                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________
                                                          FILED
                              No. 09-15177       U.S. COURT OF APPEALS
                                                   ELEVENTH CIRCUIT
                          Non-Argument Calendar
                                                      AUGUST 9, 2010
                        ________________________
                                                        JOHN LEY
                                                          CLERK
               D. C. Docket No. 08-00340-CV-ORL-18GJK

JUDITH MATIAS,


                                                                      Plaintiff,

DENRY BROWN,

                                                            Plaintiff-Appellant,

                                   versus

SEARS HOME IMPROVEMENT PRODUCTS, INC.,

                                                           Defendant-Appellee.


                        ________________________

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

                              (August 9, 2010)

Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:

      Denry Brown, an African-American male, appeals the district court’s order

granting summary judgment to his former employer, defendant Sears Home

Improvement Products, Inc., on his claims of race discrimination, retaliation, and

constructive discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e-2(a), 2000e-3(a), and the Florida Civil Rights Act, Fla. Stat. § 760.10.

After thorough review, we affirm.

                                          I.

      In April 2005, Brown began his employment with Sears. He was hired as a

Project Consultant in the Kitchen Department of Sears’ Orlando, Florida office.

As a Project Consultant, Brown was responsible for making in-home sales

presentations during pre-set sales appointments known as “leads.” Sears

compensated its Project Consultants, including Brown, on a commission basis.

      District Sales Manager Lowell Merklin, Brown’s immediate supervisor,

distributed sales leads to Project Consultants, including Brown, on a daily basis.

Every morning, at approximately 7:00 a.m., Merklin received information from

Sears’ Appointment Center concerning between twenty-five and forty leads

scheduled for that day. Merklin was required to assign and distribute those leads to

the Project Consultants by 8:30 a.m. every morning. Project Consultants typically



                                          2
received two leads per day.

      Sears divides leads into categories. “Prime” leads are those leads in which

both homeowners will be present during the sales presentation. Prime leads are

considered the highest quality leads because the presence of both homeowners

during the in-home sales presentation increases the likelihood that a sale will be

closed that day. Sears’ Operating Procedures Manual provides that sales leads

should be distributed to product consultants “primarily with consideration to net

closing percentage . . . and positive attitude.” Brown admits that, under Sears’

operating procedures, the Project Consultants with the best net closing percentages

and attitudes should receive more prime leads than their colleagues.

      A Project Consultant’s “net closing percentage” is the percentage of that

Project Consultant’s prime leads that resulted in a sale. Because only prime leads

are considered in calculating a Project Consultant’s net closing percentage, non-

prime leads that do not result in a sale do not lower that Project Consultant’s net

closing percentage. Sears’ operating procedures require all Project Consultants to

maintain a net closing percentage equal to or greater than a target level established

by Sears.

      During March 2006, Sears received through its Ethics Hotline an anonymous

complaint alleging that Merklin was distributing leads in a discriminatory manner.



                                           3
Sears’ Regional Human Resources Manager, Charles Klinzing, immediately

investigated the complaint. During the investigation, Klinzing reviewed the sales

lead assignments and interviewed at least eight Project Consultants who worked

under Merklin. Brown was one of the eight Project Consultants interviewed.

When specifically asked, Brown replied that he did not feel that Merklin, or any

other manager, was distributing leads in a discriminatory manner. Sears’ Human

Resources Department was ultimately unable to substantiate the anonymous

complaint. Sears later learned, after Brown ended his employment with Sears, that

Project Consultant Thomas Ridley, an African-American, was the source of the

anonymous complaint.

      Brown admits that he never made an internal complaint about discrimination

and that he never called Sears Ethics Hotline. However, on September 29, 2006,

Brown filed a “complaint of discrimination” with the Florida Commission on

Human Relations. In that complaint, Brown alleged that Merklin was assigning

leads in a discriminatory manner. Specifically, Brown stated that Merklin was

assigning minority Project Consultants leads in low-income, low-home-value areas

while assigning white Project Consultants leads in high-income, high-home-value

areas. In response to Brown’s allegations, Sears filed a Position Statement with the

Florida Commission on Human Relations on October 25, 2006. The next day,



                                         4
Merklin signed an affidavit stating that the information in Sears’ Position

Statement relating to Merklin’s conduct was, to the best of his knowledge, true.

