                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                               No. 09-13625                 ELEVENTH CIRCUIT
                                                               JANUARY 7, 2010
                           Non-Argument Calendar
                                                                  JOHN LEY
                         ________________________
                                                                ACTING CLERK

                  D. C. Docket No. 07-01115-CV-J-25-MCR

LORENZO JILES,


                                                              Plaintiff-Appellant,

                                     versus

UNITED PARCEL SERVICE, INC.,

                                                             Defendant-Appellee.


                         ________________________

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

                                (January 7, 2010)

Before BARKETT, HULL, and WILSON, Circuit Judges.

PER CURIAM:

     Lorenzo Jiles, an African-American male, appeals the district court’s grant
of summary judgment in favor of his former employer, United Postal Service, Inc.

(“UPS”), in his race discrimination and retaliation case filed pursuant to the Florida

Civil Rights Act (FCRA), Fla. Stat. § 760.10(1)(a) and (7).1 On appeal, Jiles

argues that the district court erred by determining that he failed to establish a prima

facie case of race discrimination due to his failure to identify a similarly situated

employee outside his protected class that was treated more favorably. Jiles also

argues that the district court erred by determining that he failed to establish a prima

facie case of retaliation because he did not show that his protected activity and the

adverse action he suffered were causally connected. Upon review of the parties’

briefs and the record, we affirm the district court’s grant of summary judgment in

favor of UPS.

                                I. STANDARD OF REVIEW

       We review a grant of summary judgment de novo, applying the same legal

standards as the district court, viewing all evidence and drawing all reasonable

inferences in favor of the non-moving party. Vessels v. Atlanta Indep. Sch. Sys.,

408 F.3d 763, 767 (11th Cir. 2005). “Summary judgment is appropriate ‘if the

pleadings, depositions, answers to interrogatories, and admissions on file, together


       1
         UPS timely removed this case to a federal district court which found it had jurisdiction.
See 28 U.S.C. § 1332(a)(1) (states that “district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceed the sum or value of 75,000, exclusive of interest
and costs, and is between citizens of different States”).

                                                   2
with the affidavits, if any, show there is no genuine issue as to any material fact

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

v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990) (quoting Fed.R.Civ.P. 56(c)).

There must be enough evidence to show that the jury could reasonably find for that

party. Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1162

(11th Cir. 2006).

                                        II. DISCUSSION

                                A. Jiles’s Discrimination Claim

      “The Florida courts have held that decisions construing Title VII are

applicable when considering claims of discrimination under the Florida Civil

Rights Act,” because the FCRA was patterned after Title VII. Harper v.

Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (citing Ranger

Ins. Co. v. Bal Harbour Club, Inc., 549 So. 2d 1005, 1009 (Fla. 1989)); Fla. Stat. §

760.10(a).2 Therefore, we analyze cases under the FCRA in the same manner as




      2
          Fla. Stat. § 760.10(a) states that

          it is an unlawful employment practice for an employer [t]o discharge or fail
          to refuse to hire any individual, or otherwise to discriminate against any
          individual with respect to compensation, terms, conditions, or privileges of
          employment, because of such individual’s race, color, religion, sex,
          national origin, age, handicap, or marital status.

                                                3
those brought under Title VII. See Harper, 139 F.3d at 1387.3

       Because Jiles relied on circumstantial evidence, the burden-shifting

framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,

93 S. Ct. 1817, 1824 (1973), and Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 252–53, 101 S. Ct. 1089, 1093 (1981), applies to his race discrimination

claim. Under that framework, if a plaintiff succeeds in carrying the initial burden

of establishing a prima facie case of discrimination, the employer must then rebut

the presumption of discrimination by articulating a legitimate, nondiscriminatory

reason for the challenged employment action. Combs v. Plantation Patterns, 106

F.3d 1519, 1528 (11th Cir. 1997); see Burdine, 450 U.S. at 253–54, 101 S. Ct. at

1093–94. If the employer meets these requirements, “the presumption of

discrimination created by the McDonnell Douglas framework ‘drops from the case’

and the ‘factual inquiry proceeds to a new level of specificity.’” Combs, 106 F.3d

at 1528 (quoting Burdine, 450 U.S. at 25, n. 10, 101 S. Ct. at 1094). The plaintiff

“‘may succeed in this either directly by persuading the court that a discriminatory

reason more likely motivated the employer or indirectly by showing that the

employer’s proffered explanation is unworthy of credence.’” Id. (quoting Burdine,


       3
          Title VII makes it illegal for an employer “to discharge any individual, or otherwise to
discriminate against any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

                                                 4
450 U.S. at 256, 101 S. Ct. at 1095.

