No. 07-1009   
          ____________________________________________
                                 
             IN THE UNITED STATES COURT OF APPEALS
                     FOR THE SEVENTH CIRCUIT
           ____________________________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

               Plaintiff-Appellant,
v.

V & J FOODS, INC., et al.,

               Defendant-Appellee
           ____________________________________________

                        On Appeal from the
United States District Court for the Eastern District of Wisconsin
                      Hon. Rudolph T. Randa
                   District Court No. 05-C-194
           ____________________________________________

                BRIEF AND REQUIRED SHORT APPENDIX
                    OF PLAINTIFF-APPELLANT,
            EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 
           ____________________________________________

                                   RONALD S. COOPER
                                   General Counsel
                                   
                                   CAROLYN L. WHEELER
                                   Acting Associate General Counsel
                                                            
                                   JENNIFER S. GOLDSTEIN    
                                   Attorney                  
                                                            
                                   EQUAL EMPLOYMENT
                                    OPPORTUNITY COMMISSION
                                   Office of General Counsel
                                   1801 L Street, N.W.
                                   Washington, DC  20507
                                   (202) 663-4733

                  CORPORATE DISCLOSURE STATEMENT

     Pursuant to Fed. R. App. P. 26.1, the Equal Employment Opportunity
Commission, as a government agency, is not required to file a corporate disclosure
statement.

                                   _________________________
                                   JENNIFER S. GOLDSTEIN



                        TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT  ............................................... i

TABLE OF AUTHORITIES ........................................................ iii

STATEMENT OF JURISDICTION ....................................................  1

STATEMENT OF THE ISSUES ....................................................... 1

STATEMENT OF THE CASE ........................................................  1

STATEMENT OF FACTS ..........................................................   2

SUMMARY OF ARGUMENT .........................................................  20

STANDARD OF REVIEW ..........................................................  23


ARGUMENT

I. Summary judgment on the harassment claim was improper because 
the 35-year old supervisor's harassment of his 16-year old subordinate 
culminated in a tangible employment action  her firing ...................    24

II. Summary judgment on the Faragher/Ellerth affirmative defense
to supervisory harassment was improper because V & J maintained a
woefully inadequate sexual harassment policy and because Merriweather, 
the victim, made numerous and reasonable attempts to stop the harassment ....  31

III. There is record evidence that Wilkins unlawfully retaliated against
Merriweather by firing her ................................................    39

CONCLUSION .................................................................   49

CERTIFICATE OF COMPLIANCE ..................................................   50

CIRCUIT RULE 30(d) STATEMENT  ...............................................  50

REQUIRED SHORT APPENDIX

CERTIFICATE OF SERVICE

                                   

                       TABLE OF AUTHORITIES

Cases

Baird v. Rose, 192 F.3d 462 (4th Cir. 1999) .................................  42

Barnhart v. Walton, 535 U.S. 212 (2002) .....................................  43

Bob Jones Univ. v. United States, 461 U.S. 574 (1983) ......................   44

Branham v. Snow, 392 F.3d 896 (7th Cir. 2005) ........................ 24, 31, 39

Burlington Industries v. Ellerth, 524 U.S. 742 (1998) ........ 19, 20, 24, 31, 38

Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405 (2006) ............ 40, 44

Crandon v. United States, 494 U.S. 152 (1990) ................................ 43

DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993) ................... 28

Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006) .................. 34, 36, 46

Durkin v. City of Chicago, 341 F.3d 606 (7th Cir. 2003) .................  33, 39

EEOC v. Associated Dry Goods, 449 U.S. 590 (1981) ...........................  44

EEOC v. Ohio Edison, 7 F.3d 541 (6th Cir. 1993)  ............................. 42

Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ...................... passim

Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305 (11th Cir. 2001) ......... 26

Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) ........................... 28, 30

Gentry v. Export Packaging, 238 F.3d 842 (7th Cir. 2001) ............. 32, 34, 35

Heuer v. Weil-McLain, 203 F.3d 1021 (7th Cir. 2000) .......................... 42

Holt v. JTM Industries, 89 F.3d 1224 (5th Cir. 1996) ..................... 44, 45

Hudson v. Chicago Transit Auth., 375 F.3d 552 (7th Cir. 2004) ................ 30

