Brian Plair v. Interactive Communications International, Inc., et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10731
Non-Argument Calendar
____________________
BRIAN PLAIR,
Plaintiff-Appellant,
versus
INTERACTIVE COMMUNICATIONS INTERNATIONAL, INC.,
INTERACTIVE COMMUNICATION INTERNATIONAL
CANADA, INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
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2 Opinion of the Court 23-10731
D.C. Docket No. 1:21-cv-02455-WMR
____________________
Before WILSON, ROSENBAUM , and G RANT, Circuit Judges.
PER CURIAM:
Ms. Brian Plair1 appeals the district court’s order granting
summary judgment to the defendant on her claims of race discrim-
ination, sex discrimination, and retaliation.2 She argues first that
the court erred in finding that she did not make out a case for race
discrimination under the “convincing mosaic” standard. Further,
Plair contends that her sex discrimination case is legally cognizable
under Title VII and maintains that she successfully pled sex discrim-
ination under the McDonnell Douglas3 standard. After careful con-
sideration of all issues, we affirm.
1 Plair’s appellate brief makes clear that she is a transgender woman who uses
female pronouns (she/her). This opinion identifies her as “Brian,” as this is
the name used in the case caption, and no other name is provided.
2 While Plair’s initial complaint and summary judgment filings maintained a
§ 1981 retaliation claim, her appellate brief makes no mention of that claim,
and she does not make any challenge to the district court’s granting of sum-
mary judgment as to that claim. Thus, we deem Plair’s retaliation claim aban-
doned on appeal. See United States v. Campbell, 26 F.4th 860, 871–72 (11th Cir.
2022) (en banc) (explaining that “issues not raised in the initial brief on appeal
are deemed abandoned”), cert. denied, 143 S. Ct. 95 (2022).
3 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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23-10731 Opinion of the Court 3
I. Background
Plair, a Black transgender woman, was previously employed
with Interactive Communication International, Inc. (InComm).
On or around January 8, 2020, she informed her supervisor, Elisha
Schmookler, that she was applying for a different position within
InComm. Plair alleges that Schmookler began engaging in “har-
assing and unprofessional conduct” toward her after she stated her
intention to switch positions.
On January 24, Schmookler asked Plair why Plair did not
submit project notes before she took paid time off. Plair stated she
did provide notes, but Schmookler interpreted her response as in-
subordinate. On January 27, Plair realized she did not provide the
notes as previously thought and apologized to Schmookler. On
February 12, Schmookler and the Director of Human Resources
(HR) met with Plair and placed her on a performance improvement
plan (PIP). The PIP provided examples of inadequate perfor-
mance, including outbursts, failure to maintain an up-to-date pro-
ject tracker, and other mistakes. Plair alleges placement on the PIP
was “retaliation toward [her] for applying for another position
within the company.”
In response, Plair contacted InComm HR on February 24 to
express disagreement with the PIP and submit formal complaints
related to Schmookler’s conduct, including allegations of “many
incidents” of Schmookler’s sexual harassment of her from July
2019 to December 2019. InComm HR launched an investigation
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4 Opinion of the Court 23-10731
into the allegations, which included interviewing members of
Schmookler’s team.
On March 12, InComm HR told Plair that the investigation
found no evidence of discrimination, retaliation, or harassment by
Schmookler. Nevertheless, Schmookler recommended Plair’s PIP
be removed and that Schmookler would work with Plair on a new
success plan instead.
On March 16, a meeting was held with Plair to hear whether
Plair intended to continue working on Schmookler’s team under
the new plan. When no progress was made, another meeting was
held the following day. At the meeting on March 17, Plair was told
that, if she continued in her current role under the new plan, she
would be able to apply for future openings within InComm. Plair
alleged that she requested to be transferred to another department
reporting to a different supervisor. She alleged this request was de-
nied, and she was “immediately terminated” as a result of protest-
ing returning to work under Schmookler. But InComm states that
HR informed Plair that the only viable options were for her to con-
tinue in her present role under the new plan or resign. When Plair
refused to stay in her current role, HR believed she was resigning.
Based on these factual allegations, Plair alleged race discrim-
ination under 42 U.S.C. § 1981. Her complaint also asserted a claim
of “42 U.S.C. § 1981 Sex Discrimination.” Plair alleged that In-
Comm became aware of her transgender identity after she was
hired and engaged in unlawful discrimination based upon this
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23-10731 Opinion of the Court 5
identity. InComm answered, denied liability, and asserted various
affirmative defenses.
