Timothy Van Portfliet v. H&R Block Mortgage Corp.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 07-14516 ELEVENTH CIRCUIT
AUGUST 21, 2008
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 05-01474-CV-T-17-TGW
TIMOTHY VAN PORTFLIET,
Plaintiff-Appellant,
versus
H&R BLOCK MORTGAGE CORPORATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 21, 2008)
Before EDMONDSON, Chief Judge, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Timothy Van Portfliet appeals the district court’s grant
of Defendant-Appellee H&R Block’s (“H&R Block”) renewed motion for
judgment as a matter of law following the jury’s verdict in favor of Plaintiff on his
Title VII retaliation claim. No reversible error has been shown; we affirm.
Plaintiff filed suit against H&R Block asserting that H&R Block terminated
his employment in retaliation for his complaints that two other employees were
subjected to unlawful sexual and racial harassment, in violation of Title VII.
Plaintiff specifically reported to H&R Block’s human resources department that
one of his supervisees, Elizabeth Sylves, approached Plaintiff visibly upset and
reported to Plaintiff that Paul LaBarbera, a District Manager to whom Plaintiff
reported, had acted inappropriately toward Sylves at a company-sponsored off-
premises happy hour that Plaintiff had not attended. Sylves also told Plaintiff that
LaBarbera made a “racial slur” to an African-American employee; the content of
the comment characterized as a racial slur was not disclosed to Plaintiff. H&R
Block’s human resources department investigated the incidents brought to their
attention by Plaintiff. As a consequence of this investigation, LaBarbera was
terminated on 11 May 2005; on 3 June 2005, Plaintiff was terminated by
LaBarbera’s replacement.
At trial, Plaintiff testified that Sylves was visibly upset the day following
the LaBarbera incident and was unable initially to talk to him about it. Sylves told
Plaintiff ultimately that LaBarbera “put his arm around her, pulled her in to him,
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and said, ‘Why do you want to be with a loan officer like that when you can be
with me?’” And Sylves testified,
What I told Mr. Van Portfliet was is that I was at the
event and that I thought it was weird that Mr. LaBarbera,
who was the District Manager, made some what I felt
was inappropriate comments to me; and what I said was
is that a friend of mine put his arm around – or he put his
around me in front of a friend of mine and pointed to my
friend and said, Why would you want to be with him
when you can be with me? And what I said to Mr.
Plaintiff was I felt offended because I’m a married
woman, and I felt that he was insinuating something that
– and it hurt my feelings because I’m a happily married
woman, and that’s why I was – felt offended.1
Under the “opposition clause,” Title VII prohibits an employer from
retaliating against an individual because the individual “opposed any practice
made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-
3(a).2 To establish a Title VII retaliation claim under the opposition clause, a
1
On cross-examination Sylves denied that she was visibly upset about the LaBarbera incident;
she also affirmed that she did not ask Plaintiff to do anything about LaBarbera, she did not want
LaBarbera to suffer job consequences, she did not feel like she was being sexually harassed when
LaBarbera put his arm around her and made the comment about which she told Plaintiff, and she did
not feel that the comment made her working environment hostile or abusive or both. Sylves
reiterated that she felt LaBarbera’s comment was inappropriate and that it offended her and would
have offended her husband. In reviewing the grant of a motion for judgment as a matter of law, we
review the evidence and reasonable inferences that may be drawn from that evidence in the light
most favorable to the nonmoving party. See Rossbach v. City of Miami, 371 F.3d 1354, 1356 (11th
Cir. 2004). Where no legally sufficient evidentiary basis exists upon which a reasonable jury could
find for the non-moving party, judgment as a matter of law is due to be granted. Id.2
Under the “participation clause,” Title II protects an individual who “participated in any manner
in an investigation” under Title VII. See 28 U.S.C. § 2000-e-3(a). Plaintiff proceeded under the
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plaintiff must show, among other things, that he engaged in statutorily protected
expression. See Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir.
2002). And to satisfy the “statutorily protected expression” requirement, a
“plaintiff must show that [he] had a good faith, reasonable belief that the employer
was engaged in unlawful employment practices.” Id. (quotations and citations
omitted).
