[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 25, 2001
THOMAS K. KAHN
No. 99-12548 CLERK
________________________
D. C. Docket No. 97-07278-CV-DLG
MICHELLE LIND,
Plaintiff-Appellant,
versus
UNITED PARCEL SERVICE, INCORPORATED,
a Foreign Corporation,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 25, 2001)
Before EDMONDSON, BLACK and MCKAY*, Circuit Judges.
BLACK, Circuit Judge:
*
Honorable Monroe G. McKay, U.S. Circuit Judge for the Tenth Circuit,
sitting by designation.
I. BACKGROUND
Appellant Michelle Lind, a white female, began work as a package delivery
driver with Appellee United Parcel Service in 1987. In July 1996, Appellee
discharged Appellant for allegedly directing a racial epithet at an African-
American co-worker. In August 1996, Appellant filed a charge with the Equal
Employment Opportunity Commission (EEOC), alleging Appellee had engaged in
unlawful race discrimination. Appellant also filed a grievance regarding her
termination. Her grievance was denied. Appellant claimed she could produce a
witness who would testify she had not uttered the slur, and she was given a second
hearing. The grievance was again denied at the second hearing when it was
discovered that this witness did not hear the entire conversation in which Appellant
allegedly uttered the slur. Appellant’s union argued Appellant was not properly
discharged because uttering a racial slur was not among the violations for which an
employee could be fired with no warning. Appellee argued that uttering a racial
slur was equivalent to these “cardinal infractions.” Appellant’s supervisor testified
that he had no doubt she had uttered the epithet. The case was referred to the
regional joint union-management panel, which deadlocked in its decision. The
matter was then sent to a “Deadlock Panel,” which also deadlocked. The matter
was finally referred to binding arbitration.
2
Appellant’s union business agent proposed that Appellee bring Appellant
back to work pending the outcome of the arbitration. Appellee agreed to allow
Appellant to come back to work in a position where she would not have contact
with customers or other drivers.1 On February 7, 1997, while the union arbitration
was still pending, another co-worker accused Appellant of directing the same racial
slur at him. On February 10, 1997, Appellant’s supervisor took her “out of
service” pending an investigation. This supervisor (Hershberger) testified that he
consulted with other managers on the decision to terminate Appellant’s
employment. He was not sure if he could terminate her employment, since it
technically already had been terminated. He decided to proceed with the
termination on February 12 or 13, 1997. The district court found that,
following the second racial slur incident, Appellant contacted her union business
agent and told him she wanted to speak with Hershberger directly to attempt to
resolve the matter. The district court found Appellant called Hershberger and left a
message for him to call her back. Hershberger called Appellant at home, allegedly
to discuss settling the matter. He told her the company believed she had uttered the
slurs. He then told her she could have her job back, with no back pay, if she would
1
In its brief, Appellee claims it put Appellant back to work “to mitigate any
back pay damages that might be owed if Lind prevailed at arbitration.”
3
admit to both racial slurs, publicly apologize, and drop her discrimination claim
(including her EEOC charge) and pending union grievances. Hershberger told
Appellant any final settlement would have to be discussed with the union.
Appellant claims this telephone call constituted unlawful retaliation. Appellee
claims the call was a settlement negotiation.
Appellant filed a complaint alleging that Appellee retaliated against her for
filing an employment discrimination claim with the EEOC. Appellant filed a
motion for summary judgment on the retaliation claim. The district court denied
this motion, as well as a summary judgment motion by Appellee, and the case
proceeded to a six-day trial before the court. After the trial, the district court
issued extensive findings of fact and conclusions of law, ruling that no act of
retaliation had occurred. Appellant appeals only the denial of her motion for
summary judgment.2 She claims at the time the court considered the motion,
Appellee had not presented sufficient evidence to overcome it.
2
Appellant’s Amended Notice of Appeal states she is appealing both the
order denying summary judgment (the February 12, 1999, order) and the Findings
of Fact and Conclusions of Law and Final Judgment entered on June 30, 1999.
Her initial brief, however, does not mention the Final Judgment, and her reply brief
is devoted to the argument that summary judgment should have been granted in her
favor. Arguments not raised in an appellant’s initial brief are deemed waived. See
Fed. R. App. P. 28(a); Fed. Sav. & Loan Ins. Corp. v. Haralson, 813 F.2d 370, 373
n.3 (11th Cir. 1987).