Post-discovery, InComm moved for summary judgment. In
support of its motion for summary judgment, InComm submitted,
among other things, a “Statement of Undisputed Material Facts,”
excerpts of Plair’s deposition, and a declaration from Schmookler.
Plair testified in her deposition that her entire complaint, including
her sex discrimination claim, rested on § 1981.
In Plair’s response to InComm’s motion for summary judg-
ment, she stated that, instead of finding her sex discrimination
claim not cognizable under § 1981, “the better view is that such a
claim is legally cognizable under 42 U.S.C. § 2000e et seq.” Plair
further argued that InComm knew of her transgender status dur-
ing her employment, and that it discriminated against—and ulti-
mately terminated—her based on this status.
Regarding the race discrimination claim, Plair stated that she
brought a “racial hostile work environment” claim. However, her
response contained no distinct section or argument in support of
this claim. Further, her argument in favor of the hostile work en-
vironment claim was limited to one sentence in an introduction
paragraph in which she states, without any citations to the record,
the following:
Plaintiff’s racial hostile work environment claim can
succeed because (1) Defendants’ conduct towards
Plaintiff was a pretext for their discriminatory prac-
tice against her and Plaintiff’s assertion with regards
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6 Opinion of the Court 23-10731
to Defendants discriminatory practice against her was
not based on speculation; (2) the alleged conduct was
severe and pervasive; and (3) Plaintiff exhausted all ad-
ministrative remedies to report the harassment she
was subject too; however, Defendants failed to rem-
edy Plaintiff’s claims even though they acknowledged
that such activities were occurring during Plaintiff’s
tenure of employment.
A magistrate judge issued a report and recommendation
(R&R) recommending that the district court grant InComm’s mo-
tion for summary judgment. As an initial matter, the magistrate
judge found that, for summary judgment purposes, “[t]he factual
background is drawn entirely from [InComm’s] statement of ma-
terial facts because [Plair] failed to file a statement of additional
facts even though the Local Rules and the Scheduling Order clearly
directed her to do so.”
The magistrate judge also found that a claim for sex discrim-
ination was not a cognizable cause of action under 42 U.S.C. § 1981.
Therefore, InComm was entitled to judgment on that claim. It fur-
ther noted that, while Plair stated in her response to InComm’s mo-
tion for summary judgment that sex discrimination is cognizable
under Title VII, “[a] plaintiff may not amend her complaint
through argument in a brief opposing summary judgment.” Gil-
mour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004)
(per curiam).
The magistrate judge also adopted InComm’s construction
of Plair’s race discrimination claim as a racial hostile work
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23-10731 Opinion of the Court 7
environment claim, finding that Plair did not dispute or contest this
construction. It further stated in a footnote that, even if Plair’s
claim was construed as a “traditional race discrimination claim,” it
would fail on its merits. The court also found that Plair, in her re-
sponse to InComm’s summary judgment motion, addressed her
hostile work environment claim in only “a single conclusory sen-
tence in an introductory paragraph.” It determined that Plair’s fail-
ure to address the race discrimination claim or offer any evidence
in support thereof constituted claim abandonment. Based on this
abandonment and Plair’s failure to make a showing on the essential
elements of her race discrimination claim, the court granted sum-
mary judgment to InComm as to that claim.
The district court subsequently adopted the R&R in its en-
tirety, thereby granting summary judgment to InComm. Follow-
ing the entry of judgment, Plair timely appealed.
II. Analysis
A. Standard of Review
Eleventh Circuit Rule 3-1 provides that a party who does not
object to an R&R and was informed of the timeline for which to
do so waives the right to appeal the district court’s order if the or-
der concerns “unobjected-to factual and legal conclusions.” We
may, but are not bound to, review for plain error if the plain inter-
ests of justice exception applies. Id.
To succeed on the “extremely stringent” plain error stand-
ard of review, an appellant must prove: (1) an error occurred;
(2) the error was plain; (3) it affected substantial rights; and (4) not
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8 Opinion of the Court 23-10731
correcting the error would seriously affect the judicial proceeding’s
fairness. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th
Cir. 1999). Plain error cannot arise when the statutory language
does not explicitly resolve an issue and when neither Supreme
Court nor Eleventh Circuit precedent exists directly resolving it.
United States v. Curtin, 78 F.4th 1299, 1310 (11th Cir. 2023).
