Case: 16-17802 Date Filed: 09/29/2017 Page: 1 of 16
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17802
Non-Argument Calendar
________________________
D.C. Docket No. 1:15-cv-23989-UU
GEORGE DAGNESSES,
an individual,
Plaintiff - Appellant,
versus
TARGET MEDIA PARTNERS,
a foreign corporation,
TARGET MEDIA PARTNERS OPERATING COMPANY,
a foreign corporation,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 29, 2017)
Before JORDAN, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
Case: 16-17802 Date Filed: 09/29/2017 Page: 2 of 16
George Dagnesses believed his boss had it out for him. She belittled and
accosted him, he felt, and regularly made negative remarks about men. When his
boss eventually fired him, Dagnesses sued his former employer, Target Media
Partners and Target Media Partners Operating Company (collectively, “TMP”), for
sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., bringing various state law claims as well. The district
court granted TMP summary judgment on all counts. Upon review, we reverse as
to Dagnesses’ Florida law contract claim, and otherwise affirm.
I. FACTUAL BACKGROUND
Dagnesses asserts that while working as a manager at TMP, he was subject
to discriminatory treatment by his supervisor, Linda Coffman, including discharge
without a warning or opportunity to correct his allegedly unsatisfactory behavior
and performance. He also asserts that TMP retaliated against him for speaking out
against his allegedly discriminatory treatment and against certain practices
regarding the classification and work assignments of independent contractors, and
that it failed to pay him commissions and bonuses to which he was contractually
entitled. TMP asserts that it discharged Dagnesses due to his behavioral and work
performance problems and denies that it retaliated against him or agreed to pay
him commissions and bonuses.
2
Case: 16-17802 Date Filed: 09/29/2017 Page: 3 of 16
Sabina Padva, a TMP general manager, hired Dagnesses in 2008 as a Dade
County sales manager for one of TMP’s publications, Car and Truck Buyers
Guide. Dagnesses’ offer of employment letter from TMP read, in part: “[Y]our
employment with Target Media Partners is at-will and neither this letter nor any
other oral or written representations may be considered a contract for any specific
period of time.” Doc. 126-2 at 10.1 The offer letter also provided that Dagnesses
would receive a 10% commission based on his weekly personal sales, as well as a
bonus for increasing TMP’s monthly sales in Dade County. Padva was Dagnesses’
direct supervisor until 2013, when Coffman, TMP’s regional Vice President of
Operations, promoted Dagnesses to a general manager position for another TMP
publication, Auto Guide. In this position, Dagnesses reported directly to Coffman.
Dagnesses testified that during his time working at the Auto Guide, Coffman
regularly treated him poorly due to her dislike of men. According to Dagnesses,
Coffman repeatedly belittled and second-guessed him, and on one occasion she
poked him in the chest. Dagnesses testified that Padva had told him Coffman did
not like men, and that Coffman disliked Dagnesses in particular. He also testified
that Coffman indicated to him that she wanted him to hire women.
Padva testified that Coffman’s treatment of Dagnesses had made her
uncomfortable, but she did not believe Coffman disliked Dagnesses because he
1
Unless otherwise noted, all citations to “Doc. __” refer to the numbered entries on the
district court docket.
3
Case: 16-17802 Date Filed: 09/29/2017 Page: 4 of 16
was a man. Ligia Obeso, Dagnesses’ co-worker at Auto Guide, testified that
Coffman behaved unpleasantly toward Dagnesses, that Padva had said Coffman
hated men, and that Coffman once said TMP should hire more female sales
representatives because women are better workers than men. Another co-worker,
Rafael Lugo, testified that Coffman behaved differently around Dagnesses than
around female co-workers and seemed uncomfortable in Dagnesses’ presence.
Rosangel Duarte, a physician who treated Dagnesses for cancer, testified that
Coffman once called his office to confirm that Dagnesses was not lying about his
medical condition. Dagnesses claimed that Coffman required him to use sick time
rather than vacation time to undergo surgery—something no other employee had to
do—and never called a doctor to verify another employee’s medical condition.
