[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ NOVEMBER 27, 2009
THOMAS K. KAHN
No. 09-11073 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 07-00408-CV-FTM-29-DNF
KIMBERLI ESCARRA,
Plaintiff-Appellant,
versus
REGIONS BANK,
AMSOUTH BANK,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 27, 2009)
Before EDMONDSON, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Kimberli Escarra appeals the district court’s order granting summary
judgment in favor of Regions Bank (Regions) and AmSouth Bank (AmSouth) in a
diversity action for (1) breach of oral and written contract, (2) negligent
misrepresentation, fraudulent inducement, and promissory estoppel, and (3)
wrongful termination under the Florida Civil Rights Act of 1992, Fla. Stat.
§ 760.01, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a).1
We address each claim in turn, and affirm.2
I.
Escarra contends the district court erred in granting summary judgment on
her breach-of-contract claims because she failed to meet a condition precedent
when she was terminated prior to January 31, 2007, for closing her office in direct
1
Escarra abandoned any claim regarding the district court’s denial of her claims for
negligent misrepresentation and fraudulent inducement by failing to specifically address the issues
in her initial brief.
2
We review a district court’s grant of summary judgment de novo. Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). Summary judgment is appropriate when the
evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of
material fact and compels judgment as a matter of law. Id. “There is no genuine issue of material
fact if the nonmoving party fails to make a showing sufficient to establish the existence of an
element essential to that party’s case and on which the party will bear the burden of proof at trial.”
Jones v. Gerwens, 874 F.2d 1534, 1538 (11th Cir. 1989). “Genuine disputes are those in which the
evidence is such that a reasonable jury could return a verdict for the non-movant.” Mize v. Jefferson
City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).
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contravention of her supervisor’s orders and mishandling a loan for a high-profile
client.
Under Florida law3, “[a] contingency or condition precedent contemplates
the performance of some act or the happening of some event after a contract is
entered into, upon which the obligation to perform the contract is made
dependent.” Seaside Cmty. Dev. Corp. v. Edwards, 573 So. 2d 142, 145 (Fla. 1st
DCA 1991). “When the happening of a condition precedent is an element of a
contract, no recovery can be had with regard to performance of the contract absent
substantial compliance with the condition precedent.” Id.
On February 21, 2006, AmSouth sent Escarra a letter providing her earnings
for the year 2006 would be guaranteed at a minimum of $1,000,000. The
agreement expressly provided Escarra would forfeit the guarantee if she (1) failed
to maximize volume and earnings for both herself and the company or (2) was
terminated for cause or resigned.
The evidence showed Escarra’s supervisor sent her a letter on April 28,
2006, ordering “[Escarra’s] office must remain open during standard AmSouth
business hours.” Nevertheless, she closed her office on July 3, 2006, a regular
3
Under the Erie doctrine, a federal court sitting in diversity must apply the substantive law
of the state. Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1232 (11th Cir. 2004).
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business day. Thus, there was no disputed issue of material fact regarding whether
Escarra failed to request permission before closing her office.
The record also demonstrates Escarra knew the high-profile loan involved
the refinancing of a commercial loan on rental property owned by an LLC that
originated in AmSouth’s commercial loan department. There was no dispute she
sought guidance up the chain of her own command rather than referring the loan to
the commercial loan department. In doing so, Escarra omitted key information
that could have saved delay in processing the loan, which was the major infraction
identified by AmSouth. Thus, there was no disputed issue of material fact as to
whether Escarra mishandled the loan.
The district court did not err by finding AmSouth had cause for terminating
her employment because Escarra closed her office without prior permission on a
regular business day and mishandled a high-profile loan. The guarantee required
Escarra to be employed until January 31, 2007, and she was terminated for cause
by AmSouth prior to that date. Because Escarra failed to complete a condition
precedent to the guarantee, the district court did not err in granting summary
judgement on her claims of breach of contract. See Seaside Cmty. Dev. Corp., 573
So. 2d at 145.
II.
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Escarra argues the district court erred by granting summary judgment in
favor of Regions and AmSouth on her claims for promissory estoppel. She asserts
her reliance on AmSouth’s offer of at-will employment was reasonable because
she was an employee at the time of the offer, she was a top-ranked performer for
the company, and she was guaranteed $1,000,000 in earnings for 2006.
The basic doctrine of promissory estoppel under Florida law provides “[a]
promise which the promisor should reasonably expect to induce action or
forbearance on the part of the promisee or a third person and which does induce
such action or forbearance is binding if injustice can be avoided only by
enforcement of the promise.” W.R. Grace & Co. v. Geodata Servs., Inc., 547 So.
2d 919, 924 (Fla. 1989)(citing Restatement (Second) Contracts § 90 (1979)). “The
promisor is affected only by reliance which he does or should foresee, and
enforcement must be necessary to avoid injustice.” Id. The satisfaction of the
latter requirement depends upon “the reasonableness of the promisee’s reliance,”
“its definite and substantial character in relation to the remedy sought,” “the
formality with which the promise is made,” “the extent to which the evidentiary,
cautionary, deterrent and channeling functions of form are met by the commercial
setting or otherwise,” and “the extent to which such other policies as the
enforcement of bargains and the prevention of unjust enrichment are relevant.” Id.
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“For promissory estoppel to be applied, the evidence must be clear and
convincing.” Id. at 925.
The Florida District Court of Appeals has addressed whether a plaintiff can
reasonably rely on the defendant’s offer of at-will employment. Leonardi v. City
of Hollywood, 715 So. 2d 1007,1008 (Fla. 4th DCA 1998). After noting decisions
by different states on the subject, it found the plaintiff’s reliance on the
defendant’s offer of at-will employment was unreasonable based on the
Restatement (Second) of Contracts § 90. Id. at 1010. It noted, had the defendant
allowed the plaintiff “to begin working, it could have terminated his employment
immediately thereafter, before he accrued any wages.” Id. “Similarly, had [the
plaintiff] not quit his prior position, his employer also could have terminated him
at will.” Id. Thus, it found the plaintiff could not maintain a claim for promissory
estoppel. Id.
Escarra attempts to distinguish Leonardi because she was a current
employee and top-ranked performer for AmSouth, and AmSouth acted definitively
and expeditiously in attempting to secure her continued employment by
guaranteeing her $1,000,000 in earnings for 2006. However, Escarra does not
claim the guarantee letter changed the at-will nature of her employment. Thus,
AmSouth could have terminated her employment before she accrued the right to
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any wages under the guarantee. See Leonardi, 715 So. 2d at 1008. Moreover,
AmSouth retained sole discretion to determine whether Escarra continued to
maximize volume and earnings for herself and the company. Accordingly, the
district court did not err in granting summary judgment on Escarra’s promissory-
estoppel claim because she did not demonstrate reasonable reliance on AmSouth’s
promise of at-will employment. See id. 1009-10.
III.
Escarra asserts the district court erred in granting summary judgment on her
claims for wrongful termination based on sex discrimination because AmSouth
treated her less favorably than a similarly situated male coworker.
The Florida Civil Rights Act of 1992 (FCRA) protects employees from
gender discrimination in the workplace. Fla. Stat. §§ 760.01-.11. Because the
FCRA was patterned after Title VII, Florida courts rely on federal case law for
guidance “insofar as that construction is not inharmonious with the spirit and
policy of Florida’s general legislation of the subject.” Russell v. KSL Hotel Corp.,
887 So. 2d 372, 377 (Fla. 3d DCA 2004). Title VII prohibits, inter alia, an
employer from discriminating against a person based on his or her sex. 42 U.S.C.
§ 2000e-2(a). Under Title VII, a plaintiff bears the ultimate burden of proving
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discriminatory treatment by a preponderance of the evidence. Earley v. Champion
Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).
A prima facie case of disparate treatment is established when the plaintiff
demonstrates he “was a qualified member of a protected class and was subjected to
an adverse employment action in contrast with similarly situated employees
outside the protected class.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087
(11th Cir. 2004). Where a plaintiff alleges discrimination in the application of
work rules, he must prove he engaged in conduct similar to a person outside of the
protected class and he received more severe treatment than the person who
engaged in the similar misconduct. Jones v. Bessemer Carraway Med. Ctr., 137
F.3d 1306, 1311 n.6 (11th Cir.), opinion modified by 151 F.3d 1321 (1998).
To determine whether another employee was similarly situated, we consider
whether that employee was “involved in or accused of the same or similar
conduct” and disciplined in a different manner. Maniccia v. Brown, 171
F.3d 1364, 1368 (11th Cir. 1999). In doing so, “the quantity and quality of the
comparator’s misconduct [must] be nearly identical to prevent courts from second-
guessing employers’ reasonable decisions and confusing apples with oranges.” Id.
While we have called our “nearly identical” standard into doubt, Maniccia, as the
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earlier panel decision, is still the controlling precedent. Burke-Fowler v. Orange
County, Fla., 447 F.3d 1319, 1323 n.2 (11th Cir. 2006).
Escarra maintains Ernie Saltmarsh was a similarly situated employee
because they both were “G Loan Officers”, had similar production rankings,
received guarantee letters, had the same supervisors, and were subject to the same
disciplinary standards. However, she concedes Saltmarsh did not close his office
in direct contravention of management’s instructions and did not mishandle a loan
for a board member’s spouse. As discussed above, AmSouth had cause to
terminate Escarra’s employment because she closed her office during business
hours in violation of an order and mishandled a high-profile client’s loan.
Accordingly, because Escarra and Saltmarsh did not engage in “nearly identical”
misconduct, the district court did not err in finding she failed to make a prima
facie case for sex discrimination. See Maniccia, 171 F.3d at 1368.
AFFIRMED.
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