      On October 31, 2006, Merklin issued Brown a Performance Plan for

Improvement. The PPI was written by Metro Sales Manager Poole. The PPI noted

that, from September 24 to October 24, 2006, Brown’s net closing percentage was

57.7% below the established target. It also stated that Brown’s net closing

percentage was 36% off-target for the previous thirty-day period. According to the

PPI, the “minimum acceptable level of performance is -18% variance to target,

with progress being shown to move [net closing percentage] above target level.”

      On February 5, 2007, Brown voluntarily resigned his employment with

Sears. When he resigned, Brown did not make any mention of racial

discrimination. Instead, he told Sears that he was resigning because he was

dissatisfied with his pay.

      On March 7, 2008, Brown filed the lawsuit giving rise to this appeal. Brown

asserted claims of race discrimination and retaliation under Title VII and the

Florida Civil Rights Act. On September 9, 2009, the district court granted Sears’

motion for summary judgment. Brown timely filed a notice of appeal.

                                          II.

      We review de novo a district court’s grant of summary judgment, and, “[i]n



                                          5
doing so, we view all the evidence, and make all reasonable factual inferences, in

the light most favorable to the nonmoving party.” Hulsey v. Pride Rests., LLC,

367 F.3d 1238, 1243 (11th Cir. 2004) (quotation marks and citation omitted).

“Summary judgment is appropriate where ‘there is no genuine issue as to any

material fact and . . . the moving party is entitled to judgment as a matter of law.’”

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004) (quoting Fed.

R. Civ. P. 56(c)). In order to survive a motion for summary judgment, more than a

“mere ‘scintilla’ of evidence” must support the position of the nonmoving party;

“there must be enough of a showing that the jury could reasonably find for that

party.” Brooks v. County Comm’n of Jefferson County, 446 F.3d 1160, 1163

(11th Cir. 2006) (quoting Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)).

      When reviewing a district court’s grant of summary judgment, we apply the

same legal standards as the district court. Lucas v. W.W. Grainger, Inc., 257 F.3d

1249, 1255 (2001). In this case, those standards are provided by Title VII and the

decisions construing it. That is because the “Florida courts have held that

decisions construing Title VII are applicable when considering claims under the

Florida Civil Rights Act.” Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385,

1387 (11th Cir. 1998); see also Florida State Univ. v. Sondel, 685 So.2d 923, 925

n.1 (Fla. 1st DCA 1996); Byrd v. BT Foods, Inc., 948 So.2d 921, 925 (Fla. 4th



                                           6
DCA 2005). Because the analysis of Brown’s Florida Civil Rights Act claims

mirrors the analysis of his Title VII claims, we do not discuss the Florida Civil

Rights Act claims separately. See Harper, 139 F.3d at 1387, 1389–90.

                                         III.

      Brown argues that the district court erred in dismissing his claim of race

discrimination. See 42 U.S.C. § 2000e-2(a)(1); see also Fla. Stat. 760.10(1)(a). A

plaintiff may establish a claim under Title VII through direct evidence of

discrimination or through circumstantial evidence that creates an inference of

discrimination. Bass v. Bd. of County Comm’rs, 256 F.3d 1095, 1103 (11th Cir.

2001), abrogation on other grounds recognized by Crawford v. Carroll, 529 F.3d

961 (11th Cir. 2008). Brown does not argue that he has shown direct evidence of

discrimination. Instead, Brown argues that he has presented sufficient

circumstantial evidence to create an inference of discrimination.

      We use the framework established in McDonnell-Douglas Corp. v. Green,

411 U.S. 792, 93 S. Ct. 1817 (1973), to evaluate Title VII claims based on

circumstantial evidence. Bass, 256 F.3d at 1103–04. Under the McDonnell-

Douglas framework, “the plaintiff has the initial burden of establishing a prima

facie case of discrimination.” Combs v. Plantation Patterns, 106 F.3d 1519,

1527–28 (11th Cir. 1997). To establish a prima facie case, Brown “must show (1)



                                          7
[he] belongs to a protected class; (2) [he] was qualified 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, 529 F.3d at

970.

       The district court did not err in granting Sears’ motion for summary

judgment because Brown has not shown that he was subjected to an adverse

employment action. To show an adverse employment action, “an employee must

show a serious and material change in terms, conditions, or privileges of

employment.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir.

