In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2575

ALSHAFI TATE,

Plaintiff-Appellee,

v.

EXECUTIVE MANAGEMENT SERVICES, 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.

ARGUED MAY 7, 2008—DECIDED OCTOBER 10, 2008

Before BAUER, POSNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Alshafi Tate, a former employee of Executive Management Services (“EMS”), claims

that his supervisor, Dawn Burban, threatened to fire him

if he refused to continue their sexual 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
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 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, 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 repeatedly 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 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 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 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
4 No. 07-2575

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 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 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 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 insubordination, “and it wasn’t a situation where it deemed [sic]

an investigation of that incident.”

The jury returned a verdict in Tate’s favor on the retaliation claim and found against Tate on his sexual harassment claim. After trial, EMS renewed its motion under

Federal Rule of Civil Procedure 50(b) for judgment as a
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 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.

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 sufficient 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 individual . . . 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 advances 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 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 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 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 counsel 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 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.”) (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.

III. CONCLUSION

Accordingly, the judgment of the district court is REVERSED.

10-10-08