# Petition for Writ of Certiorari — Persik v. Colorado

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 1190

## Text

Somme Can US.

\\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

i
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.

il
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

IV

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

16

la

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

Vv

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

1X

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

1
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:

2

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)

4

“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:

5

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

6

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

7

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

8

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.

9

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

10

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

1]

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

12

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

13

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

14

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

15
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.

16

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

17

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

18

(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.

iS

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

20

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

21

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

22

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

23

— “(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

24

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).

25

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

26

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

27

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

28

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)

ae

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.

2a

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.

sa

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

4a

“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

5a

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.”

6a

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)).

SE

Ta

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

8a

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

9a

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

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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.Ӥ 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,

3la

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.

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0032%3A1. Public record. Not legal advice.