Employee's Protest of Supervisor's Conduct for Personal Reasons Does Not Support a Title VII Retaliation Claim
TATE v. EXECUTIVE MANAGEMENT SERVICES (October 10, 2008)
Alshafi Tate started working for Executive Management Services (“EMS”) as a commercial building cleaner in August, 2002. Dawn Burban was his immediate supervisor. Tate alleges, and Burban denies, that he and Burban began a long, consensual sexual relationship almost immediately. Tate also alleges, and Burban denies, that when he tried to end the relationship in late 2003, Burban threatened that he would lose his job if he did so. They both agree that they had a heated argument in Burban’s office in January 2004. Tate claims that it occurred when he finally insisted that he was ending the relationship. Burban claims it resulted from Tate’s refusal to perform a proper work assignment. Burban called her supervisor, who told Burban to tell Tate to go home. Burban also called her district manager and reported Tate for insubordination. Tate tried to reach both the supervisor and district manager the next day to relate his side of the story. Instead, he was told he was fired for insubordination. Tate filed suit, alleging both sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964. The jury found for EMS on the sexual harassment claim and in Tate’s favor on the retaliation claim. The district court denied EMS’ FRCP 50(b) motion on the retaliation claim. EMS appeals.
In their opinion, Judges Bauer, Posner, and Williams reversed. The Court laid out the elements of Tate’s Title VII retaliation action: a) a statutorily protected activity, b) the employer’s adverse action, and c) a causal relationship. To show he engaged in protected activity, the Court stated that Tate had to show a reasonable belief that he opposed a practice that violated Title VII. There is a split in the circuits on the issue of whether the rejection of a supervisor’s sexual advances could amount to protected activity. The Court decided that it did not have to take a position on the issue. Instead, it found no evidence that Tate actually believed Burban’s conduct was unlawful. The Court recognized that Tate protested Burban’s actions. But it found that the evidence supported the conclusion that his protests were personal, not because he believed that Burban’s behavior was unlawful. Title VII exists to protect employees from retaliation for protesting discrimination they, in good faith, believe they have suffered. Tate does not meet the protected activity element.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select