           Case: 14-11119   Date Filed: 09/05/2014   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11119
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 6:12-cv-01852-ACC-DAB



HENRY MCCONE,

                                                           Plaintiff-Appellant,

                                   versus

PITNEY BOWES, INC.,
PITNEY BOWES MANAGEMENT SERVICES, INC.,

                                                        Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (September 5, 2014)

Before HULL, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
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         Pro se plaintiff-appellant Henry McCone appeals from the district court’s

dismissal of his Title VII employment discrimination claim, 42 U.S.C. § 2000e et

seq, for failure to state a claim upon which relief can be granted under Fed. R. Civ.

P. (Rule) 12(b)(6). After a thorough review of the record, we affirm.

                                             I.

         McCone filed a second amended complaint against Pitney Bowes, Inc. and

Pitney Bowes Management Services, Inc. (collectively “Pitney Bowes”), alleging

that Pitney Bowes discriminated against him based on his gender.

         McCone began working for Pitney Bowes 1 as a non-driving customer

service associate in 2003. His job involved opening correspondence, date

stamping, folding and inserting correspondence, and metering mail. Subsequently,

Pitney Bowes required him to drive the site route, which entailed transporting

correspondence and files in Orlando and surrounding areas. Female customer

services employees Wanda Williams and Terry Synder were not trained or required

to drive the site route. Driving the site route exposed McCone to adverse weather

conditions and removed amenities McCone had access to while working as a non-

driver, specifically, air conditioning, restrooms, microwave oven, and a

refrigerator. After McCone complained about the change in job assignments, and




1
    None of McCone’s complaints indicated which entity was his direct employer.
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expressed his safety concerns for driving the route, he received a negative

performance evaluation.

       Pitney Bowes moved to dismiss under Rules 8 and 12(b)(6), arguing that

McCone failed to allege any adverse employment action or to identify any

similarly situated female employee. The district court granted the motion, finding

that McCone failed to allege any adverse employment action. The court rejected

McCone’s claims that the dangers of driving and the lack of amenities constituted

material changes in the terms of his employment. 2 McCone moved for

reconsideration, which the court denied. 3 This is McCone’s appeal.

                                             II.

        We review a grant of a motion to dismiss for failure to state a claim de

novo, “accepting the allegations in the complaint as true and construing them in the

light most favorable to the plaintiff.” Spain v. Brown & Williamson Tobacco

Corp., 363 F.3d 1183, 1187 (11th Cir. 2004). The plaintiff’s “[f]actual allegations

must be enough to raise a right to relief above the speculative level, on the
2
  Because the court found that McCone failed to plead any adverse employment action, it did not
address whether McCone had identified similarly situated employees who were treated
differently. And because the court dismissed the complaint under Rule 12(b)(6), it did not
address Pitney Bowes’s Rule 8 argument.
3
  Although McCone indicated in his notice of appeal that he was appealing from the dismissal
and denial of reconsideration, his opening brief does not address the motion for reconsideration.
Accordingly, McCone has abandoned any assertion of error with respect to the district court’s
ruling on his post-judgment motion. Holland v. McGee, 677 F.3d 1047, 1066 (11th Cir. 2012)
(explaining that issues not raised in the initial brief are abandoned).


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assumption that all the allegations in the complaint are true (even if doubtful in

fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations

omitted). In reviewing a motion to dismiss, we must determine whether the

pleadings contain “sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citation omitted). A claim is facially plausible when the court can “draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(citation omitted).

       We construe a pro se litigant’s pleadings liberally. Alba v. Montford, 517

F.3d 1249, 1252 (11th Cir. 2008). But, “this leniency does not give a court license

to serve as de facto counsel for a party, or to rewrite an otherwise deficient

pleading in order to sustain an action.” GJR Invs. v. Cnty. of Escambia, 132 F.3d

1359, 1369 (11th Cir. 1998) (citation omitted), overruled on other grounds, as

recognized by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).

                                        III.

      Title VII prohibits employment discrimination on the basis of gender. 42

U.S.C. § 2000e-2(a). To establish a showing of discrimination based on

circumstantial evidence, we apply the framework set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). Kidd v. Mando Am. Corp., 731 F.3d 1196,

1202 (11th Cir. 2013). Under this framework, the plaintiff must first set out a


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prima facie showing. Id. A plaintiff can meet this by showing: (1) he was a

member of a protected class; (2) he was qualified for the job; (3) he suffered an

adverse employment action; and (4) his employer treated similarly situated

employees outside the protected class more favorably. Crawford v. Carroll, 529

F.3d 961, 970 (11th Cir. 2008).

