224 F.3d 701 (7th Cir. 2000)
Gary Hamner, Plaintiff-Appellant,v.St. Vincent Hospital and Health  Care Center, Inc., Defendant-Appellee.
No. 99-3086
In the  United States Court of Appeals  For the Seventh Circuit
Argued May 9, 2000Decided August 24, 2000

Appeal from the United States District Court  for the Southern District of Indiana, Indianapolis Division.  No. 97 C 1574--V. Sue Shields, Magistrate Judge.[Copyrighted Material Omitted]
Before Manion, Kanne, and Rovner, Circuit Judges.
Manion, Circuit Judge.


1
Gary Hamner sued his  former employer, St. Vincent Hospital, under  Title VII, alleging that the hospital terminated  him in retaliation for submitting a sexual  harassment grievance. The case went to trial. At  the conclusion of Hamner's case-in-chief, the  hospital moved for judgment as a matter of law,  arguing that Hamner's grievance only alleged that  he was harassed because of his sexual orientation  (not because of his sex), and thus he failed to  present sufficient evidence for a reasonable jury  to find that he opposed an unlawful employment  practice under Title VII. The magistrate judge  granted the hospital's motion, concluding that  Hamner failed to establish the first element of  his retaliation case because he failed to show  that he opposed an unlawful employment practice  under Title VII. Hamner appeals, and we affirm.

I.

2
Gary Hamner is a male nurse and a homosexual who  began working for St. Vincent Hospital in 1993.  In 1995, he became the charge nurse of a unit in  the St. Vincent Stress Center where he supervised  the staff, including nurses, clinicians and  technicians, and communicated with physicians to  coordinate patient care. Hamner's direct  supervisor was Marilyn Knoy, a Nursing Manager,  and Knoy's supervisor was Dr. Joseph Edwards, the  Medical Director of the same unit in the Stress  Center.


3
Because they worked in the same unit, Hamner and  Edwards had to communicate with each other to  provide patient care. According to Hamner, he and  Edwards had a poor working relationship. Edwards  would refuse to acknowledge or communicate with  Hamner, screamed at him during telephone  conversations, and harassed him by lisping at  him, flipping his wrists, and making jokes about  homosexuals.


4
On September 26, 1996, Hamner filed a written  grievance with the hospital about Edwards's  harassment. The parties dispute the basis of  Hamner's grievance, a copy of which is not in the  record. According to Hamner, he complained that  Edwards was harassing him because of his sex and  sexual orientation. The hospital alleges,  however, that Hamner's grievance was based only  on his belief that Edwards harassed him because  of his homosexuality. Shortly after Hamner filed  his grievance, Dr. Paul Lefkovitz, the Executive  Director of the Stress Center (and Edwards's  supervisor), investigated the grievance. After  concluding his investigation, Lefkovitz sent  Hamner a letter on October 15, 1996, stating that  he talked with Edwards about Hamner's complaints  about Edwards's "homophobia," and that Edwards  acknowledged his "irreverent" humor and that he  would be more mindful of Hamner's concerns in the  future.


5
Subsequently, the hospital fired Hamner on  October 18, 1996. The events surrounding his  termination occurred on October 8, 1996, when  Hamner performed the admitting procedures for an  85-year-old nursing home patient. According to  hospital procedure, Hamner performed a physical  assessment of the patient and phoned Edwards to  receive his admission orders. During their  conversation, Hamner and Edwards forgot to  discuss the patient's code status, which is given  to patients upon admission. A patient with a Code  Status A wishes to be provided full resuscitative  measures in the event of cardiac or respiratory  failure, while a patient with Code Status C  wishes to be provided only with comfort measures  in such a situation. After his conversation with  Edwards, Hamner discussed the patient's code  status with the patient's family, and one family  member provided a document that indicated that  the patient was a Code Status C at the nursing  home. Hamner then wrote on the Order Sheet the  notation: "Code C: To be approved by Dr."


6
The next morning, Edwards noticed Hamner's  notation on the Physician Order Sheet, and told  Hamner that he had written an order that Edwards  had not given, and that this action endangered  the patient. Edwards changed the patient's code  status back to Code Status A and reported the  incident to Knoy. Knoy discussed the incident  with the Director of Nursing and a member of the  Human Resources Department, and the three of them  decided to terminate Hamner for willful  falsification of a hospital document, the  Physician Order Sheet. Lefkovitz upheld that  decision.