Jackson v. County of Racine, 474 F.3d 493 (7th Cir. 2007) .................... 33

Johnson v. ITT Aerospace/Communications Div., 272 F.3d 498 (7th Cir. 2001) ... 41

Johnson v. United States, 163 F. 30 (1st Cir. 1908) .......................... 43

Johnson v. West, 218 F.3d 725 (7th Cir. 2000)  ........................... 26, 34

K Mart v. Cartier, Inc., 486 U.S. 281 (1988) ................................. 43

Kiefer v. Fred Howe Motors, 39 Wis.2d 20,158 N.W.2d 288 (Wis. 1968) .......... 36

Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236 (11th Cir. 1998) ....... 25

Logan v. Caterpillar, Inc., 246 F.3d 912 (7th Cir. 2001) ................. 27, 30

Loughman v. Malnati Org., 395 F.3d 404 (7th Cir. 2005)  ...................... 37

Mattson v. Caterpillar, Inc., 359 F.3d 885 (7th Cir. 2004) ................... 46

McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996) ....................... 41, 42

Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. 2006) ................... 45

Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000) ....................... 40

Rhodes v. Illinois Dep't of Transp., 359 F.3d 498 (7th Cir. 2004) ............ 35

Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ............................... 40

Roper v. Simmons, 543 U.S. 551 (2005) ........................................ 36

Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179 (7th Cir. 1982)  .............. 42

Santiago-Ramos v. Centennial P.R. Wireless, 217 F.3d 46 (1st Cir. 2000) ...... 28

Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir. 1993) ..................... 41 

Savino v. C.P. Hall Co., 199 F.3d 925 (7th Cir. 1999)  ....................... 33

State of Ill. Dep't of Pub. Aid v. Schweiker, 707 F.2d 273 (7th Cir. 1983) ... 43

Stone v. City of Indianapolis, 281 F.3d 640 (7th Cir. 2002) .................. 48

Tomanovich v. City of Indianapolis, 457 F.3d 656 (7th Cir. 2006) ............. 46

Webb v. Clyde Choate Mental Health & Dev. Ctr., 230 F.3d 991 (7th Cir. 2000) ..23


Statutes and Rules

28 U.S.C.  1291 .............................................................. 1

28 U.S.C.  1331 .............................................................. 1

Title VII of the Civil Rights Act, 42 U.S.C.  2000e et seq. .................. 1

     42 U.S.C.  2000e-2(m)  ............................................. 29, 31

     42 U.S.C.  2000e-3(a) .......................................... 40, 42, 43

     42 U.S.C.  2000e-5(b) .................................................. 43

     42 U.S.C.  2000e-6(b)   ................................................. 1

Wis. Stat. 103.70  ........................................................... 36

Wis. Stat. 103.74     ........................................................ 36

Wis. Stat. 803.01(3) ......................................................... 46

Wis. Stat. 893.16(1)   ....................................................... 36

Wis. Stat. 49.04(1)(a) ....................................................... 46

Fed.R.Civ.P. 17(c)  .......................................................... 46

Fed.R.Civ.P. 56(c)  .......................................................... 23

Fed.R.App.P. 4(a)(1)(B) ....................................................... 1


Miscellaneous

2A Sutherland Statutory Construction  45.09 ................................. 43

Jennifer Ann Drobac, Sex and the Workplace:  "Consenting" Adolescents
     and a Conflict of Laws, 79 Wash. L. Rev. 471 (2004) ..................... 36

http://www.vjfoods.com ........................................................ 2


                     JURISDICTIONAL STATEMENT

     The district court had jurisdiction in this matter arising under federal law
pursuant to 28 U.S.C.  1331 and the jurisdictional provision of Title VII of the Civil
Rights Act, 42 U.S.C.  2000e-6(b). The district court issued final judgment in this case
on November 3, 2006, resolving all parties' claims. The Equal Employment
Opportunity Commission ("Commission") filed its timely notice of appeal on December
28, 2006, in accordance with Fed.R.App.P. 4(a)(1)(B). This Court has jurisdiction over
the district court's final judgment pursuant to 28 U.S.C.  1291.


