                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                         FILED
                               FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                ________________________ ELEVENTH CIRCUIT
                                                                     SEPT 29, 2010
                                       No. 09-15478                   JOHN LEY
                                   Non-Argument Calendar                CLERK
                                 ________________________

                            D.C. Docket No. 07-01691-CV-2-CLS

KIMBERLY L. SMITH,

lllllllllllllllllllll                                                Plaintiff-Appellant,

                                            versus

BOOKS-A-MILLION,

lllllllllllllllllllll                                              Defendant-Appellee.

                                ________________________

                          Appeal from the United States District Court
                             for the Northern District of Alabama
                                 ________________________

                                     (September 29, 2010)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

         Kimberly Smith appeals the summary judgment in favor of her former

employer, Books-A-Million, and against Smith’s complaints of discrimination in
violation of her race and gender and of retaliation under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1), -3(a), and violations of state law.

We affirm.

      Smith argues that the district court failed to construe facts in the light most

favorable to her because it adopted the facts and legal analysis submitted by

Books-A-Million, but we disagree. The record establishes that the district court

conducted a careful and independent review of the facts and law. That the district

court adopted verbatim some undisputed facts stated by Books-A-Million does not

render those findings clearly erroneous. See James v. Stockham Valves & Fittings

Co., 559 F.2d 310, 314 n.1 (11th Cir. 1977). Smith notably does not argue that

any of the findings by the district court are incorrect, and Smith does not argue

that the district court erred in its application of the law.

      Smith also argues that the district court should have considered evidence

about the denial of a bonus in resolving Smith’s claims of sex-based

discrimination and retaliation, but this argument fails for several reasons. Smith

complained that she was denied the bonus because of race-based discrimination,

but Smith did not allege that she was denied the bonus because of her sex. Smith

testified that her claim of gender-based discrimination was based solely on the fact

she was paid less than male employees. Smith likewise did not mention the bonus

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in her complaint about retaliation. Although Smith later asserted that Books-A-

Million withheld the bonus in retaliation for Smith’s accusations that she was

harassed and discriminated against because of her race, Smith never amended her

complaint to include that theory. See Davis v. Coca-Cola Bottling Co. Consol.,

516 F.3d 955, 974–75 (11th Cir. 2008) (affirming the refusal of the district court

to consider eighteen claims not alleged in the complaint but argued only in

opposition to the motion for summary judgment). In any event, Smith did not

establish a prima facie case of retaliation because Smith failed to establish that she

engaged in statutorily protected expression when, on one occasion, she asked a

supervisor if she was being discriminated against based on her race. See Weeks v.

Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002) (“To establish that a

plaintiff engaged in statutorily protected expression, . . . a plaintiff must show that

she had a good faith, reasonable belief that the employer was engaged in unlawful

employment practices.”). The record also establishes that Smith resigned her

employment to take a higher paying job with another employer and Smith’s

resignation occurred too early for her to become eligible for a bonus.

      We AFFIRM the summary judgment in favor of Books-A-Million.




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