7
Hamner sued the hospital under Title VII,  alleging that Edwards harassed him because of his  sex and sexual orientation, and that the hospital  terminated him in retaliation for filing a  grievance about Edwards's sexual harassment. The  parties consented to a trial by a magistrate  judge, and stipulated to dismiss the sexual  harassment claim. The hospital then moved for  summary judgment on the retaliation claim, which  was denied, and the case went to trial.


8
After Hamner presented his case-in-chief, the  hospital moved, pursuant to Federal Rule of Civil  Procedure 50(a), for judgment as a matter of law,  arguing that Hamner failed to establish the first  element of his retaliation case by showing that  he opposed (or had a reasonable belief that he  was opposing) an unlawful employment practice  under Title VII. The magistrate judge granted the  motion, and Hamner appeals.


9
"We review de novo the grant of judgment as a  matter of law (directed verdict) under Federal  Rule of Civil Procedure 50(a)." Payne v.  Milwaukee County, 146 F.3d 430, 432 (7th Cir.  1998). And we "review the evidence in a light  most favorable to the non-moving party to  determine whether there was no legally sufficient  evidentiary basis for a reasonable jury to find  for the non-moving party." Id.

II.

10
Title VII prohibits employers from harassing  employees "because of [their] sex."1 Oncale v.  Sundowner Offshore Services, Inc., 523 U.S. 75,  78-79 (1998); 42 U.S.C. sec. 2000e-2(a)(1). Same-  sex sexual harassment is actionable under Title  VII "to the extent that it occurs 'because of'  the plaintiff's sex." Shepherd v. Slater Steels  Corp., 168 F.3d 998, 1007 (7th Cir. 1999). "The  phrase in Title VII prohibiting discrimination  based on sex" means that "it is unlawful to  discriminate against women because they are women  and against men because they are men." Ulane v.  Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th  Cir. 1984). In other words, Congress intended the  term "sex" to mean "biological male or biological  female," and not one's sexuality or sexual  orientation. See id. at 1087. Therefore,  harassment based solely upon a person's sexual  preference or orientation (and not on one's sex)  is not an unlawful employment practice under  Title VII. Id. at 1085.


11
Title VII also "protects persons not just from  certain forms of job discrimination [and  harassment], but from retaliation for complaining  about the types of discrimination it  prohibits."2 Miller v. American Family Mut.  Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000); 42  U.S.C. sec. 2000e-3(a). To prevail on a claim of  retaliation, the plaintiff must show, by a  preponderance of the evidence, that he: (1)  opposed an unlawful employment practice [under  Title VII]; (2) was the object of an adverse  employment action; and (3) that the adverse  employment action was caused by his opposition to  the unlawful employment practice. Cullom v.  Brown, 209 F.3d 1035, 1040 (7th Cir. 2000).3


12
In this case, Hamner initially argues that, in  fact, his grievance was about sexual harassment,  as well as sexual orientation harassment, and  thus he complained about an unlawful employment  practice under Title VII, as required by the  first element of a retaliation case. Because a  copy of Hamner's grievance is not in the record,  Hamner relies solely on his trial testimony to  support his contention. But that testimony  clearly demonstrates that the alleged harassment,  and Hamner's complaints about it, were based  exclusively on his homosexuality. First, his  response to direct questions by his attorney


13
Q What did you believe you were opposing?


14
A When I complained to the hospital I believed  that I was complaining about sexual harassment;  the harassment in general on the floor. It was  never a contention that Dr. Edwards had  physically approached me or physically abused me  in any way. It was merely the fact that because I  am gay, because that just is who I am, he was  opposed to that and he absolutely could not  handle that. And, so, it was constant harassment  because of my sexual orientation.


15
Q Do you believe there is a difference between  your sex and your sexual orientation?


16
A Uhmm, no sir, I don't . . . . I believed that  Joseph Edwards did not have the right under the  law to treat me differently because of my  orientation.


17
Hamner still claims that the following excerpt  supports his contention that his grievance was  based on both sex and sexual orientation


18
Q What did you complain about?


19
A I complained about the harassment, the sexual  innuendos that were made on the unit in my  presence. He [Edwards] would scream at me, hang  up on me, tell me don't bother him unless it's an  emergency. It was just a very, very uncomfortable  situation and I did not appreciate the  harassment. Nor did I appreciate the sexual  innuendos.


