NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-1699

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CPA NINA SHAHIN,

Appellant

v.

DELAWARE DEPARTMENT OF TRANSPORTATION; 

STATE OF DELAWARE

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Appeal from the United States District Court

for the District of Delaware

(D.C. Civil Action No. 09-cv-00123)

District Judge: Honorable Gregory M. Sleet

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Submitted Pursuant to Third Circuit LAR 34.1(a)

November 12, 2010

Before: RENDELL, CHAGARES and ALDISERT, Circuit Judges

(Opinion filed: November 17, 2010)

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OPINION OF THE COURT

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PER CURIAM

Nina Shahin appeals the District Court’s order dismissing her complaint. For the 

reasons below, we will affirm the District Court’s order.

The procedural history of this case and the details of Shahin’s claims are well 
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known to the parties, set forth in the District Court’s memorandum order, and need not be 

discussed at length. Briefly, Shahin filed a complaint against the Delaware Department 

of Transportation alleging that it discriminated against her on the basis of her age and 

national origin by failing to employ her. The Department filed a motion to dismiss the 

complaint for failure to state a claim, and Shahin failed to file a response. The District 

Court granted the motion without prejudice and gave Shahin thirty days to file an 

amended complaint before the dismissal would become with prejudice. Shahin did not 

file an amended complaint and instead filed a notice of appeal.

Where a District Court has dismissed a complaint without prejudice, the dismissal 

is generally not appealable under 28 U.S.C. § 1291 unless the litigant cannot cure the 

defect or the litigant declares an intention to stand on the complaint, whereupon the 

District Court’s order becomes final. Borelli v. City of Reading, 532 F.2d 950, 951-52 

(3d Cir. 1976) (per curiam). The District Court in Borelli did not give a time limit for 

amendment of the complaint. Here, the District Court gave Shahin thirty days to amend 

her complaint. Because Shahin did not file an amended complaint within that thirty days

and argues on appeal that her complaint was sufficient, we consider Shahin to be standing 

on her complaint. Thus, the District Court’s order is final, and we have jurisdiction under 

28 U.S.C. § 1291. Our review of the District Court’s dismissal of the complaint for 

failure to state a claim is plenary. Curay-Cramer v. Ursuline Acad. of Wilmington, Del., 

Inc., 450 F.3d 130, 133 (3d Cir. 2006). “To survive a motion to dismiss, a complaint 

must contain sufficient factual matter, accepted as true, to state a claim to relief that is 
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plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation and 

internal quotation omitted).

In order to state a claim of employment discrimination, Shahin must allege (1) that 

she belongs to a protected class; (2) that she applied for a position for which the employer 

was seeking applicants and was qualified for that position; (3) she was rejected; and (4) 

the employer continued to seek applicants of her qualifications. McDonnell Douglas 

Corp. v. Green, 411 U.S. 792, 802 (1973). Shahin indicated in her complaint that it was 

being brought pursuant to Title VII and the ADEA for discrimination related to national 

origin and age occurring in the summer of 2007. In the section of the complaint for the 

factual allegations, Shahin wrote only: “[t]he DelDOT failed to employ the complainant, 

failed to provide any response on the reasons or to respond to the charge filed with the 

DE Dept of Labor.” Clearly, these allegations do not allege the necessary elements for a 

discrimination claim. Shahin did not identify her membership in a protected class, any 

position for which she applied, or her qualifications. She did not allege that any

application was rejected.

Shahin contends that the first two elements were established by her job application 

and the complaint procedures at the Departments of Transportation and Labor. She 

asserts that her age, national origin, and job qualifications are indisputable. However, 

these details were not included in the complaint. Shahin could have raised these 

arguments in response to the motion to dismiss or alleged these facts in an amended 

complaint. As noted by appellees, they pointed out in their motion to dismiss how 
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Shahin might amend her complaint to state a claim: e.g. she could provide details on what 

position she applied for, how she was qualified for the position, and what protected 

classes she belongs to. However, Shahin chose to not file a response or an amended 

complaint. 

She also contends that the information needed to plead the fourth element of a 

discrimination claim was not provided to her by the Department of Labor after its 

investigation or the Deputy Attorney General in his motion to dismiss. However, it is the 

plaintiff who must plead the necessary elements of a discrimination claim, not the 

defendants. Under Iqbal, it is not sufficient to simply recite the elements of a cause of 

action and support them with conclusory statements. Iqbal, 129 S. Ct. at 1949. Here, 

Shahin has done even less. We agree with the District Court that she failed to state a 

claim.

For the above reasons, we will affirm the District Court’s order. Shahin’s motion 

to supplement the record is denied.