Coffman testified that Auto Guide lost money under Dagnesses’
management and that she repeatedly told Dagnesses that his job performance was
unsatisfactory. Coffman warned Dagnesses that he had failed to meet TMP’s sales
goals and asked him to identify specific actions he could undertake to increase
sales. She also reprimanded him for unilaterally and without prior authorization
terminating one employee and asking another employee to resign, offered him
advice on improving sales and directed him to ask Padva for help, and warned him
that he needed to communicate better. Coffman testified that TMP did not provide
improvement plans to general managers with performance problems, but brought
4
Case: 16-17802 Date Filed: 09/29/2017 Page: 5 of 16
unsatisfactory behavior to their attention so that they would correct it. Dagnesses
acknowledged that Coffman was unhappy with his job performance and that he
had declined Coffman’s offer of advice and direction. He also acknowledged
sending Coffman a frustrated email in response to her criticism, and that the
email’s tone was inappropriate.
Dagnesses testified that he had met the sales benchmarks set out in the offer
letter during his first two and a half years at TMP, but did not receive the
commissions and bonuses the letter had promised him. Although TMP paid him
$12,000 in commissions, Dagnesses said, it later told him that it had overpaid him
by $8,000 and demanded that money back. Dagnesses asserted that he paid the
money back under protest and that TMP still owes him $16,500. Eventually, TMP
formally altered Dagnesses’ compensation plan so that he would no longer receive
commissions based on personal sales, although he remained eligible for bonuses
based on regional sales.
Dagnesses also testified that while employed with TMP, he told Coffman
that he believed the company had improperly classified as independent contractors
persons who should have been classified as employees and was assigning them
work that independent contractors legally could not perform. He conceded,
however, that he never informed Coffman that he believed TMP was engaged in
illegal activity.
5
Case: 16-17802 Date Filed: 09/29/2017 Page: 6 of 16
TMP fired Dagnesses in 2014. Coffman told him that TMP was moving in a
direction for which he would not be a good fit. Coffman testified that Dagnesses’
job performance and communication problems factored into her decision to
terminate him. Dagnesses testified that he believed Coffman fired him because he
was a man, asserting that his performance did not warrant termination.
Dagnesses sued TMP in the district court. His second amended complaint
raised claims of sex discrimination and retaliation under Title VII, as well as
claims under the Florida Whistleblower Act (“FWA”), Fla. Stat. § 448.102, and for
breach of contract. 2 The district court granted TMP summary judgment as to each
claim. Dagnesses timely appealed.
II. STANDARD OF REVIEW
“The court shall grant summary judgment 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). “We review the district court’s grant of
summary judgment de novo, drawing all inferences in [the non-movant’s] favor.”
Robinson v. Arrugueta, 415 F.3d 1252, 1254-55 (11th Cir. 2005).
2
Dagnesses also brought claims for race discrimination under Title VII and for race and
sex discrimination under the Florida Civil Rights Act, Fla. Stat. § 760.01 et seq. On appeal, he
does not challenge the district court’s summary judgment on these claims, and so has abandoned
them. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A]
legal claim or argument that has not been briefed before the court is deemed abandoned and its
merits will not be addressed.”).
6
Case: 16-17802 Date Filed: 09/29/2017 Page: 7 of 16
III. ANALYSIS
A. Dagnesses’ Title VII Sex Discrimination Claim
Dagnesses argues that the district court erred in granting summary judgment
to TMP on his Title VII sex discrimination claim, asserting that TMP discriminated
against him by failing to warn or allow him to correct his job performance before
firing him. He has not shown, however, that TMP treated him differently than it
treated any similarly-situated female employee, and so he cannot make out a prima
facie case of discrimination. Accordingly, the district court properly granted
summary judgment to TMP.
