           Case: 12-12338   Date Filed: 06/13/2013   Page: 1 of 7


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-12338
                        Non-Argument Calendar
                      ________________________

                  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:
              Case: 12-12338    Date Filed: 06/13/2013   Page: 2 of 7


      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


                                         2
              Case: 12-12338     Date Filed: 06/13/2013    Page: 3 of 7


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


                                           3
              Case: 12-12338     Date Filed: 06/13/2013   Page: 4 of 7


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


                                          4
                Case: 12-12338        Date Filed: 06/13/2013       Page: 5 of 7


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).


                                                5
              Case: 12-12338    Date Filed: 06/13/2013   Page: 6 of 7


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


                                         6
               Case: 12-12338     Date Filed: 06/13/2013   Page: 7 of 7


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.




                                          7