20
On further direct examination, however, Hamner's  testimony was consistent in demonstrating that  his complaint was based only on Edwards's  harassment directed at Hamner's sexual  orientation


21
Q [C]an you elaborate on the sexual innuendos,  please?


22
A When I worked on the unit I think that we had  talked, and several times about Dr. Edwards  having a real problem with homosexuals. It had  been explained to me by Marilyn and other  employees that had been there for a long time  that Joe just didn't like gay people and that he  would not ever treat me any differently. When I  would be in the unit he would be--come on the  unit, be talking to nurses, and I would find that  he was making little gay jokes, flipping a wrist,  lisping, just little annoying things that,  finally, I just couldn't tolerate it.


23
Q Is that why you filed the written complaint?


24
A That was why I filed the complaint.


25
Finally, Hamner presents the following testimony  by Lefkovitz to claim that the grievance involved  allegations of sex and sexual orientation  harassment


26
Q With regard to the September 26th grievance,  Gary Hamner was alleging that Dr. Joseph Edwards  was discriminating against him on the basis of  his sex and sexuality; is that correct?


27
A Yes.


28
But this excerpt paints an incomplete picture.  The rest of Lefkovitz's testimony clearly  demonstrates that he understood Hamner's  grievance to be based on "homophobia" and not on  sexual harassment. In response to the next two  questions from Hamner's counsel, Lefkovitz  affirmed that Hamner "alleged that Dr. Edwards  was homophobic." Later on in his testimony,  Lefkovitz stated again that Hamner's "allegations  were made that he [Edwards] was homophobic." And  the following exchange occurred between Lefkovitz  and the hospital's counsel


29
Q Dr. Lefkovitz, did you understand what  plaintiff was telling you was that Dr. Edwards  was acting towards plaintiff because of his  homosexuality?


30
A That's what I heard the allegations to be.


31
Moreover, Lefkovitz's October 15, 1996 letter to  Hamner makes no mention of sexual harassment, but  it does state: "I made him [Edwards] aware of  your concerns and complaints that he was  intimidating and discriminating against you on  the basis of 'his homophobia.'" And finally,  Hamner's own testimony about his complaint to  Lefkovitz confirms that the grievance only  concerned Edwards's "homophobia"


32
Q Did you tell Dr. Lefkovitz that your complaint  was about homophobia only?


33
[counsel's objection overruled by the court]


34
A When I talked to Dr. Lefkovitz trying to  resolve the problem that I was obviously having,  we discussed in detail the homophobia. I had  given him examples of Joe's [Edwards's]  homophobia in the past, comments that had been  made not only by other staff people, but his wife  that we worked with. I had told him how difficult  it was for me to work; that it was an intolerable  situation; not only the homophobia, but the  general overall haranguing and harassing that I  felt the hospital was allowing to go on and on.


35
According to the record, therefore, Hamner's  grievance was based on Edwards's harassment  directed at Hamner's homosexuality as shown by  flipping his wrists, lisping, and telling jokes  about homosexuals. In addition, Edwards committed  more general harassment that included screaming  and refusing to communicate with Hamner in a  professional manner. Hamner's grievance did not  involve sexual harassment, however, because it  did not assert that Edwards treated Hamner  differently because he is a man.4


36
Nevertheless, Hamner insists that the jury still  could have found in his favor on the retaliation  claim because he reasonably believed that he  complained about sexual harassment. In other  words, he thought he was opposing an employment  practice that violated Title VII. It is true that  "our cases hold that an employee may engage in  statutorily protected expression under section  2000e-3(a) even if the challenged practice does  not actually violate Title VII." Dey v. Colt  Const. & Development Co., 28 F.3d 1446, 1457 (7th  Cir. 1994). It is sufficient if the plaintiff has  a sincere and reasonable belief that he is  opposing an unlawful practice. Holland v.  Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1314  (7th Cir. 1989); see also Dey, 28 F.3d at 1458.  That means, for example, that even if the degree  of discrimination does not reach a level where it  affects the terms and conditions of employment,  if the employee complains and the employer fires  him because of the complaint, the retaliation  claim could still be valid. But the complaint  must involve discrimination that is prohibited by  Title VII. The plaintiff must not only have a  subjective (sincere, good faith) belief that he  opposed an unlawful practice; his belief must  also be objectively reasonable, which means that  the complaint must involve discrimination that is  prohibited by Title VII. Sexual orientation is  not a classification that is protected under  Title VII; thus homosexuals are not members of a  protected class under the law. Ulane, 742 F.2d at  1085. Hamner's allegations cannot be without  legal foundation, but must concern "the type of  activity that, under some circumstances, supports  a charge of sexual harassment." Holland, 883 F.2d  at 1315. If a plaintiff opposed conduct that was  not proscribed by Title VII, no matter how  frequent or severe, then his sincere belief that  he opposed an unlawful practice cannot be  reasonable. See Wimmer v. Suffolk County Police  Dept., 176 F.3d 125, 135 (2d Cir. 1999)  (plaintiff's complaint of retaliation for  opposing discrimination by co-employees against  non-employees is not cognizable under Title VII  because the statute only prohibits discrimination  by employers, not co-employees, and thus  plaintiff's opposition was not directed at an  unlawful employment practice). As the law stands,  the harassment that he opposed did not violate  Title VII.