      The district court granted UPS’s motion for summary judgment because it

determined that Jiles failed to establish a prima facie case. To prevail on a claim

for racial discrimination based on circumstantial evidence, a plaintiff must offer

evidence that: “(1) he is a member of a protected class; (2) he was qualified for the

position; (3) he was subjected to an adverse employment action; and (4) . . . [he]

was treated less favorably than a similarly-situated individual outside his protected

class.” Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003) (citing

McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824); see also Knight v. Baptist

Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003).

      For purposes of the motion for summary judgment, the parties did not

dispute that Jiles is a member of a protected class, that he was terminated

constituting an adverse employment action, or that he was qualified for his job.

UPS argues, and the district court concluded, that Jiles cannot establish a prima

facie case on the fourth prong of the test. We therefore limit our review to

consider whether the district court committed error in finding that Jiles failed to

proffer evidence that he was treated differently than a similarly situated employee.

      In cases where a plaintiff alleges discriminatory discipline, we determine if

employees are similarly situated by evaluating “whether the employees are



                                           5
involved in or accused of the same or similar conduct and are disciplined in

different ways.” Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th

Cir. 2006) (quotation and citation omitted). Additionally, the determination of

whether employees are similarly situated may involve consideration of the

employees’ records with respect to their histories of problems with coworkers or

supervisors, job performance, tardiness, absenteeism, and responsiveness to

performance evaluations. Knight, 330 F.3d at 1316–19.

      Following an on-the-job hip injury in 1994, Jiles was no longer able to work

as a Package Car Driver. Consequently, UPS agreed to an accommodation for Jiles

under the American with Disabilities Act (“ADA”). On appeal, Jiles challenges

the lower court’s grant of summary judgment in favor of UPS. He argued that

because Tom Going, a Caucasian UPS employee, is a similarly-situated employee

who was treated more favorably, there was sufficient evidence to establish an

inference of discrimination. Specifically, Jiles argues that he was treated

differently than Going. Going received an almost identical ADA agreement as

Jiles, but Going was permitted to work a more desirable schedule in a DMP 4

position, whereas Jiles was forced to work within the confines of his ADA

agreement. In response, UPS argues that Jiles was terminated based on dishonesty



      4
          The parties do not define the acronym “DMP.”

                                              6
and unilaterally deciding not to work his scheduled hours in violation of company

policy.

      A review of the record shows that the district court correctly concluded that

Jiles failed to establish prong four because Going and Jiles were not similarly

situated. In making this claim, the burden is on Jiles “to show a similarity between

[his] conduct and that of white employees who were treated differently and not on

[the defendant] to disprove their similarity.” Jones v. Gerwens, 874 F.2d 1534,

1541 (11th Cir. 1984) (quotation and citation omitted). Additionally, “[w]e 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.” Burke-Fowler, 447 F.3d at 1323 (quotation and

citation omitted). Although Jiles claims that he and Going have similar ADA

agreements, Jiles failed to establish a similarity between them by arguing that

Going was accused of dishonesty, nor does he claim that Going was disciplined in

a manner that was different from him. Furthermore, the record reveals that Jiles

was offered the same DMP position as Going, however, Jiles turned down the

DMP position. Although it was outside the confines of his ADA Agreement, the

fact that the same DMP position was offered to Going belies an inference of race

discrimination. Accordingly, Jiles has failed to meet his burden to establish that



                                          7
Going is “similarly situated in all relevant respects” and that Going was “accused

of the same or similar conduct” and “disciplined in different ways.” Knight, 330

F.3d at 1316 (quotation omitted).

       Therefore, because Jiles failed to establish a prima facie case for race

discrimination by proffering evidence that UPS treated a similarly situated

employee outside of his race more favorably, the district court properly granted

summary judgment.

                                B. Jiles’s Retaliation Claim

       In order to establish a prima facie case for retaliation, a plaintiff must show

that: (1) he engaged in statutorily protected activity; (2) he suffered a materially

adverse employment action; and (3) the adverse employment action was causally

related to the protected activity. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d

1261, 1277 (11th Cir. 2008) (citation omitted).5

       To establish the requisite causal connection under the FCRA, “the plaintiff

must prove ‘that the protected activity and the adverse action are not completely

unrelated.’” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 978 n.52

(11th Cir. 2008) (quoting Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1457



       5
          As noted above, the FCRA parallels Title VII, and retaliation claims brought under that
statute are analyzed under the same framework as those brought under Title VII. Wilbur v. Corr.
Servs. Corp., 393 F.3d 1192, 1195 n.1 (11th Cir. 2004).

