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Tate v. Executive Management Services, Inc., No. 07-2575 (7th Cir. Oct. 10, 2008)

| Oct 9, 2008 | Daily Developments in EEO Law |

The Seventh Circuit grants judgment as matter of law against a plaintiff from an employer’s appeal of a Title VII retaliation jury verdict. The panel ducks the debate about whether resisting a supervisor’s sexual predation is a “protected activity,” holding instead on the trial record that the employee didn’t consider the behavior as unlawful “sex harassment.”

Tate v. Executive Management Services, Inc., No. 07-2575 (7th Cir. Oct. 10, 2008):  The plaintiff Mr. Tate, a custodian, carried on a consensual sexual relationship with his supervisor (Ms. Burban) until he married and tried to withdraw.  This triangle culminated in an ugly verbal fight between Burban and Tate about their affair, a charge of insubordination against Tate and ultimately a termination.  A jury found (in a pattern familiar to EEO practitioners) that Tate did not suffer Title VII sex harassment, but did suffer retaliation for pushing back against his former paramour. 

On appeal, the panel held as a matter of law that Tate engaged in no protected activity when he fought with Burban.  Though recognizing an apparent split in the circuits about whether resisting harassment is a protected activity, the panel concluded that Tate — by his own testimony — had not considered the affair, or its backfiring aftermath, to be “sex harassment”:

“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. . . .  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.”

Because Tate’s protest was purely personal, and he never manifested a belief that he was objecting to unlawful harassment, it was not covered by the opposition clause of Title VII, and judgment belonged to the employer.

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