2001). In order to qualify as an adverse employment action, an employer’s action

falling short of an ultimate employment decision “must, in some substantial way,

alter the employee’s compensation, terms, conditions, or privileges of employment,

deprive him or her of employment opportunities, or adversely affect his or her

status as an employee.” Crawford, 529 F.3d at 970. “Although [Title VII] does

not require proof of direct economic consequences in all cases, the asserted impact

cannot be speculative and must at least have a tangible adverse impact on the

plaintiff’s employment” as “viewed by a reasonable person in the circumstances.”

Davis, 245 F.3d at 1239.

       Brown does not take issue with the amount of leads, or the amount of prime



                                           8
leads, that he was assigned. Instead, Brown argues that he was subjected to an

adverse employment action because Merklin assigned him leads for homes with a

lower average income and lower average home value than the leads received by

non-African-American Project Consultants. According to Brown, Merklin’s

discriminatory lead assignment practices lowered his chance of success during

each sales presentation, resulting in a lower net closing percentage and reduced

commissions.

       Assuming that the discriminatory assignment of leads could constitute an

adverse employment action, Brown’s argument fails. The undisputed record

evidence shows that the average annual income per household for Brown’s leads is

only seventy-three dollars less than the average annual income per household for

the leads of non-African-American Project Consultants. That is a difference of

only 0.17%. Similarly, the average home value for Brown’s leads is only $227 less

than the average home value for the leads of non-African-American Project

Consultants. That is a difference of only 0.21%. Furthermore, the median home

value for Brown’s leads is exactly the same as the median home value for the leads

of non-African-American Project Consultants, and the median household income

for Brown’s leads is actually $490 greater than the median household income for

the leads of non-African-American Project Consultants.



                                          9
      The differences between the average home values and incomes for Brown’s

leads and those of non-African-American Project Consultants are so small that they

are meaningless. The minuscule differences in lead assignments of which Brown

complains are not “serious and material,” Crawford, 529 F.3d at 970–71, and could

not reasonably be viewed as having “a tangible adverse impact on the plaintiff’s

employment.” Davis, 245 F.3d at 1239. Merklin’s allegedly discriminatory

assignment of leads therefore does not constitute an “adverse employment action”

within the meaning of Title VII. Id. Furthermore, Brown has not identified any

similarly situated employees outside his class, much less demonstrated that those

employees were treated more favorably. Because Brown has not established a

prima facie case of discrimination, our analysis goes no further. The district court

did not err in granting summary judgment on Brown’s race discrimination claim.

                                          IV.

      Brown also argues that the district court erred in dismissing his claim of

retaliation. See 42 U.S.C. § 2000e-3(a); Fla. Stat. § 760.10(7). To establish a

prima facie case of retaliation under Title VII, “a plaintiff must prove 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. Bagsby

Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008) (citing Burlington N. & Santa



                                          10
Fe Ry. Co. v. White, 548 U.S. 53, 59–71, 126 S. Ct. 2405, 2410–16 (2006)). If the

plaintiff makes out a prima facie case, the burden shifts to the defendant to rebut

the presumption of retaliation by producing legitimate reasons for the adverse

action. Sullivan v. Nat’l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir.

1999) (quotation marks and citation omitted).

      If the employer articulates a legitimate reason for the adverse action, the

plaintiff must show that the reasons articulated by the employer were actually a

pretext for prohibited retaliation. McCann v. Tillman, 526 F.3d 1370, 1375 (11th

Cir. 2008). We have explained that the plaintiff must meet the employer’s

proffered legitimate reason “head on and rebut it.” Chapman v. AI Transp., 229

F.3d 1012, 1030 (11th Cir. 2000) (en banc). In order to establish that the

employer’s articulated reasons were a pretext for retaliation, the plaintiff “must

demonstrate such weaknesses, implausibilities, inconsistencies, or contradictions in

the employer’s proffered legitimate reasons for its actions that a reasonable

factfinder could find them unworthy of credence.”     McCann, 526 F.3d at 1375

(quotation marks and citation omitted).

