Burger v. Central Apartment Management, Inc. ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-10290
Summary Calendar
_____________________
RICHARD BURGER, ET AL.,
Plaintiffs,
DORU STANCU,
Plaintiff-Appellant,
versus
CENTRAL APARTMENT MANAGEMENT, INC.,
doing business as Gables Residential
Services,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
March 16, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:
Doru Stancu appeals the decision of the district court to
grant a Fed. R. Civ. P. 50 motion for judgment as a matter of law.
In effect, this decision overturned a jury verdict awarding Stancu
damages in his anti-retaliation claim, pursued against Central
Apartment Management, Inc. d/b/a Gables Residential Services
(“Gables”), under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-3(a). We hold that the conduct Stancu complains of
did not constitute an “ultimate employment decision.” We therefore
affirm.
I
Stancu, along with several other plaintiffs, brought suit
against Gables for alleged violations of various state and federal
laws. Stancu is the only plaintiff to take his case to trial, and
he is the only party before us on appeal. Only the claims based on
Title VII were actually tried to the jury. In the first claim,
Stancu alleged that Gables refused to grant him a lateral transfer
to another of the corporation’s locations because of his Romanian
heritage. In his second claim, Stancu alleged that Gables denied
him the transfer because he had engaged in protected Title VII
activities. Specifically, Stancu argued that he had opposed some
of Gables’ practices that he claimed were unlawful under Title VII.
Only the second claim is at issue in this appeal. The jury
returned a verdict for Gables on the first claim. On the second
claim, however, the jury returned a verdict for Stancu and awarded
him $72,500 in compensatory and punitive damages. The district
court then granted Gables’ motion for judgment as a matter of law.
See Fed. R. Civ. P. 50. The district court based it decision on
its view that a reasonable jury could not have found by a
preponderance of the evidence that but for Stancu’s protected
activities, Gables would have granted his request for a transfer.
2
We review de novo a district court’s decision to grant a
motion for judgment as a matter of law. Nichols v. Grocer, 138
F.3d 563, 565 (5th Cir. 1998) (citation omitted). To determine
whether the district court should have granted the motion, we look
to the now-familiar standard articulated in Boeing Co. v. Shipman,
411, F.2d 365 (5th Cir. 1969) (en banc), overruled on other
grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.
1997) (en banc):
[T]he Court should consider all of the evidence — not
just that evidence which supports the non-mover’s case —
but in the light and with all reasonable inferences most
favorable to the party opposed to the motion. If the
facts and inferences point so strongly in favor of one
party that the Court believes that reasonable men could
not arrive at a contrary verdict, granting [judgment as
a matter of law] is proper.
Boeing, 411 F.2d at 374. We proceed to discuss the facts with this
standard in mind.
II
Gables is a national corporation that owns and manages
apartment complexes. Stancu has been employed by Gables since
January 1994. He serves as a maintenance supervisor and, by all
accounts, is highly skilled in that position. During the relevant
time period, Stancu was assigned to work at the Indian Creek
apartment complex in Carrollton, Texas. However, when he heard
about a new job opening (within Gables) at the Valley Ranch
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apartments, he asked his supervisors to reassign him to that
location.
Testimony at trial revealed that Stancu wished to transfer to
Valley Ranch for two primary reasons. First, the Valley Ranch
apartments are located in Irving, Texas, the same city in which
Stancu lived. The distance between home and work is especially
important to Stancu because he is often “on call,” which means that
Stancu’s job required him to travel to work when called upon to
deal with emergency situations. Stancu also desired the job
transfer because it was apparent that Gables would soon lose its
management contract at Indian Creek. Stancu feared that if this
happened, he might lose his job.1 Other than these two factors,
the transfer would have had no material effect on Stancu’s job:
the job title of the two jobs was the same, the day-to-day duties
were the same, the wages at Indian Creek were as high or higher
than Stancu would have earned at Valley Ranch,2 and the other
benefits did not differ.
1
Eventually, Gables did lose the Indian Creek contract. At or
about the time that this happened, Gables transferred Stancu to the
Valley Ranch apartments. Because Gables made the transfer after
Stancu filed his lawsuit, the motivations for the transfer are not
clear. Nevertheless, they are irrelevant for our disposition of
this appeal.
