In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2575
A LSHAFI T ATE,
Plaintiff-Appellee,
v.
E XECUTIVE M ANAGEMENT S ERVICES, INC.,
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.
A RGUED M AY 7, 2008—D ECIDED O CTOBER 10, 2008
Before B AUER, P OSNER, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Alshafi Tate, a former em-
ployee of Executive Management Services (“EMS”), claims
that his supervisor, Dawn Burban, threatened to fire him
if he refused to continue their sexual relationship. When
Tate rejected her ultimatum, Burban instigated an alter-
cation 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
2 No. 07-2575
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 super-
visor 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 consen-
sual 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, EMS promoted Tate to a
supervisor based on Burban’s recommendation and
raised his pay from $7.00 per hour to $8.00 per hour.
Tate testified at trial that he and Burban engaged in
consensual sex throughout his employment with EMS,
with the exception of a period in 2003 in which he
worked in a different building from Burban. Tate tried to
end his sexual relationship with Burban in October 2003.
He stated that he decided to end the relationship because
after he got married in August 2003, Burban would repeat-
edly call his home, upsetting his wife. Tate also indicated
No. 07-2575 3
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 rela-
tionship 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 con-
tinue 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 Indiana-
polis, 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 any-
more,” there was a “big scene” in which Burban raised her
voice and told Tate that he did not “know who [he was]
f—king with” and that he “could leave right now.” Tate
further testified that he left Burban’s office, but she fol-
lowed 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
4 No. 07-2575
that Burban called Taylor, but did not give Tate an oppor-
tunity to speak with Taylor. Taylor directed Burban to
tell Tate to go home, and Tate was escorted off the prem-
ises by a court security officer named Dan Hudson. Hud-
son 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 Merrill Lynch building was “not
his job”; that he only had to do certain tasks, which Burban
determined would have taken only 5.5 hours to perform;
and that Burban told him he was “here for 8 hours” and
needed “to do 8 hours worth of work.” The incident report
further stated that Burban told Tate to go home after he
continued to refuse the assignment, and that a security
guard from the courthouse was present, heard what was
going on, and watched Tate leave the building.
No. 07-2575 5
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 India-
napolis, 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 Burban 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 insubordi-
nation, “and it wasn’t a situation where it deemed [sic]
an investigation of that incident.”
The jury returned a verdict in Tate’s favor on the retalia-
tion claim and found against Tate on his sexual harass-
ment claim. After trial, EMS renewed its motion under
Federal Rule of Civil Procedure 50(b) for judgment as a
6 No. 07-2575
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 reason-
able 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.
II. 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 (7th Cir. 2004) (citing Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51
(2000)). We “examine all of the evidence in the record
to determine whether the evidence presented was suffi-
cient to support the jury’s verdict,” but in doing so, we
No. 07-2575 7
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.” Id.
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 indi-
vidual . . . because he has opposed any practice made an
unlawful employment practice by [Title VII].” 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 him
on his sexual harassment claim, a finding he does not
appeal here, is not dispositive. See Fine v. Ryan Int’l
Airlines, 305 F.3d 746, 752 (7th Cir. 2002) (“a plaintiff need
not prevail on her Title VII discrimination claim or have
opposed an action that in fact violated Title VII to win
a retaliation claim”). In order to engage in protected
conduct, Tate only has to show that he “reasonably be-
8 No. 07-2575
lieved in good faith the practice [he] opposed violated
Title VII.” Id.
As a threshold matter, there is a circuit split about
whether a person who rejects a supervisor’s sexual ad-
vances has engaged in a protected activity. Compare
LeMaire 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 pro-
tected 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 violated Title VII.” Fine, 305 F.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
No. 07-2575 9
v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1450 (7th Cir. 1994)
(finding that the plaintiff had a good faith belief that
she was opposing conduct that violated Title VII because
after plaintiff found out that her supervisor’s behavior
would violate the law, she complained directly to man-
agement and to the supervisor, “indicating that his [inap-
propriate] 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 dis-
courage 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 counsel what he would have said to
management if given the opportunity after the alterca-
tion 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 behavior.
We do not dispute that Tate protested about Burban’s
behavior; the problem is that he did not necessarily believe
that her behavior was illegal at the time. See Mattson v.
Caterpillar, Inc., 359 F.3d 885, 891 (7th Cir. 2004) (“The
10 No. 07-2575
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 have suffered and to ensure that such employees
remain free from reprisals or retaliatory conduct.”) (em-
phasis 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.
III. CONCLUSION
Accordingly, the judgment of the district court is REVERSED.
10-10-08