IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 98-10290

Summary Calendar

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RICHARD BURGER, ET AL.,

Plaintiffs,

DORU STANCU,

Plaintiff-Appellant,

versus

CENTRAL APARTMENT MANAGEMENT, INC.,

doing business as Gables Residential

Services,

Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Texas

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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
2

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.
3

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
 

1Eventually, 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.

 

2Evidence 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

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.
5

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
 

3The 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.

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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).
7

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
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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,
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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.