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                                                         [DO NOT PUBLISH]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:
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      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.



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       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.

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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

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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.

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       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.”).

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                                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).

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      “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




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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.




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      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.”

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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.

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      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

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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

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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

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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

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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.




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