Milligan v. Board of Trustees of Southern Illinois University

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3862
S AMUEL M ILLIGAN,
Plaintiff-Appellant,
v.
B OARD OF T RUSTEES OF
S OUTHERN ILLINOIS U NIVERSITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09 CV 320—J. Phil Gilbert, Judge.
A RGUED D ECEMBER 2, 2011—D ECIDED JULY 10, 2012
Before
R IPPLE and R OVNER, Circuit Judges, and
F EINERMAN, District Judge.Œ
F EINERMAN, District Judge. Samuel Milligan, then a
freshman at Southern Illinois University (“SIU”), had
Œ
The Honorable Gary Feinerman, of the Northern District of
Illinois, sitting by designation.
2 No. 10-3862
three uncomfortable encounters with Dr. Cal Meyers—
a professor emeritus at, and substantial donor to, SIU—
in which Meyers touched Milligan inappropriately and
complimented him on what Meyers believed to be his
feminine features. Milligan sued SIU under Title VII
and Title IX for creating a hostile work and educational
environment and also for retaliating against him for
complaining about Meyers’ harassment. The district
court granted summary judgment to SIU, Milligan ap-
pealed, and we affirm.
I. Background
The procedural posture requires us to state the facts as
favorably to Milligan as the record permits. See O’Leary v.
Accretive Health, Inc., 657 F.3d 625, 631 (7th Cir. 2011). We
emphasize that no endorsement of any fact regarding
Meyers—who, as a non-party, has had no occasion in
this case to dispute Milligan’s accusations—is intended.
Milligan enrolled at SIU in Fall 2007 as a chemistry
major. He decided to participate in SIU’s student em-
ployment program and was hired by Chris Kraft to
work in the chemical stockrooms at Neckers Hall,
the home of the Chemistry Department. Meyers was a
seventy-nine-year-old professor emeritus and Director of
the eponymous Meyers Institute for Interdisciplinary
Research in Organic and Medicinal Chemistry, which
had been established in 2000 with a $2.5 million dona-
tion from Meyers. Meyers no longer taught students and
had no supervisory or other authority over Milligan.
No. 10-3862 3
On October 4, 2007, when Milligan was working in the
first floor stockroom, which was directly across the hall
from Meyers’ office, Milligan encountered Meyers in the
hallway. Meyers told Milligan that his hair would make
him “a very sexy lady,” and then giggled and squeezed
Milligan’s buttocks. The encounter lasted four to five
seconds. Milligan reported the incident to Kraft, his
supervisor, who said that this sounded like something
Meyers would do. Kraft asked Milligan if he wanted to
talk to someone about the incident and offered to ac-
company Milligan if he did. Milligan declined. At
that time, SIU’s sexual harassment policy required any
supervisor who received a written or oral complaint to
“take necessary action to resolve the complaint
promptly” and to consult the Affirmative Action Office
to determine the appropriate course of action.
On October 11, 2007, Meyers approached Milligan in
the stockroom and asked where he could rent hair like
Milligan’s because it would look “pretty sexy on a lady.”
Meyers said that he would date Milligan if he were a
woman, laughed, and then left. The encounter lasted
about twenty to thirty seconds. After learning of
this encounter, Milligan’s mother called the Chemistry
Department and arranged to meet the next day
with Dr. Gary Kinsel, the Department Chair. Prior to
the meeting, Kinsel notified Dr. John Koropchak—the
Vice Chancellor for Research and Graduate Dean, and
the individual responsible for supervising the Meyers
Institute—of the situation.
At his meeting with the Milligans, Kinsel said that
Meyers was an old man with a compromised mental
4 No. 10-3862
state who could not be held accountable for his actions,
that he had once been a greatly admired scientist and
an asset to the university, and that he had no family and
that SIU was his life. Kinsel added that while he had
no disciplinary authority over Meyers, Koropchak did
have that authority and would meet with the Milligans
as soon as he could. Kinsel reviewed SIU’s sexual harass-
ment policy with the Milligans. Kinsel was not familiar
with the policy before the meeting and incorrectly
believed that sexual harassment complaints must be
submitted in writing. Milligan found Kinsel to be recep-
tive to his complaint and did not believe that Kinsel
was brushing him off.
Milligan’s mother then contacted Marcia Phelps from
SIU’s Affirmative Action and Equal Employment Oppor-
tunity Office. Phelps encouraged Milligan’s mother to
meet with Koropchak and to tell him that they wished
to proceed with a formal complaint. Phelps also asked
Milligan’s mother to call back after the meeting with
Koropchak.
In the meantime, Kinsel and Kraft assigned Milligan to
the second floor stockroom, where he had worked prior
to the first incident with Meyers and where he would
be less likely to encounter Meyers. Milligan did not
object to the assignment and worked the same number
of hours. On October 16, 2007, however, Milligan en-
countered Meyers on the stairs between the first and
second floors. Meyers giggled and told Milligan that he
would “look sexy as a girl” because of his hair. Meyers
also grabbed Milligan near the belt line with his index
No. 10-3862 5
finger and thumb; because Milligan wore his jeans low,
the grab “was very close to [his] genital area” and made
him “very uncomfortable.” The encounter lasted about
six seconds.
Koropchak’s meeting with the Milligans took place
a day later. At the outset, Koropchak told them about
Meyers’ great stature at SIU and the $2.5 million dona-
tion. After Milligan detailed Meyers’ inappropriate be-
havior, Koropchak asked whether there were any wit-
nesses, and Milligan responded that there were none.
Koropchak told Milligan that it would be his word
against Meyers’ and asked Milligan four or five times
whether he was sure that he wanted to proceed with a
formal complaint. The Milligans felt that Koropchak’s
statements and questions implied that he was disinter-
ested, did not believe them, and wanted them to drop
the complaint. But Milligan insisted on pursuing a com-
plaint, and Koropchak said that he would begin an in-
vestigation and advised Milligan to avoid Meyers in
the interim.