37
Even so, Hamner still contends that there is no  difference between his sex and his sexual  orientation, and thus he reasonably believed that  Edwards harassed him because of his sex. Hamner's  belief may be sincere, but it is not objectively  reasonable as a matter of law. The reality is  that there is a distinction between one's sex and  one's sexuality under Title VII, Ulane, 742 F.2d  at 1085, and that the statute only prohibits  employers from harassing employees because of  their sex. Oncale, 523 U.S. at 79. Here, the  record only supports the conclusion that  Edwards's harassment of Hamner was based on  Hamner's homosexuality, and thus no reasonable  jury could find that Hamner reasonably believed  that his grievance was directed at an unlawful  employment practice under Title VII.5


38
Finally, Hamner presents a new argument on  appeal, contending that he reasonably believed  that Edwards's harassment was based on sex  because his gestures (lisping and flipping his  wrists) were specifically intimidating to men and  their manhood, but not to women, including  homosexual women. Because Hamner failed to raise  this argument to the district court, it is  waived. Robyns v. Reliance Standard Life Ins.  Co., 130 F.3d 1231, 1238 (7th Cir. 1997).  Moreover, this argument has no merit. We have  already established from Hamner's testimony that  he believed that Edwards's gestures evinced his  "homophobia," and thus pertained only to Hamner's  sexual orientation, and not to his sex. And the  record contains no evidence to indicate that  Edwards's gestures were motivated by a general  hostility to men,6 which would be an example of  the type of evidence necessary in this case to  sustain Hamner's reasonable belief claim. See  Oncale, 523 U.S. at 80. Because there is no  evidence to support Hamner's belief that he filed  a sexual harassment grievance, his reasonable  belief claim fails.


39
In conclusion, Hamner's retaliation claim fails  as a matter of law because the conduct that he  opposed (harassment because of his sexual  orientation) is not, under any circumstances,  proscribed by Title VII, and thus he has failed  to provide sufficient evidence for a reasonable  jury to conclude that he opposed (or reasonably  believed that he was opposing) an unlawful  employment practice under Title VII. Accordingly,  we AFFIRM the magistrate judge's decision.



Notes:


1
 This provision of Title VII provides that: "[i]t  shall be an unlawful employment practice for an  employer . . . to discharge any individual, or  otherwise to discriminate against any individual  with respect to his compensation, terms,  conditions, or privileges of employment, because  of such individual's race, color, religion, sex,  or national origin." 42 U.S.C. sec. 2000e-  2(a)(1).


2
 The retaliation provision of Title VII provides  that: "[i]t 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. sec. 2000e-  3(a).


3
 Although the parties couch their arguments in  terms of the burden-shifting method of McDonnell  Douglas Corp. v. Green, 411 U.S. 792 (1973), that  approach only applies to pretrial proceedings,  and "drops out once a case goes to trial, that  is, once it is past the summary judgment stage."  Wilson v. AM General Corp., 167 F.3d 1114, 1123  n. 1 (7th Cir. 1999) (Manion, J. and Rovner J.,  concurring); see also Cullom, 209 F.3d at 1039-40  n. 3; Diettrich v. Northwest Airlines, Inc., 168  F.3d 961, 965 (7th Cir. 1999).


4
 Hamner presents no evidence that he was the only  male nurse on the unit, or that Edwards treated  male nurses differently than female nurses.


5
 For example, the record may have supported  Hamner's reasonable belief claim if the record  demonstrated that Edwards disapproved of men in  the nursing profession, and manifested his  disapproval by perceiving all male nurses to be  homosexuals, and harassed them accordingly, while  female nurses were not subjected to such  harassment; or Edwards harassed homosexual male  nurses but not homosexual female nurses. See  Oncale, 523 U.S. at 80-81.


6
 Supra note 4.


