                                                                     [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