Shortly after the meeting, Koropchak met with Meyers
and told him that a student had complained and that
his behavior would be monitored. On October 26, the
Milligans contacted Lynn Connley, an SIU ombudsman,
to inquire about the investigation. Connley checked in
with Koropchak, but before Connley could call the
Milligans back, Koropchak contacted the Milligans to
give them an update.
During his investigation, Koropchak learned that
Meyers had previously harassed a female Chemistry
Department employee. The employee said that Meyers
6 No. 10-3862
“constantly comment[ed] about [her] clothing” and
touched her in an “inappropriate” manner several times,
including grabbing her by the waist, rubbing his
head against her body, and poking her breast. The em-
ployee, however, had declined to pursue a formal com-
plaint against Meyers.
At the conclusion of his investigation of Milligan’s
complaint, Koropchak concluded that Meyers had
violated SIU’s sexual harassment policy and, on Novem-
ber 8, 2007, issued a letter of reprimand. The letter
directed Meyers to cease all contact with student
workers and to attend sexual harassment training by
December 1, 2007. The letter warned Meyers that
future violations or failure to comply with the letter
could result in his termination as Director of the Meyers
Institute and revocation of his university privileges.
Meyers then commenced efforts to determine
who had reported him. He offered money to Kraft,
but Kraft refused to tell. On January 28, 2008, Meyers
asked Milligan whether he had complained; Milligan
mumbled and excused himself. The next day, Milligan’s
mother told SIU about that encounter. SIU also dis-
covered that Meyers had not completed the sexual harass-
ment training. (While Meyers may have attempted
to negotiate away the training requirement, there is no
evidence that SIU relieved him of that obligation.) In a
letter dated January 31, 2008, SIU Chancellor Fernando
Treviño banned Meyers from campus pending comple-
tion of a new investigation and warned that he would
be subject to arrest for trespassing if he appeared on
No. 10-3862 7
university property. Milligan saw Meyers on campus
over twenty times after the ban was imposed. SIU’s
public safety personnel escorted Meyers off campus
each time they became aware of his presence but, on
instructions from the Director of Public Safety, he was
not arrested.
In February or March 2008, Milligan decided to
change his major from chemistry to creative writing. One
motivating factor was his desire to get out of Neckers
Hall, where he continued to see Meyers. In April 2008,
Kraft informed Milligan that he could not continue to
work in the chemical stockrooms come Fall 2008. Kraft
testified that his decision was prompted by Milligan’s
waning interest in the job and poor work performance.
Milligan had requested fewer hours to allow him to
study more, leaving him with only one working day
per week. Making matters worse, Milligan had called
in sick two times and missed one day without notifying
Kraft, and also had an accident with a liquid nitrogen
canister. Milligan was able to gain university employ-
ment in Fall 2008 with the Graduate School’s admis-
sions office and the university’s ticket office.
The foregoing events gave rise to two lawsuits. In
August 2008, Meyers brought suit against SIU and
Koropchak, alleging violations of federal and state law
related to the sexual harassment investigation and
Meyers’ expulsion from campus. See Meyers v. S. Ill. Univ.,
No. 3:08-cv-556-MJR-CJP (S.D. Ill.). The district court
dismissed Meyers’ suit, see Meyers v. S. Ill. Univ., 2009 WL
3719392 (S.D. Ill. Nov. 5, 2009); Meyers v. S. Ill. Univ., 2009
8 No. 10-3862
WL 2046061 (S.D. Ill. July 10, 2009), and an appeal of that
judgment is pending in No. 09-3931.
In April 2009, Milligan brought this suit against SIU
under Title VII for subjecting him to a hostile work envi-
ronment, under Title IX for subjecting him to a hostile
educational environment, and under both statutes for
terminating him from his chemical stockroom job in
retaliation for complaining about Meyers. The district
court granted summary judgment to SIU on all claims.
2010 WL 2649917 (S.D. Ill. June 30, 2010), reconsideration
denied, 2010 WL 4818387 (S.D. Ill. Nov. 16, 2010). This
appeal followed.
II. Discussion
A. Hostile Work/Educational Environment Claims
Title VII makes it unlawful for an employer “to dis-
criminate against any individual with respect to his
compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s . . . sex.” 42 U.S.C.
§ 2000e-2(a)(1). To succeed on his Title VII hostile work
environment claim against SIU, Milligan must prove
“(1) that [his] work environment was both objectively
and subjectively offensive; (2) that the harassment was
based on [his sex]; (3) that the conduct was either
severe or pervasive; and (4) that there is a basis for em-
ployer liability.” Vance v. Ball State Univ., 646 F.3d 461,
469 (7th Cir. 2011). Assuming without deciding that
Milligan adduced evidence sufficient to satisfy the
first three elements, his claim falters on the fourth.
No. 10-3862 9
Because Meyers was not Milligan’s supervisor, SIU
can be held liable for Meyers’ harassment only if Milligan
proves that SIU was “negligent either in discovering
or remedying the harassment.” Id. at 470; see generally
Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). An employer
is negligent if it does not “promptly and adequately
respond to [the] harassment.” Sutherland v. Wal-Mart Stores,
Inc., 632 F.3d 990, 994 (7th Cir. 2011). “[W]hat is [a] rea-
sonable [response] depends on the gravity of the harass-
ment. . . . [A]n employer is required to take more care,
other things being equal, to protect its . . . employees
from serious sexual harassment than to protect them
from trivial harassment.” Baskerville v. Culligan Int’l Co.,
50 F.3d 428, 431-32 (7th Cir. 1995); see also Erickson v.
Wis. Dep’t of Corr., 469 F.3d 600, 606 (7th Cir. 2006). While
Meyers’ demeaning comments and touching might be
enough to constitute severe or pervasive harassment
under Title VII, they did not rise to the level (e.g., sexual
assault or sexual quid pro quo) that would have
required SIU to take drastic action, such as a same-day
investigation and termination of Meyers. See Smith v.
Sheahan, 189 F.3d 529, 535 (7th Cir. 1999); McKenzie v.