Summary judgment is only appropriate “if the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). In summary judgment proceedings, “the onus is upon the
parties to formulate arguments; grounds alleged in the complaint
but not relied upon in summary judgment are deemed aban-
doned.” Resol. Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995). Moreover, it is not the district court’s burden to extract any
potential argument that could be proffered based upon the materi-
als before it. Id. Additionally, “[a]n appellant forfeits an issue when
she raises it in a perfunctory manner without supporting argu-
ments and authority.” Harner v. Soc. Sec. Admin., Comm’r, 38 F.4th
892, 899 (11th Cir. 2022) (internal quotation mark omitted).
Any issue that an appellant wants us to consider should be
“specifically and clearly identified” in her appellate brief. Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
We have stated that, should a party fail to do so, the claim will be
considered abandoned—even if preserved at the district court
level. Id. An appellant’s failure to address a district court’s alterna-
tive holding or disposition constitutes an abandonment of any
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23-10731 Opinion of the Court 9
argument thereto. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 682–83 (11th Cir. 2014).
We “generally will not consider an issue or theory that was
not raised in the district court.” Wright v. Hanna Steel Corp., 270
F.3d 1336, 1342 (11th Cir. 2001). We are “unable to reach the mer-
its” of a claim where we determine that an appellant “ha[s] aban-
doned the claim and argument [she] made before the district court,
and in its place raised an entirely new theory on appeal—one never
presented to or considered by the trial court.” Access Now, Inc., 385
F.3d at 1326–27.
We address the race discrimination and sex discrimination
claims in turn.
A. Race Discrimination Under § 1981
Here, Plair’s failure to object to the magistrate judge’s R&R
warrants dismissal of her appeal in its entirety, unless we determine
that plain error review is “necessary in the interests of justice.”
Plair provides no argument on appeal as to why her case is one
where this exception should apply. Therefore, we dismiss her race
discrimination claim under § 1981.
But even assuming plain error review applied, Plair aban-
doned her race discrimination claim on appeal. She did not chal-
lenge the district court’s finding that her claim was best construed
as a hostile work environment claim. She did not put forth any
arguments in favor of such a claim in her response to InComm’s
summary judgment motion, nor did she argue a hostile work envi-
ronment claim on appeal, both of which constitute abandonment
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10 Opinion of the Court 23-10731
of that claim. We do not address the merits of Plair’s race discrim-
ination claim to the degree she argues it under the “convincing mo-
saic” framework, because this framework was never argued below.
Accordingly, we affirm as to this issue.
B. Sex Discrimination Under § 1981
Section 1981, among other things, “affords a federal remedy
against discrimination in private employment on the basis of race.”
Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459–60 (1975). The
Supreme Court has stated that § 1981 does not address classifica-
tions or categories other than race. See Runyon v. McCrary, 427 U.S.
160, 167–68 (1976). Where a district court finds that a plaintiff has
brought a claim not cognizable under § 1981, it may properly grant
summary judgment in favor of the defendant as to that claim. See
Jones v. Firestone Tire & Rubber Co., 977 F.2d 527, 537 (11th Cir. 1992)
(affirming summary judgment where the district court properly
found that plaintiff’s “store assignment claims” were not cogniza-
ble under § 1981).
We have stated that, even under the liberal notice pleading
standard of Federal Rule of Civil Procedure 8(a), plaintiffs may not
“raise new claims at the summary judgment stage.” Gilmour, 382
F.3d at 1314. “Efficiency and judicial economy require that the lib-
eral pleading standards . . . are inapplicable after discovery has
commenced.” Id. at 1315. Rather, if plaintiffs desire to assert a new
claim at the summary judgment stage, the proper procedure is to
amend the complaint. Id. Therefore, “[a] plaintiff may not amend
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23-10731 Opinion of the Court 11
her complaint through argument in a brief opposing summary
judgment.” Id.
Here, as with her race discrimination claim, we dismiss
Plair’s sex discrimination claim in its entirety because she failed to
object to the R&R, and because she has not provided any argument
as to why plain error review of her claim is “necessary in the inter-
est[] of justice.”
Even under plain error review, Plair does not contest or oth-
erwise challenge the district court’s finding that her sex discrimina-
tion claim was not cognizable under § 1981, thus abandoning any
challenge to that dispositive finding. And the district court did not
err in making that finding, as clear Supreme Court precedent dic-
tates that § 1981 claims are cabined to race discrimination. Further,
Plair could not amend her complaint to raise a Title VII claim
through her response in opposition to the motion for summary
judgment—only an amended complaint would have been proce-
durally appropriate. As Plair did not do so, any argument for us to
contemplate her claim under Title VII is forfeited, thus barring it
from our consideration. Accordingly, we affirm as to this issue.
III. Conclusion
We affirm the summary judgment order of the district
court.
AFFIRMED.
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