FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 21, 2008

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-14516

Non-Argument Calendar

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D.C. Docket No. 05-01474-CV-T-17-TGW

TIMOTHY VAN PORTFLIET,

 

Plaintiff-Appellant, 

versus

H&R BLOCK MORTGAGE CORPORATION,

 Defendant-Appellee. 

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Appeal from the United States District Court

for the Middle District of Florida 

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(August 21, 2008)

Before EDMONDSON, Chief Judge, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Timothy Van Portfliet appeals the district court’s grant

of Defendant-Appellee H&R Block’s (“H&R Block”) renewed motion for
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judgment as a matter of law following the jury’s verdict in favor of Plaintiff on his

Title VII retaliation claim. No reversible error has been shown; we affirm.

Plaintiff filed suit against H&R Block asserting that H&R Block terminated

his employment in retaliation for his complaints that two other employees were

subjected to unlawful sexual and racial harassment, in violation of Title VII. 

Plaintiff specifically reported to H&R Block’s human resources department that

one of his supervisees, Elizabeth Sylves, approached Plaintiff visibly upset and

reported to Plaintiff that Paul LaBarbera, a District Manager to whom Plaintiff

reported, had acted inappropriately toward Sylves at a company-sponsored offpremises happy hour that Plaintiff had not attended. Sylves also told Plaintiff that

LaBarbera made a “racial slur” to an African-American employee; the content of

the comment characterized as a racial slur was not disclosed to Plaintiff. H&R

Block’s human resources department investigated the incidents brought to their

attention by Plaintiff. As a consequence of this investigation, LaBarbera was

terminated on 11 May 2005; on 3 June 2005, Plaintiff was terminated by

LaBarbera’s replacement.

At trial, Plaintiff testified that Sylves was visibly upset the day following

the LaBarbera incident and was unable initially to talk to him about it. Sylves told

Plaintiff ultimately that LaBarbera “put his arm around her, pulled her in to him,
 On cross-examination Sylves denied that she was visibly upset about the LaBarbera incident; 1

she also affirmed that she did not ask Plaintiff to do anything about LaBarbera, she did not want

LaBarbera to suffer job consequences, she did not feel like she was being sexually harassed when

LaBarbera put his arm around her and made the comment about which she told Plaintiff, and she did

not feel that the comment made her working environment hostile or abusive or both. Sylves

reiterated that she felt LaBarbera’s comment was inappropriate and that it offended her and would

have offended her husband. In reviewing the grant of a motion for judgment as a matter of law, we

review the evidence and reasonable inferences that may be drawn from that evidence in the light

most favorable to the nonmoving party. See Rossbach v. City of Miami, 371 F.3d 1354, 1356 (11th

Cir. 2004). Where no legally sufficient evidentiary basis exists upon which a reasonable jury could

find for the non-moving party, judgment as a matter of law is due to be granted. Id.

 Under the “participation clause,” Title II protects an individual who “participated in any manner

2

in an investigation” under Title VII. See 28 U.S.C. § 2000-e-3(a). Plaintiff proceeded under the

3

and said, ‘Why do you want to be with a loan officer like that when you can be

with me?’” And Sylves testified,

What I told Mr. Van Portfliet was is that I was at the

event and that I thought it was weird that Mr. LaBarbera,

who was the District Manager, made some what I felt

was inappropriate comments to me; and what I said was

is that a friend of mine put his arm around – or he put his

around me in front of a friend of mine and pointed to my

friend and said, Why would you want to be with him

when you can be with me? And what I said to Mr.

Plaintiff was I felt offended because I’m a married

woman, and I felt that he was insinuating something that

– and it hurt my feelings because I’m a happily married

woman, and that’s why I was – felt offended.1

Under the “opposition clause,” Title VII prohibits an employer from

retaliating against an individual because the individual “opposed any practice

made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e3(a). To establish a Title VII retaliation claim under the opposition clause, a 2
opposition clause; the participation clause has no application where an employee participates only

in an internal, in-house investigation conducted apart from a formal EEOC charge. See EEOC v.