Ill. Dep’t of Transp., 92 F.3d 473, 481 (7th Cir. 1996); Basker-
ville, 50 F.3d at 432. Given the facts and circumstances
before it, SIU’s response was appropriately prompt
and entirely reasonable.
Kraft was the first university official to learn of the
harassment. He offered to accompany Milligan to talk to
other university officials about the incident, but Milligan
declined. Kraft’s decision not to pursue the matter was
10 No. 10-3862
reasonable in light of Milligan’s declination. See Jackson
v. Cnty. of Racine, 474 F.3d 493, 501-02 (7th Cir. 2007)
(holding that an employer did not act unreasonably
where it had notice of a supervisor’s sexual harassment
but took no action for three months because no victim
wished to lodge a formal complaint). Kinsel was the
next university official to be informed. Because he had
no authority over Meyers, Kinsel immediately notified
Koropchak, who did have that authority. Kinsel also
arranged with Kraft to have Milligan work in the
second floor stockroom instead of the first floor stock-
room, which was across the hall from Meyers’ office;
this is significant, as Milligan had experienced no
negative encounters with Meyers while working in the
second floor stockroom. Koropchak met with Milligan
and his mother five days later. When Milligan de-
cided to pursue his complaint, Koropchak immediately
warned Meyers and conducted an investigation; three
weeks later, Koropchak issued a letter of reprimand,
requiring Meyers to attend sexual harassment training
and forbidding him from contact with student workers.
When SIU later learned that Meyers had contacted
Milligan and had not completed training, the Chancellor
banned Meyers from campus. And when Meyers con-
tinued to appear on campus, the university police
removed him.
SIU’s response is on par with employer responses
held reasonable in several of our cases. See Sutherland,
632 F.3d at 995 (where the employer reprimanded
the harasser and ensured that the harasser’s and the
harassed’s schedules overlapped only ninety minutes per
No. 10-3862 11
week); Roby v. CWI, Inc., 579 F.3d 779, 786 (7th Cir. 2009)
(where the employer required the harasser to attend
training classes and minimized the overlap between the
harasser’s and the harassed’s work schedules); Berry v.
Delta Airlines, Inc., 260 F.3d 803, 812-13 (7th Cir. 2001)
(where the employer investigated the allegations and,
within a month, required the harasser to watch a
training video and ensured that the harasser’s and the
harassed’s work schedules overlapped only ninety
minutes per day); McKenzie, 92 F.3d at 480-81 (where
the employer issued a memorandum to all employees
regarding sexual harassment and prohibited the
harasser from contacting the harassed); Saxton v. AT&T
Co., 10 F.3d 526, 535-36 (7th Cir. 1993) (where the
employer completed the investigation in two weeks
and took action within five weeks, transferring the
harasser to a different department). Milligan offers
three reasons why this case warrants a different result.
Each fails to persuade.
First, Milligan contends that Kinsel and Koropchak
attempted to discourage him from pursuing his
complaint against Meyers. Kinsel told the Milligans that
Meyers once had been a great professor and could not
be held responsible for his conduct due to his compro-
mised mental state; Koropchak asked Milligan whether
there were any witnesses to the alleged harassment,
made him repeatedly affirm that he wanted to pursue
a complaint, and emphasized Meyers’ importance to
SIU. Drawing reasonable inferences in Milligan’s favor,
the record supports the notion that Kinsel and
Koropchak attempted to discourage Milligan from pur-
12 No. 10-3862
suing the matter because it would embarrass and harm
an important member of the university community.
In some cases, such discouragement might be suf-
ficient to render an employer’s response unreasonable,
especially if coupled with a stalled or biased investiga-
tion. See Vance, 646 F.3d at 472 (the reasonableness of
an employer’s investigation may be a jury question
where the investigation was biased, with “all ties [going]
to the discriminator”); Porter v. Erie Foods Int’l, Inc., 576
F.3d 629, 636 (7th Cir. 2009) (“a prompt investigation is
the hallmark of a reasonable corrective action”) (internal
quotation marks omitted); Smith, 189 F.3d at 535 (“Just
as an employer may escape liability even if harassment
recurs despite its best efforts, so it can also be liable if
the harassment fortuitously stops, but a jury deems its
response to have fallen below the level of due care.”). Not
so here. The record indisputably shows that two other
SIU officials were quite helpful in shepherding the
Milligans through the complaint process. Phelps, from
the Affirmative Action and Equal Employment Oppor-
tunity Office, provided guidance regarding the com-
plaint process and encouraged the Milligans to pursue
a formal complaint. Connley, the ombudsman, coun-
seled Milligan and served as an intermediary between
Koropchak and Milligan. Moreover, despite their ap-
parent discouragement of Milligan’s complaint, Kinsel’s
and Koropchak’s responses were otherwise reasonable
and effective.
Regardless of what he said at his meeting with
the Milligans, Kinsel set the investigative machinery
No. 10-3862 13
in motion before the meeting by referring Milligan’s al-
legations to Koropchak, the official with disciplinary
authority over Meyers. Kinsel also arranged for Milligan
to work exclusively in the second floor stockroom, away
from Meyers’ office on the first floor. For his part, after
confirming that Milligan wished to proceed, Koropchak
immediately warned Meyers and promptly investigated
the matter, completing the investigation and taking
remedial action about three weeks later. See Porter,
576 F.3d at 636. The record indisputably shows that
neither Kinsel nor Koropchak stalled SIU’s handling of
Milligan’s charge in any way. Also, the record contains
no evidence that the investigation was biased against
Milligan. Cf. Vance, 646 F.3d at 472. To the contrary, SIU
vindicated Milligan’s complaint by determining that
Meyers had violated its sexual harassment policy, by
prohibiting him from contact with students, and, when
Meyers refused to comply, by banning him from cam-
pus. Cf. EEOC v. Mgmt. Hospitality of Racine, Inc., 666
F.3d 422, 434-36 (7th Cir. 2012) (holding that manage-
ment’s failure to investigate and report incidents of
sexual harassment made the employer’s response unrea-
sonable).