                                                8
(11th Cir.1998)). The plaintiff may satisfy the burden of causation by showing

close temporal proximity between his protected activity and the adverse

employment action. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th

Cir. 2007). In the absence of other evidence tending to show causation, temporal

proximity must be “very close.” Id. (citation omitted). A three-to-four-month

period between the protected activity and the adverse employment action is “not

enough” to show “very close” temporal proximity. Id.; see Higdon v. Jackson, 393

F.3d 1211, 1220–21 (11th Cir. 2004) (holding that a three month interval between

protected activity and adverse act is too long, standing alone to establish an

inference of retaliation). The plaintiff must also provide evidence of the

employer’s “knowledge of the protected expression.” Higdon, 393 F.3d at

1220–21.

      Additionally, close temporal proximity is not the only means by which a

plaintiff can establish a causal connection. A plaintiff may establish a causal

relation element under a prima facie case of retaliation based on evidence that an

employer knew of a protected activity, and a series of adverse employment actions

commenced almost immediately thereafter. Wideman, 141 F.3d at 1457.

Nevertheless, even intervening retaliatory acts must be material (or substantial) to

be considered. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,



                                           9
67–68, 126 S. Ct. 2405, 2414–15 (2006) ((“The antiretaliation provision protects

an individual not from all retaliation, but from retaliation that produces an injury or

harm. . . . We speak of material adversity because we believe it is important to

separate significant from trivial harms.”) (emphasis in original)). To constitute a

materially adverse action, the employer’s action must be materially adverse from

the standpoint of a reasonable employee, such that it would dissuade a reasonable

worker from making or supporting a discrimination charge. Id. at 68, 126 S. Ct. at

2415. Although we will look to the “totality of the alleged reprisals,” we will

“consider only those that are truly adverse.” Cotton v. Cracker Barrel Old Country

Store, Inc., 434 F.3d 1227, 1234 (11th Cir. 2006) (quotations omitted). We focus

on the materiality of the challenged action and the perspective of a reasonable

person in the plaintiff’s position. Burlington N. & Santa Fe Ry. Co., 548 U.S. at

69–70, 126 S. Ct. at 2416.

      If a plaintiff establishes a prima facie case, the employer then has an

opportunity to articulate a legitimate, non-retaliatory reason for the challenged

employment action. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th

Cir. 2001) (citation omitted). If the employer accomplishes this, the plaintiff bears

the ultimate burden of proving by a preponderance of the evidence that the reason

provided by the employer is a pretext for prohibited, retaliatory conduct. Id.



                                           10
      Jiles argues that the district court erred in granting summary judgment

because UPS retaliated against him for filing a race discrimination grievance in

May 2006 by placing him on leave in December 2006 and terminating him shortly

thereafter in January 2007. Jiles contends that the district court erred by ignoring

the “series of events” that occurred between May 2006 and January 2007, and that

those events establish the requisite causal connection. The anti-retaliation

provision of the FCRA prohibits an employer from discriminating against a person

for opposing an unlawful employment practice or for making a charge of

discrimination. Fla. Stat. § 760.10(7).6

      The district court correctly found that Jiles had not put forth any evidence to

show a causal connection between the protected activity of his administrative

charge of race discrimination in May 2006 and his January 2007 termination.

Further, the district court did not err when it reasoned that the time-frame of eight

months does not sufficiently proximate to establish a causal connection. Doc. 72 at

12; see Thomas, 506 F.3d at 1364 (holding that a three to four month period



      6
          Fla. Stat. § 760.10(7) states that

          it is an unlawful employment practice for an employer, an employment
          agency, a joint labor-management committee, or a labor organization to
          discriminate against any person because that person has opposed any
          practice which is an unlawful employment practice under this section, or
          because that person has made a charge, testified, assisted, or participated in
          any manner in an investigation, proceeding, or hearing under this section.

                                                11
between the protected activity is not enough to show “very close” temporal

proximity). We therefore find no error in the district court’s conclusion.

Accordingly, because the time-frame of eight months is not close enough to

establish the causation requirement, the district court properly granted summary

judgment to UPS.

       In the alternative, Jiles also attempts to meet the causation requirement by

arguing that UPS engaged in a series of material or adverse employment actions

against him. Although Jiles argues that the district court ignored this particular

argument to prove causation, a review of the record shows that Jiles did not proffer

evidence that UPS’s decision to discharge him for gross insubordination and job

abandonment constituted a pretext for prohibited, retaliatory conduct for the

district court’s review.7 Accordingly, Jiles’s argument does not change the

outcome of the district court’s holding, and we affirm.

       Upon review of the record and consideration of the parties’ briefs, we

conclude that the district court properly granted summary judgment because Jiles

failed to show that an adverse employment action he suffered was causally

connected to his statutorily protected activity. We affirm the district court’s grant

of summary judgment.


       7
         In a conclusory statement, Jiles merely asserts that “the stated reasons for his
termination were nothing more than an attempt at covering up the true reasons.” Doc. 29 at 20.

                                               12
AFFIRMED.




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