Kimberly L. Smith v. Books-A-Million

[DO NOT PUBLISH]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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