Petition for Writ of Certiorari — Persik v. Colorado

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\\Y VU 08-875 xi 8- 2009

FN crt es _ OFFICE wi THE CLERn

jn Whe

ALSHAFI TATE,

Petitioner,

¥.

EXECUTIVE MANAGEMENT SERVICES, INC.,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

CURISTOPHER C. MYERS

Counsel of Record

CHRISTOPHER C. MYERS &

ASSOCIATES

809 SOUTH CALHOUN STREET

SUITE 400

Fort Wayne, IN 46802-2307

TELEPHONE: (260) 424-0600

FACSIMILE: (260) 424-0712

Attorney for Petitioner

January 8, 2009

Becker Gallagher - Cincinnau, OH + Washington, D.C. - 800.890.5001

QUESTIONS PRESENTED

The Seventh Circuit reversed the district court’s

decision denying Executive Management Services,

Inc.’s, renewed Rule 50(b) motion for judgment as a

matter of law, ruling that Alshafi Tate did not engage

in protective conduct when he rebuffed his supervisor’s

sexual ultimatums (continue having sex with her or

lose his job), reasoning that Tate failed to produce

evidence that he believed that the supervisor’s actions

he opposed violated Title VII (an issue that was never

preserved, litigated or briefed in the district court or

Seventh Circuit).

Two questions are presented:

1. Does an employee who rejects his supervisor’s

sexual demands engage in_ protected

oppositional conduct under Title VII, or must

the employee also offer proof of his subjective

belief that the conduct being opposed is

unlawful.

2. Mayan appellate court decide sua sponte a case-

determinative issue not preserved, raised, or

briefed by the parties, particularly when the

issue involved a mixed question of fact and law,

the prejudiced party had no _ notice or

opportunity to present his position, and the

benefitted party failed to preserve the issue in

the proceedings below.

PARTIES

The parties to this action are set forth in the

caption.

An interested party, not named in the caption, is

Mark A. Warsco, as trustee in bankruptcy for Alshafi

Tate. The Trustee’s motion to intervene as a party

plaintiff was granted by the district court on February

22, 2006.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED ................... 1

oy |. rrr eo er erare ence rard ae lara oan i}

Teed OF COC EET 6 6b ee VAS ee tse oe nl

TREBLE OF AUERSUMR eters occ ecco sages sess vi

PETITION FOR WRIT OF CERTIORARI ....... 1

COPE ICMR SHURE oo ak OP SN 1

STATEMENT OF JURISDICTION ............ 1

STATUTORY PROVISION INVOLVED ........ 1

STATEMENT OF THE CASE ................ 2

REASONS FOR GRANTING THE WRIT ....... 8

I. THE SEVENTH CIRCUITS DECISION

CONFLICTS WITH OTHER COURTS OF

APPEALS AND THE UNITED STATES

SUPREME CHIU wc cc ci ee een eee nes 8

Il. PETITIONER REQUESTS THIS COURT TO

HOLD THIS CASE PENDING ITS DECISION

IN CRAWFORD v. METROPOLITAN

GOVERNMENT OF NASHVILLE AND

DAVIDSON COUNTY, TENNESSEE ...... 15

HI. THIS CASE PRESENTS AN ISSUE CRITICAL

TO THE PROTECTION OF EMPLOYEES

WHO REJECT THEIR SUPERVISORS’

DEMANDS FOR SEX AND OPPOSE

PATENTLY UNLAWFUL EMPLOYMENT

PRACTICES UNDER TITLE VII ..........

IV. THE SEVENTH CIRCUIT’S SUA SPONTE

CONSIDERATION OF A CASE-CHANGING

ISSUE (TATE’S BELIBF IN THE ILLEGALITY

OF BURBAN’S SEXUAL DEMANDS),

VIOLATES THE LONG-SETTLED RULE

THAT APPELLATE COURTS WILL NOT

CONSIDER AN ISSUE NEITHER PRESSED

NOR PASSED UPON BELOW ............

RPE: Xba 0 8G nak aes ON KS

APPENDIX

Appendix A - Qpinion of the United States

Court of Appeals for the Seventh Circuit,

Ce TO es kone bc ek 8 eee

Appendix B - Opinion of the United States

District Court for the Northern District of

Indiana, Fort Wayne Division, June 4,2007 Illa

Appendix C - Opinion of the United States

District Court for the Northern District of

Indiana, Fort Wayne Division, October 12,

ee ae a eer ieee 22a

Appendix D - Memorandum of Opinion and

Order of the United States District Court for

the Northern District of Indiana, Fort Wayne

SUIVINIONN, DE EM BUD wc ec etc ees 29a

val

TABLE OF AUTHORITIES

Cases

Burlington Northern & Santa Fe Rwy. Co. v. White,

548 U.S. 53,

126 S.Ct. 2405 (2006) 10, 13, 18, 20, 2

Byrd v. The Illinois Dep't of Health,

423 F.3d 696 (7 Cir. 2005)

Clark County School Dist. v. Breeden,

532 U.S. 268 (2001)

Connick v. Myers,

461 U.S. 138, 103 S.Ct. 1684,

75 L.Ed.2d 708 (1983)

Curay-Kramer v. Ursuline Academy, Wilmington,

450 F.3d 130 (3™ Cir. 2006)

Day v. McDonough,

547 U.S. 198 (2006)

Exxon Shipping Co. v. Baker, No. 07-219,

128 S.Ct. 2605 (U.S. 6-25-08)

Faragher v. City ¢;, Raton,

524 U.S. 775, 118 S.Ct. 2275,

141 L.Ed.2d 662 (1998)

Gaither v. Aetna Life Ins. Ce.,

388 F.3d 759 (10™ Cir. 2004)

Vil

Hormel v. Helvering,

312 U.S. 552, 61 S.Ct. 719,

OU Este. BGT CRBGE) oc cece reese 23, 28

Johnson v. Univ. of Cincinnati,

215 F.3d 561 (6" Cir. 2000) ............... 19

Jordan v. Alternative Res. Corp.,

458 F.3d 332 (4 Cir. 2006) ............ 13, 14

Jordan v. Clark,

847 F.2d 1368 (9" Cir. 1988) ............... Ss

Lambert v. Genesee Hosp.,

10 F.3d 46 (2™ Cir. 1993), cert. denied,

511 U.S. 1052, 114 S.Ct. 1612,

E2S 1s. 0G.OO GOO CAUSE) occ cence ene 27

LeMaire v. La. Dep’t of Transp. & Dev.,

480 F.3d 383 (5" Cir. 2007) .............. 7,8

Lyons v. Jefferson Bank & Trust,

994 F.2d 716 (10™ Cir. 1993) .............. 26

Mary M. v. N. Lawrence Cmty. Sch. Corp.,

£31 F.3d 1290 C7" Cir. 1007) .. ow... 6 ee eens 6

Mattson v. Caterpillar, Inc.,

359 F.3d 885 (7 Cir. 2004) ................ §

Meritor Sav. Bank, FSB v. Vinson,

Ee Gre ee Cob bo nwo eee ees g

Moore v. City of Philadelphia,

461 F.3d 331 (3 Cir: 2006) ................ 19

vill

Ogden v. Wax Works, !nc.,

214 F.3d 999 (8" Cir. 2000) ......... 7, 8,9, 19

Oncale v. Sundowner Offshore Servs..,

523 U.S. 75, 118 S.Ct. 998,

140 L..Bd.2@ ZOL(1998) 2... ccc eect e eee 21

Petrin I. Petrini v. Howard,

918 F.2d 1482 (10" Cir. 1990) ............. 26

Phelan v. Cook County,

O05 7.38 77S” Cir. POOR)... 6 cin ce cen es 3

Reed v. Cracker Barrel Old County Store, Inc.,

133 F.Supp. 2d 1055 (M.D.Tenn. 1000) ..... 19

Reeves v. Sanderson Plumbing Prods., Inc.,

GER: ) 11

Rhodes v. Illinois Dept. of Transp.,

359 F.3d 498 (7" Cir. 2004) ................ 3

Shoels v. Klebold,

375 F.3d 1054 (10 Cir. 2004) ............. 27

Singleton v. Wulff,

428 U.S. 106, 968.Ct. 2868,

49 Lidid 2d 826 (1976) ............. 23, 24, 27

Spiegla ». Hull,

S71 F.3d GQB(7" Cir. 2004) ...........45.-. aa

United States vo. Williams,

504 U.S. 36, 112 S.Ct. 1735,

Dee Ee ieee See CR) gt ct tc eee ewe ceeen 23

Unitherm Food Sys., Inc., v. Swift-Eckrich, Inc.,

BOR 26

Statutes and Regulations

28 U.S.C. & Treas occ ]

42 U.3.C.. 9 Sas. ee. 17

42 U.S.C. § 2000e-S3(a) ............... 1,6, 13, 16

29 C.F. 9 Tee ek ce eee 17

Briefs

Brief of Petitioner, Crawford v. Metropolitan

Government of Nashville and Davidson

County, Tennessee, No. 06-1595 (argued

LOFMIGAGS) «6c Fees 15, 20, 28

Other Authorities

EEOC Comp. Man., Section 915.003, Part 8

TUBS) «. <6 eee ek ch ee ee 17,18

Merriam-Webster Dictionary (1974 G. & C.

NEerrigris Git) Ge es sce et es 19

PETITION FOR WRIT OF CERTIORARI

Petitioner Alshafi Tate respectfully prays that this

Court will grant a writ of certiorari to review the

judgment and opinion of the United States Court of

Appeals for the Seventh Circuit entered on October 10,

2008.

OPINIONS BELOW

The October 10, 2008, opinion of the court of

appeals is reported at 546 F.3d 528 (7 Cir. 2008) and

is set out at pp. la-10a of the Appendix. The June 4,

2007, opinion of the district court denying

Respondent’s second motion for judgment as a matter

of law is not officially reported but is set out at pp.

lla-2la of the Appendix. The October 12, 2006,

opinion of the district court denying Respondent’s

initial Rule 50 motion is not officially reported but is

set out at pp. 22a-28a of the Appendix. The May 12,

2006, opinion and order of the district court denying

Respondent’s motion for summary judgment is not

officially reported but is set out at pp. 29a-40a of the

Appendix.

STATEMENT OF JURISDICTION

The decision of the court of appeals was entered on

October 10, 2008. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Section 704(a) of Title VIT, 42 U.S.C. § 2000e-3(a),

provides in pertinent part:

It shall be 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 this subchapter .. ..

STATEMENT OF THE CASE

One question presented in this case is whether an

employee who rejects his supervisor's continued

demands for sex, and who was_ terminated

immediately after refusing the sexual ultimatum,

must also show that he reasonably and subjectively

believed in good faith that the conduct which he

opposed was unlawful under Title VII, in order to

prove that he engaged in protected conduct under Title

VII. The second question presented is whether a case-

changing issue may be considered sua sponte by a

court of appeals when the issue was not preserved by

respondent and was otherwise never raised, briefed, or

argued by the parties, particularly when that issue

involves a mixed question of law and fact, and

petitioner had no notice or opportunity to present his

position on the issue.

Alshafi Tate (“Tate”) worked as a janitor for

¢xecutive Management Services, Inc., (“EMS”). Dawn

Burban was Tate’s supervisor who had the power to

recommend promotions and raises, but not the

ultimate authority to hire or fire Tate.’ Almost

Burban was not a supervisor with ultimate terminating

authority, so Tate had no quid pro quo sexual harassment claim.

He relied upon the cat’s paw theory of hability to impose

responsibility upon EMS. In the Seventh Circuit, the term

“supervisor” means a person having the authority to hire and fire.

immediately, Tate and Burban began having sex, and

within one week of his start date, Tate was promoted

and received a pay raise. Burban initiated the sex

which happened two or three times per week,

sometimes at work and other times at the home of a

co-worker.

After Tate married his fiancee, burban threatened

Tate about his job and that she was going to tell his

wife. Several weeks before Tate’s termination on

January 13/14, 2004, Tate told Burban that he “wasn’t

messing with her anymore .. .” and she gave him an

ultimatum, a “couple days to think about it.” (App.

3a). ‘Tate stated that he was not going to continue

“messing” with Burban. Burban gave Tate the

ultimatum again (continue the sexual relationship or

be fired), and she asked Tate if he had made a choice

yet. The second ultimatum happened at work when

Burban summoned Tate to her office and asked if he

had made a decision about the ultimatum. Knowing

exactly what she was talking about, ‘l'ate told her “no.”