      An adverse employment action is not only an element of the prima facie

case, but an element of the claim itself. Holland v. Gee, 677 F.3d 1047, 1056 (11th

Cir. 2012). An adverse employment action is “a serious and material change in the

terms, conditions, or privileges of employment.” Id. (internal citation and

emphasis omitted). Generally, an adverse employment action requires a significant

change in employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a

significant change in benefits. Davis v. Town of Lake Park, Fla., 245 F.3d 1232,

1239 (11th Cir. 2001). The employee’s subjective view of the significance and

adversity of the employer’s action is not controlling. Kidd, 731 F.3d at 1204.

Rather, the employment action must be materially adverse as viewed by a

reasonable person under the same circumstances. Id.

      “[N]ot all conduct by an employer negatively affecting an employee

constitutes adverse employment action.” Davis, 245 F.3d at 1238. Title VII is

neither a general civility code nor a statute making actionable the ordinary


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tribulations of the work place. Cotton v. Cracker Barrel Old Country Store, Inc.,

434 F.3d 1227, 1234 (11th Cir. 2006). Indeed, Title VII was not designed to make

federal courts second-guess the business judgment of employers. Davis, 245 F.3d

at 1244. And because work assignment claims strike at the very heart of an

employer’s business judgment and expertise, absent unusual circumstances, they

typically do not constitute adverse employment actions. See id. at 1244-45.

      Here, the district court properly dismissed McCone’s complaint because he

failed to allege that he suffered an adverse employment action. Despite McCone’s

subjective view that his exposure to unpleasant weather conditions and deprivation

of office amenities constituted significant hardship, a reasonable person under the

same circumstances would recognize that these sorts of problems are

commonplace and represent little more than the “ordinary tribulations” of the work

place. Davis, 245 F.3d at 1239; Cotton, 434 F.3d at 1234. Because McCone failed

to allege an adverse employment action, an indispensable element of an

employment discrimination claim, he failed to assert a facially plausible claim that

would allow the court to draw the reasonable inference that Pitney Bowes was

liable for gender discrimination. Iqbal, 556 U.S. at 678; Davis, 245 F.3d at 1238.

      McCone asserts that he sufficiently pleaded his gender discrimination claim,

and that he was not required to allege a specific adverse action under Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 508 (2002) (explaining that the prima facie case is


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an “evidentiary standard, not a pleading requirement”). But Swierkiewicz cannot

be read in a vacuum; the district court must also consider whether the complaint

satisfies Iqbal’s “plausible on its face” standard and whether the allegations are

sufficient to “raise a right to relief above the speculative level” under Twombly.4

Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010) (noting that post-

Iqbal, a plaintiff must allege a prima facie case of discrimination). Cf. Jackson v.

BellSouth Telecomms., 372 F.3d 1250, 1270-71 (11th Cir. 2004) (explaining, pre-

Twombly, that Swierkiewicz “did not even remotely suggest that a pleading could

survive dismissal when it consisted of only the barest of conclusory allegations

without notice of the factual grounds on which they purport to be based”).

       Here, it is clear that McCone failed to allege any conduct that would qualify

as an adverse employment action. Because the conduct complained of was a

change in duties and a negative performance evaluation without any other

consequences, even accepting everything in the complaint as true, McCone failed

to state a discrimination claim that is “plausible on its face.” Iqbal, 556 U.S. at

678.




4
  We note that Twombly effectively overruled Swierkiewicz when it rejected the old standard for
dismissal set out in Conley v. Gibson, 355 U.S. 41 (1957). But this had no impact on
Swierkiewicz’s statement that a plaintiff is not required to plead a prima facie case of
discrimination in order to survive dismissal.
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       Finally, contrary to McCone’s argument, the district court did not fail to

consider Florida law finding cars to be dangerous instrumentalities. 5 The court

cited this in its opinion, but found that this constituted only an ordinary tribulation

of the workplace and not a change that reasonable people would find seriously and

materially adverse. Davis, 245 F.3d at 1239. Thus, the district court properly

dismissed McCone’s complaint.

       AFFIRMED.




5
   This finding arose in tort proceedings involving liability for injury resulting from a dangerous
instrumentality, in that case, a construction grader. See West v. Caterpillar Tractor Co., 336
So.2d 80 (Fla. 1976).
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