*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this opinion should not be published and is not precedent except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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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 defendantappellee’s motion for judgment as a matter of law pursuant to

Federal Rule of Civil Procedure 50(a). We affirm.
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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
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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. 
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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
5

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
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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
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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.