Hamner v. St. Vincent Hospital & Health Care Ctr.

• Decision Date: 24 August 2000
• Docket Number: No. 99-3086,99-3086
• Citation: 224 F.3d 701
• Parties: (7th Cir. 2000) Gary Hamner, Plaintiff-Appellant, v. St. Vincent Hospital and Health Care Center, Inc., Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 701

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, 2000

Decided 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.

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."¹Oncale 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.Seeid. 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."²Miller 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...