                     STATEMENT OF THE ISSUES

1. Whether summary judgment on the harassment claim was improper where the 35-
year old supervisor's harassment of his 16-year old subordinate culminated in her
being fired, and where there is evidence that the employer's proffered explanation for
her firing was "a phony excuse."
2. Whether summary judgment on the affirmative defense to supervisory harassment
was improper where the employer maintained a woefully inadequate sexual
harassment policy and where the victim made numerous and reasonable attempts to
stop the harassment.
3. Whether summary judgment on the Commission's retaliation claim was improper
where there is considerable evidence that complaints about the supervisor's sexual
harassment of his subordinate  spurred him to fire the subordinate.


                      STATEMENT OF THE CASE

     The Commission filed a complaint alleging that defendant V & J Foods violated
Title VII of the Civil Rights Act, 42 U.S.C.  2000e et seq., by engaging in unlawful
sexual discrimination and retaliation. R.1.<1> In particular, the Commission alleged that
V & J  a Burger King franchisee  was liable for the sexual harassment and
termination of a 16-year old hourly employee by its 35-year old restaurant manager.
The district court granted V & J's motion for summary judgment. A1. The court held
there was sufficient evidence that the restaurant manager sexually harassed his
female subordinate, especially given evidence of his unwelcome physical contact and
sexual solicitations. The court nonetheless ruled V & J should not be liable for his
conduct. The court held there was insufficient evidence of a tangible employment
action even though the manager fired, rehired, and again fired the harassment victim,
and it held that V & J met its affirmative defense despite flaws in the harassment
policy and despite the fact that the 16-year old complained to numerous supervisors
at the Burger King location where she worked. The court also rejected the retaliation
claim even though the harassing supervisor explicitly stated he was firing the
employee because her mother had come to the restaurant to complain about her
treatment. The Commission appealed. R.75.
                      STATEMENT OF THE FACTS
     Charging Party Samekiea Merriweather applied and was hired to work at a
Burger King franchise owned and operated by V & J Foods. By its own account, V &
J is one of the largest restaurant franchise companies in the country, operating some
36 Burger King restaurants and, through separate entities, nearly 90 Pizza Hut
restaurants. See http://www.vjfoods.com. The particular Burger King franchise at
which Merriweather worked was located at 35th and Vliet in Milwaukee, Wisconsin.
A29. The general manager of that location, and the most senior V & J official at the
site, was Tony Wilkins, who was 35 years old when Merriweather began working there.
A29.
     As general manager, Wilkins had the authority to hire restaurant employees,
to discipline them, to set their work schedules, and to fire them. A133-34, A137, A140.
It was Wilkins who hired Merriweather in January 2003. A133. At the time Wilkins
hired her, Merriweather had recently turned 16 years old and was a high school
student. A29. Merriweather worked at Burger King after school and on weekends in
what was her first paying job. A29.
     Wilkins was very solicitous toward Merriweather at the beginning of her
employment. He scheduled her to work a lot of hours, would bring her food to eat while
she was working, feed her family members for free, allow her to use her cell phone
while at work, and offer her rides home. A75-76. Several other Burger King employees
commented about what they perceived as favoritism that Wilkins was showing
Merriweather. A74. Around this same time, Merriweather learned that Wilkins had,
or was having, sexual relations with other female employees at work. A61-64, A73.
Several employees, after commenting about the favorable treatment Merriweather was
receiving from Wilkins, told her that she would be the next female employee to receive
Wilkins' sexual attention. A108.
     Within about a month after she started at working at Burger King, Wilkins
indeed began touching Merriweather and making comments that made her feel
uncomfortable. Wilkins "told me how my uniform looked sexy on me and that he had
ordered my shorts small on purpose."  A30. Wilkins also "snapped the back of [her]
bra," A30, an action that made her feel "uncomfortable."  A72. Merriweather
immediately told Wilkins that she "didn't appreciate" his action and asked that he not
do it again. A72. Wilkins' touching did not end, however. One day, while she was
preparing food, Wilkins tried to kiss her on the neck. A109. She avoided him by moving
away. A "number of times" when she was alone with Wilkins in the kitchen early on
weekend mornings, Wilkins would "try to reach for things and rub against  [her]." 
A110. Wilkins generally arranged the schedule so that only he and Merriweather were