4
II. DISCUSSION
In Holley v. Northrop Worldwide Aircraft Services, Inc., 835 F.2d 1375
(11th Cir. 1988), while acknowledging that other circuits “have gone so far as to
refuse appeals on all motions for summary judgment[,]” we held that this Court
would not, after a trial, review a district court’s denial of summary judgment “if the
party admits that (a) by trial the evidence produced by the opposing party was
sufficient to be presented to the jury; or (b) by trial the evidence had been
supplemented or changed in some manner favorable to the party who opposed
summary judgment.” Id. at 1377-78 & n.7. The Court noted that “[s]ummary
judgment was not intended to be a bomb planted within the litigation at its early
stages and exploded on appeal[.]” Id. at 1377. Appellant argues Holley does not
apply here because she did not admit the evidence had been supplemented or was
sufficient to be submitted to the fact finder, so the denial of her motion for
summary judgment is therefore reviewable.
Upon review of the pertinent cases, however, we find the rule stated in
Holley has since been extended. See Stuckey v. N. Propane Gas Co., 874 F.2d
1563, 1567 (11th Cir. 1989) (“This Court does not review the propriety of orders
denying summary judgment motions based on the evidence available when the
motion was made”); see also Univ. of Fl. v. KPB, Inc., 89 F.3d 773, 775 (11th Cir.
5
1996). In KPB the court declined to review the denial of summary judgment,
stating that the inquiry “is directed to the sufficiency of the evidence as presented
at trial, which the record reveals to be competent support for the jury’s verdict . . .
.” 89 F.3d at 775. The Court did not state that the moving party had conceded this
point. See also Wenzel v. Boyles Galvanizing Co., 920 F.2d 778, 782 (11th Cir.
1991) (“Even if summary judgment might have been granted at the time the motion
was made, we examine the record to see if” the evidence at trial was more
favorable to the non-moving party.)3 Recently, we simply stated that the denial of
a motion for summary judgment is not reviewable after a trial on the merits has
occurred. See Munoz v. Oceanside Resorts, 223 F.3d 1340, 1344 n.3 (11th Cir.
2000) (“[O]nce a trial on the merits has occurred, . . . the denial of [a motion for
3
This extension is not inconsistent with Holley. In Holley, the moving party
conceded that by trial, the evidence was sufficient to go to a jury. See 835 F.2d at
1277. This Court held that in such a situation, the denial of summary judgment
was unreviewable. The Court did not have occasion to decide whether the denial
of summary judgment would be reviewable in other situations.
6
summary judgment] is unreviewable on appeal.”) (citing Wenzel, 920 F.2d at 782).4
Appellant claims the evidence produced by Appellee at trial was no different
from the evidence at the summary judgment stage, so we should review the district
court’s denial of summary judgment. The district court denied summary judgment
so it could determine who and what to believe. Even where, as here, the trial
testimony is essentially identical to the pretrial record, the testimony can
supplement the record. See Chesapeake Paper Prods. v. Stone & Webster Eng’g
Group, 51 F.3d 1229, 1236 (4th Cir. 1995) (“Even when the pretrial record and the
trial testimony are identical, a judgment after a full trial is superior to a pretrial
4
This conclusion is not inconsistent with prior precedent. Appellant cites no
case, and we cannot find one, in which this Court has actually reviewed the denial
of summary judgment after a trial has occurred. Appellant argues that review of
the final judgment opens for consideration prior interlocutory orders. We agree
with the Federal Circuit’s view on this issue:
A Rule 56(d) order granting partial summary judgment from
which no immediate appeal lies is merged into the final judgment and
reviewable on appeal from that final judgment. . . .
An order granting [summary] judgment on certain issues is a
judgment on those issues. It forecloses further dispute on those issues
at the trial stage. An order denying a motion for partial summary
judgment, on the other hand, is merely a judge's determination that
genuine issues of material fact exist. It is not a judgment, and does not
foreclose trial on the issues on which summary judgment was sought.
Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573 (Fed. Cir. 1986), cert.
dismissed, 479 U.S. 1072, 107 S. Ct. 1262 (1987) (citations omitted).
7
decision because the factfinder’s verdict depends on credibility assessments that a
pretrial paper record simply cannot allow.”)