Total Sys. Serv., Inc., 221 F.3d 1171, 1174 (11 Cir. 2000). th

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plaintiff must show, among other things, that he engaged in statutorily protected

expression. See Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11 Cir. th

2002). And to satisfy the “statutorily protected expression” requirement, a

“plaintiff must show that [he] had a good faith, reasonable belief that the employer

was engaged in unlawful employment practices.” Id. (quotations and citations

omitted). 

We have explained that a plaintiff must demonstrate both a subjective belief

that his employer engaged in unlawful employment practices, and that such belief

was objectively reasonable. See id. at 1312. “It thus is not enough for a plaintiff

to allege that his belief in this regard was honest and bona fide; the allegations and

record must also indicate that the belief, though perhaps mistaken, was objectively

reasonable.” Id. The reasonableness of the employee’s belief is measured against

existing substantive law. See Clover v. Total System Services, Inc., 176 F.3d

1346, 1351 (11 Cir. 1999). No actual unlawfulness is required but the opposed th

conduct “must be close enough [to unlawful] to support an objectively reasonable

belief that it is.” Id. 
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In granting H&R Block’s motion for judgment as a matter of law, the lower

court concluded that the evidence introduced at trial could support no objectively

reasonable belief that actionable sexual harassment had occurred. We agree. 

“[S]exual harassment is actionable under Title VII only if it is so severe or

pervasive as to alter the conditions of the victim’s employment and create an

abusive working environment.” Clark County School Dist. v. Breeden, 121 S.Ct.

1508, 1509 (2001) (quotation, citations, and internal markings omitted). Whether

an environment is hostile or abusive turns on a review of all the circumstances,

including “the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Harris v. Forklift

Systems, Inc., 114 S.Ct. 367, 371 (1993). The Supreme Court has emphasized that

“[a] recurring point in [its] opinions is that ‘simple teasing,’ offhand comments,

and isolated incidents (unless extremely serious) will not amount to discriminatory

changes in the ‘terms and conditions of employment.’” Faragher v. City of Boca

Raton, 118 S.Ct. 2275, 2283 (1998) (internal citation omitted).

The isolated incident between LaBarbera and Sylves occurred at a companyrelated event offsite; it was preceded by and followed by no other offensive

conduct. LaBarbera’s comments – albeit arguably suggestive – were not overtly
 H&R Block makes no argument challenging Plaintiff’s subjective beliefs.

3

 Plaintiff relies on Sullivan v. National R.R. Passenger Corp., 170 F.3d 1056 (11 Cir. 1999) 4 th

for his contention that the single incident about which he complained could support a reasonable

belief that sexual harassment had occurred. But in Sullivan we said that no dispute had been raised

on the issue of protected expression. 170 F.3d at 1059. Sullivan concluded that a jury’s rejection

of a plaintiff’s sexual harassment claim was not dispositive of the plaintiff’s retaliation claim; we

proceeded to examine the causality element of the retaliation claim.

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sexual and were not extremely serious; they constituted “simple teasing;” they

were “offhand comments” that, standing alone, no reasonable person could have

believed violated Title VII. No reasonable person could have found that Plaintiff 3

engaged in statutorily protected conduct when he reported the LaBarbera-Sylves

incident. See Clark County, 121 S.Ct. at 1510 (employee can not prevail on

retaliation claim where no reasonable person could have believed that the incident

constituted sexual harassment violating Title VII).

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Plaintiff makes passing reference to his claim that his report of racial

harassment constituted protected expression; he offers no argument or citations of

authority on this claim. Under our practice, we treat this claim as abandoned. See

Flanigan’s Enterprises, Inc. v. Fulton County, Ga., 242 F.3d 976, 987 n.16 (11th

Cir. 2001) (party waives a claim when the claim is undeveloped in the appellate

brief). Furthermore, even assuming the claim is preserved, it is without merit. 

Sylves’s reference to a racial slur made by LaBarbera – the content of which was

undisclosed to Plaintiff – provided him with insufficient facts to support an
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objectively reasonable belief that racial harassment had occurred; Plaintiff

engaged in no statutorily protected opposition. See Harris, 114 S.Ct. at 370 (the

mere utterance of an epithet which causes bad feelings is insufficient to implicate

Title VII). And, again, because reporting the undisclosed racial slur failed to

satisfy the statutorily protected expression requirement, that expression can

support no retaliation claim as a matter of law.

AFFIRMED.