Case: 13-14948 Date Filed: 08/28/2014 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14948
Non-Argument Calendar
________________________
D.C. Docket No. 2:11-cv-00078-CG-M
MARILYN K. SHUMATE,
Plaintiff-Appellant,
versus
SELMA CITY BOARD OF EDUCATION,
JOE J. PETERSON,
Defendants-Appellees,
SELMA CITY SCHOOL SYSTEM,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(August 28, 2014)
Before HULL, ANDERSON and COX, Circuit Judges.
PER CURIAM:
Case: 13-14948 Date Filed: 08/28/2014 Page: 2 of 8
In this employment discrimination case, Marilyn Shumate (the Plaintiff)
appeals the district court’s grant of summary judgment in favor of the Selma City
School System (the “Board”) and Principal Joe Peterson (the Defendants).1
Shumate’s suit includes claims for: racial discrimination in violation of Title VII;
racial discrimination in violation of 42 U.S.C. § 1981; age discrimination in
violation of the Age Discrimination in Employment Act; age discrimination in
violation of the Alabama Age Discrimination in Employment Act; retaliation in
violation of Title VII; retaliation in violation of 42 U.S.C. § 1981; and a variety of
state law claims not relevant on appeal. Because Shumate has not shown that the
district court erred, we affirm.
I. Facts and Procedural History
We write primarily for the parties, so we recount the facts only briefly.
Shumate worked for the Board in the cafeteria at Edgewood Elementary. She
applied for a cafeteria manager position at the school, but was not awarded the
position. Shumate then filed this lawsuit against the Defendants, alleging that they
discriminated against her because of her age and race by denying the promotion.
After filing the lawsuit, Shumate applied for a cafeteria manager position at S.P.
Kingston Elementary School. At this time, the Board also considered Shumate for
1
It is far from clear whether Shumate has presented a viable case against Principal
Peterson. Because we affirm the district court’s summary judgment order in its entirety, we need
not sift through Shumate’s shotgun complaint.
2
Case: 13-14948 Date Filed: 08/28/2014 Page: 3 of 8
two other cafeteria manager positions even though she had not applied for them.
She was not awarded any of the positions. Shumate subsequently amended her
complaint to add additional age and race discrimination claims and new retaliation
claims.
The Defendants moved for summary judgment on all claims. Shumate
opposed this motion and requested an adverse spoliation inference based on
missing files related to her interviews. The district court denied Shumate’s motion
for an adverse inference because it found that there was no prejudice and that the
Defendants did not act in bad faith in losing the file. The district court granted the
Defendants summary judgment on Shumate’s age and race discrimination claims
because she either failed to create a prima facie case or failed to show that the
Defendants’ proffered non-discriminatory reasons for choosing a different
candidate were pretextual. The district court granted summary judgment on
Shumate’s retaliation claims because Shumate either could not show a prima facie
case or could not present evidence for a reasonable jury to find that retaliation was
the “but for” cause the Defendants chose a different candidate. Shumate appeals.
II. Issues on Appeal
Shumate attempts to raise eight issues on appeal; however, Shumate’s
contentions are best addressed in three issues: (1) whether the district court erred in
granting the Defendants summary judgment on her discrimination claims; (2)
3
Case: 13-14948 Date Filed: 08/28/2014 Page: 4 of 8
whether the district court erred in granting the Defendants summary judgment on
her retaliation claims; and (3) whether the district court erred by denying her
motion for an adverse spoliation inference.
III. Standard of Review
We review a district court’s grant or denial of summary judgment de novo,
viewing all evidence in the light most favorable to the non-moving party. Dolphin
LLC v. WCI Cmtys., Inc., 715 F.3d 1243, 1247 (11th Cir. 2013). The moving party
bears the burden of establishing the absence of a genuine issue of material fact and
that it is entitled to judgment as a matter of law. Id. Once the moving party meets
this burden, the non-moving party bears the burden of presenting evidence on each
essential element of its claim, such that a reasonable jury could rule in its favor.
We review a district court’s decision regarding spoliation sanctions for abuse of
discretion. Mann v. Taser Inter., Inc., 588 F.3d 1291, 1310 (11th Cir. 2009).
IV. Discussion
A. The district court did not err by granting the Defendants’ motion for
summary judgment on the discrimination claims.