working on weekend mornings. A110.
     Wilkins was offering her rides home with increasing frequency  about three or
four times a week. A82. He would stay around the restaurant until she got off work,
and then try to take her home. A75. After accepting a few rides home on occasion early
on in her employment, Merriweather stopped taking them once "I found out about
Wilkins' sexual harassment of me and others."  A30. He also started calling himself her
"daddy," telling Merriweather's co-workers that "Her daddy is going to come take her
home.'" A75. He also would tell Merriweather that "he wanted to be with me," and try
to discuss personal matters. A97-98. According to Merriweather, she felt as though she
had to work with "a stalker all around."  A98. Merriweather told Wilkins: "please don't
speak to me, please keep your business to yourself,' [and told him that] he need[ed] to
. . . respect me in the workplace.'" A98. She also pointedly told him that she "already
had a boyfriend, I'm not interested in you."  A86. She also asked him not to call himself
her daddy: "I told him . . . [h]e's not my daddy. My daddy . . . [is] in Minnesota." A83. 
     One weekend morning, while alone with Wilkins in the restaurant kitchen,
Merriweather said to him: "What is it that you want from me?  Why are you bothering
me?'" A87. Wilkins told her "Well, my daddy had a young girl and I want a young girl.'"
A87. When Merriweather asked Wilkins what he meant, he responded, "I mean . . .
their body. You know, it's not all used up and everything.'" A87. Merriweather quickly
ended the conversation after Wilkins' comment with an "Okay, whatever.'" A87.
     During this time, there was evidence that Merriweather was performing her job
well. In the first few months in which she had worked at Burger King, Merriweather
had already garnered several performance awards, including "Employee of the Month"
in May 2003. A33. In early August 2003, Merriweather telephoned Wilkins to tell him
that her grandmother was ill and in the hospital, and that she needed an hour or so to
go visit her. A88. Wilkins told her she could not, insisting that she needed to be there.
A88. Merriweather pointed out that in the roughly six months that she had been
employed at Burger King, she had never before called in to say she would not be at
work, and that she was always on time. A88. She reiterated that she needed to visit
her grandmother, and Wilkins then told her that she was fired. A89.
     Merriweather believed that the reason Wilkins took the step of firing her, rather
than imposing some other form of discipline, was because she had rejected his
advances. As she put it, "He fired me because [I was] not doing what he asked me to
do, which is letting him touch on me, letting him say anything to me."  A100. There
was evidence that Merriweather was treated more harshly than other employees who
committed similar infractions of the rules. One supervisor described the progressive
disciplinary system V & J used, and stated that it was more harsh than usual to fire
someone for visiting an ill family member on one occasion. A49. Indeed, the
Orientation Handbook states:  "We recognize that instances will arise where you will
be away from work due to such reasons as . . . illness in your immediate family . . . .
Repeated frequent absences can result in suspension or termination."  A153 (emphasis
added). Assistant manager Vernell Staten stated in his deposition that he would not
have fired an employee for this type of infraction, but instead would have given her a
written warning. A115. Delorise McBride, a shift supervisor, likewise stated that she
did not think visiting someone in a hospital generally leads to termination. A32.
     In any event, within a few weeks after Wilkins fired Merriweather, he asked her
to return to work. He told her that he "had to hire two or three people to make your
spot up in cashier . . . . [N]obody run[s] drive-through better than you.'" A99-100.
Wilkins told Merriweather "I'm going to be right,'" and he apologized for what "I put
you through.'" A100. Merriweather agreed to return, and for the first week or two she
experienced no unwelcome treatment from Wilkins. A96-97.
     Soon Wilkins' comments resumed, however.  When Merriweather noticed that
a fellow crew member, Monique Carson, had been promoted to shift supervisor, Wilkins
told Merriweather that if she had been "acting right," she "would have had Monique's
spot instead of Monique."  A60. Then one day, Wilkins called Merriweather into his
office and told her that "he wanted my body."  A78. Merriweather responded, "What
do you mean, my body?  What [are] you talking about?'"  A78-79. Wilkins elaborated:
"Your body, I want you . . . . I want you to model lingerie. I want to take you to the
hotel. You can have anything you want. I'll pay you what, 5-, $600.'" A79. 
Merriweather's response was to leave his office immediately. As she put it, "I didn't