      Brown argues that Sears retaliated against him by issuing the PPI. Sears has

offered a legitimate reason for issuing the PPI: Brown’s net closing percentages

had consistently fallen short of the target. The undisputed evidence shows that,



                                          11
between September 24, 2006 and October 24, 2006, Brown’s net closing

percentage was 5.41%. Brown had missed the target net closing percentage by

more than 57.7%. During the thirty day period previous to September 24, 2006,

Brown’s net closing percentage fell 36% short of the target. Because Sears has

offered a legitimate reason for issuing Brown the PPI, namely Brown’s

consistently poor and worsening sales record, the issue is whether Brown has

shown that Sears’ proffered reason is actually a pretext for unlawful retaliation.

McCann, 526 F.3d at 1375.

      Even assuming that Brown has established a prima facie case, Brown’s

retaliation claim fails because he has not raised a genuine issue of material fact as

to whether Sears’ proffered legitimate reason for issuing the PPI was a pretext for

retaliation. Brown argues that there is a genuine issue of material fact as to pretext

because, although he had fallen short of the target net closing percentage for nine

consecutive months before the PPI was issued, Sears did not issue the PPI until one

month after Brown filed his “complaint of discrimination” with the Florida

Commission on Human Relations, and four days after Merklin signed an affidavit

demonstrating his knowledge of that filing.

      Brown’s argument misses the mark. First, Brown does not argue that

temporal proximity, standing alone, is sufficient to establish pretext. Nor could he



                                          12
under our precedent. See Hulbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d

1286, 1289 (11th Cir. 2006) (discussing claim of retaliation under the Family and

Medical Leave Act of 1993); Wascura v. City of S. Miami, 257 F.3d 1238,

1244–45 (11th Cir. 2001). Second, Brown’s reliance on the fact that he had fallen

short of the target net closing percentage for nine consecutive months, and yet had

not been issued a PPI, is misplaced. His argument ignores the fact that his sales

performance had not only remained substandard, but had actually dropped as low

as it could go in the last full month before the PPI was issued: Brown had a net

closing percentage of 0% during September 2006. Viewed in the light most

favorable to Brown, the evidence is insufficient to permit a reasonable factfinder to

conclude that Sears issued the PPI out of retaliation, rather than as a result of

Brown’s remarkably poor work performance. Combs, 106 F.3d at 1528.

                                           V.

      Brown also argues that the district court erred in dismissing his claim of

constructive discharge. “Constructive discharge occurs when an employer

deliberately makes an employee’s working conditions intolerable and thereby

forces him to quit his job.” Bryant v. Jones, 575 F.3d 1281, 1298 (11th Cir. 2009)

(quotation marks and citation omitted), cert. denied 130 S. Ct. 1536 (2010). We

have set a high bar for claims of constructive discharge: “A claim for constructive



                                           13
discharge requires the employee to demonstrate that the work environment and

conditions of employment were so unbearable that a reasonable person in that

person’s position would be compelled to resign.” Virgo v. Riviera Beach Assoc.,

30 F.3d 1350, 1363 (11th Cir. 1994).

      Brown argues that, taken together, the alleged discriminatory assignment of

leads and the allegedly retaliatory PPI create a genuine issue of material fact as to

whether he was constructively discharged by Sears. Brown concedes that neither

the alleged discrimination nor the alleged retaliation, standing alone, would be

sufficient to state a claim of constructive discharge. We need not consider that

question. Because Brown has not established that he suffered race discrimination

or retaliation, his argument that a combination of race discrimination and

retaliation resulted in his constructive discharge necessarily fails.

      Furthermore, the undisputed evidence shows that Brown never complained

to Sears about the alleged discrimination and retaliation, and that he denied that

leads were being distributed in a discriminatory manner when questioned by Sears

during the investigation of an anonymous complaint filed by another employee.

Brown’s failure to avail himself of Sears’ policies and procedures for reporting and

resolving complaints of discrimination is especially glaring in light of the extensive

information and training Brown received regarding Sears’ Equal Employment



                                           14
Opportunity Policy. Not only is Brown’s failure to avail himself of Sears’

mechanisms for reporting and resolving complaints of discrimination glaring, it is

also fatal to his claim of constructive discharge. See Bryant, 575 F.3d at 1299.

                                         VI.

      The district court did not err when it granted summary judgment to Sears on

Brown’s claims under Title VII and the Florida Civil Rights Act. Accordingly, we

affirm.

      AFFIRMED.




                                         15