Second, Milligan contends that SIU’s response was
ineffective because it did not prevent all contact between
him and Meyers. This argument fails because SIU was
not required to completely insulate Milligan from
Meyers. See Sutherland, 632 F.3d at 995 (holding that
the employer’s response was reasonable even where the
harassed employee periodically had to work in the
harasser’s general vicinity); Roby, 579 F.3d at 786 (same);
Berry, 260 F.3d at 813 (same). Rather, the law required
14 No. 10-3862
only that SIU’s response be “reasonably likely to pre-
vent future harassment.” Parkins v. Civil Constructors
of Ill., Inc., 163 F.3d 1027, 1036 (7th Cir. 1998); see also
Vance, 646 F.3d at 471; Saxton, 10 F.3d at 536 (“Whatever
reasons there might be for the company’s failure to
take additional steps . . . are irrelevant absent evidence
suggesting that the [action taken] was not reasonably
likely to prevent the harassment from recurring.”). As
the above-cited precedents establish, the assignment
of Milligan to the second floor stockroom, the repri-
mand, the training requirement, and the good faith
efforts to minimize Meyers’ contact with Milligan were
sufficient under the circumstances. In fact, after
Koropchak’s meeting with the Milligans, Milligan
suffered no further sexual harassment. See Porter, 576
F.3d at 637 (“There is no question that a stoppage of
harassment shows effectiveness.”) (internal quotation
marks omitted); Smith, 189 F.3d at 535.
Nor is there any evidence that SIU’s response was
an unenforced sham. When SIU discovered that Meyers
had not completed the required sexual harassment
training and had contacted Milligan to ask whether he
was the complainant, the Chancellor punished Meyers
further, banning him from campus. SIU enforced this
ban and removed Meyers from campus whenever he
was seen. At most, SIU might be faulted for not
following up sooner to see if Meyers had completed the
training. Still, SIU’s overall response—the investigation,
the prohibition on contact with students, the imposi-
tion of the training requirement, and, ultimately, the ban
from campus—comprised a reasonable response to the
No. 10-3862 15
events as they unfolded. See Saxton, 10 F.3d at 536.
No reasonable jury could find that SIU’s failure to im-
mediately learn of Meyers’ noncompliance with the
training requirement rendered its response patently
ineffective or a sham.
Our dissenting colleague maintains that a jury could
find that Koropchak’s letter of reprimand was an insuffi-
cient response in light of Meyers’ “earlier history of
untoward conduct, a history that had persisted despite
an earlier letter of reprimand, an earlier encounter
with another student and numerous other informal
complaints by staff members.” Dissenting op. 28-29. We
doubt that Meyers’ alleged history of improper conduct
is properly considered in evaluating the reasonableness
of SIU’s response. As an initial matter, Milligan’s appel-
late brief affirmatively maintains that “Milligan is the
only person who complained of sexual harassment by
Dr. Meyers.” Milligan Br. 12; see also id. at 11, 18 (arguing
that evidence regarding Meyers’ supposed harassment
of a female Chemistry Department employee is “inad-
missible hearsay”). It is true, as the dissent observes, that
Milligan made this point in addressing a different
issue, i.e., whether Meyers was an “equal opportunity”
harasser and thus whether his harassment of Milligan
was based on sex. But still, having argued for that pur-
pose that he was “the only person who complained of
sexual harassment by Dr. Meyers,” it would have lain
poorly in Milligan’s mouth to switch gears and argue, for
the purpose of challenging the adequacy of SIU’s re-
sponse to his situation, that he was not the only person
to have complained of Meyers’ harassment.
16 No. 10-3862
As it turns out, Milligan did not make that argument,
either here or in the district court. His failure to do so
forfeits the argument. See Escobar v. Holder, 657 F.3d
537, 548 (7th Cir. 2011) (“the government did not argue
this and so this point is forfeited”); United States v. Bullock,
632 F.3d 1004, 1014 n.1 (7th Cir. 2011) (“because the
government did not argue that there was probable cause
to justify the pre-search detention, . . . it has forfeited
that argument.”). The dissent maintains that there is
no forfeiture because “Milligan raised adequately the
argument that the University’s response to Meyers’s
attacks was inadequate . . .” Dissenting op. 29 n.4. But as
we have held on several occasions, the forfeiture doctrine
applies not only to a litigant’s failure to raise a general
argument—here, that SIU’s response was inadequate,
rendering it liable for Meyers’ harassment—but also to a
litigant’s failure to advance a specific point in support of a
general argument—here, that SIU’s response was inade-
quate due, in part, to Meyers’ earlier history of untoward
conduct. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th
Cir. 2012) (“We have also recognized that raising an issue
in general terms is not sufficient to preserve specific
arguments that were not previously presented.”) (citing
Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 841 (7th
Cir. 2010)); Hannemann v. S. Door Cnty. Sch. Dist., 673
F.3d 746, 754 (7th Cir. 2012) (“a party ‘waive[s] the ability
to make a specific argument for the first time on appeal
when the party failed to present that specific argument
to the district court, even though the issue may have
been before the district court in more general terms’ ”)
(quoting Fednav Int’l Ltd., 624 F.3d at 841) (alteration in
No. 10-3862 17
original); Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th
Cir. 2011) (“[w]e apply [the forfeiture] rule where a
party fails to develop arguments related to a discrete
issue”); Domka v. Portage Cnty., Wis., 523 F.3d 776, 783 n.11
(7th Cir. 2008) (citing Libertyville Datsun Sales, Inc. v.
Nissan Motor Corp., 776 F.2d 735, 737 (7th Cir. 1985), for
the proposition that “where a party raises a specific
argument for the first time on appeal, it is waived even
though the ‘general issue’ was before the district court”);
4901 Corp. v. Town of Cicero, 220 F.3d 522, 529 (7th Cir.
2000) (same).