stay around for the rest of the conversation . . . . I walked out and continued to work."
A113a.
     With Merriweather's rejections of his advances, Wilkins' conversations with
Merriweather began to take on a different tone. One night, Merriweather had to work
unusually late to close up the restaurant  until almost 1:00 a.m. The 35th and Vleit
Burger King was located in a relatively unsafe neighborhood, and she had "never
walked home at 1:00 in the morning."  A81, A84-85. Merriweather therefore accepted
a ride home from Wilkins. During the ride, Wilkins  who was aware Merriweather
had a boyfriend  told her that "he was tired of doing things for me and he [wasn't]
going to do [anything] else for me because I'm sitting here giving my body away for free
when he's trying to pay me."  A84-85.
     Wilkins grew increasingly hostile towards Merriweather as she resisted his
sexual overtures. As she put it, "everything goes down the drain again. Tony's
unfriendly. Tony is very hostile. He seemed to be violent. He want to talk crazy all the
time."  A101. Merriweather believed that the hours she was scheduled to work
diminished because she rejected the sexual advances:  "I wasn't winning, no way.
Hours, schedule, time on the clock. He just started . . . hav[ing] me punch out, go home.
I don't need you here today.'" A101. She described Wilkins on another occasion as "real
irritated. He didn't want me around."  A102. He told her "I'm tired of your bullshit. I'm
going to get rid of you soon.'" A102.
     Another Burger King employee, Monique Carson, observed Wilkins' increasingly
hostile behavior toward Merriweather. Carson stated that Wilkins "would always
nitpick with her, like just the littlest thing."  A44. Carson added that she had seen
Wilkins act the same way with another female employee with whom he had been
sexually involved: "Tony [Wilkins] was just doing stuff on purpose to make her mad,
to make her want to quit. That's what he did with [Merriweather]."  A44. In addition
to what Carson personally observed, she also heard about Wilkins' conduct directly
from Merriweather. Carson, who was at that time a shift supervisor, acknowledged
that Merriweather had told her Wilkins was calling himself her "daddy," and Carson
stated that Merriweather seemed "uncomfortable with it."  A49a-50. More pointedly,
Merriweather told her about Wilkins rubbing against her in the kitchen, about
Wilkins' proposition to take Merriweather to a hotel and have her model lingerie, and
about Wilkins' offer of money to Merriweather. A50-51.
     Carson was not the only supervisor to whom Merriweather complained about
Wilkins. Early on, Merriweather told shift supervisor McBride "what was going on"
regarding Wilkins' harassment. A71. Specifically, she told McBride about "the things
Tony had been saying to me" and about the time he snapped her bra strap. A71. She
told McBride about Wilkins' proposition to take her to a hotel. A77, A79. McBride also
gave Merriweather her impression of what Wilkins wanted and how  she should handle
it: "Girl, he like[s] you, you know . . . . You need to just probably go with it or tell him
that you don't like him, cuss his ass out.'" A111. McBride then explained to
Merriweather how she had avoided Wilkins' workplace sexual advances, telling her
"He don't do that to me because he know I don't play that. He only do it to y'all young
girls because he think y'all stupid, but I show his ass something.'" A111. McBride's
standard advice to all the "young girls" was "just to watch out and be careful or use
him, he a trick."  A111.
     Merriweather also complained to a higher-level supervisor, assistant manager
Vernell Staten. Early on in her employment, she told Staten about Wilkins' snapping
of her bra strap. A80. She told him "how Tony kept coming late at night trying to pick
me up from the job. I told him about Tony always being around me."  A80. Staten
didn't "really . . . respond," except that he "just giggled[d] and laugh[ed] a little bit." A167.
     Later on, as Wilkins' harassment worsened, Merriweather had other
conversations with Staten in which she complained about "Tony telling me that he
wanted my body, he wanted sex."  A113. Finally, she asked Staten to give her a
telephone number for V & J's offices so that she could "tell them what's going on, what
Anthony Wilkins was doing."  A112. According to Merriweather, she asked Staten
because she "thought maybe he'd know a number, being in his position, he had to talk
to somebody or know somebody."  A112. Staten's initial response was discouraging; he
told Merriweather "I don't know if I can give you a phone number. I don't know [if]
there even is one.'"  A112. Finally Staten gave Merriweather a telephone number,
which she dialed, only to discover it was incorrect. A112. Merriweather went back to
Staten and told him he had given her the wrong number. He responded dismissively,
telling Merriweather "Well, I don't know then.'" A112.
     The supervisors to whom Merriweather complained  Carson, McBride, and
