           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                                                        [DO NOT PUBLISH]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:
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       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.
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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)

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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,
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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).
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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


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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.



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                                  V. Conclusion

      The district court did not err in granting the Defendants’ summary judgment

motion. Accordingly, we affirm.

      AFFIRMED.




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