The choice he had to make was either losing his job or

staying involved with her (Burban). When Burban

asked Tate for his answer, he replied, “I’m not dealing

with you anymore. ” She replied that she could

have him fired at any given time. When Tate told her

Phelan v. Cook County, 463 F.3d 773, 783 (7"" Cir. 2006). Thus

Burban’s harassment of Tate did not impose strict liability

pursuant to Faragher v. City of Raton, 524 U.S. 775, 807-08, 118

S.Ct. 2275, 14] L.Ed.2d 662 (1998). See also Rhodes v. Illinois

Dept. of Transp., 359 F.3d 498, 506 (7" Cir. 2004) (“Supervisor” is

a legal term of art for ‘litle VII purposes, and an employee merely

having authority to oversee aspects of another employee's job

performance does not qualify as a supervisor in the Title VII

context)

“no,” Burban raised her voice and stated, “You don’t

know who [you’re] fucking with!” Burban told Tate

that she was going to have him fired. In response to

Tate telling Burban that he wasn’t “messing with her

anymore,” Burban responded by saying “you don’t

know who you're fucking with, get the fuck out of the

building, get your ass out of the building, you just

fucked up.” He was terminated before having an

opportunity to explain his side of the story.

EMS moved for summary judgment claiming that

Tate could not maintain a claim for retaliation

“because he never opposed any conduct unlawful by

Title VII prior to his discharge.” (App. 33a). EMS

claimed that even if an employee’s act of ending a

relationship constituted an expression against sexual

harassment, the ending of a voluntary consensual

sexual relationship did not constitute oppositional

conduct made unlawful under Title VIL. (App. 34a).

The district court denied the motion for summary

judgment. (App. 40a). At no time during the summary

judgment proceedings did EMS question Tate’s good

faith reasonable belief in the unlawfulness of Burban’s

sexual demands; nor did the district court make any

ruling or comment on the issue.

The case proceeded to trial. The jury returned its

verdict on September 28, 2006, determining that

plaintiff failed to prove his sexual harassment claim

but finding EMS liable for retaliation. (App. 23a). The

district court denied EMS’ Rule 50 motion for

judgment as a mater of law on October 12, 2006. (App.

22a). The district court determined the relevant facts

pertinent to the motion as follows:

At trial, the Plaintiff testified that he had

consented to a sexual relationship with his

supervisor, Dawn Burban. After he attempted

to end the relationship, Burban gave him an

ultimatum: he would have to choose between

his wife and his job. He took this to mean that

if he ended the sexual relationship with Burban,

he would lose his job. When she confronted him

and asked for his answer, he told Burban he

“wasn’t messin’ with her anymore.” Burban

responded by cursing and yelling at the

Plaintiff, telling him to leave the building and

that he would lose his job.

(App. 24a). The district court concluded that there was

sufficient justification to hold EMS liable under the

“cat’s paw” theory of liability, pursuant to 3yrd v. The

Illinois Department of Health, 423 F.3d 696 (7 Cir.

2005). As to the issue, “Whether the Plaintiff Opposed

an Unlawful Employment Practice,” the district court

observed that EMS had made this same argument in

its motion for summary judgment, and again, the court

overruled it. (App. 27a). Noteworthy is that EMS

never argued, as grounds for its Rule 50 motion, that

Tate failed to present evidence that he reasonably

believed in good faith the practice he opposed violated

Title VII, nor did the district court make a ruling in

that regard. (App. 22a-28a).

EMS filed a second motion for judgment as a

matter of law, and presented the same argument —

“that the Plaintiff did not oppose conduct made

unlawful by Title VIT....” (App. 12a). EMS did not,

in its post-verdict motion for judgment as a matter of

law, make any claim or argument that Tate failed to

present evidence that he believed that Burban’s

actions were unlawful. (App. lla-21a). In denying the

motion, the court stated:

A straightforward reading of the statute’s text

requires finding that rebuffing sexual

harassment can in some _ situations be

considered opposition to an unlawful

employment practice. The applicable subsection

states, “it shall be 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.” 42 U.S.C. § 2000e-3(a). It is an

unlawful employment practice to threaten a

person with termination if he or she refuses to

continue in a sexual relationship. Mary M. vu. N.

Lawrence Cmty. Sch. Corp., 131 F.3d 1220, 1226

n.7 (7" Cir. 1997) (“[H]larassment, occurs when

the receipt of benefits of the maintenance of the

status quo is conditioned on acquiescence to

sexual advances.”). When an employee is given

an ultimatum that continued employment

depends on continuing a sexual relationship,

and the employee says “no more,” that employee

could reasonably be understood to be opposing

continuing the sexual relationship and to be

opposing a change in the terms of his

employment. As the Plaintiff notes tn his brief,

“Tate” not only refused Burban’s ultimatum tou

have sex, he did so under the express threat of

termination by Burban.” (P]. Br. 5, DE 107.).

When the protesting employee is terminated,

the termination could be motived by the

opposition to the change in employment terms,

the opposition to the sexual relationship, or

both. The retaliation claim intertwines with the

harassment claim, but they are not identical.

(App. l3a-14a). The court of appeals reversed.

“Because Tate has not shown that he engaged in

protected conduct, we reversed the district court’s

decision.” (App. 2a). The Seventh Circuit noted that

“there is a circuit split about whether a person who

rejects a supervisor’s sexual advances has engaged in

a ‘protected activity’. Compare LeMuire v. La. Dep't of

Transp. & Dev., 480 F.3d 383, 38Y (5" Cir. 2007)

(holding that single, express rejection of sexual

advances does not constitute ‘protected activities’ for

purposes of a retaliation claim”) with Ogden v. Wax

Works, Inc., 214 F.3d 999, 1007 (8 Cir. 2000) (finding

that when the plaintiff told her supervisor to stop

harassing her, she engaged in the most “basic form of

protective conduct”). (App. 8a).

The Seventh Circuit dodged the issue presented

and decided the case sua sponte on an issue that was

not preserved or briefed: “Tate has not shown that he

reasonably believed in good faith the practice [he]

opposed violated Title VII.” (Internal quotes omitted).

(App. 8a). The Seventh Circuit reasoned:

There is simply no evidence in the record that

Tate believed that Burban’s actions were

unlawful. In fact, the only statement that Tate

made to Burban was that they “were not good

with each other” and that he “was not messing

with her anymore” statements which do not

indicate that Tate believed he was being

sexually harassed. .... All of these statements

point to personal reasons for ending the

relationship rather than concerns about the

legality of Burban’s behavior.

(App. 8a-9a). The court of appeals stated that, “Title

VII was designed to protect the rights of employces

who in good faith protest the discrimination they belief

they have suffered and to ensure that such employees

remain free from reprisals of retaliatory conduct.”

(App. 9a-10a, quoting Mattson v. Caterpillar, Inc., 359

F.3d 885, 891 (7" Cir. 2004)). The court of appeals

determined that, “the record is devoid of any

statements that indicate sexual harassment was at

issue. Because Tate has failed to establish that he had

a good faith belief that he was being sexually harassed,

EMS is entitled to judgment as a matter of law.” (App.

10a).

REASONS FOR GRANTING THE WRIT

I. THE SEVENTH CIRCUIT’S DECISION

CONFLICTS WITH OTHER COURTS OF

APPEALS AND THE UNITED STATES

SUPREME COURT

Certiorari is warranted to resolve the circuit split

of whether an employee who rejects a supervisor’s

sexual advances has engaged in a protected activity.

(App. 8a). Compare LeMatre v. La. Dep’t of Transp. &

Dev., 480 F.3d 383, 389 (5" Cir. 2007) (holding that a

single, express rejection of sexual advances does not

constitute “protected activity” for purposes of a

retahation claim) with Ogden v. Wax Works, Inc., 214

F.3d 999, 1007 (8" Cir. 2000) (finding that when the

plaintiff told her supervisor to stop harassing her, she

engaged in the most “basic form of protected conduct”)

with Jordan v. Clark, 847 F.2d 1368, 1376 (9% Cir.

1988) (“[An employee’s] alleged resistance to [a

supervisor’s] advances only qualifies as protected

activity if [the supervisors’s]| advances actually

occurred and were an ‘unlawful employment practice’

under Title VII.”). This issue was squarely addressed

by the district court in its’ decision denying summary

judgment. (App. 33a-40a). The issue was squarely

addressed again by the district court when ruling on

EMS’ initial Rule 50(a) motion for judgment as a

matter of law, wherein the court referenced its’ earlier

May 12, 2006, Opinion regarding summary judgment.

(App. 27a-28a). Finally, the district court rejected, for

a third time, EMS’ argument that Tate did not oppose

an unlawful employment practice. (App. 13a-15a).

The district court rulings, consistent with the Eighth

Circuit’s holding in Ogden v. Wax Works, Inc., 214 F.3d

999, 1007 (8 Cir. 2000), is the view more in keeping

with the purposes of Title VII.

The gravamen of any sexual harassment claim is

that the alleged sexual advances were ‘unwelcome.’

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68

(1986). This Court in Meritor Savings Bank heid that

the fact that sex-related conduct was “voluntary” was

not a defense to a sexual harassment claim brought

under Title VII, because the gravamen of any sexual

harassment claim is that the alleged sexual advances

were “unwelcome.” 477 U.S. at 68. In the workplace,

relationships change — a once-consensual, once-

welcome relationship may turn into one that is non-

consensual and unwelcome. The policy of preventing

discrimination and harassment in the workplace can

only be fulfilled if employees are afforded relief for

opposing and resisting unlawful employment practices,

particularly if an employee is terminated on the heels

of engaging in such protected activity. Tate’s rejection

of his supervisor’s demands for sex under threat of

termination was protected activity for purposes of

sustaining a retaliation claim under Title VII.

The Seventh Circuit’s rather circumspect analysis

of Tate’s retaliation claim violates Supreme Court

precedent. In Burlington Northern & Santa Fe Rwy.

Co. v. White, 548 U.S. 53, 126 8.Ct. 2405, 165 L.Ed.2d

345 (2006), this Court stated the broad objectives of

Title VII’s anti-retaliation provision:

The anti-retaliation provision seeks to secure

that primary objective [a workplace where

individuals are not discriminated against

because of their . . . gender-based status] by

preventing an employer from interfering

(through retaliation) with an employee's efforts

to secure or advance enforcement of the Act’s

basic guarantees. The substantive provision

seeks to prevent injury to individuals based on

who they are, i.e., their status. The anti-

retaliation provision seeks to prevent harm to

individuals based on what they do, i.ec., their

conduct.

548 U.S. at 63. The Court encouraged a broad reading

of Title VII’s opposition clause, “Interpreting the anti-

retaliation provision to provide broad protection from

retaliation helps ensure the cooperation upon which

accomplishment of the Act’s primary objective

depends.” 548 U.S. at 67. The Court also noted that,

“the significance of any given act of retaliation will

often depend upon the particular circumstances.

Context matters.” /d. at 69. The Seventh Circuit’s

decision violated the analytical framework enunciated

by this Court in Burlington Northern. The court of

appeals failed to credit the facts and favorable

inferences therefrom determined by the jury, i.e., that

Tate had refused Burban’s initial sexual ultimatum

approximately two weeks before his termination, that

after he was summoned to Burban’s office and made to

answer her second sexual ultimatum, he said, “No,”

that his choice was his wife and his job, not Burban,

and that he wasn’t going to be “messin’ with her

anymore” — meaning that he opposed her sexual

ulttimatums and declined her demands for sex in the

future.

The Seventh Circuit’s decision also violates this

sourt’s holding in Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133 (2000), t.e., that in

entertaining a motion for judgment as a matter of law,

the court should review all of the evidence in the

record and “must draw all reasonable inferences in

favor of the non-moving party.” /d. at 150. A court of

appeals must not disregard critical evidence favorable

to the non-moving party. Jd. at 152. But the Seventh

yircuit’s decision (reversing the district court’s

decision denying EMS’ Rule 50 motion) disregarded

the evidence in favor of Tate. As summarized by the

district court, “The relevant facts presented in the

motion for summary judgment differ little from what

was presented at trial”:

At trial, the Plaintiff testified that he had

consented to a sexual relationship with his

supervisor, Dawn Burban. After he attempted

to end the relationship, Burban gave him an

ullimatum: he would have to chouse between

his wife and his job. He took this to mean that

if he ended the sexual relationship with Burban,

he would lose his job. When she confronted him

and asked for his answer, he told Burban he

“wasn’t messin’ with her anymore.” Burban

responded by cursing and yelling at the Plaintiff

telling him to leave the building and that he

would lose his job.

Burban called her supervisors and told them

the Plaintiff was insubordinate because he

refused a work assignment. Burban filled out

the termination form for the Plaintiff and the

Plaintiff received a call the next day that he was

terminated from his position. The Defendant’s

purported decision maker testified at trial that

she took Burban’s statements into account when

deciding whether to terminate the Plaintiff.

(App. 24a-25a). The Seventh Circuit disregarded all of

this evidence and the inferences therefrom which

demonstrates Tate’s belief in the wrongfulness of

Burban’s conduct, thus violating Reeves.

The Seventh Circuit’s decision conflates the

distinction between an employment practice that is

patently and actually made unlawful by Title VII, with

an employment practice that the employee could

reasonably belief is unlawful. The United States

Supreme Court has recognized the difference between

the two types of practices. See Clark County School

Dist. v. Breeden, 532 U.S. 268, 270 (2001). The

question is whether an employee opposing a practice

that is actually made unlawful by Title VII (rejecting

the sexual demands/ultimatums of the supervisor

under threat of discharge), must also show proof that

he reasonably believed that the practice was unlawful.

