Garner v. Ashley Furniture Industries Inc. , 141 F. App'x 287 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 15, 2005
FOR THE FIFTH CIRCUIT
________________ Charles R. Fulbruge III
Clerk
No. 04-60765
Summary Calendar
________________
DONALD GARNER
Plaintiff - Appellant
v.
ASHLEY FURNITURE INDUSTRIES INC
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi, Aberdeen
No. 1:03-CV-71-D-D
_________________________________________________________________
Before KING, Chief Judge, and JONES and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Donald Garner sued his former employer
alleging that he was denied a transfer in retaliation for past
complaints of racial discrimination made against a third party.
The district court granted his former employer’s motion for
judgment as a matter of law. We AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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I. BACKGROUND
A. Factual Background
Plaintiff-Appellant Donald Garner, an African-American male,
is a former employee of Gentry Furniture Gallery, Inc.
(“Gentry”), a furniture manufacturer. On May 19, 1997, while
employed by Gentry, Garner filed a complaint with the United
States Equal Employment Opportunity Commission (“EEOC”) alleging
that Gentry discriminated against him based on his race. On
August 14, 1997, Mike Hall, Gentry’s Director of Human Resources,
terminated Garner’s employment for insubordination. Garner
subsequently brought a wrongful discharge suit against Gentry,
alleging that he was terminated in retaliation for his EEOC
complaint.
In November 1998, Garner began working for Defendant-
Appellee Ashley Furniture Industries, Inc. (“Ashley”), also a
furniture manufacturer, at its plant in Ecru, MS. Garner was
initially assigned to “stationary frames” work, but was
subsequently transferred to the “motion line.” In July 1999,
Ashley purchased Gentry’s factory in Ripley, MS. Following the
purchase, Ashley decided to move its motion line production to
the Ripley facility.
On August 17, 1999, the transferred employees reported for
their first day of work at the Ripley plant. The former Ecru
employees were greeted by Hall, who became Ashley’s Human
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Resources Manager at the Ripley plant as part of the acquisition.
Hall informed Garner that he would not be allowed to transfer to
the Ripley plant. Garner alleges that Hall told him that the
transfer was being denied because of his earlier EEOC complaint
and lawsuit against Gentry. Hall claims that he denied Garner’s
transfer based on Hall’s prior experience dealing with Garner’s
insubordination. Hall told Garner to return to the Ecru plant,
which he did later that day. Ashley claims that Garner was
offered stationary frames work at the Ecru plant, but he refused
the new assignment. The next day, August 18, Ashley terminated
Garner’s employment. Ashley claims that the reason for the
termination was Garner’s insubordination. Garner, on the other
hand, claims that management in Ecru told him that he was being
fired because Hall did not want him to work at the Ripley plant.
B. Procedural Background
On August 23, 1999, Garner filed a complaint with the EEOC,
alleging that he was terminated from Ashley in retaliation for
his earlier complaint against Gentry. On December 9, 2002, the
EEOC issued Garner a right to sue notice. The EEOC determined
that there was reasonable cause to believe that Ashley retaliated
against Garner, and thus violated Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3(a) (2000). The
EEOC, however, decided not to bring suit itself. Instead, on
February 6, 2003, Garner brought suit against Ashley. As amended
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by the pretrial order, Garner’s complaint alleged that Ashley
violated Title VII by: (1) denying his transfer to the Ripley
plant in retaliation for his earlier EEOC complaint against
Gentry; and (2) terminating his employment in retaliation for his
earlier EEOC complaint against Gentry.
At the close of Garner’s presentation of evidence, Ashley
moved for judgment as a matter of law as to the first allegation
on the grounds that the denied transfer was only a lateral
transfer, and thus did not constitute an adverse employment
action. The district court agreed, and granted Ashley’s motion.
The second allegation went to the jury. On August 10, 2004, the
jury returned a verdict in Ashley’s favor, determining that
Garner was not terminated in retaliation for his prior protected
activity. Garner now appeals the district court’s judgment as a
matter of law as to his denied transfer.
II. STANDARD OF REVIEW
We review de novo a district court’s ruling on a motion for
judgment as a matter of law. Miss. Chem. Corp. v. Dresser-Rand
Co., 287 F.3d 359, 365 (5th Cir. 2002). Under the Federal Rules
of Civil Procedure, a district court may grant a motion for
judgment as a matter of law on an issue if “there is no legally
sufficient evidentiary basis for a reasonable jury to find for
[the non-movant] on that issue . . . .” FED. R. CIV. P. 50(a).
In conducting this de novo review, we must view the record taken
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as a whole and draw all reasonable inferences in favor of the
nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150 (2000). Further, we may not make credibility
determinations or weigh the evidence. Id.
III. ANALYSIS
To prove a prima facie case of retaliation under Title VII,
the plaintiff must establish that: (1) he engaged in activity
protected by Title VII; (2) he suffered an adverse employment
action; and (3) there was a causal connection between the
protected activity and the adverse employment action.
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 407-08 (5th
Cir. 1999). An adverse employment action is “[a] tangible
employment action [that] constitutes a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits. Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). It is clear
that a lateral transfer is not an ultimate employment decision
for the purposes of Title VII. Burger v. Cent. Apartment Mgmt.,
Inc., 168 F.3d 875, 879 (5th Cir. 1999) (per curiam).
On appeal, Garner acknowledges our holding in Burger but
argues that Burger and the rest of this court’s adverse
employment action precedent must be reinterpreted in light of
Ellerth. In Ellerth, the plaintiff was subject to sexual
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harassment by her supervisor and was led to believe that she
would be retaliated against if she did not accede to his
requests. She did not comply with his requests but she did not
suffer any adverse employment action as a result. The Supreme
Court held that this lack of adverse consequences was not fatal
to Ellerth’s claim.
Garner claims that Ellerth should be read to say that where
Title VII is violated, it is unnecessary to show that an adverse
employment action occurred. According to Garner, a plaintiff now
only needs to show that the conditions of his employment have
been altered or that he has suffered some kind of tangible loss.
Garner asserts that he has met this standard in two ways. First,
as a result of the denied transfer, he faced a longer commute to
work since the Ripley plant is closer to his home than the Ecru
plant. Second, the denied transfer meant that if he remained in
Ecru, he would have to return to doing stationary work. Garner
believes that because he would enjoy greater incentive pay on the
motion line, the denied transfer effectively reduced his income.1
Finally, even if Ellerth did not so alter Title VII
jurisprudence, Garner argues that he still suffered an adverse
employment action because the denied transfer was a proximate
1
In his reply brief, Garner argues that this claimed
loss in incentive pay means that the denied transfer was an
adverse employment action under current Fifth Circuit precedent.
This argument is foreclosed, as arguments made for the first time
in a reply brief are waived. City of Abilene v. United States
Envtl. Prot. Agency, 325 F.3d 657, 661 n.1 (5th Cir. 2003).
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cause for his being fired. Garner argues that even if we were to
accept Ashley’s account of events, he was terminated because he
refused to accept the work assignment he was given upon his
return to Ecru. Thus, according to Garner, the denied transfer
played a key role in his being terminated.
Since Ellerth was decided, this court has repeatedly and
consistently held that an adverse employment action is a
necessary part of a plaintiff’s prima facie retaliation claim.
See, e.g., Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570,
575 (5th Cir. 2003); Evans v. Houston, 246 F.3d 344, 352 (5th
Cir. 2001); Shackelford, 190 F.3d at 407-08. Garner has given us
no reason to question the validity of this view. Garner cites
three post-Ellerth cases, Felton v. Polles, 315 F.3d 470 (5th
Cir. 2002), Fierros v. Tex. Dep’t of Health, 274 F.3d 187 (5th
Cir. 2001), Watts v. Kroger Co., 170 F.3d 505 (5th Cir. 1999),
in support of his argument that he need only show some tangible
loss, as opposed to an adverse employment action. These cases,
however, do nothing to show that Ellerth abolished the adverse
employment action requirement. In all three cases, the
discussion of Ellerth’s impact is limited to the issue of how it
might broaden the kinds of actions that fall under the adverse
employment action requirement. See Fierros, 274 F.3d at 192 n.2
(“This court has recognized that the definition of ‘tangible
employment action’ developed in the sexual harassment context in
[Ellerth] may be the proper ‘adverse employment action’ standard
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for Title VII retaliation claims, but has not yet decided the
issue.”); Felton, 315 F.3d at 486-87; Watts, 170 F.3d at 512, n.6
(“We need not reach [the issue of how Ellerth impacts the
definition of an adverse employment action] because even if
[Ellerth] lowers the bar as to what qualifies as an adverse
employment action, Watts cannot satisfy the definition of a
tangible employment action as defined by [Ellerth].”).
Furthermore, there is nothing in Ellerth to support the notion
that there is no need for an adverse employment action in
retaliation cases.
We also reject Garner’s backstop argument that the denied
transfer was an adverse employment action because it set in
motion a chain of events that led to his termination. We have
previously stated that Title VII was not designed “to address
every decision made by employers that . . . have some tangential
effect upon . . . ultimate decisions.” Dollis v. Rubin, 77 F.3d
777, 781-82 (5th Cir. 1995) (per curiam). In Garner’s argument,
the denied transfer had, at best, a tangential impact on his
being fired. Thus, it was not an ultimate employment action.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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