Title VII prevents employers from discriminating against employees on the
basis of their sex. 42 U.S.C. § 2000e-2. We analyze Title VII claims that are
based on circumstantial evidence under McDonnell Douglas Corp. v. Green’s
burden-shifting framework. See Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202
(11th Cir. 2013) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
Under the McDonnell Douglas framework, the plaintiff bears the initial burden of
establishing a prima facie case of employment discrimination. Id. He satisfies this
burden by showing that “1) [he] was a member of a protected class, 2) []he was
qualified to do the job, 3) []he was subjected to an adverse employment action, and
4) similarly situated employees outside of the protected class were treated
differently.” Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012).
7
Case: 16-17802 Date Filed: 09/29/2017 Page: 8 of 16
“To make a comparison of the plaintiff’s treatment to that of [employees
outside the protected class], the plaintiff must show that he and the employees are
similarly situated in all relevant respects.” Holifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997). “[T]o determine whether employees are similarly situated, we
evaluate whether the employees are involved in or accused of the same or similar
conduct and are disciplined in different ways.” Burke-Fowler v. Orange Cty., 447
F.3d 1319, 1323 (11th Cir. 2006) (internal quotation marks omitted). “When
making that determination, we require that the quantity and quality of the
comparator’s misconduct be nearly identical to prevent courts from second-
guessing employers’ reasonable decisions and confusing apples with oranges.” Id.
(alteration and internal quotation marks omitted).
Once the plaintiff establishes a prima facie case of discrimination, “the
burden of production shifts to the employer . . . to introduce evidence of some
legitimate, nondiscriminatory reason for its employment decision.” Kidd, 731 F.3d
at 1202 (internal quotation marks omitted). Should the employer make such a
showing, the plaintiff “must then show that the seemingly legitimate reason the
employer gave was pretextual—i.e., the proffered reason was not the true reason
for the employment decision.” Id. (internal quotation marks omitted). “The
ultimate burden of persuading the trier of fact that the defendant intentionally
8
Case: 16-17802 Date Filed: 09/29/2017 Page: 9 of 16
discriminated against the plaintiff remains at all times with the plaintiff.” Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
It is undisputed that Dagnesses is a member of a protected class, was
qualified to do his job, and suffered an adverse employment action. To show that
TMP treated similarly-situated female employees more favorably than it treated
him, he identified two supposed comparators: Shannon Holman and Gail Chablis,
both former TMP general managers terminated for poor work performance, whom
Dagnesses asserts received warnings and opportunities to improve their
performance before being discharged. Viewing the evidence in the light most
favorable to Dagnesses, TMP’s treatment of Holman and Chablis does not show
that it discriminated against Dagnesses.
Holman is not a valid comparator because her supposed misconduct was not
“nearly identical” to Dagnesses’. Burke-Fowler, 447 F.3d at 1323. Holman’s
performance improvement plan, which Dagnesses has not rebutted, shows that she
was discharged due to dissatisfaction with the quality of her work, not due to poor
communication, attitude, or failure to follow company policy. In contrast, TMP
identified insubordination, inappropriate communication, failure to follow
instructions, and poor attitude as reasons for discharging Dagnesses. Holman thus
engaged in a lesser degree of misconduct than did Dagnesses.
9
Case: 16-17802 Date Filed: 09/29/2017 Page: 10 of 16
Assuming that Chablis is a valid comparator, Dagnesses fails to show that
TMP treated her more favorably than him. He notes that TMP gave Chablis
warnings and an opportunity to improve her job performance before terminating
her. The undisputed evidence, however, showed that TMP gave Dagnesses similar
warnings and opportunities to correct his allegedly dissatisfactory conduct before
firing him. For example, Coffman offered to advise and direct him to help him
improve his performance. Although Coffman warned Chablis that she was at risk
of losing her job but did not do the same for Dagnesses, Coffman’s undisputed
testimony established that Chablis had asked Coffman whether her job was in
jeopardy. Dagnesses does not contend that he ever asked anyone at TMP whether
he was at risk of termination. Dagnesses also asserts that TMP offered Chablis a
new position after firing her, but Coffman’s undisputed testimony proved that
TMP did not offer Chablis another position. Chablis, even if a valid comparator,
does not help Dagnesses establish a prima facie case.