In any event, whatever history of “untoward conduct”
Meyers might have had did not render Koropchak’s
reprimand letter an insufficient response to the situa-
tion before him. In 1995, Koropchak issued a letter of
reprimand to Meyers for telling offensive jokes that
may have been sexual in nature. The record contains
no evidence of any other inappropriate conduct until
2005, when several students and staff members in-
formally complained about Meyers’ behavior. However,
it appears from the record that those students and staff
members—including the female Chemistry Department
employee referenced above—declined to pursue their
complaints. Against this backdrop, Koropchak’s deci-
sion to issue a reprimand letter was reasonably likely to
prevent future harassment. After all, the 1995 letter
had been effective—it curbed offensive behavior by
Meyers for ten years.
Third, Milligan notes that Kraft, Kinsel, and Koropchak
were poorly versed in SIU’s sexual harassment policy
18 No. 10-3862
and did not follow it properly. While that appears to be
true to some degree, “[o]ur focus . . . is on whether [SIU]
responded promptly and effectively to the incident,”
Porter, 576 F.3d at 636, not on whether it complied with
its own internal policy. The failure to follow internal
policy does not matter so long as the employer’s re-
sponse is otherwise reasonable under Title VII, which
it was here. See generally Restatement (Third) of Torts:
Phys. & Emot. Harm. § 13 cmt. f (2010) (evidence of
internal standards “does not set a higher standard of
care for the actor”).
In holding that SIU is entitled to judgment on the
Title VII claim, we acknowledge and share our dissenting
colleague’s concern with the vulnerability of Milligan
and student workers like him. That said, the approach
recommended by the dissent—made manifest by its
suggestion that although SIU’s actions might have been
sufficient in some employment situations, it was insuf-
ficient where the plaintiff is a student working on a
college campus—would threaten to carve a higher stan-
dard of protection for student workers than for other
plaintiffs. We do not believe it is necessary to take this
step. A breach of trust in a student work environment
indeed can have dire consequences, but so can breaches
of trust in a myriad of situations, such as those
involving interns, probationary workers, recent hires
desperate to attain long-term employment, or more
experienced workers not wanting to jeopardize their
pensions. Many if not most harassment cases involve
allegations that someone in a position of power harassed
someone else for whom job retention is an important if
No. 10-3862 19
not paramount consideration. The ordinary standards
governing sexual harassment claims take account of
this dynamic, and thus need no modification when
the plaintiff is a student worker.
Because summary judgment is warranted under Title
VII, the Title IX harassment claim requires little discus-
sion. SIU can be held liable under Title IX for Meyers’
harassment only if it acted with “deliberate indifference.”
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998);
see also Doe-2 v. McClean Cnty. Unit Dist. No. 5 Bd. of
Dirs., 593 F.3d 507, 512 (7th Cir. 2010). Deliberate indif-
ference is a more exacting standard than the negligence
standard governing employer liability under Title VII.
See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011)
(“Deliberate indifference is more than negligence and
approaches intentional wrongdoing.”) (internal quota-
tion marks omitted). Thus, the fact that SIU’s response
was reasonable under Title VII necessarily absolves it
of liability under Title IX.
B. Retaliation Claims
Title VII forbids an employer from discriminating
against an employee who “opposed any practice” prohib-
ited by Title VII or who “made a charge, testified,
assisted, or participated in any manner in an investiga-
tion, proceeding, or hearing under [Title VII].” 42 U.S.C.
§ 2000e-3(a). “The antiretaliation provision seeks to
prevent employer interference with ‘unfettered access’ to
Title VII’s remedial mechanisms . . . by prohibiting em-
ployer actions that are likely ‘to deter victims of discrimi-
20 No. 10-3862
nation from complaining to the EEOC,’ the courts, and
their employers.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006) (quoting Robinson v. Shell Oil Co.,
519 U.S. 337, 346 (1997)). Title IX’s prohibition on dis-
crimination “on the basis of sex” likewise covers “retali-
at[ion] against a person because he complains of sex dis-
crimination.” Jackson v. Birmingham Bd. of Educ., 544
U.S. 167, 174 (2005).
Milligan may forestall summary judgment on his
Title VII retaliation claim through the direct or indirect
methods of proof. See Turner v. The Saloon, Ltd., 595
F.3d 679, 687-88 (7th Cir. 2010). Milligan pursues only
the direct method on appeal. Under that method, Milligan
“must present evidence of (1) a statutorily protected
activity; (2) a materially adverse action taken by the
employer; and (3) a causal connection between the two.”
Id. at 687 (internal quotation marks omitted); see also
Coleman v. Donahoe, 667 F.3d 835, 859 (7th Cir. 2012). The
Title VII retaliation framework applies with equal force
to retaliation claims brought under Title IX. See Papelino
v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 91
(2d Cir. 2011); Lucero v. Nettle Creek Sch. Corp., 566 F.3d
720, 728-30 (7th Cir. 2009); Frazier v. Fairhaven Sch. Comm.,
276 F.3d 52, 67 (1st Cir. 2002). The district court correctly
held that Milligan’s retaliation claims founder on the
third element, causation.
Milligan can establish causation at the summary judg-
ment stage by showing that his complaints about Meyers
“were a substantial or motivating factor” in SIU’s de-
cision to inform Milligan in April 2008 that he could not
No. 10-3862 21
return to his chemical stockroom position in Fall 2008.
Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668,
675 (7th Cir. 2011) (internal quotation marks omitted).