In Clark County, the Supreme Court rejected a

retaliation claim where, “{njo reasonable person could

have believed that” the underlying incident

complained about “violated Title VII’s standard” for

unlawful discrimination — sexual orientation was not

within Title VII’s purview. 532 U.S. at 271. The

Seventh Circuit went too far in requiring that an

employee show a belief in the unlawfulness of the

activity opposed when the employee is opposing a

patently unlawful employment practice (in this case,

rejecting a supervisor’s demands for sex under threat

of termination), not just a practice reasonably believed

to be unlawful. Certiorari is needed to address this

question.

The Seventh Circuit’s decision that Tate had to

show evidence that he subjectively believed that

Burban’s actions were unlawful is at odds with the

objective, reasonable employee approach taken by the

Supreme Court in Burlington Northern, 548 U.S. at 68.

The question should not be whether Tate subjectively

believed in the unlawfulness of Burban’s actions — or

whether Tate articulated that subjective belief.

Common sense dictates that Tate believed that

Burban’s demands for sex were wrong, because he

opposed them, and did so under threat of termination.

At least one circuit court of appeal has recognized the

difference between an actual unlawful employment

practice and one that an employee merely reasonably

believes to be unlawful. In Jordan v. Alternative

Resources Corp., 458 F.3d 332 (4 Cir. 2006), the

Fourth Circuit was presented with an employee who

contended that the reporting of one incident of race

harassment was opposition to an unlawful hostile

work environment. /d. at 336. After examining the

plain language of Title VII, 42 U.S.C. § 2000e-3(a), the

court stated, “The plain meaning of the statutory

language provides’ protection of an employee’s

opposition activity when the employee responds to an

actual unlawful employment practice. ....” Jd. at

338. The court also stated that whether the employee

reasonably believes a practice is unlawful is an

objective one. Id. at 339.

Certiorari is warranted to reconcile the Seventh

Circuit’s decision with the approach taken by the

Fourth Circuit. The Seventh Circuit ignored the plain

meaning of the statute when analyzing Tate’s

opposition activity, i.e. objecting to the actual unlawful

employment practice of Burban’s demands for sex in

return for Tate keeping his job. Another critical

difference is that the Fourth Circuit employed an

objective analysis in determining whether the

employee reasonably believed the practice to be

unlawful. Jd. at 339. But the Seventh Circuit looked

at what Tate subjectively believed, not what he

reasonably believed and not the context of his

oppositional words and conduct. “There is simply no

evidence ... that Tate believed that Burban’s actions

were unlawful.” (App. 8a). “[Tjhe problem is that he

did not necessarily believe that her behavior was

illegal at the time.” (App. 9a). But the objective facts

and reasonable inferences therefrom supported a

finding that Tate was engaged in protected activity —

he refused Burban’s sexual ultimatum two weeks

earlier, he was summoned to her office on January 13,

2006, and refused her sexual ultimatum again, and the

refusal of her sexual demands caused him to be

terminated immediately, which caused him to file a

charge of discrimination with the KEOC, hire a lawyer,

and then sue EMS. Of course Tate reasonably believed

that Burban’s actions were unlawful; otherwise he

would not have gone to the lengths he did to obtain

redress. The point is that the Seventh Circuit's

decision conflated the two types of unlawful

employment practices — one that is actually unlawful

with one that an employee merely reasonably believes

to be unlawful. The Seventh Circuit lumped the two

together and applied a subjective beclicf component

which is neither required by the text of section 704(a)

or by the Supreme Court or other courts of appeal.

Certiorari is warranted.

Il. PETITIONER REQUESTS THIS COURT TO

HOLD THIS CASE PENDING ITS DECISION

IN CRAWFORD vo. METROPOLITAN

GOVERNMENT OF NASHVILLE AND

DAVIDSON COUNTY, TENNESSEE

Currently under review by this Court is Crawford

v. Metropolitan Government of Nashville and Davidson

County, Tennessee, No. 06-1595 (argued 10/08/08). The

employee in Crawford strongly objected to the sexual

overtures of her supervisor, telling him on one occasion

to “get the hell out of my office.” Brief of Petitioner,

Crawford (No. 06-1595) p. 3. Crawford argued that

her conduct was protected by the opposition clause of

section 704(a). Jd. pp. 40-52. Petitioner ‘Tate urges

this Court to hold this case pending its decision in

Crawford given the factual and legal similarities, i.e.,

whether the oppositional activity of rejecting the

supervisor’s conduct is protected by the opposition

clause of Title VII.

Ill. THIS CASE PRESENTS AN_ ISSUE

CRITICAL TO THE PROTECTION OF

EMPLOYEES WHO REJECT THEIR

SUPERVISORS’ DEMANDS FOR SEX AND

OPPOSE PATENTLY UNLAWFUL

EMPLOYMENT PRACTICES UNDER

TITLE VII

The Seventh Circuit held that the anti-retaliation

provisions in section 704(a) of Title VII do not protect

un employee who rejects supervisor’s demands for sex

in the future when the employee fails to show evidence

of his belief. Specifically, the court of appeals held

that, “Because Tate has failed to establish that he has

a good faith belief that he was being sexually harassed,

EMS is entitled to judgment as a matter of law.” (App.

10a).°

Title VII’s anti-retaliation provision is clear: “It

shall be 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 this subchapter.” 42

U.S.C. § 2000e-3(a). The plain text of Section 704(a) of

Title VII does not require that an employee state, or

* Whether this holding violates the long-settled rule that appellate

courts will not consider an issue ncither pressed nor passed upon

below is addressed in “Section IV” herein. Nevertheless,

Petitioner is compelled to point out that “Tate’s reasonable belief

in the unlawfulness of Burban’s behavior,” or “late’s belhefthat he

was being sexually harassed,” were issues never addressed in the

proceedings below — not at summary judgment, not in LMS’ pre-

verdict Rule 50(a) motion, not in EMS’ post-verdict Rule 50(b)

renewed motion, and not in the briefs filed by the parties in the

court of appeals

otherwise show, that he has a good faith belief that the

practice that he was opposing was unlawful,

particularly when the employee opposes a patently

unlawful employment practice. Tate (a man) refused

to have sex with Burban, i.e., he refused her continued

sexual demands, which she made a condition in return

for his continued employment. Burban (a woman)

made sexual demands upon Tate (a man) because of

his sex. Applying a textual analysis, Tate was

opposing a practice (Burban’s demands for sex),

patently an unlawful employment practice under Title

VII. (See 42 U.S.C. § 2000e-2(a), “it shall be an

unlawful employment practice for an employer - (1) to

discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex.”).

The Seventh Circuit’s decision requiring a showing of

“belief” in addition to oppositional conduct violates the

plain text of section 704(a).

‘The Seventh Circuit’s decision impinges upon the

EEOC’s broad view of oppositional conduct: “Because

individuals often may not know the specific

requirements of the anti-discrimination laws enforced

by the EEOC, they may make broad or ambiguous

complaints of unfair treatment. Such a protest. is

protected opposition ifthe complaint would reasonably

have been interpreted as opposition to employment

discrimination.” MHOC Comp. Man., Section 915.008,

Part 8 11(B)(2). Furthermore, the “refusal to obey an

order also constitutes protected oppos.tion if the

individual reasonably believes that the order makes

discrimination a term or condition of employment.

Id. That “sexual harassment” is an unlawful

employment practice is codified at 29C FR § 1604.11

(a) Harassment on the basis of sex is a violation

of section 703 of Title VII. Unwelcomed sexual

advances, requests for sexual favors, and other

verbal or physical conduct of a sexual nature

constitute sexual harassment when: (1)

submission to such conduct is made either

explicitly or implicitly a term or condition of an

individual’s employment, (2) submission to or

rejection of such conduct by an individual is

used as the basis for employment decisions

affecting such individual, or (3) such conduct

has the purpose or effect of unreasonably

interfering with an_ individual’s’ work

performance or creating an _ intimidating,

hostile, or offensive working environment.

An employee’s action or statement constitutes

opposition if it “would reasonably [be] interpreted as

opposition.” EEOC Comp. Man. § _ 8-II(B)(2).

Certiorari is warranted as the Seventh Circuit’s

decision interferes with an employee’s right to oppose

unlawful conduct by demanding more (proof of belief)

than is required by the Act or the EEOC which

administers Title VII.

This Court has recognized the importance of “a

broad interpretation of the anti-retaliation provision

lin Title VIT].” Burlington Northern & Santa Fe Rwy.

Co. v. White, 548 U.S. 538, 126 S.Ct. 2405, 2413 (2006).

“|I|nterpreting the anti-retaliation provision to provide

broad protection from retaliation helps ensure the

cooperation upon which accomplishment of the Act’s

primary objective depends.” 548 U.S. at 67. The

Seventh Circuit’s decision runs afoul of this Court’s

interpretive rules and_ guidelines in assessing

oppositional conduct. Review is warranted.

There is no textual limitation as to whom an

employee must address under the opposition clause.

The opposition clause covers conduct such as

“complaining to anyone... about allegedly unlawful

practices, refusing to obey an order because the worker

thinks it is unlawful under Title VII, and opposing

unlawful acts by persons other than the employer

” Johnson v. Univ. of Cincinnati, 215 F.3d 561,

579 (6 Cir. 2000). There is no exclusion involving the

harasser, herself, i.e., an employee who voices

opposition directly to the harasser engages in

protected conduct. See Ogden v. Wax Works, Inc., 214

F 3d 999, 1007 (8" Cir. 2000) (an employee “engaged in

the most basic form of protective activity when she told

her supervisor . .. to stop his offensive conduct”); Reed

v. Cracker Barrel Old County Store, Inc., 133 F.Supp.

2d 1055, 1070 (M.D.Tenn. 1000) (an employee who

complained to her direct and harassing supervisor, and

also to two other managers, engaged in protected

conduct when she told her supervisor to stop sexually

harassing her); Moore v. City of Philadelphia, 461 F.3d

331, 343 (3™ Cir. 2006) (employees had opposed

unlawful discrimination by expressing their criticism

to their supervisor and up the chain of command). The

Seventh Circuit’s decision diminishes an employee’s

right to directly oppose a harassing supervisor's

conduct. Certiorari is warranted.

Indeed, the dictionary definition of “oppose”

includes “to place opposite or against something (as to

provide resistance or contrast),” or “to strive against:

RESIST.” See Merriam-Webster Dictionary, p. 492

(1974 G. & C. Merriam Co.). The Seventh Circuit's

decision weakens an employee’s ability to oppose a

sexual harasser’s patently unlawful conduct by adding

a layer of “actual belief,” which is not required by the

statute. Stated differently, the text of Title VII's anti-

retaliation provision does not require proof of actual

belief; it only requires oppositional speech or conduct

to an unlawful practice. An employee who is

immediately terminated, as was Tate, has certainly

sent a message that the conduct he opposed was

wrongful. Otherwise, why would the harasser

retaliate by terminating the employee. The Seventh’s

Circuit’s holding to the contrary thwarts the remedial

purpose of Title VII — to allow an aggrieved employee

redress.

The holding of the court of appeals vitiates the

ability of employees who oppose unlawful employment

practices to seek redress for the effects of retaliation

under Title VII. Many employees, whether because

they are poorly educated, mentally infirm, or for any

other reason inarticulate, will not be able to express or

have any view about whether the discrimination they

are experiencing violates Title VII. As stated by the

Petitioner in Crawford v. Metropolitan Government of

Nashuille and Davidson County, Tennessee, No. 06-

1595, Brief For The Petitioner, p. 40, “The protected

employee need not express or have any view about

whether the discrimination violates Title VII, or even

know that Title VII exists.”

The Seventh Circuit’s decision is directly contrary

to this view. The Seventh Circuit’s finding Tate

presented no evidence that he believed Burban’s

actions were unlawful, (App. A-8a), conflicts with this

Court’s decision in Burlington, 548 U.S. at 69, 126

S.Ct. at 2405, wherein the Court stated that, “... the

significance of any given act of retaliation will often

depend upon the particular circumstances. Context

matters.” The court in Burlington Northern quoted

from its prior decision in Oncale v. Sundowner

Offshore Servs. , 523 U.S. 75, 81-82, 118 S.Ct. 998, 140

L.Ed.2d 201 (1998), “The real social impact of work

place behavior often depends on a constellation of

surrounding circumstances, expectations, and

relationships. ....” The Seventh Circuit’s decision

failed to account for the context and dynamics of the

Burban-Tate relationship. Burban kept demanding

sex. Tate adamantly refused. And, when the “no” and

the “I ain’t messin’ with you” finally sunk in, Burban

immediately forced Tate to leave the premises and

orchestrated his termination. Reasonable fact-finders

could, and did, determine that Tate engaged in

protected activity and was terminated for it. The

Seventh Circuit’s ruling (and reasoning) to the

contrary defeats the anti-retaliation purposes of Title

VII. “Title VIT depends for its enforcement upon the

cooperation of employees who are willing to” oppose

unlawful employment practices in the workplace. See

Burlington N. & Santa Fe Rwy. Co. v. White, 126S.Ct.