At least 10 circuits have held that the denial of summary judgment is not
reviewable on appeal after a full trial and final judgment on the merits. See Pahuta
v. Massey-Ferguson, Inc., 170 F.3d 125, 130 (2d Cir. 1999); Chesapeake, 51 F.3d
at 1234 (4th Cir. 1995); Watson v. Amedco Steel, Inc., 29 F.3d 274, 277-78 (7th
Cir. 1994); Black v. J.I. Case Co., 22 F.3d 568, 570-72 (5th Cir. 1994); Johnson
Int’l Co. v. Jackson Nat’l Life Ins. Co., 19 F.3d 431, 434 (8th Cir. 1994); Lama v.
Borras, 16 F.3d 473, 476 n.5 (1st Cir. 1994); Whalen v. Unit Rig, Inc., 974 F.2d
1248, 1250-51 (10th Cir. 1992); Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir.
1990); Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1358-59 (9th Cir. 1987);
Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573 & n.14 (Fed. Cir. 1986), cert.
dismissed, 479 U.S. 1072, 107 S. Ct. 1262 (1987).
As other circuits have observed, a party that believes the district court
improperly denied summary judgment has adequate remedies. The party may
argue that an immediate appeal will substantially advance the termination of the
litigation and move the court to certify the denial of summary judgment for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b). See Lum v. City of
Honolulu, 963 F.2d 1167, 1169-70 (9th Cir. 1992) (holding that the “appropriate
8
forum to review the denial of a summary judgment motion is through interlocutory
appeal under 28 U.S.C. § 1292(b)”); see also Ayres v. General Motors Corp., 234
F.3d 514, 516 (11th Cir. 2000) (hearing interlocutory appeal, under § 1292(b),
from denial of summary judgment). Additionally, where a jury trial has occurred,
the party may move for judgment as a matter of law under Fed. R. Civ. P. 50 and
seek appellate review of the motion if it is denied. See Chesapeake Paper, 51 F.3d
at 1236; Watson, 29 F.2d at 279; Whalen, 974 F.2d at 1251; see also Pahuta, 170
F.3d at 131 (declining to review denial of summary judgment, and noting that “ ‘it
would be odd indeed for us to consider whether summary judgment was properly
denied in a case where the identical issue was presented at trial and the requisite
motions for judgment as a matter of law were not made.’ ”) (quoting Watson, 29
F.3d at 279).
We also find persuasive the Ninth Circuit’s reasoning in Locricchio, quoted
by several other circuits in reaching their decisions to deny appellate review of the
denial of summary judgment:
To be sure, the party moving for summary judgment suffers an
injustice if his motion is improperly denied. This is true even if the
jury decides in his favor. The injustice arguably is greater when the
verdict goes against him. However, we believe it would be even more
unjust to deprive a party of a jury verdict after the evidence was fully
presented, on the basis of an appellate court’s review of whether the
pleadings and affidavits at the time of the summary judgment motion
demonstrated the need for a trial.
9
833 F.2d at 1359.
Additionally, as the Fifth Circuit noted in Black, the Supreme Court has
acknowledged that, “even in the absence of a factual dispute, a district court has
the power to ‘deny summary judgment in a case where there is reason to believe
that the better course would be to proceed to a full trial.’ ” Black, 22 F.3d at 572
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513
(1986)). See also United States v. Certain Real Prop. Belonging to Hayes, 943
F.2d 1292 (11th Cir. 1991) (“A trial court is permitted, in its discretion, to deny
even a well-supported motion for summary judgment, if it believes the case would
benefit from a full hearing.”) See also Pahuta, 170 F.3d at 131:
If we were routinely to hear post-trial appeals of summary judgment
motion denials, we would provide an unwarranted incentive for trial
judges to grant such motions in close cases. The only way for a
district court to defuse the “bomb” of a denial's reversal following
what would be a therefore superfluous trial would be to grant the
motion, enter an appealable judgment dismissing the complaint, and
await the outcome of the appeal. Then, only in the event of reversal,
would the court and parties proceed to trial secure in the knowledge
that one is necessary.
We agree with these other circuits and hold that this Court will not review
the pretrial denial of a motion for summary judgment after a full trial and judgment
10
on the merits.5 The district court found that no act of retaliation had occurred.
That finding has gone unchallenged before this Court,6 and we have no basis for
setting it aside. See Watson, 29 F.3d at 280. The judgment of the district court is
therefore affirmed.
AFFIRMED.
5
Even if we were to review the denial of summary judgment in this case, it is
clear that summary judgment was properly denied to Appellant. We agree with the
district court that the competing interpretations of the telephone conversation
between Appellant and Hershberger presented a genuine issue of material fact, thus
precluding summary judgment.
6
See supra note 2.
11