“This may be done via direct evidence, which would
entail something akin to an admission by the employer
(’I’m firing you because you had the nerve to accuse me
of sex discrimination!’).” Coleman, 667 F.3d at 860 (some
internal quotation marks omitted); see also Nagle v. Vill. of
Calumet Park, 554 F.3d 1106, 1114 (7th Cir. 2009). Direct
evidence is “rare indeed,” ibid., and Milligan presents
none here. Causation also may be established “by pre-
senting a ‘convincing mosaic’ of circumstantial evidence
that would permit the same inference [of retaliation]
without the employer’s admission.” Coleman, 667 F.3d
at 860 (some internal quotation marks omitted). Such
circumstantial evidence may consist of (1) “suspicious
timing, ambiguous statements oral or written, behavior
toward or comments directed at other employees in
the protected group, and other bits and pieces from
which an inference of causation might be drawn,”
(2) “evidence showing that the employer systematically
treated other, similarly situated . . . employees better,” or
(3) “evidence that . . . the employer’s justification [for
the adverse action was] pretextual.” Silverman v. Bd. of
Educ. of City of Chicago, 637 F.3d 729, 734 (7th Cir. 2011)
(internal quotation marks omitted); see also Coleman, 667
F.3d at 860. The appropriate focus “is not whether the
evidence offered is direct or circumstantial but rather
whether the evidence points directly to a discriminatory
reason for the employer’s action.” Atanus v. Perry, 520
F.3d 662, 671 (7th Cir. 2008) (internal quotation marks
22 No. 10-3862
omitted); see also Davis v. Time Warner Cable of Se. Wis.,
L.P., 651 F.3d 664, 672 (7th Cir. 2011).
Milligan relies on three pieces of circumstantial
evidence to establish causation: (1) the suspicious timing
between his October 2007 and January 2008 complaints
about Meyers, on the one hand, and Kraft’s informing
him in April 2008 that he would not be retained in the
chemical stockrooms in Fall 2008, on the other; (2) the
fact that SIU hired him to work in the Graduate School’s
admissions office and the university’s ticket office in
Fall 2008 despite his supposedly poor performance in
the chemical stockrooms; and (3) the fact that Milligan
is the only student for whom Kraft ever conducted a
performance review. Milligan forfeited any reliance on
the second and third pieces of evidence because he did
not raise them in his district court brief opposing sum-
mary judgment. See Liberles v. Cook Cnty., 709 F.2d 1122,
1126 (7th Cir. 1983) (“It is a well-settled rule that a
party opposing a summary judgment motion must
inform the trial judge of the reasons, legal or factual,
why summary judgment should not be entered. If it
does not do so, and loses the motion, it cannot raise
such reasons on appeal.”); see also Chi. Reg. Council of
Carpenters v. Vill. of Schaumburg, 644 F.3d 353, 356 (7th
Cir. 2011) (same); India Breweries, Inc. v. Miller Brewing Co.,
612 F.3d 651, 659 n.2 (7th Cir. 2010) (same); Amrhein v.
Health Care Serv. Corp., 546 F.3d 854, 859 (7th Cir. 2008)
(same); Domka, 523 F.3d at 783 (same).
The second and third pieces of evidence are
immaterial in any event. There is no evidence that
No. 10-3862 23
those who hired Milligan in Fall 2008 knew why he no
longer worked in the chemical stockrooms; even if they
had such knowledge, poor performance in the
chemical stockrooms does not necessarily predict poor
performance in the less dangerous positions Milligan
assumed in the admissions and ticket offices. Thus,
Milligan’s hiring in Fall 2008 does not give rise to a rea-
sonable inference that he was fired for reasons other
than poor performance. The same holds for the fact
that Milligan is the only employee that Kraft ever
subjected to a performance review. For all the record
shows, Kraft conducted a performance review because
Milligan deserved it. There is no evidence that Kraft
had other employees with comparable performance
problems—weak attendance and accidents with
dangerous materials—who were equally deserving of a
performance review but did not receive one.
That leaves only timing. In egregious cases, suspicious
timing alone might create a triable issue on causation.
See Loudermilk v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir.
2011) (“Occasionally, . . . an adverse action comes so
close on the heels of a protected act that an inference
of causation is sensible.”); Boumehdi v. Plastag Holdings,
LLC, 489 F.3d 781, 793 (7th Cir. 2007). But it rarely does.
See Coleman, 667 F.3d at 860 (“We have often invoked
the general rule that temporal proximity between an
employee’s protected activity and an adverse employ-
ment action is rarely sufficient to show that the former
caused the latter.”) (internal quotation marks omitted);
Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 905 (7th Cir.
2005) (“suspicious timing alone rarely is sufficient to
24 No. 10-3862
create a triable issue”); Wyninger v. New Venture Gear,
Inc., 361 F.3d 965, 981 (7th Cir. 2004) (“ ‘mere temporal
proximity’ is not enough to establish a genuine issue of
material fact”). Under ordinary circumstances, “[c]lose
temporal proximity provides evidence of causation and
may permit a plaintiff to survive summary judgment
provided that there is other evidence that supports the
inference of a causal link.” Scaife v. Cook Cnty., 446 F.3d
735, 742 (7th Cir. 2006) (internal quotation marks
omitted, emphasis added).
This is not the rare case where temporal proximity
alone creates a triable issue on causation. Milligan
received notice in April 2008 that he would not retain
his chemical stockroom position; that was approximately
six months after his last sexual harassment complaint
in October 2008, and over two months after his com-
plaint in January 2008 that Meyers contacted him in
violation of the letter of reprimand. We previously
have held that a seven-week interval, standing alone, is
insufficient to create a material issue regarding causa-
tion. See Argyropoulos v. City of Alton, 539 F.3d 724, 734
(7th Cir. 2008). The same result is warranted here, par-
ticularly given that SIU put forth strong and uncontra-
dicted evidence that Kraft had good cause to decline
to invite Milligan to return in Fall 2008—Milligan’s
waning interest in the chemical stockroom job and the
accident with the liquid nitrogen canister.
No. 10-3862 25
III. Conclusion
Meyers’ treatment of Milligan—assuming it oc-
curred as Milligan says—was despicable. If a comparable
situation were to arise in the future, SIU would be well-
advised to focus solely on whether the accusation is
valid and not at all on the accused’s stature on campus.
But as shown above, SIU responded reasonably to
Milligan’s complaints about Meyers, and on this record
a reasonable jury could not find SIU liable on his harass-
ment claims. Nor could a reasonable jury find for
Milligan on his retaliation claims.
A FFIRMED.
R IPPLE, Circuit Judge, dissenting. This case presents
many close questions of fact assessment and therefore
presents a jury question. Accordingly, I would reverse the
judgment of the district court and remand the case for
further proceedings.1
1
Since my colleagues in the majority have pretermitted any
discussion of the other requirements of a sexual harassment
claim, I shall not elaborate on the merits of these elements.