2405, 2414 (2006).

The Seventh Circuit’s decision undercuts the utility

of Title VII's anti-retaliation provision by suggesting,

if not outright declaring, that if an employee has

“personal reasons” for opposing the unlawful

employment practice, then the employee forfeits the

ability to utilize Title VII to obtain redress for an

adverse action brought about by his oppositional

behavior. (App. A-9a). Sex is always “personal.”

There may be dozens, if not hundreds, of reasons why

a person may not want to have sex with, or wants to

discontinue having sex with, another person. But the

“pe-sonal reasons” for opposing sexual demands by a

supervisor do not make the employee’s oppositional

conduct unprotected. But that is exactly the effect of

the Seventh Circuit’s ruling. Section 704(a) does not

require that an employee forego the personal reasons

that may underlie his refusal of conceding to sexual

demands of a particular supervisor, just as section

704(a) does not mandate that the employee express his

concerns about the legality of the supervisor’s

behavior. While personal reasons may serve as the

foundation for oppositional conduct, it is the

employee’s expression of that oppositional conduct —

either by words or actions - that must be protected

regardless of the personal reasons which motivated the

opposition. If the employee is terminated for engaging

in that protected conduct, if he gets fired for refusing

sexual demands of the supervisor, then the employee

has been terminated for engaging in protected activity,

regardless of the enumerable personal reasons for

engaging in the oppositional conduct. See Connick v.

Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708

(1983), a “mixed speech” case where despite personal

interests underlying the speech, it touched upon a

matter of public concern and was deemed protected.

See also Spiegla v. Hull, 371 F.3d 928, 939 (7 Cir.

2004) (mere personal motivation does not override the

important content of employee’s protected speech).

The Seventh Circuit’s decision requiring Tate to

show evidence of his subjective belief that Burban’s

conduct violated Title VII conflicts with the Third

Circuit. However brief and nondescript his

oppositional language and conduct, it is clear that

Burban got the message, because she had Tate fired

immediately after he spurned her advances. In Curay-

Kramer v. Ursuline Academy, Wilmington, 450 F.3d

130 (3™ Cir. 2006), the court determined that the

employee’s subjective belief was irrelevant in

determining whether she engaged in protected conduct

— “(I]t is the objective message conveyed, not the

subjective intent of the person sending the message,

that is determinative.” Jd. at 137. “When deciding

whether a plaintiff has engaged in opposition conduct,

we look to the message being conveyed rather than the

means of conveyance.” Jd. at 135. Burban got the

message — Tate no longer wanted sex, he opposed

Burban’s demands for it, and he was fired because of

his opposition. The Seventh Circuit’s decision conflicts

with the analysis employed by the Third Circuit.

Thus, certiorari is warranted.

IV. THE SEVENTH CIRCUIT’S SUA SPONTE

CONSIDERATION OF A CASE-CHANGING

ISSUE (TATE’S BELIEF IN THE

ILLEGALITY OF BURBAN’S SEXUAL

DEMANDS), VIOLATES THE LONG-

SETTLED RULE THAT APPELLATE

COURTS WILL NOT CONSIDERAN ISSUE

NEITHER PRESSED NOR PASSED UPON

BELOW

It is a long-settled rule that appellate courts will

not consider an issue either pressed nor passed upon

below. See United States v. Williams, 504 U.S. 36, 41,

112 S.Ct. 1735, 118 L.Ed.2d 352 (1992). As the

Supreme Court has explained, this rule of appellate

procedure is “essential in order that parties may have

the opportunity to offer all the evidence they believe

relevant to the issues... (and) in order that litigants

may not be surprised on appeal by final decision there

of issues upon which they have had no opportunity to

introduce evidence.” Singleton v. Wulff, 428 U.S. 106,

120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (quoting

Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719,

85 L.Ed. 1037 (1941). The Seventh Circuit's decision

is an abuse of discretion. Certiorari is warranted to

establish the discretionary limits of a court of appeals

deciding sua sponte a case-altering issue.

At no time during the litigation and briefing in the

proceedings below did Respondent raise and preserve

the issue upon which the court of appeals decision

turned, 1.e., Tate’s alleged failure to show that he

reasonably believed in good faith and subjectively

believed that Burban’s actions were unlawful and in

violation of Title VII. The issue was not raised in the

motion for summary judgment, nor did the district

court make a ruling on the unpreserved issue. (App.

D-9a-40a). The issue was not raised in the Rule 50(a)

motion, nor was it addressed by the district court.

(App. C-22a-28a). The issue was never raised in

Respondent’s Rule 50(b) post-verdict motion for

judgment as a matter of law, nor did the district court

rule on the unpreserved issue. (App. B 1la-21a). And

yet, this pivetal issue was the cornerstone for the

Seventh Circuit’s decision. (App. 8a-10a).

Petitioner recognizes that the rule prohibiting an

appellate court from considering an issue not passed

on nor pressed below is subject to certain limited

exceptions. An appellate court may resolve an issue

not decided by the district court where the proper

resolution is beyond any doubt. Singleton, 428 U.S. at

121. And appellate courts are afforded much

discretion in determining what questions may be taken

up and resolved for the first time on appeal. Jd. at

120. However, the Supreme Court has recognized

that, before acting on its’ own initiative [sua sponte], a

court must accord the parties fair notice and an

opportunity to present their positions. Day v.

McDonough, 547 U.S. 198, 210 (2006).

Certiorari 1s warranted to determine the bottom

limit to the discretion of the courts of appeals to raise

sua sponte an argument not advanced by a party either

before the district. court or on appeal, and then to

advocate a particular position and resolve the appcal

based on that advocacy. The prejudice to Petitioner is

extreme and obvious. The Supreme Court has recently

indicated that it would take up the claim that a court

of appeals has exceeded its discretion “if the case

turned on the propriety of the Circuit’s decision to

reach the [dispositive] issue. ” Exxon Shipping

Co. v. Baker, No. 07-219, 1288.Ct. 2605 (U.S. 6-25-08).

It was no small thing, the creation of an issue never

litigated below but made-up and advocated by the

court of appeals. The particular argument created and

advanced by the court of appeals was never litigated

below, i.e., Tate’s reasonable good faith and subjective

belief that Burban’s conduct violated Title Vil. It was

never argued in summary judgment and never made

an element of Tate’s burden of proof, and never

included as an element in the jury instructions (which

went unopposed and to which no objection was made).

As a result there was no “channeled” evidence directly

meeting this “belief’ element. The prejudice to

Petitioner cannot be overlooked.

Morc specifically, the ruling appealed by

Respondent was the Rule 50(a) motion for judgment as

a matter of law and the renewed Rule 50(b) motion.

Neither the Rule 50(a) nor the Rule 50(b) motion

focused upon Tate’s reusonable good faith belief in the

wrongfulness or illegality of Burban’s actions. “The

Defendant presents the same two arguments in its

second motion for judgment as a matter of law as it did

in its first motion: first, that the Plaintiff did not

oppose conduct made unlawful by Title VII, and

second, that the Defendant performed an independent

investigation adequate to prevent it trom being liable

for its employee’s retaliatory motive. ....” (App. 12a).

“The Defendant argues the Plaintiff did not oppose an

unlawful employment practice, and so, the Plaintiffs

retaliation claim must be dismissed.” (App. 27a). And

in the motion for summary judgment, EMS argued

that Tate could not maintain a claim for retaliation

“because he never opposed any conduct made unlawful

by Title VII prior to his discharge.” (App. 33a).

Unquestionably, EMS never grounded any of its Rule

50 motions upon Tate’s lack of proof of his reasonable

good faith subjective belief that Burban’s sexual

demands were related to Title VII.

The Court has declared that a “failure to comply

with Rule 50(b) forecloses [a party’s] challenge to the

sufficiency of the evidence.” Unitherm Food Sys., Inc.,

v. Swift-Eeckrich, Inc., 546 U.S. 394, 404, 407 (2006).

“(T]he precise subject matter of a party’s Rule 50(a)

motion - namcly, its entitlement to judgment as a

matter of law - cannot be appealed unless that motion

is renewed pursuant to Rule 50(b).” Jd. at 404.

Appellate courts have “repeatedly stated that a

party may not lose in the district court on one theory

of the case, and then prevail on appeal on a different

theory.” Lyons v. Jefferson Bank & Trust, 994 F.2d

716, 721 (10 Cir. 1993). The usual exception to this

general rule is when issues are raised for the first time

on appeal and involve questions of law, the proper

resolution of which ts beyond reasonable doubt and the

failure to address the issues would resolve in a

miscarriage of justice. Petrinit v. Howard, 918 F.2d

1482, 1483 n.4(10" Cir. 1990). But this exception docs

not apply when 1) the issue does not solely involve

questions of law and 2) the argument has not been

raised by the parties to the appeal. Shoels v. Klebold,

375 F.3d 1054, 1062 (10" Cir. 2004).

Tate requests that this court determine that the

Seventh Circuit exceeded its discretion in raising sua

sponte a pivotal argument never advanced by EMS

either before the district court or on appeal. The

Seventh Circuit abused its discretion by raising an

issue and then advocating a particular position which

resolved the appeal based upon that advocacy.

The impropriety of reversing the decision of a

district court on the basis of an argument not

made by an appellate is self-evident. First and

foremost, the unfairness to the appellee is

intolerable under our adversarial system. The

Supreme Court has wisely cautioned against

such judicial conduct that deprives a party of its

right to be heard on an issue. Singleton v.

Wulff, 428 U.S. 106, 119-21, 96 S.Ct. 2868, 49

L.Ed.2d 826 (1976) (reversing a _ merits

determination made by a federal appellate court

because the party against whom judgment v .s

entered had no opportunity to present

arguments on the merits).

Gaither v. Aetna Life Ins. Co., 388 F.3d 759, 778 (10"

Cir. 2004). The precise grounds for the Rule 50 motion

were not preserved. Furthermore, the precise

arguments regarding ‘l'ate’s reasonable but subjective

beliefs were never made or preserved. The specificity

requirement for preserving the issue is obligatory.

Lambert v. Genesee Hosp., 10 F.3d 46, 54 (2% Cir.

1993), cert. denied, 511 U.S. 1052, 114 S.Ct. 1612, 128

L.Ed.2d 339 (1994). The manufactured grounds relied

upon by the Seventh Circuit are deemed forfeited. The

Supreme Court has deemed the forfeiture rule

essential in order that the parties may have the

opportunity to offer all the evidence they believe

relevant to the issues which the trial tribunal is alone

competent to decide and that it is equally essential in

order that litigants may not be surprised on appeal by

final decision there of issues upon which they have had

no opportunity to introduce evidence. Hormel, 312

U.S. at 556. This rule of forfeiture applies equally to

arguments, factual assertions, and legal theorics that

were not urged below.

The Seventh Circuit raised an issue (Tate’s belie)

on behalf of Respondent and then advocated this issue

against Petitioner. Such juaicial conduct deprived

Petitioner of his right to be heard. Review is necessary

so that this Court may remedy the Seventh Circuit’s

abuse of discretion and establish appropriate

parameters to an appellate court’s discretion to resolve

sua sponte a case-determinative issue that was never

preserved, litigated or briefed in the proceedings

below.

CONCLUSION

For all the foregoing reasons, petitioner respectfully

requests that the Supreme Court grant review of this

matter. In the alternative, given the similarity of the

issues in this case to the questions presented in

Crawford v, Metropolitan Government of Nashville and

Davidson County, Tennessee, No. 06-1595 (oral

argument 10/08/08), that this case be held pending

decision in Crawford.

PAS)

Respectfully submitted,

CHRISTOPHER C. MYERS & ASSOCIATES

Christopher C. Myers, #10043-02

809 South Calhoun Street, Suite 400

Fort Wayne, IN 46802-2307

Telephone: (260) 424-0600

Facsimile: (260) 424-0712

Attorney for Petitioner

APPENDIX

APPENDIX A

IN THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

No. 07-2575

[Filed October 10, 2008]

ALSHAFI TATE,

Plaintiff-Appellee,

Uv.

SERVICES, INC.,

)

EXECUTIVE MANAGEMENT )

)

Defendant-Appellant. )

)

Appeal! from the United States District Court

for the Northern District of Indiana,

Fort Wayne Division.

No. 05 C 47--Theresa L. Springmann, Judge.

ARGUED MAY 7, 2008—

DECIDED OCTOBER 10, 2008

Before BAUER, POSNER, and WILLIAMS, Circuit

Judges.

