In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3086

Gary Hamner,

Plaintiff-Appellant,

v.

St. Vincent Hospital and Health
Care Center, Inc.,

Defendant-Appellee.



Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 97 C 1574--V. Sue Shields, Magistrate Judge.


Argued May 9, 2000--Decided August 24, 2000



      Before Manion, Kanne, and Rovner, Circuit Judges.

      Manion, Circuit Judge. 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.

      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.

      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.

      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.

      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."

      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.

      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.

      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.

      "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.

      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.

      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

      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:

      Q What did you believe you were opposing?

      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.

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

      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.

Hamner still claims that the following excerpt
supports his contention that his grievance was
based on both sex and sexual orientation:
      Q What did you complain about?

      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.

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:

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

      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.

      Q Is that why you filed the written complaint?

      A That was why I filed the complaint.

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

      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?

      A Yes.

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:

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

      A That’s what I heard the allegations to be.

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":

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

        [counsel’s objection overruled by the court]
      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.

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

      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.

      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

      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.

      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.



/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.
