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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12338
Non-Argument Calendar
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D.C. Docket No. 1:10-cv-00970-MHS
CATHERINE SHULTZ,
Plaintiff-Appellant,
versus
SECRETARY OF THE UNITED STATES AIR FORCE,
Defendant-Appellee.
___________________________
Appeal from the United States District Court
for the Northern District of Georgia
____________________________
(June 13, 2013)
Before MARCUS, JORDAN, and KRAVITCH, Circuit Judges.
PER CURIAM:
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Catherine Shultz appeals the district court’s grant of summary judgment in
favor of the Secretary of the United States Air Force on her retaliation claim under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3. Ms. Shultz argues
that the district court improperly considered the probative value of her pretext
evidence at the summary judgment stage, erroneously concluded that she failed to
meet her burden to show pretext, and abused its discretion by declining to address
an argument not raised before the magistrate judge. We disagree, and, therefore
affirm.
In June of 2007, Ms. Shultz became a probationary Readiness Program
Specialist Technician with the Air Force. According to Ms. Shultz, as early as
October of 2007, her immediate supervisor, Wayne Jones, sexually harassed her by
making numerous inappropriate comments. She initiated the EEO complaint
process on November 29, 2007, which she believes led to her termination shortly
thereafter.
In its termination letter dated December 6, 2007, the Air Force gave three
reasons for Ms. Shultz’s termination: (1) improper use of her government travel
card on November 6, 2007, to make several personal purchases in violation of the
Air Force’s policy; (2) improper use of her government-issued cell phone to make
numerous personal calls; and (3) being absent without leave on November 29,
2007. Ms. Shultz countered that these reasons were pretextual because the
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decision-maker, Colonel Steven Slick, had expressly decided not to fire her for the
improper use of the travel card and reversed that decision after she initiated the
EEO proceedings. She further asserted that other employees were not disciplined
for misusing their travel cards, and the government did not have a policy about or
otherwise keep track of personal calls on government-issued cell phones. Ms.
Shultz expressly denied the allegation that she was absent without leave, as she
disputed her supervisor’s statement that she was told not to leave her duty station.
We review a district court’s grant of summary judgment de novo. See
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1263 (11th Cir. 2010).
Under the burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973), a Title VII plaintiff must first establish a prima
facie case of retaliation. If she does, then the burden shifts to the employer to
articulate a legitimate, non-retaliatory reason for the challenged employment
decision. See Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir.
2001). If the employer successfully articulates a legitimate reason, the plaintiff
must show that each reason is a pretext for retaliation. See id.
First we address Ms. Shultz’s argument that the district court improperly
determined that certain evidence—that Ms. Schultz promptly repaid the personal
charges on her government issued travel card and that other employees were not
disciplined for similar conduct—had “little, if any, probative value on the issue of
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pretext.” D.E. 36 at 13. When determining whether Ms. Schultz met her burden to
show pretext, the district court could properly consider, among other things, “the
probative value of the proof that the employer’s explanation is false.” See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). See also
Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1168–69 (10th Cir.
2007); Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002). Here the
district court did not make a blanket statement discounting the evidence, but rather
explained that Colonel Slick honestly believed that other similarly-situated
employees had been disciplined, and he did not discipline Ms. Schultz because of
Mr. James’ desire to give her another chance. Ms. Shultz nevertheless asserts that
the district court’s reasoning runs contrary to the well-known mandate that district
courts are not permitted to weigh evidence on a motion for summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A district court,
however, is permitted to grant summary judgment “[if] the evidence is merely
colorable or not significantly probative.” Id. at 249–50. On this record, we find no
error in the district court’s inquiry into the probative value of Ms. Shultz’s pretext
evidence.
Second, we determine whether that evidence was sufficient to overcome
summary judgment. To meet her burden on pretext, Ms. Shultz was required to
rebut each of the Air Force’s proffered reasons for her termination. See Chapman
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v. AI Transport, 229 F.3d 1012, 1024–25 (11th Cir. 2000). This required more than
just pointing out factual inaccuracies in the explanations; Ms. Shultz also needed to
show that the Air Force did not honestly believe these explanations. See Elrod v.
Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991). We conclude that
Ms. Shultz did not meet this burden with respect to the Air Force’s third reason for
her termination—that she was absent without leave on November 29, 2007. 1
On November 29, 2007, Ms. Shultz reported to work at 8 a.m., and Mr.
Jones asked her to clear her calendar for a meeting later that morning. Despite this
request, Ms. Shultz left her duty station, and although it is unclear exactly how
long she was gone, the record indicates that she did not return until 12:45 p.m. 2
Ms. Shultz says that Mr. Jones never told her that she was required to remain at her
duty station, but she does not dispute that Mr. Jones specifically requested to meet
with her that morning or that she was not there when he returned from another
meeting. We conclude that a reasonable employer might be motivated to fire a
1
We need not and do not address whether the Air Force’s other reasons for terminating
Ms. Shultz were pretextual. Failure to show pretext on just one of the Air Force’s legitimate non-
retaliatory reasons is fatal to Ms. Shultz’s claim. See Chapman, 229 F.3d at 1024–25.
2
We recognize that Ms. Shultz left her duty section to speak with EEO representatives
about her sexual harassment allegations. In her reply brief, Ms. Shultz asserts for the first time
that summary judgment should be reversed because the event that led to her firing was
“inextricably intertwined” with protected activity. See Appellant’s Reply Brief at 15-16 (citing
Scarbrough v. Bd. of Trustees Fla. A&M Univ., 504 F.3d 1220, 1222 (11th Cir. 2007)). We
decline to address this argument for the first time on appeal. See BUC Int’l Corp. v. Int’l Yacht
Council Ltd., 489 F.3d 1129, 1140 (11th Cir. 2007). See also Timson v. Sampson, 518 F.3d 870,
874 (11th Cir 2008) (noting that arguments not raised in the appellant’s initial brief are deemed
waived).
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probationary employee who is missing from her duty station without direct
permission from her supervisor and is unavailable for a requested meeting,
particularly when that employee was already being closely scrutinized. See
Chapman, 229 F.3d at 1030 (“Provided that the proffered reason is one that might
motivate a reasonable employer, an employee . . . cannot succeed by simply
quarreling with the wisdom of that reason.”). See also Greer v. Paulson, 505 F.3d
1306, 1318-19 (D.C. Cir. 2007) (holding that IRS employee, who failed to return
to work as scheduled and whose skills were needed to handle her new assignment,
did not show that employer’s decision to place her on AWOL status was
pretextual); Wofford v. Middletown Tube Works, Inc., 67 Fed. App’x 312, 317 (6th
Cir. 2003) (finding that company had a legitimate, non-discriminatory business
reason to terminate employee when that employee had agreed to work overtime
and then did not show up).
Ms. Shultz attempts to avoid summary judgment by pointing to disputed
issues of fact regarding whether Mr. Jones expressly told her to remain in her duty
section until he returned from another meeting. She does not, however, offer any
evidence that the Air Force did not believe that she was absent without leave. So
even if the factual basis for the decision was erroneous, there is no evidence that
the Air Force disbelieved the basis for the decision such that a jury could conclude
the Air Force retaliated against Ms. Shultz. Consequently, the district court
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properly granted summary judgment on Ms. Shultz’s retaliation claim.
Finally the district court did not abuse its discretion by declining to address
an argument that Ms. Shultz failed to make before the magistrate judge. “[T]o
require a district court to consider evidence not previously presented to the
magistrate judge would effectively nullify the magistrate judge’s consideration of
the matter and would not help to relieve the workload of the district court.”
Williams v. McNeil, 557 F.3d 1287, 1290–91 (11th Cir. 2009). Ms. Shultz cites no
case law to support her claim that the district court abused its discretion, and we
find no support for it in the record.
AFFIRMED.
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