WILLIAMS, Circuit Judge. Alshafi Tate, a former

employee of Executive Management Services (“EMS”),

claims that his supervisor, Dawn Burban, threatened

to fire him if he refused to continue their sex al

relationship. When Tate rejected her ultimatum,

Burban instigated an altercation that led to his

termination. Tate filed suit, alleging sexual

harassment and retaliation in violation of Title VII of

the Civil Rights Act of 1964. After a trial, the jury

rejected Tate’s sexual harassment claim, but found in

his favor on his retaliation claim. EMS appeals,

arguing that Tate did not engage in protected conduct.

EMS further maintains that Tate cannot prove that

his termination was connected to his refusal to have

sex with Burban because the decision to fire Tate was

made pursuant to an independent investigation.

Because Tate has not shown that he engaged in

protected conduct, we reverse the district court’s

decision.

I. BACKGROUND

EMS hired Alshafi Tate on August 19, 2002, to

clean office buildings in Indianapolis, Indiana. His

field supervisor was Dawn Burban, an EMS project

manager for commercial cleaning. Burban picked Tate

to be on her team, and within five to eight days after

starting work for EMS, Tate says that he and Burban

began having consensual! sex two or three times per

week, sometimes at work and other times at the home

of a co-worker. Burban, however, denies that there was

ever a sexual relationship. A week after Tate was

hired, IEMS promoted Tate to a supervisor based on

Burban’s recommendation and raised his pay from

$7.00 per hour to $8.00 per hour.

Tate testified at trial that he and Burban engaged

in consensual sex throughout his employment with

EMS, with the exception of a period in 2003 in which

he worked in a different building from Burban. Tate

tried to end his sexual relationship with Burban in

October 2003. He stated that he decided to end the

relationship because after he got married in August

2003, Burban would repeatedly call his home,

upsetting his wife. Tate also indicated that he wanted

to end the relationship because he “just wanted to keep

the slate clean between me and my wife” and that

Burban “was trying to make a hard choice for me.”

When Tate tried to end the relationship, Burban not

only told him that she expected their sexual

relationship to continue, she also informed him that if

the relationship ended, he would lose his job. Tate

testified that in December 2003, at a holiday dinner

party with other co-workers, Burban again told him he

had to continue having sex with her or he would lose

his job. He maintains that he told Burban that he was

not interested in continuing the relationship, and she

responded that she would give him “a couple days to

think about it.” Tate testified that about two weeks

after the holiday party, Burban inquired again

whether Tate had “made a choice yet.” It is not clear

how he responded to this inquiry.

When Tate arrived for the start of his evening shift

on January 13, 2004, at the City/County Building in

Indianapolis, Burban summoned him into her office.

Burban closed her office door and asked Tate if he had

made his decision. Tate stated, “Yeah, I made a

decision,” and when he told her that he “wasn’t

messing with her anymore,” there was a “big scene” in

which Burban raised her voice and told ‘late that he

did not “know who [he was] f—king with” and that he

“could leave right now.” Tate further testified that he

left Burban’s office, but she followed him out into the

break room, “hollering and getting irate” and saying

“she’s going to have my job” and “going to have my ass

fired.” Tate told Burban to call Darren Taylor, who

was Burban’s immediate supervisor and who was

off-site at the time. Both Tate and Burban testified

that Burban called Taylor, but did not give Tate an

opportunity to speak with Taylor. Taylor directed

Burban to tell Tate to go home, and Tate was escorted

off the premises by a court security officer named Dan

Hudson. Hudson also testified at trial and indicated

that he came upon an argument in progress between

Burban and Tate and heard Burban tell Tate, “If you

can’t do what I tell you to do, just leave.”

Tate testified that, prior to his departure, Burban

did not direct him to perform any work-related

assignment nor did he refuse to perform any

work-related assignment. Burban, however, testified

that Tate refused to go to his new assignment; that he

did not provide a reason for this refusal; and that he

became loud and belligerent after receiving his new

assignment. After Tate left, Burban telephoned Nancy

Scheumann, EMS’s general manager for the Fort

Wayne area at the time, and told Scheumann that

Tate had refused to do his assigned work that evening

so she sent him home. Burban then prepared an

“insubordination” incident report stating that Tate had

refused her request to help clean the Merrill Lynch

building. In this report, Burban claimed that Tate said

cleaning the MerrillLynch building was “not his job”;

that he only had to do certain tasks, which Burban

determined would have taken only 5.5 hours to

perform; and that Burban told him he was “here for 8

hours” and needed “to do 8 hours worth of work.” The

incident report further stated that Burban told Tate to

go home after he continued to refuse the assignment,

and that a security guard from the courthouse was

present, heard what was going on, and watched Tate

leave the building.

The next day, Tate attempted to telephone both

Scheumann and Taylor to discuss the prior evening’s

events. When he contacted EMS’s headquarters in

Indianapolis, however, he reached Lorinda Lentz, a

human resources official, who told Tate that he was

terminated for insubordination and asked him to turn

in his pager and uniforms. According to Lentz, the

conversation lasted less than a minute. Tate testified

that he asked if he could explain his side, but Lentz

did not give him the opportunity.

Although Kurban signed the termination report

and Lentz communicated the decision to Tate, EMS

maintains that the decision to terminate Tate’s

employment was made by Scheumann. Scheumann

testified that she made the decision to terminate Tate

by 8:50 a.m. on January 14, 2004, the morning

following the altercation, after speaking to Burban,

Taylor, and Hudson, and reviewing Tate’s employment

record. However, Hudson testified that he did not

speak to Scheumann until “[s]ometime after the

incident happened, maybe a month later or perhaps

even sometime shorter than a month.” Schuemann

also did not speak to Tate about the incident and

stated that “the fact that he refused to do what he was

being asked to do by his supervisor” was considered

insubordination, “and it wasn’t a situation where it

deemed [sic] an investigation of that incident.”

The jury returned a verdict in Tate’s favor on the

retaliation claim and found against Tate on his sexual

harassment claim. After trial, EMS renewed its motion

under Federal Rule of Civil Procedure 50(b) for

judgment as a matter of law or in the alternative, a

motion for a new trial, asserting: (1) Tate did not

engage in any protected activity when he told his

supervisor he would not continue to have sex with her

to keep his job, and (2) EMS had no knowledge that

Tate’s supervisor had a retaliatory motive for her

actions, and EMS discharged Tate based on the report

of Hudson, who was a disinterested witness.

The district court denied EMS’s post-trial motion.

The court concluded that Tate had engaged in

statutorily protected activity because “rebuffing sexual

harassment can in some situations be considered

opposition to an unlawful employment practice.” The

district court also concluded that the trial record would

permit a reasonable jury to hold EMS liable, stating

“there was sufficient evidence for the jury to find that

Scheumann was Burban’s rubber stamp and that

Scheumann failed to conduct any independent

investigation” of Tate’s claims insulated from the

discriminatory animus. EMS appeals.

Il. ANALYSIS

We review de novo the district court’s denial of a

motion for judgment as a matter of law under Rule

50(b). Waite v. Bd. of Trs., 408 F.3d 339, 343 (7th Cir.

2005). “Once a jury has spoken, we are obliged to

construe the facts in favor of the parties who prevailed

under the verdict.” Tart v. Ill. Power Co., 366 F.3d 461,

464 (/th Cir. 2004) (citing Reeves v. Sanderson

Plumbing Products, Inc.,530 U.S. 133, 150-51 (2000)).

We “examine all of the evidence in the record to

determine whether the evidence presented was

sufficient to support the jury’s verdict,” but in doing so,

we do not “make credibility determinations or weigh

the evidence.” Waite, 408 F.3d at 343 (citing Reeves,

530 U.S. at 150). In sum, we “will overturn a jury

verdict for the plaintiff only if we conclude that no

rational] jury could have found for the plaintiff.” Jd.

Here, the jury concluded that Tate had proven facts

sufficient to establish retaliation under Title VII and

further, that the investigation conducted by EMS into

Tate’s termination was sufficiently tainted by Burban’s

discriminatory bias. EMS argues that Tate’s

retaliation claim never should have gone to the jury.

Title VII provides that “it shall be an unlawful

employment practice for an employer .. . to

discriminate against any individual... because he has

opposed any practice made an unlawful employment

practice by [Title VITJ.” 42 U.S.C. §2000e-3a. A

plaintiff claiming retaliation under Title VII must

show: “1)a statutorily protected activity; 2) an adverse

action taken by the employer; and 3) a causal

connection between the two.” Boumehdi v. Plastag

Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007).

In order for Tate to have engaged in protected

conduct, he does not have to prove that Burban

sexually harassed him; therefore, the fact that the jury

found against § -n on his sexual harassment claim, a

finding he does not appeal here, is not dispositive. See

Fine v. Ryan Int! Airlines, 305 ¥.3d 746, 752 (7th Cir.

2002) (“a plaintiff need not prevail on her Title VII

discrimination claim or have opposed an action that in

fact violated Title VII to win a retaliation claim”). In

order to engage in protected conduct, Tate only has to

show that he “reasonably believed in good faith the

practice [he] opposed violated Title VII.” Jd.

As a threshold matter, there is a circuit split about

whether a person who rejects a supervisor’s sexual

advances has engaged in a protected activity. Compare

LeMatre v. La. Dep’t of Transp. & Dev., 480 F.3d 383,

389 (5th Cir. 2007) (holding that a single, express

rejection of sexual advances does not constitute

“protected activity” for purposes of a retaliation claim)

with Ogden v. Wax Works, Inc., 214 F.3d 999, 1007

(8th Cir. 2000) (finding that when the plaintiff told her

supervisor to stop harassing her, she engaged in the

most “basic form of protected conduct”). We have not

addressed this issue. See Murray v. Chi. Transit Auth.,

252 F.3d 880, 890 (7th Cir. 2001) (declining to resolve

the issue of whether a plaintiff who rejects a sexual

invitation from a supervisor has engaged in protected

conduct because the plaintiff did not show an adverse

employment action). Even if we assume, for purposes

of argument, that there may be circumstances in

which a person who rejects his supervisor’s sexual

advances has engaged in a protected activity, Tate has

not shown that he “reasonably believed in good faith

the practice |he] opposed violateu Title VII.” Fine, 305

I.3d at 752.

There is simply no evidence in the record that ‘Tate

believed that Burban’s actions were unlawful. In fact,

the only statements that Tate made to Burban were

that they “were not. good with each other” and he “was

not messing with her anymore,” statements which do

not indicate that Tate believed he was being sexually

harassed. Cf. Dey v. Colt Constr. & Dev. Co., 28 F.3d

1446, 1450 (7th Cir. 1994) (finding that the plaintiff

had a good faith belief that she was opposing conduct

that violated Title VII because after plaintiff found out

that her supervisor’s behavior would violate the law,

she complained directly to management and to the

Supervisor, “indicating that his’ [inappropriate]

comments and other conduct made her ‘very

uncomfortable,’ that she intended to keep a log of his

conduct, and that she hoped her objections would

discourage any similar behavior in the future”);

Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307,

1315 (7th Cir. 1989) (finding that the “sincerity of [the

plaintiff's] belief is amply supported by her assertion

that she threatened to take her complaint about [her

supervisor] to the EEOC and did in fact subsequently

contact the EEOC”). Even when asked by his counse!]

what he would have said to management if given the

opportunity after the altercation with Burban, Tate

indicated that he would have told Scheumann and

Taylor that he felt he was “wrongly mistreated,” and

that he was not being insubordinate. Moreover, Tate

stated that he would have had Taylor confirm that

Burban had previously called Tate’s home and had an

argument with Tate’s wife, an altercation which

Burban mentioned while in Taylor’s presence. All of

these statements point to personal reasons for ending

the relationship rather than concerns about the

legality of Burban’s behavir r

We do not dispute that Tate protested about

Burban’s behavior; the problem is that he did not

necessarily believe that her be. :vior was illegal at the

time. See Mattson v. Caterpillar, (nc., 359 F.3d 885,

891 (7th Cir. 2004) (“The purpose of requiring that

plaintiffs reasonably believe in good faith that they

have suffered discrimination is clear. Title VII was

designed to protect the rights of employees who in

good faith protest the discrimination they believe they

10a

have suffered and to ensure that such employees

remain free from reprisals or retaliatory conduct.”)

(emphasis added). Indeed, Tate testified that he

“wanted to leave Dawn” so that he could “start off with

a clean slate” and “be true” to his wife. While there are

no “magic words” that a plaintiff must use in order to

indicate that the supervisor’s behavior is unlawful,

Gates v. Caterpillar, Inc., 513 F.3d 680, 687 (7th Cir.