Staten  never relayed her complaints to higher-level V & J officials. It was unclear
whether V & J made supervisors responsible for relaying harassment complaints to the
corporate office. What was clear, though, was that all three supervisors had some
authority over Merriweather, though less than Wilkins, the franchise's general
manager. Assistant managers such as Staten operate a restaurant when the general
manager is not present, and they have the authority to interview potential new hires,
set schedules, issue warnings to employees, suspend employees, and recommend that
shift supervisors be suspended; they do not have independent authority to hire and fire
employees. A123-24. Shift supervisors are the next level down in a restaurant's
hierarchy. They oversee the "floor" of the restaurant while the managers handle
administrative duties; can operate the restaurant if the managers are absent from the
restaurant; can discipline with approval from a restaurant manager; and can
recommend hiring or firing. A121-22. They do not themselves possess the authority to
hire or fire, however, nor do they make employees' work schedules. A121-22.
     In addition to its various franchise locations, V & J also maintains a corporate
office. An official from the corporate office conducts orientation for all new Burger King
employees. Merriweather underwent this orientation but, according to Merriweather,
the V & J official covered sexual harassment simply by stating "sexual harassment,
well, you all know what that is.'" A32. Merriweather also received an "Orientation
Handbook" at the time of the orientation. A68. The handbook has a cover page, on
which an address and telephone number are listed. A147. There is no indication of who
is reachable at this telephone number. According to Wilkins, the telephone number
goes to a general operator. A143.
      Inside the handbook is a section entitled "Sexual Harassment Policy
Statement."  A156. The section states that "[a]ny employee who believes he or she has
been the subject of sexual harassment should report the alleged act immediately to his
or her District Manager."  A156. The policy statement does not indicate whether the
reporting employee's allegation will be kept confidential, whether it will be
investigated, or whether the reporting employee will be protected from retaliation. The
statement also does not indicate whether there is a bypass option, allowing an
employee to make a harassment report to another supervisor or official if the harassing
employee is the "District Manager."  The policy concludes that "any questions
regarding the policy" may be directed to "the District Manager and Corporate
Headquarters."  A156. No phone number or other identifying information is included
in this section. 
     It is unclear from the Orientation Handbook just who is a "District Manager." 
The handbook refers to "your Restaurant Manager" in several places. A148, A153,
A156. The handbook does not explain whether "District Manager" is synonymous with
Restaurant Manager, or whether it refers to an altogether different person. Another
listing within the handbook makes it more ambiguous. That listing, found just after
the cover page of the handbook, includes the names of V & J's President/CEO and
Chairman of the Board under the heading of "[Y]our Franchise Owners."  The page
then lists various titles  "Your Director of Operations," "Your Restaurant Manager,"
"Your Assistant Managers," "Your Shift Supervisors," and "Your V-P of Operations" 
with blank spaces after each title. A148. The spaces are not filled in, and Merriweather
did not receive name or contact information during her orientation. A69. There is no
mention of "District Manager" in the handbook. There is no space to write a  telephone
number other than for "Your Restaurant."
     Supervisory employees such as Wilkins, Staten, Carson, and McBride receive an
additional document, entitled "Management Handbook Draft."  A157. The Draft
describes conduct that might comprise sexual harassment and other prohibited
conduct, including "[f]raternizing with or dating hourly employees from the same
restaurant in which you manage."  A163. The Draft states that an employee who
believes he or she has been subjected to harassment "should immediately report it, in
writing, to their supervisor and the Human Resources Department."  A161.
Merriweather, as an hourly employee, did not receive this Draft. A160. In any event,
the Draft contains no option for employees to bypass "their supervisor" if the supervisor
is the one harassing the employee. It also has no specific contact information for the
"Human Resources Department."
     There is nothing in the Management Draft indicating what a supervisor should
do if he or she learns that a higher-level supervisor is harassing a subordinate; the
Draft contains no requirement to report the harassment to the corporate office. Wilkins
confirmed the lack of a bypass option. According to Wilkins, if an assistant manager