Dagnesses also argues that even if he cannot produce a valid comparator, he
should still survive summary judgment because he has “present[ed] circumstantial
evidence that creates a triable issue concerning [TMP’s] discriminatory intent.”
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). But he
raises this argument on appeal for the first time in his reply brief. “We decline to
address an argument advanced by an appellant for the first time in a reply brief.”
10
Case: 16-17802 Date Filed: 09/29/2017 Page: 11 of 16
Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir.
2008). “Letting [Dagnesses] put forward [his] arguments . . . for the first time in
the reply brief would deprive [TMP] of the opportunity to reflect upon and respond
in writing to [Dagnesses’] arguments and would deprive this Court of the benefit of
written arguments.” Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1307 (11th Cir.
2012) (internal quotation marks omitted). We therefore do not consider
Dagnesses’ argument concerning circumstantial evidence.
Because Dagnesses cannot show that TMP treated any similarly-situated
female employee more favorably than it treated him, he has failed to establish a
prima facie case of employment discrimination. Holland, 677 F.3d at 1055. The
district court thus did not err in granting summary judgment to TMP on this claim.
B. Dagnesses’ Title VII Retaliation Claim
Dagnesses argues that the district court also erred in granting TMP summary
judgment on his claim of retaliation under Title VII. The district court determined
that Dagnesses failed both to establish a prima facie case of retaliation and to show
that TMP’s reason for firing him was pretextual. On appeal, Dagnesses challenges
only the district court’s determination that he did not establish a prima facie case.
Accordingly, he has abandoned his argument as to pretext. Because Dagnesses’
failure to show pretext entitles TMP to summary judgment as to his retaliation
claim, the district court did not err.
11
Case: 16-17802 Date Filed: 09/29/2017 Page: 12 of 16
Title VII prohibits an employer from “discriminat[ing] against any of [its]
employees . . . because he has opposed any practice made an unlawful employment
practice by” Title VII. 42 U.S.C. § 2000e-3(a). As with sex discrimination claims,
“[t]he burden of proof in Title VII retaliation cases is governed by the framework
established in McDonnell Douglas.” Goldsmith v. City of Atmore, 996 F.2d 1155,
1162-63 (11th Cir. 1993). First, the plaintiff must establish a prima facie case of
retaliation by proving “that he engaged in statutorily protected activity, he suffered
a materially adverse action, and there was some causal relation between the two
events.” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008).
“After the plaintiff has established the elements of a claim, the employer has an
opportunity to articulate a legitimate, nonretaliatory reason for the challenged
employment action as an affirmative defense to liability.” Id. “The plaintiff bears
the ultimate burden of proving retaliation by a preponderance of the evidence and
that the reason provided by the employer is a pretext for prohibited retaliatory
conduct.” Id.
“To obtain reversal of a district court judgment that is based on multiple,
independent grounds, an appellant must convince us that every stated ground for
the judgment against him is incorrect.” Sapuppo v. Allstate Floridian Ins., 739
F.3d 678, 680 (11th Cir. 2014). An appellant who “fails to challenge properly on
appeal one of the grounds on which the district court based its judgment . . . is
12
Case: 16-17802 Date Filed: 09/29/2017 Page: 13 of 16
deemed to have abandoned any challenge of that ground, and it follows that the
judgment is due to be affirmed.” Id.
The district court determined that Dagnesses failed to show either a prima
facie case of retaliation or that TMP’s stated reason for firing him was pretextual.
On appeal, Dagnesses argues that the district court erred in determining that he
failed to establish a prima facie case of retaliation, but he does not dispute the
district court’s pretext determination. Dagnesses therefore has abandoned any
challenge to that ground. Id. Because he failed to show pretext, he cannot prevail
on his retaliation claim. The district court thus did not err in granting TMP
summary judgment.
