Hamner v. St. Vincent Hospital & Health Care Ctr., No. 99-3086

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore Manion, Kanne, and Rovner; Manion
Citation224 F.3d 701
Parties(7th Cir. 2000) Gary Hamner, Plaintiff-Appellant, v. St. Vincent Hospital and Health Care Center, Inc., Defendant-Appellee
Decision Date24 August 2000
Docket NumberNo. 99-3086

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.

Page 702

Copyrighted Material Omitted

Page 703

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

Page 704

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.

Page 705

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...

To continue reading

Request your trial
99 practice notes
  • Evans v. Ga. Reg'l Hosp., No. 15-15234
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 10, 2017
    ...orientation is not a prohibited basis for discriminatory acts under Title VII."); Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc. , 224 F.3d 701, 704 (7th Cir. 2000) ("[H]arassment based solely upon a person's sexual preference or orientation (and not on one's sex) is not an unlawful e......
  • Hamm v. Weyauwega Milk Products, Inc., No. 00-C-1283.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • May 9, 2002
    ...not protect employees from discrimination based upon sexual orientation,6 see, e.g., Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 & 707 (7th Cir.2000) ("harassment based solely upon a person's sexual preference or orientation (and not on one's sex) is not an unlaw......
  • Smith v. Eaton Corp., No. C00-3087-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 1, 2002
    ...activity that, under some circumstances, supports a charge of sexual harassment.'" Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 706 (7th Cir.2000) (quoting Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1315 (7th Cir.1989)). Thus, "[i]f a plaintiff opposed co......
  • Hudson v. Norfolk Southern Ry. Co., No. 1:99-CV-2287-JEC.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • March 28, 2001
    ...sexual orientation is not a classification protected under Title VII. See Hamner v. St. Vincent Hosp. and Health Care Ctr., Inc., 224 F.3d 701, 705 (7th Cir.2000). Accordingly, although plaintiff may have found Herren's behavior offensive, because it is not illegal under Title VII to discri......
  • Request a trial to view additional results
102 cases
  • Evans v. Ga. Reg'l Hosp., No. 15-15234
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 10, 2017
    ...orientation is not a prohibited basis for discriminatory acts under Title VII."); Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc. , 224 F.3d 701, 704 (7th Cir. 2000) ("[H]arassment based solely upon a person's sexual preference or orientation (and not on one's sex) is not an unlawful e......
  • Hively v. Ivy Tech Cmty. Coll. of Ind., No. 15-1720
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 4, 2017
    ...of this opinion). Relying on a line of this court's cases exemplified by Hamner v. St. Vincent Hosp. and Health Care Ctr., Inc. , 224 F.3d 701 (7th Cir. 2000), the district court granted Ivy Tech's motion and dismissed Hively's case with prejudice.Now represented by the Lambda Legal Defense......
  • Hamm v. Weyauwega Milk Products, Inc., No. 00-C-1283.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • May 9, 2002
    ...not protect employees from discrimination based upon sexual orientation,6 see, e.g., Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 & 707 (7th Cir.2000) ("harassment based solely upon a person's sexual preference or orientation (and not on one's sex) is not an unlaw......
  • Zarda v. Altitude Express, Inc., Docket No. 15-3775
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 26, 2018
    ...Cir. 2009) ; Medina v.Income Support Div. , 413 F.3d 1131, 1135 (10th Cir. 2005) ; Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc. , 224 F.3d 701, 704 (7th Cir. 2000) ; Higgins v. New Balance Athletic Shoe, Inc. , 194 F.3d 252, 259 (1st Cir. 1999) ;3 Wrightson v. Pizza Hut of Am., Inc.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT