* 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that this opinion should not be published and is not precedent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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United States Court of Appeals

Fifth Circuit

FILED

July 15, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________

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.
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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 DefendantAppellee 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
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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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
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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.