Gilbert Saint-Cyr v. Walgreen Co., et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11892
Non-Argument Calendar
____________________
GILBERT SAINT-CYR,
Plaintiff-Appellant,
versus
WALGREEN CO.,
a Foreign for-Profit Corporation,
CHRIS GULLICKSON,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
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2 Opinion of the Court 22-11892
D.C. Docket No. 9:21-cv-82066-WPD
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Before NEWSOM , GRANT, and B LACK , Circuit Judges.
PER CURIAM:
Gilbert Saint-Cyr appeals the district court’s dismissal of his
suit against Walgreen Co. (Walgreens), alleging racially disparate
treatment and retaliation claims under Title VII of the Civil Rights
Act of 1964 (Title VII), 42 U.S.C. § 1981, and the Florida Civil Rights
Act (FCRA), Fla. Stat. § 760.10(1)(a) and (7). Saint-Cyr contends the
district court erred in dismissing his complaint because he ade-
quately pled his discrimination and retaliation claims. After re-
view,1 we affirm the district court.
To state a prima facie case of racial discrimination2 a plaintiff
may allege that: (1) he belongs to a protected class; (2) he was qual-
ified to do the job; (3) he was subjected to adverse employment
action; and (4) his employer treated similarly situated employees
outside his class more favorably. Crawford v. Carroll, 529 F.3d 961,
970 (11th Cir. 2008). To state a claim for racial discrimination, a
1 We review de novo a district court’s dismissal of a claim under Rule 12(b)(6),
accepting the allegations in the complaint as true and construing them in the
light most favorable to the plaintiff. Am. United Life Ins. Co. v. Martinez, 480
F.3d 1043, 1056-57 (11th Cir. 2007).
2 Discrimination claims brought under Title VII, § 1981, and the FCRA are
analyzed under the same framework. See Surtain v. Hamlin Terrace Found., 789
F.3d 1239, 1245 n.6 (11th Cir. 2015).
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22-11892 Opinion of the Court 3
complaint need not allege facts sufficient to make out a classic
prima facie case, but must provide enough factual matter to plausi-
bly suggest intentional discrimination. Surtain v. Hamlin Terrace
Found., 789 F.3d 1239, 1246 (11th Cir. 2015). Even if a plaintiff need
not plead a prima facie case to survive dismissal, the complaint must
satisfy the “plausible on its face” standard, and the allegations must
be sufficient to “raise a right to relief above the speculative level.”
See Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010).
The district court found Saint-Cyr had failed to plead allega-
tions sufficient for an adverse employment action.3 To show an
adverse employment action, an employee must allege a serious
and material change in the terms, conditions, or privileges of his
employment. Davis v. Town of Lake Park, 245 F.3d 1232, 1238-39
(11th Cir. 2001), overruled on other grounds by Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53 (2006) (holding a job performance
memorandum did not constitute an adverse employment action).
Not all conduct by an employer negatively affecting an employee
constitutes adverse employment action in a discrimination context.
Id. at 1238. “[T]he employee’s subjective view of the significance
and adversity of the employer’s action is not controlling; the em-
ployment action must be materially adverse as viewed by a reason-
able person in the circumstances.” Id. at 1239.
3 The district court also found that Saint-Cyr failed to sufficiently allege a sim-
ilarly situated comparator. Because we agree with the district court’s analysis
on adverse employment action, it is unnecessary to address the similarly situ-
ated comparator.
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4 Opinion of the Court 22-11892
Saint-Cyr failed to allege a serious and material change in the
conditions of his employment.4 See Davis, 245 F.3d at 1238-39. In
his Sixth Amended Complaint, he alleged Walgreens moved him
to a different section and then to a different department following
his altercation with Carlos Saavedra. However, he did not allege
that either of these transfers involved a reduction in pay, prestige,
or responsibility. See Doe v. DeKalb Cty. Sch. Dist., 145 F.3d 1441,
1452 (11th Cir. 1998) (holding a transfer to a different position can
be adverse if it involves a reduction in pay, prestige, or responsibil-
ity). Although Chris Gullickson wrote a disciplinary report adverse
to Saint-Cyr after the altercation with Saavedra, such a written
warning, by itself, cannot be said to materially affect the terms, con-
ditions, or privileges of employment. See Davis, 245 F.3d at 1239-
40.
With respect to Saint-Cyr’s retaliation claim, the district
court did not err in determining that Saint-Cyr conceded that claim
by failing to address Walgreens’ protected activity and causal con-
nection arguments in his response to the motion to dismiss. See
Gennusa v. Canova, 748 F.3d 1103, 1116 (11th Cir. 2014) (explaining
4 The district court construed the description of Saint-Cyr’s discrimination
claim in his Sixth Amended Complaint as challenging the August 2018 incident
with Carlos Saavedra and Walgreens’ actions thereafter, but not Saint-Cyr’s
diminishing “EP percentage,” a benchmark of meeting performance stand-
ards. Saint-Cyr does not challenge this on appeal, so we limit our analysis to
the incident with Saavedra and the actions thereafter. Additionally, Saint-Cyr’s
reliance on the “convincing mosaic” framework fails, as he made no attempt,
at the district court or on appeal, to connect that analysis to the facts at issue.
See Gennusa v. Canova, 748 F.3d 1103, 1116 (11th Cir. 2014).
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22-11892 Opinion of the Court 5
to preserve a claim or argument, a party must first present it to the
district court in a manner that gives the court an opportunity to
recognize and rule on it). He also fails to adequately challenge this
finding on appeal, and thus has abandoned any challenge to the dis-
trict court’s dismissal of his retaliation claim. See Greenbriar, Ltd. v.
City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989)
The district court did not err in dismissing Saint-Cyr’s Sixth
Amended Complaint for failure to state a claim, and we affirm.
AFFIRMED.
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