receives a complaint that an employee is being sexually harassed by the general
manager, the assistant manager is not supposed to call V & J's corporate office. A129-
31. The assistant manager is supposed to tell the general manager himself of the
complaint against that same general manager. A129-31. The general manager is then
supposed to "turn himself in"  that is he is supposed to call the corporate office and
report the complaint lodged against him. A129-31.
     McBride confirmed that, under V & J policies, the main person with
responsibility for preventing sexual harassment at the restaurant was Anthony
Wilkins. A54. McBride's understanding of V & J's policies was that if an employee had
a complaint that Wilkins was sexually harassing her, that complaint was supposed to
go through Wilkins himself.<2> A54-55. Staten similarly did not believe he bore
responsibility for reporting harassing behavior to the corporate offices. Staten
acknowledged hearing about a number of problems regarding Wilkins' treatment of
hourly employees at the restaurant, such as dating hourly employees, and he further
acknowledged that he never reported Wilkins to headquarters. A117-18. Staten never
was disciplined or otherwise criticized by V & J officials for his inaction. A119.
     V & J provided no other effective mechanism or source of information for hourly
employees about reporting harassment. The sexual harassment policy was not posted
anywhere at the 35th and Vliet Burger King location. A127. No telephone number for
Corporate Headquarters was posted at that location.
     The only other document listing a telephone number was the employee pay
statements, which are produced by a payroll data company. The pay statements
contain a small "message" box in the corner of the sheet. The first message in the box
states that an employee should report any corrections to his or her manager. The box
then includes the statement: "Do you have a comment about V&J?  Call the
confidential employee hotline at 1-800-384-6972."  A36. Merriweather indicated that
she was never told about the "employee hotline" number, and that she never noticed
it on her pay statement amongst the other information the statement contained. A32.
There is no evidence in the record as to whether the number on the pay statement goes
to the payroll data company or to V & J's corporate office. The number is different from
the number on the cover of the Orientation Handbook. A36, A147. Moreover, other
employees at the restaurant did not know of this telephone number's existence, and
none knew where to find it. A166. Even Wilkins, when asked about an employee
hotline number, had no idea where to find the number. A143-44.
     In late September 2003, Merriweather learned that the head of V & J, Valerie
Daniels-Carter, was going to be visiting the 35th and Vleit Burger King to look over the
restaurant. A92. Such a visit by Daniels-Carter was unusual, and a significant event
for Wilkins, who gave the staff an extensive list of cleaning tasks  including painting
part of the restaurant   in preparation for the visit. A93. Merriweather discussed the
impending visit with a number of other female employees of the restaurant, and she
determined to use Daniels-Carter's visit as an opportunity to disclose Wilkins' conduct
towards female employees. A92, A94. As Merriweather put it, "I was going to be the
big mouth and say it all."  A92.
     One of the Burger King staff Merriweather told of her intentions was Delorise
McBride. A92. McBride, according to Wilkins himself, regularly updated him about
things she learned by being on the restaurant floor. Wilkins confirmed that he was able
to keep tabs on Merriweather through McBride, and he agreed with characterizing
McBride as his "eyes and ears on the floor."  A135.
     On the day in late September when Daniels-Carter was to visit the restaurant,
Merriweather arrived at the Burger King in the morning, as scheduled. A90. When she
arrived, she saw that a new schedule had been posted. Her name no longer was on the
morning shift, but instead had been moved to a later shift, by which time Daniels-
Carter would be gone. A90-91. Monique Carson told Merriweather that earlier that day
Wilkins had taken down the original schedule and thrown it in the trash. A90-91.
Wilkins had then handed Carson a new schedule, which assigned Merriweather to
work a later shift, and instructed Carson to post it.  A45-48, A90.
     After talking to Carson, Merriweather fished the old schedule out of the garbage.
A91. She confronted Wilkins, who initially denied changing the schedule at all. A94.
When Merriweather showed him the old schedule she had retrieved from the garbage,
Wilkins turned accusatory, telling her "That's some bullshit. You [are] lying. I don't
know where that came from.'" A94. Merriweather complained to Staten that she was
dressed in her uniform, ready to work, and that Wilkins was not supposed to change