Although Shumate challenges on appeal the district court’s grant of
summary judgment on her discrimination claims, Shumate does not point to any
particular error in the district court’s ruling. Instead, Shumate discusses at length
the causation standards under age and race discrimination claims. However, the
district court did not grant summary judgment based on lack of causation. Rather,
4
Case: 13-14948 Date Filed: 08/28/2014 Page: 5 of 8
the district court granted summary judgment because Shumate either failed to
create a prima facie case or failed to show that the Defendants’ proffered non-
discriminatory reasons for choosing a different candidate were pretextual under the
McDonnell Douglas burden-shifting framework. Accordingly, Shumate presents
no argument supporting a conclusion that the district court’s ruling was in error. 2
B. The district court did not err by granting the Defendants’ motion for
summary judgment on the retaliation claims.
Shumate contends that the district court erred by granting the Defendants
summary judgment on the retaliation claims. The district court found that Shumate
had failed to make a prima facie case on two of the claims because Shumate never
applied for the positions she did not receive. The district court held that the
Board’s voluntary choice to consider her for these positions contradicted
retaliation. On the other claim, the district court found that even if the panel had
not considered her lawsuit (the protected conduct) Shumate would not have
received the job. Thus, there could be no retaliation under the Supreme Court’s
holding in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct.
2517 (2013).
2
Shumate also contends that her claim should proceed despite failing to meet the burden
under the McDonnell Douglas burden-shifting framework because there is a “convincing mosaic
of circumstantial evidence that would allow a jury to infer intentional discrimination.” Shumate
did not make this argument against summary judgment below so it has not been preserved for
appeal. To preserve an argument for appeal, the argument must be raised at the trial court if the
party has an opportunity to do so. United States v. Obasohan, 73 F.3d 309, 310 (11th Cir. 1996).
5
Case: 13-14948 Date Filed: 08/28/2014 Page: 6 of 8
1. Lack of Prima Facie Case
The district court granted the Defendants’ summary judgment motion on
some claims because the Board had voluntarily considered Shumate for the two
positions she did not apply for. Shumate contends that she need not apply for the
positions to bring a retaliation claim since the Board considered her for these
positions notwithstanding the lack of an application. To establish a prima facie
case of retaliation, the plaintiff must demonstrate that: (1) she engaged in
statutorily protected activity; (2) she suffered a materially adverse employment
action; and (3) there was a causal link between the two. Dixon v. The Hallmark
Co., 627 F.3d 849, 856 (11th Cir. 2010). As Shumate notes, an application is not a
required element of the prima facie case. But, a causal link is an element. Here,
the district court concluded that Shumate had not established a causal link because
the Board’s voluntary decision to consider her for promotion despite her lawsuit
contradicts a causal link of retaliation. On appeal, Shumate emphasizes that the
panel members knew of her lawsuit when considering her for a promotion. But,
Shumate does not dispute the district court’s reasoning. Accordingly, Shumate
presents no argument demonstrating that the district court’s ruling was in error.
2. Failure to Show Causation
The district court granted the Defendants summary judgment because
Shumate was unable to present sufficient evidence for a reasonable jury to find that
6
Case: 13-14948 Date Filed: 08/28/2014 Page: 7 of 8
Shumate would be promoted “but for” retaliation. On appeal, Shumate has
presented no argument that the district court’s decision was erroneous nor has she
identified any evidence suggesting that she would have been promoted “but for”
retaliation. Instead, Shumate merely repeats her evidence suggesting retaliation.
Accordingly, Shumate presents no argument demonstrating that the district court’s
ruling was in error.
C. The district court did not err by denying Shumate’s motion for an adverse
spoliation inference.
Although Shumate challenges on appeal the district court’s denial of her
motion for an adverse spoliation inference, Shumate does not point to any
particular error in the district court’s ruling. Instead, Shumate generally recounts
legal authority on spoliation, assumes that the district court’s decision is “correct
with regard to the imposition of a sanction,” and concludes that the district court
erred by ignoring “the inferences which can legitimately arise from the destruction
of these records . . . and granting summary judgment to Defendants.” (Appellant’s
Br. at 38.) We can make no sense out of this argument because Shumate both
assumes that the district court’s decision was correct and contends that it was
erroneous. Even ignoring this contradiction, Shumate presents no argument
demonstrating that the district court abused its discretion by denying the sanction
of an adverse spoliation inference.
7
Case: 13-14948 Date Filed: 08/28/2014 Page: 8 of 8
V. Conclusion
The district court did not err in granting the Defendants’ summary judgment
motion. Accordingly, we affirm.
AFFIRMED.
8