2
Evidence adduced at trial revealed that Stancu was paid
$13.93 per hour at Indian Creek while the person filling the
maintenance supervisor position at Valley Ranch earned $13.00 per
hour.
4
When Stancu first sought the transfer in March 1994, Gables
denied his request. In pursuing the lateral transfer, Stancu first
had an interview with Janet Martin, who was to be the property
manager at Valley Ranch. According to both Stancu and Martin, the
interview went poorly and ended with some disagreement.
Undeterred, Stancu procured a meeting with the vice president of
operations, Terry Turk. Turk denied the request for a transfer.
Stancu argued to the jury that the reason Gables denied his
request for the transfer was because he had opposed their racially
discriminatory practices. After reviewing the evidence, however,
the district court concluded that Stancu failed to show a
sufficient nexus between any protected activities he might have
engaged in and the decision to deny his request for a transfer.
Because we have chosen to dispose of this case on other grounds, we
need not review the evidence concerning Stancu’s activities. See
Mulberry Square Productions, Inc. v. State Farm and Casualty Co.,
101 F.3d 414, 421 (5th Cir. 1996) (recognizing that we may affirm
the district court’s judgment for different reasons than the
district court relied upon).
III
A
Title VII makes it an “unlawful employment practice for an
employer to discriminate against any of his employees . . . because
he has opposed any practice made an unlawful employment practice by
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this subchapter . . .” 42 U.S.C. § 2000e-3(a). From this
statutory provision, our precedents have gleaned three elements
that a plaintiff must prove in his retaliation claim: (1) the
employee has engaged in activity protected by Title VII; (2) the
employer took adverse employment action against the employee; and
(3) a causal connection exists between that protected activity and
the adverse employment action. Mattern v. Eastman Kodak Co., 104
F.3d 702, 705 (5th Cir.) (citations omitted), cert. denied, 118
S. Ct. 336 (1997).
Our court has analyzed the “adverse employment action” element
in a stricter sense than some other circuits. We have stated that
Title VII was only designed to address “ultimate employment
decisions, not to address every decision made by employers that
arguably might have some tangential effect upon those ultimate
decisions.” Mattern, 104 F.3d at 707 (quoting Dollis v. Rubin, 77
F.3d 777, 781-82 (5th Cir. 1995) (per curiam))(emphasis added).3
“‘Ultimate employment decisions’ include acts ‘such as hiring,
granting leave, discharging, promoting, and compensating.’”
Mattern, 104 F.3d at 707 (citations omitted).
3
The Eleventh Circuit has recently discussed the circuit split
surrounding the issue of whether Title VII’s protection against
retaliatory discrimination extends to only “ultimate employment
decisions.” Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456
(11th Cir. 1998). We are not alone, but we are in the minority.
Id.
6
This understanding grows out of our court’s reading of the
term “discriminate” as used in § 2000e-3(a). In interpreting the
prohibition against “discrimination” as a form of retaliation, we
have looked to the previous section (§ 2000e-2(a)) for guidance.
Specifically, we decided in Mattern that § 2000e-2(a)(1) describes
conduct that parallels the conduct prohibited by the term
“discriminate” as used in § 2000e-3. Section 2000e-2(a)(1) makes
it unlawful “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions or privileges
of employment . . .” 42 U.S.C. § 2000e-2(a)(1). In Mattern, we
contrasted this prohibitory language with the much less refined
prohibitions described in § 2000e-2(a)(2), and we concluded that
the anti-retaliation provision excludes “the vague harms
contemplated in § 2000e-2(a)(2).” Mattern, 104 F.3d at 709. Thus,
a retaliation claim cannot be based solely on a defendant’s act of
“limit[ing]” an employee “in any way which would deprive [that
employee] of employment opportunities or otherwise adversely affect
his status as an employee.” 42 U.S.C. § 2000e-2(a)(2). We have
read § 2000e-3(a) “to exclude such vague harms, and to include only
ultimate employment decisions.” Mattern, 104 F.3d at 709.
B
Stancu argues that the denial of his transfer request
qualifies as a sufficiently adverse employment action. Although
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Stancu does not directly address our decision in Mattern, he points
to the fact that the procedures for procuring the transfer had some
of the trappings of the process typically used to hire new
employees. He had what the parties have referred to as an
“interview” with the property manager. Given this process, Stancu
argues that the denial of his transfer was enough to satisfy the
“adverse employment action” element of his anti-retaliation claim.