Suffice it to say that, upon examination of the record and the
(continued...)
26 No. 10-3862
It is well-established that an employer is liable for a
hostile work environment created by an employee
when the employer does not respond promptly and
adequately to employee harassment. Sutherland v. Wal-
Mart Stores, Inc., 632 F.3d 990, 994 (7th Cir. 2011); Porter
v. Erie Foods Int’l, Inc., 576 F.3d 629, 636 (7th Cir. 2009).
Just as the severity and the pervasiveness of harassment
must be assessed in light of all the circumstances, see
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993),
the assessment of whether a response to that harassment
has been prompt and adequate must take into account
all the facts and circumstances, see Berry v. Delta Airlines,
Inc., 260 F.3d 803, 811 (7th Cir. 2001) (noting that we
must “ ‘determine whether the employer’s total response
was reasonable under the circumstances as then ex-
isted’ ”) (quoting McKenzie v. Illinois Dep’t of Transp., 92
F.3d 473, 480 (7th Cir. 1996)).
The majority opinion suggests that the response in the
present case can be justified because it is “on par” with
1
(...continued)
relevant case law, I am convinced, as my colleagues assume,
that the other elements have been met. I note that the record
in this case supports Mr. Milligan’s theory that he was the
object of the behavior in question because the perpetrator
regarded him as not possessing the physical attributes usually
attributed to someone of the male sex. Price Waterhouse v.
Hopkins, 490 U.S. 228, 250-52 (1989) (plurality opinion) (woman
harassed because she was perceived as being not sufficiently
feminine), superseded in part by statute, Civil Rights Act of
1991, Pub. L. No. 102-166, 105 Stat. 1074.
No. 10-3862 27
responses determined to be prompt and adequate in
other circumstances. Majority Op. at 10. But simply
utilizing remedial tools found adequate in other circum-
stances hardly establishes that those tools were adequate
for the present case. Nor does it establish that those tools
were implemented with sufficient skill and sensitivity to
constitute an adequate remedy in the situation at hand.
Although “[w]e do not ignore hindsight, . . . the ultimate
question is whether the [employer’s] response was likely
to succeed ex ante.” Sutherland, 632 F.3d at 995; see also
Porter, 576 F.3d at 637; Berry, 260 F.3d at 811. The basic
purpose of the remedy is to permit an employee to get
on with the business of making a living without the
extraneous, and illegal, interference of the harassing
activity. The absence of another attack by a predator is
no “solution” if the employer’s remedy nevertheless leaves
the victim in substantial and reasonable fear of another
imminent strike. See Smith v. Sheahan, 189 F.3d 529, 535
(7th Cir. 1999) (“Just as an employer may escape liability
even if harassment recurs despite its best efforts, so it can
also be liable if the harassment fortuitously stops, but
a jury deems its response to have fallen below the level
of due care.”); see also Berry, 260 F.3d at 813 n.3 (same).
Actionable sexual harassment occurs when, under all
the circumstances, the actions of the harasser are so
severe or pervasive as to change the victim’s terms and
conditions of employment. Oncale, 523 U.S. at 81. In this
case, among those facts and circumstances is the plain-
tiff’s status as a student worker whose terms and condi-
tions of employment most certainly included the need
28 No. 10-3862
for a work environment compatible with his status as a
first-year, indeed, first-semester, college student in the
academic department where he worked. An institution
of higher learning assumes special responsibilities for all
students, but especially undergraduate students, who
undertake such a formative educational experience
within its walls. A breach of that trust, even in a work
environment, can have dire consequences to a neophyte
in the halls of higher education. If sexual harassment
occurs, and especially if the perpetrator is a faculty mem-
ber, the University has a responsibility to implement a
remedy that restores the victim’s ability to work com-
fortably and effectively as a student worker.
On this record, a jury well might conclude that the
implemented discipline of a letter of reprimand that
forbade further contact between the alleged perpetrator
and student workers was an ineffective response to the
situation confronting the student-worker victim and,
under the circumstances, presented little hope of restoring
the victim to the terms and conditions of employment
that he had a right to expect. In making this assess-
ment, the jury would have the right to assess the alleged
perpetrator’s earlier history of untoward conduct, a
history that had persisted despite an earlier letter of
reprimand,2 an earlier encounter with another student 3
and numerous other informal complaints by staff
2
R.40-5 at 11 (Koropchak Dep. 39-40).
3
Id. at 12 (Koropchak Dep. 42-45).
No. 10-3862 29
members.4 The jury reasonably could conclude that the
4
R.40-4 at 16-17 (Kraft Dep. 61-64); R.40-7 at 7 (Kinsel Dep. 23).
The majority claims that we ought not consider these inci-
dents in determining whether SIU’s response was adequate.
It does so by quoting a statement in Mr. Milligan’s brief that he
was “the only person who complained of sexual harassment by
Dr. Meyers.” Appellant’s Br. 12. That statement was made in the
context of Mr. Milligan’s effort to respond to the district court’s
view that Meyers was an “equal opportunity” harasser. There
can be no question that Mr. Milligan raised adequately the
argument that the University’s response to Meyers’s attacks was
inadequate, and the record makes crystal clear that in the period
between the first letter of reprimand in 1995 and the letter now
in question, Meyers persisted in his untoward conduct toward
University employees and students.
The record unequivocally demonstrates that the 1995 letter
of reprimand did not quash Meyers’s bad behavior. Koropchak’s
deposition says that, when the 2007 Milligan complaints
came in, Koropchak received correspondence from the Dean
of Science noting that the Dean himself had, at some
unspecified time, “personally observed Dr. Meyers casually
touching female members of [the Dean’s] staff” and it made
the staff “feel uncomfortable.” R.40-5 at 11 (Koropchak Dep.
38). Koropchak described the correspondence as “additional
evidence that was suggestive of [an ongoing] pattern.” Id.
(Koropchak Dep. 39) (emphasis added). In their depositions,
Kraft and Kinsel also mention incidents involving other
staff members, none of which resulted in a formal complaint,
without detailing when the behavior took place—although
it was clearly before 2007 when Mr. Milligan complained. R.40-4
at 17 (Kraft Dep. 62); R.40-7 at 6-7 (Kinsel Dep. 18-23).
(continued...)
30 No. 10-3862
situation was not going to be cured by yet another letter
of reprimand. The jury might conclude that the student
worker, upon his arrival at the University, found
himself in a situation in which an atmosphere of sexual
harassment already was prevalent and with respect to
which the University had adopted, negligently or con-
sciously, a de facto policy of laissez-faire. Given these
circumstances, the jury well might decide that the
decision to issue yet another letter of reprimand con-
stituted nothing more than an effort to maintain the
status quo while placating the victim and his family. It
might well determine that the University was obliged
to act earlier and with more stringent measures.5 After
4
(...continued)
Drawing reasonable inferences in Mr. Milligan’s favor, there
is certainly evidence from which a jury could have con-
cluded that Meyers’s conduct was part of a pattern known to
SIU officials and not sufficiently corrected by prior dis-
ciplinary attempts.
5
The majority acknowledges that “the record supports the
notion that Kinsel and Koropchak attempted to discourage
Milligan from pursuing the matter because it would embarrass
and harm an important member of the university community.”
Majority Op. at 11-12. Nevertheless, the majority is persuaded
that SIU’s response is adequate, as a matter of law, based on two
other surrounding facts. First, two university employees, one
in the Affirmative Action Office and one an ombudsman,
encouraged the Milligans in the complaint process on one
occasion and checked in with Koropchak after the investiga-
tion had started to determine its progress. See id. at 12. Second,
(continued...)
No. 10-3862 31
all, the remedy chosen by the University left the per-
petrator on the scene, free to prowl the department
in search of the individual who had caused the
disciplinary action. Few first-semester college students
tackle first-year chemistry courses in this ambiance.
The University’s follow-up response of an order
barring the alleged perpetrator from the campus might
convince the jury that the University’s response was
indeed adequate. On the other hand, the jury might
determine that this second course of action was
too-little-too-late or that the enforcement of the bar was
half-hearted or negligently lax. The evidence of record
would support either view and therefore presents a
jury question.
Finally, in determining the adequacy of the remedy, the
jury was not obliged to ignore the plaintiff’s account of
the effect that the University’s alleged failure to
5
(...continued)
although they required repeated assurances that Mr. Milligan
wished to proceed, Kinsel and Koropchak subsequently offered
responses that “were otherwise reasonable and effective.” Id.
(emphasis added). The point remains that the most senior and
important University officials with whom Mr. Milligan dealt
throughout his ordeal discouraged his going forward with the
complaint. While the ultimate question is whether the total
response was reasonable under the circumstances, see Berry v.
Delta Airlines, Inc., 260 F.3d 803, 811 (7th Cir. 2001), the jury
certainly had the right to assess whether the efforts of these
University officials contributed to the inadequacy of the
response.
32 No. 10-3862
respond adequately had on his future at the University.
According to the plaintiff’s testimony, which we must
accept as true as long as the case is in summary judg-
ment posture, the prospect of encountering the alleged
perpetrator in the building was a prime cause in his shift
of focus from a pre-medical concentration to another
discipline. The jury might well determine that the
student worker’s account of the effect of this non-enforce-
ment on his academic well-being was not as significant
as he states and that intervening factors were the true
cause in the alteration in his work and academic plans.
On the other hand, the jury might determine that the
plaintiff’s second-semester decision-making was indeed
caused by the alleged harassment and alleged lethargic
implementation of a remedy. The jury might conclude
that, given the plaintiff’s age, education, experience and
his student worker status, the response of the University
was indeed negligent.
It is undisputed that the University acted; indeed, in
some employment situations, its action may have been
adequate. It is questionable, however, whether, in
Mr. Milligan’s particular situation, the University’s ac-
tion was a reasonable one. In assessing this question, the
jury could consider the surrounding circumstances to
determine whether the remedy was inadequate or
whether its implementation was half-hearted. The cold
record on summary judgment yields no definitive
answer to this question, but a reasonable juror could
construe the facts in such a way as to reach a conclu-
sion supportive of the plaintiff’s position.
No. 10-3862 33
The majority fears that this analysis “threaten[s] to
carve a higher standard of protection for student workers
than for other plaintiffs,” a result that is unwarranted,
among other reasons, because student workers are not
so unusual in terms of the power imbalance that they
face with their employers. Majority Op. at 18. I certainly
agree that an imbalance of power is at the heart of “[m]any
if not most harassment cases.” Id. The situation of a
student worker is unique not solely because of the stu-
dent’s characteristic vulnerability; it is unique because
it is a part of a larger, special relationship between an
institution of higher learning and an individual. In
that relationship, the institution is entrusted with re-
sponsibilities for care of the student different from, and
far in excess of, what an employer is expected to provide
for an employee. See supra pp. 27-28. More importantly,
however, my approach is hardly a new or radical
statement of the standard to be applied and certainly
recognizes no new category of protection for students
or any other group in the abstract. Current law unequivo-
cally instructs that we account for the particular circum-
stances of an individual employment relationship in
assessing the reasonableness of an employer’s response.
It is a significant mischaracterization of my position to
suggest that I propose some sort of heightened
standard of protection for student workers. I simply
suggest that Mr. Milligan’s student-worker status must
be included among the totality of the circumstances a
jury would consider in the present case. The considera-
tions I have outlined above simply highlight the par-
ticular facts of this case which might convince a jury, in
34 No. 10-3862
applying current law, to conclude that SIU failed to meet
its obligations with respect to Mr. Milligan.
Because the record is not free of material factual
issues regarding the adequacy of the University’s re-
sponse, I would reverse the judgment of the district
court and remand the case for trial. Accordingly, I respect-
fully dissent.
7-10-12