C. Dagnesses’ Florida Whistleblower Act Claim
Dagnesses argues that the district court erred in granting TMP summary
judgment on his claim under the FWA. Because he raises this argument on appeal
for the first time in his reply brief, we decline to consider it. Little, 691 F.3d at
1307. We thus affirm the district court’s grant of summary judgment to TMP.
D. Dagnesses’ Florida Breach of Contract Claim
Finally, Dagnesses argues that the district court erred in granting TMP
summary judgment on his Florida law breach of contract claim. According to
Dagnesses, TMP failed to pay him $16,500 in commissions and bonuses that he
claims were due for his sales performance. The district court determined that
13
Case: 16-17802 Date Filed: 09/29/2017 Page: 14 of 16
Dagnesses had failed to show a triable issue as to whether a contract between him
and TMP existed. This determination was erroneous; we thus reverse and remand
for further proceedings.
To show breach of contract under Florida law, a plaintiff “must prove (1) a
valid contract; (2) a material breach; and (3) damages.” Murciano v. Garcia, 958
So. 2d 423, 423 (Fla. Dist. Ct. App. 2007). “The basic elements of an enforceable
contract are offer, acceptance, consideration, and sufficient specification of
essential terms.” Jericho All-Weather Opportunity Fund, LP v. Pier Seventeen
Marina & Yacht Club, LLC, 207 So. 3d 938, 941 (Fla. Dist. Ct. App. 2016).
“What constitutes the essential terms of a given contract differs according to
circumstances, but they must include the terms specified in an offer to make a
contract.” Knowling v. Manavoglu, 73 So. 3d 301, 303 (Fla. Dist. Ct. App. 2011)
(internal quotation marks omitted). An “employment contract [that] was
terminable at will with an indefinite duration” is nevertheless enforceable, and a
plaintiff may sue on it to recover “commissions earned based upon past services
performed.” Richey v. Modular Designs, Inc., 879 So. 2d 665, 666 (Fla. Dist. Ct.
App. 2004).
TMP does not dispute that if the offer letter constituted a valid contract,
Dagnesses performed on it and TMP breached it by failing to pay him the
commissions and bonuses he claims he is due. The offer letter allowed a trier of
14
Case: 16-17802 Date Filed: 09/29/2017 Page: 15 of 16
fact reasonably to find that TMP had extended Dagnesses an offer of employment,
which he then accepted, commencing his employment with TMP. See Jericho, 207
So. 3d at 941. It also supported a finding that consideration existed, as it promised
Dagnesses monetary compensation and benefits for his labor. See id. The letter’s
terms were sufficiently specific to create a contract—they described the nature of
the position that Dagnesses was to assume and the duties he was to perform;
provided a detailed compensation schedule, including commissions and bonuses
for achieving certain sales goals, and list of benefits; and specified that Dagnesses’
position was terminable at-will with an indefinite duration. As such, the letter
constituted an enforceable contract under Florida law. See Richey, 879 So. 2d at
666.
TMP argues only that the letter was not a binding contract because it
disclaimed any intent to form a contract. The letter provided: “[Y]our
employment with [TMP] is at-will and neither this letter nor any other oral or
written representations may be considered a contract for any specific period of
time.” Doc. 126-2 at 10. This language is ambiguous; a jury could find that the
parties did not disclaim an intent to form a contract altogether, but merely intended
that the contract was terminable at will. As the elements of a valid contract are
otherwise present, the district court erred in granting TMP summary judgment as to
Dagnesses’ breach of contract claim. Murciano, 958 So. 2d at 423. We vacate its
15
Case: 16-17802 Date Filed: 09/29/2017 Page: 16 of 16
order with respect to that claim and remand for further proceedings consistent with
this opinion.
IV. CONCLUSION
For the reasons given, we vacate the district court’s order and remand for
further proceedings with respect to Dagnesses’ breach of contract claim, and
otherwise affirm it in all respects.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
16