IV
We disagree with Stancu’s argument that the denial of his
request for a purely lateral transfer constitutes an “ultimate
employment action.” As an important preliminary point, we think
that the overwhelming evidence before the jury established that the
transfer to Valley Ranch would have been a purely lateral transfer
for Stancu. The undisputed evidence established that the position
at Valley Ranch had the same job title, benefits, duties, and
responsibilities as the position that Stancu held at Indian Creek.
Furthermore, the uncontroverted evidence also showed that Gables
paid a lower wage to the person who did (initially) secure the
maintenance supervisor position at Valley Ranch than Gables paid to
Stancu. Stancu wanted the transfer because of his underlying
desire for a shorter commute to work; this, of course, cannot have
any effect on whether we view the transfer as a purely lateral one.
See Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1453 (11th Cir.
1998) (ADA case in which the court held that the determination of
8
whether an employee has suffered an adverse employment action is to
be made using an objective standard).
Refusing an employee’s request for a purely lateral transfer
does not qualify as an ultimate employment decision. Such a
refusal is not akin to acts “such as hiring, granting leave,
discharging, promoting, and compensating.” Dollis, 77 F.3d at 732
(citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) (en
banc)). Although Stancu may have gone through an interview, the
result of that meeting would not have altered Stancu’s status as an
employee already hired by Gables. Our view comports with “the
clear trend of authority” in other circuits holding that “a purely
lateral transfer is not an adverse employment action.” Dekalb
County Sch. Dist., 145 F.3d at 1450 (quoting, in part, Ledergerber
v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997)) (quotation marks
omitted); see also Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir.
1997) (stating that refusals to transfer are arguably less
intrusive than involuntary relocations). Other circuits have been
quick to parrot the following passage written by Chief Judge
Posner:
Obviously a purely lateral transfer, that is, a transfer
that does not involve a demotion in form or substance,
cannot rise to the level of a materially adverse
employment action. A transfer involving no reduction in
pay and no more than a minor change in working conditions
will not do, either. Otherwise every trivial personnel
action that an irritable, chip-on-the-shoulder employee
did not like would form the basis of a discrimination
suit. The Equal Employment Opportunity Commission,
9
already staggering under an avalanche of filings too
heavy for it to cope with, would be crushed, and serious
complaints would be lost among the trivial.
Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.
1996); see also Ledergerber, 122 F.3d at 1144 (quoting the same);
Garber v. New York City Police Dept., No. 97-9191, 1998 WL 514222,
at *4 (2d Cir. June 12, 1998) (unpublished opinion) (quoting the
same); Dekalb County Sch. Dist., 145 F.3d at 1449 (quoting the
same); but see Randlett, 118 F.3d at 862 (concluding that a refusal
to transfer can form the basis for a Title VII anti-retaliation
claim when the plaintiff has submitted evidence showing that such
transfers for hardship reasons are so customary that they are a
“privileges” of employment).
Stancu might have argued, but did not, that the transfer he
sought was not purely lateral because he thought that the position
at Valley Forge would be more secure. After all, Stancu thought it
apparent that Gables would soon lose their management contract at
Indian Creek. Yet even this argument would fail. As we stated in
Mattern, “Title VII’s anti-retaliation provision refers to ultimate
employment decisions, and not to an ‘interlocutory or mediate’
decision which can lead to an ultimate decision.” Mattern, 104
F.3d at 708. Transferring an employee to a less secure (but
otherwise similar) position is obviously an “interlocutory or
mediate decision which can lead to an ultimate decision.” Had
Gables denied Stancu the transfer and then let him go when the
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Indian Creek contract expired, Stancu may have had a cognizable
anti-retaliation claim. But Stancu did not lose his job, and was
in fact transferred to Valley Forge when the Indian Creek contract
expired. In sum, no reasonable jury could find by a preponderance
of the evidence that Gables made an adverse, ultimate employment
decision with regard to Stancu.
Having decided that Stancu has not met the “adverse employment
action” element, we need not address the causation element.
Furthermore, Stancu is not entitled to attorney’s fees because he
is not a prevailing party under Title VII. 42 U.S.C. § 2000e-5(k).
The judgment of the district court is therefore
A F F I R M E D.
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