IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-11057
Summary Calendar
____________________
SANDRA MCCLARNEY,
Plaintiff-Appellant,
v.
DAVID BARRAM, Acting Administrator, General Services
Administration,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(4:96-CV-941-BE)
_________________________________________________________________
May 20, 1999
Before KING, Chief Judge, and POLITZ, and BARKSDALE, Circuit
Judges.
PER CURIAM:*
Plaintiff-appellant Sandra McClarney appeals from the order
of a magistrate judge denying her motion for reconsideration of
the judgment entered April 9, 1998, which granted defendant-
appellee’s motion for judgment as a matter of law pursuant to
Federal Rule of Civil Procedure 50(a). 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this opinion should not be published and is not precedent except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.
1
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff-appellant Sandra McClarney works for the General
Services Administration (GSA). In 1992, she settled
administratively a sexual harassment complaint she had made
against her then-supervisor. Pursuant to the settlement, her
supervisor transferred internally and Kenneth Douglas became
McClarney’s new supervisor. In 1994, McClarney filed a complaint
with the Equal Employment Opportunity Commission alleging that
GSA employees, including Douglas, had engaged in numerous
retaliatory acts and had subjected her to a hostile work
environment because of her prior sexual harassment complaint.
Thereafter, McClarney filed this suit in the United States
District Court for the Northern District of Texas against
defendant-appellee David Barram, Acting Administrator of GSA
(defendant). Her suit alleged violations of Title VII, 42 U.S.C.
§§ 2000e to 2000e-17. Specifically, the complaint included
causes of action for retaliation and for “retaliatory
discrimination hostile work environment” based on the treatment
that she allegedly received after making her sexual harassment
complaint.
On April 6, 1998, a jury trial ensued in front of Magistrate
Judge Charles Bleil. After McClarney completed her presentation
of evidence, defendant moved for, and the magistrate judge
granted, judgment as a matter of law pursuant to Federal Rule of
Civil Procedure 50(a). According to the magistrate judge,
McClarney’s evidence failed to demonstrate the existence of an
2
ultimate employment decision as required by Mattern v. Eastman
Kodak Co., 104 F.3d 702 (5th Cir.), cert. denied, 118 S. Ct. 336
(1997), and therefore McClarney could not establish a claim for
retaliation. The magistrate judge further concluded that
McClarney’s cause of action for “retaliatory discrimination
hostile work environment” did not exist in our circuit’s
precedent, and that, even if it did, McClarney had not shown that
any harassment she suffered stemmed from her protected activity.
See id. at 712 (Dennis, J., dissenting) (postulating that one
element of hostile work environment retaliation claim is
existence of causal link between participation in protected
activity and harassment creating discriminatory work
environment). The magistrate judge thus entered judgment in
favor of defendant on April 9, 1998.
McClarney filed a motion for reconsideration on April 17,
1998, and a supplemental brief to that motion on July 2, 1998, in
which she asked the court to consider the impact of the Supreme
Court’s recent decision, Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 118 S. Ct. 2257 (1998). The magistrate judge
entered an order denying the motion for reconsideration on July
7, 1998. McClarney timely appeals.
II. DISCUSSION
Our review is de novo. See Burger v. Central Apartment
Management, Inc., 168 F.3d 875, 877 (5th Cir. 1999). The sole
issue presented on appeal is whether Burlington Industries
overruled Mattern v. Eastman Kodak Co.
3
In Mattern, we held that one of the required elements of a
retaliation claim, that the employer take an adverse employment
action against the employee, requires a showing that the
employer’s adverse action pertained to an ultimate employment
decision, such as a hiring decision, a decision to grant leave, a
discharge decision, a promotion decision, or a compensation
decision. See Mattern, 104 F.3d at 707 (citing Dollis v. Rubin,
77 F.3d 777, 781-82 (5th Cir. 1995)). McClarney argues that this
requirement does not survive Burlington Industries.
According to McClarney, in Burlington Industries, the Court
held that an employee can maintain an action, subject to an
affirmative defense, even if she suffered no tangible employment
consequences. She quotes the following language from the
decision, “[w]hen no tangible employment action is taken, a
defending employer may raise an affirmative defense to liability
or damages,” Burlington Indus., 118 S. Ct. at 2270, and argues
that this language means that employees no longer need to prove
the existence of an ultimate employment decision to establish a
retaliation claim, contrary to our holding in Mattern.
As defendant points out, however, McClarney overlooks the
fact that Burlington Industries specifically pertains to claims
for sexual harassment, not to claims for retaliation. See id. at
2262 (“We decide whether, under Title VII[,] . . . an employee
who refuses the unwelcome and threatening sexual advances of a
supervisor, yet suffers no adverse, tangible job consequences,
can recover against the employer without showing the employer is
4
negligent or otherwise at fault for the supervisor’s actions.”).
Thus, its holding does not speak to whether the establishment of
a retaliation claim requires the showing of an ultimate
employment decision. We hold that Burlington Industries did not
overrule Mattern’s requirement that, to prove a retaliation
claim, the employee must show that the employer took an adverse
employment action against her in the form of an ultimate
employment decision.
Even if Burlington Industries is applicable to McClarney’s
claims, McClarney mistakes its import. In Burlington Industries,
the Court divided the universe of sexual harassment claims into
two types--those in which the employee suffers a tangible
employment action and those in which the employee is subject to a
hostile work environment but suffers no tangible employment
action. See id. at 2264-65. Where the employee proves the
existence of a tangible employment action, the employer is
vicariously liable for the actions of its supervisors without
more. See id. at 2270. Where the employee proves the existence
of a hostile work environment, but cannot show a tangible
employment action, the employer can invoke an affirmative defense
to vicarious liability. See id.
Assuming arguendo that this framework applies in the context
of retaliation, there would be two potential ways to establish
liability--through demonstrating the existence of a retaliatory
tangible employment action or through demonstrating the existence
of a retaliatory hostile work environment. The former method
5
would subject the employer to liability for its supervisors’
actions without more. The latter method would subject the
employer to liability for its supervisors’ actions only if the
employer could not establish the affirmative defense. Thus,
under this framework, McClarney’s retaliation cause of action
would still require a showing of the existence of a tangible
employment action, i.e., an ultimate employment decision. On the
other hand, McClarney’s claim for hostile work environment
retaliation would not require the showing of a tangible
employment action, but would be subject to the affirmative
defense.
The magistrate judge held that McClarney had failed to
establish the existence of an ultimate employment decision.
McClarney does not appeal this conclusion, and we therefore have
no warrant for overturning it. See Hidden Oaks Ltd. v. City of
Austin, 138 F.3d 1036, 1045 (5th Cir. 1998) (issues not raised in
appellate brief are waived); SEC v. Recile, 10 F.3d 1093, 1096
(5th Cir. 1993) (same). McClarney also does not appeal the
magistrate judge’s conclusion that, even if a cause of action
exists for hostile work environment retaliation, a question we
need not decide today, McClarney could not establish an element
of that cause of action--that the harassment she suffered was
based on retaliation for engaging in protected activity. Thus,
even if Burlington Industries overruled Mattern and established a
retaliatory hostile work environment cause of action, the
magistrate judge’s decision to grant defendant’s motion for
6
judgment as a matter of law on this cause of action must be
affirmed. See Hidden Oaks, 138 F.3d at 1045; Recile, 10 F.3d at
1096.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the denial of
plaintiff-appellant’s motion for reconsideration of the judgment
entered April 9, 1998.
7