person who is not a member of a class protected by Title
VII or that others who are not members of a protected class
remained in similar positions. Neither does she claim that she
was replaced by someone younger or otherwise discharged because
of her age. Even after being instructed by the court to do so,
she has failed to include in her complaint any specific
allegations of wrongdoing against any specific defendant.
Davis has not pleaded facts -- even when read liberally
-- which would entitle her to relief under Title VII or ADEA.
Accordingly, we AFFIRM the judgment of the district court.
AFFIRMED.
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