2008), the record is devoid of any statements that

indicate sexual harassment was at issue. Because Tate

has failed to establish that he had a good faith belief

that he was being sexually harassed, EMS is entitled

to judgment as a matter of law.

lil. CONCLUSION

Accordingly, the judgment of the district court is

REVERSED.

lla

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

CASE NO. 1:05-CV-47-TS

[Filed June 4, 2007]

ALSHAFI TATE, )

)

Plaintiff, )

)

Vv. )

)

EXECUTIVE MANAGEMENT. )

SERVICES, INC., )

)

Defendant. )

)

OPINION

This matter is before the Court on the Defendant’s

Motion for Judgment as a Matter of Law or a New

Trial. The Defendant filed a motion for a directed

verdict on September 28, 2006. The jury returned its

verdict on September 28, 2006, and determined that

the Plaintiff failed to prove his sexual harassment

claim. However, the jury found the Defendant. liable

for retaliation. The jury awarded the Plaintiff no

compensatory damages. The Court issued its ruling

12a

denying the motion for directed verdict on October 12,

2006.

The Defendant presents the same two arguments

in its second motion for judgment as a matter of law as

it did in its first motion: first, that the Plaintiff did not

oppose conduct made unlawful by Title VII, and

second, that the Defendant performed an independent

investigation adequate to prevent it from being liable

for its employee’s retaliatory motive. The Defendant

has supplemented its previous argument with

additional reasoning and case law. The Court sees

nothing to justify altering its decisions. The Defendant

also asks for a new trial; the Court denies that motion

as well.

A. Motion for Judgment Notwithstanding the

Verdict

A judgment as a matter of law is granted when “a

party has been fully heard on an issue and there is no

legally sufficient evidentiary basis for a reasonable

jury to find for that party on that issue.” Fed. R. Civ.

P. 50(a). “(T]he standard for granting summary

judgment ‘mirrors’ the standard for judgment as a

matter of law, such that ‘the inquiry under each is the

same.” Reeves v. Sanderson Plumbing Prod., Inc., 530

U.S. 133, 149 (2000) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250-51 (1986)).

In viewing the facts presented on a motion for

summary judgment, a court must construe all facts in

a light most favorable to the non-moving party and

draw all legitimate inferences and resolve all doubts in

favor of that party. NLFC, Inc. v. Devcom Mid-Am.,

Inc., 45 F.3d 231, 234 (7th Cir. 1995). A court’s role is

l2a

not to evaluate the weight of the evidence, to judge the

credibility of witnesses, or to determine the truth of

the matter, but instead to determine whether there is

a genuine issue of triable fact. Anderson, 477 U.S. at

249-50.

The district court should “disregard all evidence

favorable to the moving party that the jury is not

required to believe.” Reeves, 530 U.S. at 151. “That is,

the court should give credence to the evidence favoring

the nonmovant as well as that ‘evidence supporting the

moving party that is uncontradicted and unimpeached,

at least to the extent that that cvidence comes from

disinterested witnesses.” Jd. (quoting 9A Charles Alan

Wright & Arthur R. Miller, Federal Practice and

Procedure § 2529 (2d ed. 1995)).

1. Whether the Plaintiff Opposed an Unlawful

Employment Practice

The Defendant argues that the Plaintiff did not

oppose statutorily protected activity because ending a

consensual sexual relationship is not opposition to an

unlawful employment practice. The Defendant does

not address the reasoning of those cases that find

rebuffing sexual advances to constitute opposition to

unlawful conduct, or the reasoning behind this Court’s

previous opinions addressing this issue. (Opinion, May

12, 2006, DE 55; Opinion, October 12, 2006, DE 93.)

The Court will briefly summarize its previous

holdings.

A straightforward reading of the statute’s text

requires finding that rebuffing sexual harassment can

in some situations be considered opposition to an

unlawful employment practice. The applicable

l4a

subsection states “it shall be 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.” 42 U.S.C.

§ 2000e-3(a). It is an unlawful employment practice to

threaten a person with termination if he or she refuses

to continue in a sexual relationship. Mary M. v. N.

Lawrence Cmty. Sch. Corp., 131 F.3d 1220, 1226 n.7

(7th Cir. 1997) (“[Hlarassment, occurs when the

receipt of benefits or the maintenance of the status quo

is conditioned on acquiescence to sexual advances.”)

When an employee is given an ultimatum that

continued employment depends on continuing a sexual

relationship, and the employee says “no more,” that

employee could reasonably be understood to be

opposing continuing the sexual relationship and to be

opposing a change in the terms of his employment. As

the Plaintiff notes in his brief, “Tate not only refused

Burban’s ultimatum to have sex, he did so under the

express threat of termination by Burban.” (P! Br. 5,

DE 107.) When the protesting employee is terminated,

the termination could be motivated by the opposition

to the change in employment terms, the opposition to

the sexual relationship, or both. The retaliation claim

intertwines with the harassment claim, but they are

not identical.

Those courts holding that rebuffing sexual

harassment is not opposition to an unlawful practice

are not convincing. For example, the court in Del

Castillo v. Pathmark Stores, Inc., 941 F. Supp. 437

(S.D.N.Y. 1996), held that “where the alleged

‘protected activity’ consists simply of declining a

harasser’s sexual advances,” declining advances is not

“protected activity” because otherwise, “every

harassment claim would automatically state a

l5a

retaliation claim as well.” Jd. at 438-39. The Court

disagrees. As stated above, opposing the employment

practice of sexual harassment and declining a sexual

invitation are distinct, even though they muy be

intertwined. The court in Rashid v. Beth Israel Med.

Center, 1998 WL 689931, *2 (S.D.N.Y. 1998), stated

that such a retaliation claim is duplicative and

unnecessary, and runs the risk of confusing a jury. The

concerns about the retaliation claim being duplicitive,

unnecessary, or confusing are not good reasons to

ignore the plain text of the statute.

The jury in this case found that the elements of

sexual harassment were not satisfied, but that the

Defendant retaliated against the Plaintiff for opposing

an unlawful employment practice. The jury could have

reasonably found from the evidence that the Plaintiff

proved that he was terminated because he opposed the

unlawful practice of making employment contingent on

sex, and that the Plaintiff did not prove the elements

of his harassment claim.

For these reasons, the Court declines to alter its

decision regarding the Plaintiffs retaliation claim.

2. Whether the Defendant had Knowledge

Sufficient to Justify Employer Liability

The Defendant argues that it had no knowledge of

Ms. Burban’s conduct toward the Plaintiff and

therefore, cannot be liable for her retaliation. The

Defendant’s first motion for judgment as a matter of

law made this same argument, and this Court held

that the Seventh Circuit’s holding in Byrd v. Illinois

Department of Public Health, 423 F.3d 696 (7th Cir.

2005), foreclosed the Defendant’s argument because it

l6a

held that an employer could be liable for the

retaliatory motive of one who provided information

that the decision maker relied on to make the adverse

employment decision. /d. at 711-12.

The Defendant now argues that this case is

different from Byrd because in this case, the

dectsionmaker contacted a disinterested witness who

provided information corroborating the _ biased

subordinate, Dawn. Burban. In this case, the

Defendant’s decisionmaker, Nancy Scheumann,

testified that she received a report from Burban that

the Plaintiff was insubordinate and refused a work

assignment. The Defendant states in its brief that

Scheumann also testified that Dan Hudson, the

security guard at the place Burban and Tate worked,

“relayed to her that the argument between Mr. Tate

and Ms. Burban related to Mr. Tate’s refusal of a

specific work assignment on the night in question.”

(Def. Br. 10, DE 105.) The Defendant stated that

Hudson confirmed this fact. Hudson did not confirm

Scheumann’s testimony. Hudson stated that he may

have spoken to an employee of the Defendant’s other

than Dawn Burban about a month after the incident.

However, this conversation concerned whether he

would testify for the Defendant. Hudson said he was

told he may have to give a prepared statement. When

asked whether he spoke to someone from the

Defendant the very next day, Hudson said it was

possible, but he did not remember. He also stated that

he never discussed the substance of what he saw or

what the argument was about. This testimony

contradicts Scheumann’s statement that she called

tludson and heard his independent account of the

events. Therefore, the Court accepts the testimony to

favor the Plaintiff, and assumes no conversation

17a

between Scheumann and Hudson took place regarding

the incident between Burban and Tate. If the jury

believed Hudson and not Scheumann, and believed

that there was no independent investigation, the jury

could find that Scheumann acted as a cat’s paw for

Burban’s retaliatory motive.

This would be the end of the Court’s analysis, but

for a recent decision of the Seventh Circuit in Brewer

v. Board of Trustees of University Illinois, 479 F.3d 908

(7th Cir. 2007), cited by the Defendant. The Brewer

court addressed a case involving a university employee

fired for altering his parking permit. The employee

alleged that his superior gave him permission to du so,

and, because of her racial bias, she did not tell the

decisionmaker this information when he was

terminated for altering his tag. However, the employee

did not talk to the decisionmaker at all about the

events or about the superior’s bias, so that the

decisionmaker was never aware of the supcrior’s

alleged bias. The decisionmaker stated that she

terminated the employee because he altered the

parking tag. She inspected and verified for herself that

the tag was altered. Jd. at 913-14. The Defendant

argued that it could not be liable for the bias of the

superior because the decisionmaker did an

independent investigation and did not act as a rubber

stamp of the biased superior’s attempt to have the

employee terminated.

This case is similar to Brewer in that it involves a

biased employee without authority to *erminate using

influence over a decisionmaker to have the employee

terminated for a particular instance of misconduct.

The Brewer court attempted to clarify when an

employer could be liable in such a situation:

18a

where a decision maker is not wholly dependent

on a single source of information, but instead

conducts its own investigation into the facts

relevant to the decision, the employer is not

liable for an employee’s submission of

misinformation to the decision maker. It does

not matter that in a particular situation much

of the information has come from a single,

potentially biased source, so long as the decision

maker does not artificially or by virtue of her

role in the company limit her investigation to

information from that source.

Id, at 918 (citations removed). The court admitted that

“our approach to Title VII cases involving an

employee’s influence over a decision maker has not

always been completely clear. Our opinions have

sometimes suggested that not only significant

influence, but any influence over an cmployment

decision is sufficient to impose Title VII liability on an

employer.” Jd. at 919. The court limited these cases to

contexts other than those concerning “an employee’s

discipline for particular misconduct.” Jd. Applying the

narrowed concept of “significant influence,” the Brewer

court went on to hold that the biased superior did not

exercise significant influence over the decisionmaker

by withholding the fact that she gave the employee

permission to alter the parking permit. Because the

employee, without reason, did not attempt to bring his

side of the story to the decisionmaker, the

decisionmaker’s examination of the parking pass

qualified as an independent investigation eliminating

the possibility of employer liability. Jd.

‘'wo differences distinguish the instant case from

Brewer. First, taking into account the facts that favors

19a

the Plaintiff, there was no ‘ndependent investigation.

The Defendant relies on its claim that Scheumann

called Hudson to confirm Burban’s claims about the

work incident, but that testimony is contradicted by

Hudson. Second, the Plaintiff testified that he

attempted to talk to his superiors, but was prevented

from doing so. In this case, there was sufficient

evidence for the jury to find that Scheumann was

Burban’s rubber stamp, and that Scheumann failed to

conduct any independent investigation.

B. Motion for a New Trial

Federal Rule of Civil Procedure 59 allows a court to

grant a new trial “in an action in which there has been

a trial by jury, for any of the reasons for which new

trials have heretofore been granted in actions at law in

the courts of the United States.” Fed. R. Civ. P. 59(a).

Rule 61 states that

No error in either the admission or the

exclusion of evidence and no error or defect in

any ruling or order or in anything donc or

omitted by the court or by any of the parties is

ground for granting a new trial or for setting

aside a verdict or for vacating, modifying, or

otherwise disturbing a judgment or order,

unless refusal to take such action appears to the

court inconsistent with substantial justice. The

court at every stage of the proceeding must

disregard any error or defect in the proceeding

which does not affect the substantial rights of

the parties.

Fed. R. Civ. P. 61. In other words, “{iJn order to receive

au new trial, the defendant must show that the error

20a

was substantial enough to deny him a fair trial.” Perry

v. Larson, 794 F.2d 279, 285 (7th Cir. 1986).

“The court has the power and duty to order a new

trial whenever, in its judgment, this action is required

in order to prevent injustice.” 11 Charles Alan Wright

et al., Federal Practice and Procedure § 2805 (2006). A

prejudicial error of law may justify a new trial. Jd. A

new trial may also be granted if the verdict is against

the weight of the evidence. /d. In determining whether

to grant a new trial, “a jury verdict must be accorded

great deference.” Foster v. Cont’l Can Corp., 783 F.2d

731, 735 (7th Cir. 1986). Also, “unlike a J.N.O.V.

motion, the judge may consider the credibility of the

witnesses, the weight of the evidence, and anything

else which justice requires.” Spanish Action Comm. of

Chi. v. City of Chi., 766 F.2d 315, 321 (7th Cir. 1985).

The Defendant argue” ‘at the jury’s verdict was

against the weight of the evidence, and could only be

reached by making an extraordinary number of

inferences. The Court disagrees. The Plaintiff testified

that he was given an ultimatum: continue the

relationship with Burban or be fired. He ended the

relationship. He testified that Burban told him to

leave and he was fired the next day. This story was not

incredible, and the jury was not out of jine in crediting

the Plaintiffs testimony. Scheumann’s testimony was

rather reluctant, and not especially convincing. Her

testimony abut the investigation contradicted that of

Hudson. The jury’s verdict is entitled to deference, and

allowing it to stand is not unjust. The Defendant’s

motion for a new trial is denied.