We have explained that a plaintiff must demonstrate both a subjective belief
that his employer engaged in unlawful employment practices, and that such belief
was objectively reasonable. See id. at 1312. “It thus is not enough for a plaintiff
to allege that his belief in this regard was honest and bona fide; the allegations and
record must also indicate that the belief, though perhaps mistaken, was objectively
reasonable.” Id. The reasonableness of the employee’s belief is measured against
existing substantive law. See Clover v. Total System Services, Inc., 176 F.3d
1346, 1351 (11th Cir. 1999). No actual unlawfulness is required but the opposed
conduct “must be close enough [to unlawful] to support an objectively reasonable
belief that it is.” Id.opposition clause; the participation clause has no application where an employee participates only
in an internal, in-house investigation conducted apart from a formal EEOC charge. See EEOC v.
Total Sys. Serv., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000).
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In granting H&R Block’s motion for judgment as a matter of law, the lower
court concluded that the evidence introduced at trial could support no objectively
reasonable belief that actionable sexual harassment had occurred. We agree.
“[S]exual harassment is actionable under Title VII only if it is so severe or
pervasive as to alter the conditions of the victim’s employment and create an
abusive working environment.” Clark County School Dist. v. Breeden, 121 S.Ct.
1508, 1509 (2001) (quotation, citations, and internal markings omitted). Whether
an environment is hostile or abusive turns on a review of all the circumstances,
including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Harris v. Forklift
Systems, Inc., 114 S.Ct. 367, 371 (1993). The Supreme Court has emphasized that
“[a] recurring point in [its] opinions is that ‘simple teasing,’ offhand comments,
and isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the ‘terms and conditions of employment.’” Faragher v. City of Boca
Raton, 118 S.Ct. 2275, 2283 (1998) (internal citation omitted).
The isolated incident between LaBarbera and Sylves occurred at a company-
related event offsite; it was preceded by and followed by no other offensive
conduct. LaBarbera’s comments – albeit arguably suggestive – were not overtly
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sexual and were not extremely serious; they constituted “simple teasing;” they
were “offhand comments” that, standing alone, no reasonable person could have
believed violated Title VII.3 No reasonable person could have found that Plaintiff
engaged in statutorily protected conduct when he reported the LaBarbera-Sylves
incident. See Clark County, 121 S.Ct. at 1510 (employee can not prevail on
retaliation claim where no reasonable person could have believed that the incident
constituted sexual harassment violating Title VII).4
Plaintiff makes passing reference to his claim that his report of racial
harassment constituted protected expression; he offers no argument or citations of
authority on this claim. Under our practice, we treat this claim as abandoned. See
Flanigan’s Enterprises, Inc. v. Fulton County, Ga., 242 F.3d 976, 987 n.16 (11th
Cir. 2001) (party waives a claim when the claim is undeveloped in the appellate
brief). Furthermore, even assuming the claim is preserved, it is without merit.
Sylves’s reference to a racial slur made by LaBarbera – the content of which was
undisclosed to Plaintiff – provided him with insufficient facts to support an
3
H&R Block makes no argument challenging Plaintiff’s subjective beliefs.
4
Plaintiff relies on Sullivan v. National R.R. Passenger Corp., 170 F.3d 1056 (11th Cir. 1999)
for his contention that the single incident about which he complained could support a reasonable
belief that sexual harassment had occurred. But in Sullivan we said that no dispute had been raised
on the issue of protected expression. 170 F.3d at 1059. Sullivan concluded that a jury’s rejection
of a plaintiff’s sexual harassment claim was not dispositive of the plaintiff’s retaliation claim; we
proceeded to examine the causality element of the retaliation claim.
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objectively reasonable belief that racial harassment had occurred; Plaintiff
engaged in no statutorily protected opposition. See Harris, 114 S.Ct. at 370 (the
mere utterance of an epithet which causes bad feelings is insufficient to implicate
Title VII). And, again, because reporting the undisclosed racial slur failed to
satisfy the statutorily protected expression requirement, that expression can
support no retaliation claim as a matter of law.
AFFIRMED.
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