2la

ORDER

The Plaintiffs motion for Sur-Reply [DE 112] is

DENIED because it is unnecessary. The Defendant’s

motion for judgment or new trial |DE 104] is DENIED.

SO ORDERED on June 4, 2007.

/s/ Theresa L. Springmann

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

22a

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

No. 1:05-CV-47

[Filed October 12, 2006]

ALSHAFI TATE,

Plaintiff,

Vv.

EXECUTIVE MANAGEMENT

SERVICES, INC.,

Defendant.

i i i ee ee ee

OPINION

This case involves two claims by Plaintiff Alshafi

Tate. First, the Plaintiff claimed he was discriminated

against because of his sex by being sexually harassed.

Second, the Plaintiff claims the Defendant, Executive

Management Services, Inc. (“EMS”) retaliated against

him for opposing this unlawful practice.

This matter its before the Court on the Defendant’s

Motion for Judgment as a Matter of Law, made on

23a

September 27, 2006, during the second day of the jury

trial in this case. The Motion was filed with the Court

on September 28, 2006. The motion sought the

dismissal of both claims and the denial of the

Plaintiffs request for punitive damages. The Court

granted the Defendant’s motion to dismiss the

Plaintiffs request for punitive damages and deferred

ruling on the sufficiency of the Plaintiffs claims until

after the jury returned with its verdict. The jury

returned its verdict on September 28, 2006, and

determined that the Plaintiff failed to prove his sexual

harassment claim. However, the jury found the

Defendant liable for retaliation. The jury awarded the

Plaintiff no compensatory damages. The only issue

remaining for the Court to determine is whether to

grant the Defendant’s motion for directed verdict on

the Plaintiffs retaliation claim. For the reasons stated

below, the Court denies the Defendant’s motion.

A. Standard for Rule 50 Motions

A judgment as a matter of law is granted when “a

party has been fully heard on an issue and there is no

legally sufficient evidentiary basis for a reasonable

jury to find for that party on that issue... .” Fed. R.

Civ. P. 50(a). “[T]he standard for granting summary

judgment ‘mirrors’ the standard for judgment as a

matter of law, such that ‘the inquiry under each is the

same.” Reeves v. Sanderson Plumbing Prod., Inc., 530

U.S. 1383, 149 (2000) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250-51 (1986)).

In viewing the facts presented on a motion for

summary Judgment, a court must construe all facts in

a light most favorable to the non-moving party and

draw all legitimate inferences and resolve all doubts in

24a

favor of that party. NLFC, Inc. v. Devcom Mid-Am..,

Inc., 45 F.3d 231, 234 (7th Cir. 1995); Doe v. R.R.

Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994);

Beraha v. Baxter Health Care Corp., 956 F.2d 1436,

1440 (7th Cir. 1992). A court’s role is not to evaluate

the weight of the evidence, to judge the credibility of

witnesses, or to determine the truth of the matter, but

instead to determine whether there is a genuine issue

of triable fact. Anderson, 477 U.S. at 249-50; Doe, 42

F.3d at 443.

Bb. Factual and Procedural Background

The Plaintiff filed for summary judgment on

December 21, 2005. The Court in its May 12, 2006,

Opinion, denied the motion for summary judgment.

The relevant facts presented in the motion for

summary judgment differ little from what was

presented at trial.

At trial, the Plaintiff testified that he had

consented to a sexual relationship with his supervisor,

Dawn Burban. After he attempted to end the

relationship, Burban gave him an ultimatum: he

would have to choose between his wife and his job. He

took this to mean that if he ended the sexual

relationship with Burban, he would lose his job. When

she confronted him and asked for his answer, he told

Burban he “wasn’t messin’ with her anymore.” Burban

responded by cursing and yelling at the Plaintiff,

telling him to leave the building and that ne would

lose his job.

Burban called her supervisors and told them the

Plaintiff was insubordinate because he refused a work

assignment. Burban filled out the termination form for

25a

the Plaintiff, and the Plaintiff received a call the next

day that he was terminated from his position. The

Defendant’s purported decision maker testified at trial

that she took Burban’s statements into account when

deciding whether to terminate the Plaintiff.

C. Analysis

The Defendant argues that the Plaintiffs

retaliation claim fails because the Defendant was

never aware of Burban’s conduct toward the Plaintiff

and that the Plaintiff never opposed an unlawful

employment practice.

1. Whether the Defendant had Knowledge

Sufficient to Justify Employer Liability

The Defendant argues it had no knowledge of the

Plaintiffs alleged opposition to an _ unlawful

employment practice, and so it cannot be liable. The

same argument was presented by the Defendant in

Byrd v. Illinois Department of Public Health, 423 F.3d

696 (7th Cir. 2005). In that case, the plaintiff, Lester

Byrd, claimed that he had been discriminated and

retaliated against. Byrd presented evidence that a

non-supervisory employee with whom he worked was

biased against African-Americans and_ provided

information to Byrd’s supervisors about his misconduct

at work. Byrd reported incidents involving the non-

supervisory employee to the defendant’s equal

employment officer, and eventually filed a claim. The

information provided by the biased non-decisionmaker

led to poor reviews of byrd’s work, lower salary, and a

suspension. The case went to trial and the jury found

that the defendant had retaliated against Byrd. The

defendant argued that it should not be liable because

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it had no knowledge of the nondecisionmaker’s illegal

bias and objected to the “cat’s paw” instruction that

was given to the jury. The court held that the

defendant could be liable for retaliation because the

nondecisionmaker was involved in the review process

of Byrd, and his bias could have caused the adverse

employment decisions. Jd. at 708. The court explained

that an employer could be liable for the retaliatory

motive of one who provided information that the

decision maker relied on to make the adverse

employment decision. /d. at 711-12 (“{Ilf the

Department would not have disciplined Byrd but for

[the non-supervisory employee’s| recommendations,

recommendations that a jury could reasonably find

were motivated by an illegal motive, then [the non.

supervisory employee’s] bias was a cause of Byrd’s

injury whether or not [the decision-maker] could

reasonably be thought a mere cat’s paw.”)

In this case, it is uncontested that Dawn Burban,

who the Plaintiff clatms was his supervisor, reported

to her superiors that there was an incident with the

Plaintiff and filled out the termination form. The

Defendant’s decision maker stated at trial that one of

its reasons for terminating the Defendant was the

altercation as reported by Burban. If the jury believed

that Burban was motivated by a retaliatory animus in

supplying the information to the Defendant, and the

Defendant’s decision maker relied on that informacion

in deciding to terminate the Plaintiff, it could have

reasonably found the Defendant liable for the non-

decision maker’s retaliatory motive. The Defendant

does not address or attempt to explain why it cannot

be liable under a cat’s paw theory, as stated in Byrd.

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2. Whether the Plaintiff Opposed an Unlawful

Employment Practice

The Defendant argues the Plaintiff did not oppose

an unlawful employment practice, and so, the

Plaintiffs retaliation claim must be dismissed. The

Plaintiff made this argument in its motion for

summary judgment, and the Court declines to alter its

judgment.

Title 42 U.S.C. § 2000e-3 states, “It shall be an

unlawful employment practice for an employer to

discriminate against any of his employees or

applicants for employment... because he has opposed

any practice made an unlawful employment practice

by this subchapter, or because he has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this

subchapter.”§ 2000e-3(a). At issue is whether the

Plaintiff “opposed any practice made an unlawful

employment practice.”

When the Court addressed this issue in its May 12,

2006, Opinion, the Court held that, viewing the

evidence in a light most favorable to the Plaintiff, the

Plaintiffs statements declining to continue the sexual

relationship with Burban in response to her ultimatum

were in opposition to an unlawful employment practice

and were protected. (May 12, 2006, Opinion 9, DE 55.)

Therefore, there was a material issue of fact as to

whether the Plaintiffopposed an unlawful employment

practice.

The Ceurt relied upon Roberts v. County of Cook,

2004 WL 1088230 (N.D. Ill, May 7, 2004) in holding

that the Plaintiffs statements constituted opposition

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to an unlawful employment practice. (May 12, 2006,

Opinion 8, DE 55.) The Roberts court held that

“refusing sexual advances is protected activity under

Title VII.” Roberts, at *5. This is because Title VII

makes it unlawful for an employer to discriminate

against any of his employees because he has opposed

an unlawful employment practice, and _ sexual

harassment is an unlawful employment practice.

Therefore, “lo]pposing sexually harassing behavior

constitutes ‘opposfing] any practice made an unlawful

employment practice’ by Title VII, and accordingly it

is activity protected by § 2000e-3(a).” Jd. at 5. The

Court’s May 12 Opinion relied on Roberts and found

that there was at least a material issue of fact as to

whether the Plaintiff opposed unlawful conduct. The

evidence presented at trial is the same as what was

considered at summary judgment and the Court sees

no reason to alter its ruling.

For the reasons stated, the Defendant’s motion for

directed verdict [DE 78) is DENIED.

SO ORDERED on October 12, 2006.

s/Theresa L. Springmann _

JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

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APPENDIX D

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

No. 1:05-CV-47

[Filed May 12, 2006]

ALSHAFI TATE,

Plaintiff,

Vv.

EXECUTIVE MANAGEMENT

SERVICES, INC.,

Defendant.

‘

i i i

MEMORANDUM OF OPINION AND ORDER

This matter is before the court on the Motion for

Summary Judgment filed by Defendant Hxecutive

Management Services, Inc. (“EMS”) on December 21,

2005. After having been granted an extension of time

in which to do so, Plaintiff Alshafi Tate (“Tate”) filed a

response in opposition to the motion on February 3,

2005, and EMS filed a reply on March 3, 2006. Then,

on March 8, 2006, EMS filed a Notice of Partial!

Witiidrawal of Motion for Summary Judgment and

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Tate filed a Motion to File Sur-Reply. The motion for

permission to file a sur-reply was granted on March 9,

2006, and Tate’s sur-reply brief was docketed on that

same date.

For the reasons discussed herein, the motion for

summary judgment is DENIED.

PROCEDURAL BACKGROUND

In addition to the motion for summary judgment,

other motions and notices were filed in this case, but

they have since been resolved. On February 24, 2006,

EMS filed a Motion for Leave to File a Second

Amended Answer (Docket at 44), to which Tate filed a

response in opposition on February 27, 3006 (Docket at

45). Then, on April 6, 2006, EMS filed a Notice of

Withdrawal of its motion for leave to file an amended

answer. Docket at 52. On April 10, 2006, Magistrate

Judge Cosbey, to whom this case is on partial ~eferral,

issued an Order formally acknowledging that EMS’s

motion was withdrawn. Docket at 53.

Then, on April 13, 2006, the court held a conference

in this case in order to ensure that the record was

clear with regard to the issues to be addressed in the

pending motion for summary judgment. When the

motion was originally filed, EMS sought summary

judgment on all of Tate’s claims, which included race

discrimination, sex discrimination, and retaliation.

EMS based its motion mostly on a judicial estoppel

argument. Tlowever, just after the briefing was

concluded, the Seventh Circuit Court of Appeals issued

an opinion which foreclosed EMS’s judicial estoppel

argument. EMS promptly filed a Notice of Partial

Withdrawal of Motion for Summary Judgment,

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conceding that the recent appellate court opinion

eliminated the legal basis for the company’s argument.

Decket at 47. In addition, during the conference on

April 13, Tate withdrew his race discrimination claim

in this case. The parties agreed that genuine issues of

fact exist with regard to Tate’s sex discrimination

claim, and they are prepared to proceed to trial on that

claim. As a result of these developments, the only

claim this court is now called upon to resolve is Tate’s

claim that his termination from employment with

EMS was retaliatory.’

FACTUAL BACKGROUND

‘l'ate brought this action on February 4, 2005. In his

Complaint, Tate alleges that EMS discriminated

against him in violation of Title VII of the Civil Rights

Act of 1964 (42 U.S.C. § 2000e et seq.) and 42 U.S.C.

§ 1981. Complaint, Docket at 1, pp. 1-2. He asserted

claims for race discrimination, gender discrimination

(sexual harassment), and retaliation. Jd. However, as

explained above, Tate has withdrawn his race

discrimination claim, the parties have conceded that

fact issues exist with regard to Tate’s sex

discrimination claim (and they are prepared to proceed

to trial on that issue), and Tate’s retaliation claim is

the only claim on which EMS still seeks summary

judgment.

‘The court also notes that the sur-reply filed by ‘Tate on March 9

(Docket at 50) dealt only with the judicial estoppel argument that

had been presented by EMS. Since that argument was withdrawn,

no other references to Tate’s sur-reply brief are made during the

court’s analysis and discussion of the motion for summary

judgment.

32a

EMS is a corporation that provides janitorial and

other maintenance services for commercial buildings.

Brief in Support of Motion for Summary Judgment

(“Brief in Support”), Docket at 34, p. 2. Tate was

employed by EMS, in the position of custodian,

beginning on August 16, 2002. Id. On August 26, 2002,

Tate was promoted to the position of supervisor. Jd.

During the course of his employment, one of Tate’s

supervisors was Dawn Burban (“Burban”). Jd. At some

point during his employment, Tate became involved in

a sexual relationship with Burban. Id. See also,

Plaintiffs Brief in Opposition to Motion for Summary

Judgment (“Brief in Opposition”), Docket at 39, p. 13.”

Tate alleges that on or about January 13, 2004, he

ended this sexual relationship with his supervisor.

Brief in Opposition, p. 13. On January 14, 2004, Tate

was fired. Brief in Support, p. 3. Tate claims that the

termination of hisemployment constituted retaliation,

in that he was fired by Burban (or at her direction or

request) after ending their intimate relationship.

Complaint, p. 2. For its part, EMS does not state why

Tate was fired. The company does state, however, that

its “decision to terminate Plaintiffs employment was

made without regard to any classification or activity

protected by Title VII... .” Answer to Complaint,

Docket at 7, p. 3; see also, Amended Answer to

Complaint, Docket at 31, p. 3. EMS argues that the

facts do not support any claim for retaliation under

Title VII Ud., p. 11). Accordingly, it is not necessary

“ EMS states that “it disputes whether this relationship even

existed, but is accepting that fact for summary judgment

purposes.” Reply Brief in Support of Defendant’s Motion for

Summary Judgment (“Reply Brief”), Docket at 46, p. 2.

33a

under the facts and arguments before the court for

EMS to provide an explanation for Tate’s dismissal.”

DISCUSSION

KMS argues that Tate cannot maintain a claim for

retaliation “because he never opposed any conduct

made unlawful by Title VII prior to his discharge.”

Brief in Support, p. 11. In order to establish a prima

facie case of retaliation, a plaintiff must show that: 1)

he engaged in statutorily protected expression; 2) he

suffered an adverse employment action; and 3) there

is a causal link between the protected expression and

the subsequent adverse action. Murray v. Chicago

Transit Authority, 252 F.3d 880, 890 (7 Cir. 2001). In

the present case, it is undisputed that Tate did not

complain about his relationship with Burban to anyone

at EMS other than Burban herself. He did not “go over

her head” and tell anyone in EMS management that

he felt he was being sexually harassed, nor did he file

any sort of grievance or raise any sort of protest within

EMS. Because of this, EMS argues that Tate fails to

establish the first element of a prima facie case of

retaliation since no one at EMS (other than Burban,

who was allegedly participating in the sexual

relationship) knew anything about that relationship.

EMS argues as follows:

. Tate cannot prevail on his retaliation claim

because he kept silent about this alleged

misconduct and did not report it to anyone in

“Tate claims that he was fired for “insubordination” after having

gotten into a verbal dispute with Burban. Briefin Opposition, p. 6.

EMS does not respond to this factual assertion in its briefing.

34a

KMS management. Proof of the employer’s

knowledge of the alleged discriminatory conduct

and corresponding protected activity “is implicit

in the first element of this Circuit’s prima facie

case fof retaliation] under the _ indirect

methodology.” See Durkin v. City of Chicago,

341 F.3d 606, 614 n. 4 (7" Cir. 2003). This is

because “|aln employer cannot retaliate if there

is nothing for it to retaliate against.” Jd. at 615.

EMS was completely unaware of the

relationship and could not therefore have

retaliated against Mr. Tate on that basis.

Brief in Support, p. 12. Furthermore, EMS points out

that even if one construes Tate’s ultimate act of ending

the relationship as an expression against sexual

harassment, “|clonsensual sexual! relationships do not

constitute unlawful activity under Title VII.” /d., p. 11

(citing Mosher v. Dollar Tree Stores, Inc. , 240 F.3d 662,

668 (7 Cir. 2001). “Accordingly, in ending his

voluntary affair with Ms. Burban, Mr. Tate was not

opposing conduct made unlawful under Title VII. He

therefore cannot rely on that activity to establish his

prima facie case of retaliation.” IJd., pp. 11-12.

EMS’s arguments appear imminently logical on

their face. However, Tate argues in response that

“rebuffing a supervisor’s sexual advances is a protected

activity under Title VII. If not, then a supervisor could

immediately terminate the ‘rebuffing’ employee and

gct away with it. Title VII would offer no protection to

the discharged employee. That cannot be the law.”

Brief in Opposition, Docket at 39, p. 15. Tate then goes

on to present a discussion of this issue which is found

in Roberts v. County of Cook, 2004 WL 1088230 (N.D.

lil., May 7, 2004). Jd. In Roberts, the district court

35a

concluded that “refusing sexual advances is protected

activity under Title VII.” The court explained that a

“victim of harassment should not fear retaliation if she

resists sexually predatory behavior by colleagues or

supervisors.” Therefore, argues Tate, the fact that he

went to Surban and broke off their relationship

constituted protected activity. The parties do not

dispute that he was terminated immediately, which

would mean that he establishes the second element of

a prima facie case (adverse employment action). As for

the third element, that of a causal link between the

protected activity and the adverse employment action,

the parties do not spend any time debating the point.

That is likely because, if it is determined that Tate’s

words and conduct constitute protected activity, the

fact that he was fired immediately is sufficient to

establish at least an inference of a causal link. Fyfe v.

City of Fort Wayne, 241 F.3d 597, 603 (7'"" Cir. 2001)

(citing Sweeney v. West, 149 F.3d 550, 557 (7 Cir.

1998)). As a result of the foregoing, the viability of

Tate’s retaliation claim rests on whether his act of

ending his relationship with Burban constitutes

protected activity. On that point, the parties

acknowiedge that there is a split of authority among

the courts that have addressed this issue. EMS readily

admits this in its briefing. See Brief in Support, Docket

at 34, pp. 12-14 (recognizing that “courts have split on

the issue|.]”). Likewise, Tate “notes the division of

authority among district courts as to whether

rebuffing an advance can qualify as protected activity

for purposes of a _ retaliation claim.” Brief in

Opposition, Docket at 39, p. 15.

As mentioned above, Tate claims that the facts

surrounding his alleged “protected activity” are as

follows: On the day that he was fired, Burban “called

36a

{himj into the office and asked him if he had made a

decision (about whether to continue the sexual

relationship with Burban). ... Tate told Burban his

decision, “That I wasn’t messin’ with her anymore.’.. .

Burban immediately started screaming that she was

‘zonna show’ Tate, that he could leave, ... and ‘You’re

gonna Jose your job.” Brief in Opposition, Docket at 39,

p. 7 (citing portions of Tate’s deposition). Tate

conciudes that he “was fired by the sexual harasser

immediately after deciding to refuse her sexual

demands.” /d., p. 13.

EMS counters that, even accepting Tate’s version

of that discussion as true, “Ms. Burban was not

making, and therefore Mr. Tate was not rebufting, a

sexual demand or advance. He was simply calling off

their consensual affair and in so doing indicating that

he would not be open to any future sexual advances

from Ms. Burban. Because consensual _ sexual

relationships are not against the law, ending such a

relationship cannot be considered opposing unlawful

behavior for Title VII retaliation purposes.” Reply

Brief in Support, Docket at 46, p. 3.

It is true, as EMS contends, that the evidence does

not demonstrate that Burban was making a “sexual

advance” on the day she and Tate had this discussion

(or argument, as the case may be). But that is probably

a distinction without a difference, at least with regard

to the present motion for summary judgment. The

facts before the court are that '’ate went to Burban’s

office; she was his supervisor; she asked ‘Tate whether

he intended to continue their sexual relationship; Tate

told her that he was ending that relationship; Burban

became angry and/or upset; and Tate was fired from

his job. Thus, the fact that Burban was not, at that

37a

precise moment, making any sexual advances towards

Tate is not determinative of the issue of whether his

words constituted protected activity.

Again, both parties concede that the Seventh

Circuit Court of Appeals has not ruled on the issue of

whether a plaintiff who rebuffs a supervisor’s sexual

advance has engaged in protected activity for purposes

of bringing a retaliation claim. In Murray v. Chicago

Transit Authority, 252 F.3d 880 (7" Cir. 2001), the

appellate court stated flatly that “we are able to find

no Seventh Circuit precedent .. . supporting the

premise that rejection of a sexual advance can serve as

a statutorily protected activity for purposes of

establishing a Title VII retaliation claim.” Murray, 252

F.3d at 890. The court went on to note that its

examination of district court cases addressing the

issue revealed a “division of authority ... .” Id., {n. 2.

However, the court did not rule on the issue, since it

held that the plaintiff in that case failed to establish a

prima facie case of retaliation for other reasons. At

least one district court has noted that none of the

circuit courts of appeal have ruled directly on this

issue. See Wagner v. Burnham, 2006 WL 266551

(N.D.N.Y.) *17. In the Roberts decision, the district

judge included in his order a lengthy citation list to

district and appellate court cases on both sides of this

issue. /d. at * 4. Tate cites to, and quotes extensively

from, this district court opinion. Naturally, the holding

in Roberts supports Tate’s position. The court in

Roberts, as well as the many courts that have issued

hoidings consistent with Tate’s position, have done so

based on the language of Title VII itself. As Judge

Kennelly wrote in Roberts: “The court agrees with

those district judges who have found that refusing

sexual advances is protected activity under Title VII.

38a

Title VII makes it unlawful ‘for an employer to

discriminate against any of his employees . . . because

he has opposed any practice made an unlawful

employment practice by this subchapter, or because he

has made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or

hearing under this subchapter.” Jd. (italics in

original). Therefore, the court concluded, since sexual

harassment in any form is clearly a “practice made

unlawful” by Title VII, an employee who refuses a

supervisor's sexual advances is engaging in “protected

activity” as that term is used in the statute. Jd.

There is a factual distinction between the Roberts

case and the case at bar. In Roberts, the plaintiff

apparently “repeatedly resisted [her supervisor’s]

sexually harassing behavior... .” /d. In this case, the

evidence is that Tate only “protested” the alleged

harassment he was experiencing on the single occasion

when he went to Burban’s office and informed her that

he no longer intended to continue their relationship.

And again, as EMS argues, Burban was not, at that

particular moment, making any sexual advances

toward Tate. So the question becomes, does this single

episode constitute “protected activity” as that phrase

is contemplated by statute?

The facts before the court indicate that Tate

decided to end his sexual relationship with Burban, his

supervisor (or, as EMS claims, his alleged

relationship). When he did so, he was fired virtually

immediately. Viewing the evidence in a light most

favorable to Tate, it cannot be said that his retaliation

claims fails as a matter of law. Clearly, a jury may

view this whole case in a very different way. But that

is neither here nor there for purposes of the present

39a

motion for summary judgment. It is reasonable to infer

from the facts as they are presented that Tate’s action

of breaking off his relationship with Burban was

“protected activity” and, accordingly, comports closely

enough with the language of Title VII that he should

not have suffered the loss of his job for having done

so.‘ Again, according to Tate, he was attempting to

break off a relationship, for whatever reason, with his

direct supervisor. After confronting her directly and

doing so, he was terminated.

Tate’s retaliation claim (as well as his sexual

harassment claim) turns largely on the true nature of

the relationship between him and Burban and their

respective states of mind on the day Tate was fired.

But those are factual issues that cannot be resolved

until a jury hears Tate’s testimony (and, presumably

Burban’s) and is able to make _ credibility

*EMS also argues that if any relationship really did exist between

Tate and Burban, it was completely consensual and therefore not

violative of Title VII. See Brief in Support, Docket at 34, p. 11.

However, Tate counters that even a workplace relationship of this

sort which begins as consensual does not preclude a sexual

harassment claim if the employee later attempts to end the

relationship and suffers an adverse employment action. See Brief

in Opposition, Docket at 39, pp. 13-14. Both positions are legally

correct. However, as stated above, Tate’s sexual harassment claim

is not being challenged in the present motion. Nonetheless, EMS

takes the position that ifthe relationship was entirely consensual,

then Tate would be unable to pursue a retaliation claim because

when he broke off his relationship with Burban he was not

attempting to end any unwelcome sexual advances on her part.

But Tate maintains that the relationship did in fact become

unwelcome or unwanted, which is why he decided to end it. By his

reasoning, he was “refusing” sexual advances by Burban when he

did so and suffered the ultimate adverse employment action as a

result.

determinations. For purposes of the present motion for

summary judgment, Tate has established a genuine

issue of fact with regard to his claim of retaliation and

EMS is not entitled to judgment in its favor on that

claim at this point in the proceedings.

CONCLUSION

For the reasons discussed herein, the Motion for

Summary Judgment filed by Defendant Executive

Management Services, Inc., is DENIED.

Date: May 12, 2006.

/s/ William C. Lee

William C. Lee, Judge

U.S. District Court

Northern District of Indiana

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