the schedule on such short notice. A91. Because Staten was going to be supervising the
newly-assigned, later shift, she asked him whether she could have those hours off.
Staten told Merriweather that she could have the hours off. A167a.
     Merriweather stated that she asked Staten for the hours off because she had
already made plans for later in the day, when she had thought she would be done with
work. A95. She also asked Staten to be off that day in part because she understood that
managers were not supposed to make last-minute schedule changes, without any
notice. A94-95. Wilkins confirmed Merriweather's basic understanding. According to
Wilkins, if a manager had to change a posted schedule, the manager was supposed to
contact any affected employees to inform them of the change. A125-26, A140. Wilkins
added that V & J rules did not permit managers to discipline an employee for being
unavailable when the employee had less than 24 hours notice of the schedule change.
A126.
     After Merriweather left the Burger King, she went home and told her mother
about the schedule change. Merriweather's mother went to the restaurant later that
day, where she spoke at length to McBride. According to McBride, Merriweather's
mother came to tell her about the sexual harassment her daughter was experiencing
from Wilkins. A57-58. Merriweather's mother was quite upset - she was "hollering,"
according to McBride. A58. McBride's response, by her own account, was simply to tell
Merriweather's mother repeatedly "that I didn't know nothing about it."  A57. Later,
after Wilkins arrived at the restaurant, McBride told him that Merriweather's mother
had been complaining that he was sexually harassing her daughter. A58.
     Merriweather next returned to the restaurant on payday  Monday, September
29th  and saw she was not anywhere on that week's schedule. A103. She went to
Wilkins' office and asked, "Tony, am I fired?'" A103. He asked her what she thought,
and she responded, "Well, my name isn't on the schedule. It looks like I'm fired.'" A104.
Wilkins replied, "Then you're fired,'" A104, and he handed Merriweather her final
paycheck. A141a. When Merriweather asked Wilkins why he was terminating her, he
told her "if you [had] acted like a lady and finished handling business like you [had]
been doing, you'd still have a job.'" A104. He chastised her: "But instead you want to
put your mother in your business and that's why you don't have [a job].'" A104. Wilkins
added, "Having your parents coming here handling your business is not tolerated at
Burger King.'" A104.
     Merriweather, expressing her dismay with the way Wilkins had been treating
her, inquired "what is tolerated at Burger King?"  A104. She complained about what
had been going on at the Burger King "[l]ike . . . asking people to have sex for money,
giving sexual favors  . . . .'" A104. Wilkins told her "You know what?  I don't want to
hear this bullshit. Get out of my motherfucking office. Get out.'" A105. Merriweather
called her mother, who told Merriweather that she should leave Wilkins' office and that
she was coming down to the restaurant. A106. Merriweather did leave the office, but
at some point thereafter she told Wilkins that she was going to file a charge with the
EEOC. A31.
     Merriweather's mother arrived at the restaurant and spoke to Wilkins. After
their conversation, Wilkins told Merriweather that she could have her job back and
that she did not need to "go through the EEOC.'" A107. Merriweather declined the
offer because she "felt sure the sexual harassment and retaliation there would never
change."  A31.
     Merriweather made one last effort  after her discharge  to complain to V & J
personnel about Wilkins' conduct. This last effort was prompted by a telephone call
Merriweather received from a female employee of Burger King complaining about
inappropriate conduct by Wilkins. Merriweather looked up the telephone number for
Mary Blake, V & J's training director, in the telephone white pages directory. A65-67.
With the complaining employee and another female employee on the line,
Merriweather called Blake at home in the evening and "tried to complain" to her. A66.
Blake, however, "didn't want to hear it. She asked us how the hell did we get her phone
number, and she hung up on us. And she said she's not the person we need to be
talking to."  A66.
     Merriweather filed a charge with the Commission, alleging she was subjected
to sexual harassment and discharged in retaliation for complaints about the
harassment. The Commission subsequently brought suit to remedy the company's
unlawful harassment and retaliation. R.1. In response to the Commission's allegations
that Merriweather's discharge was unlawful, V & J produced a "Record of Employee
Counseling" form on which the box marked "excessive absenteeism" is checked as the
reason for Merriweather's termination. A146. The form  dated September 28, 2003,
and signed by Wilkins  also contains a section in which Wilkins wrote "on pay day
Samekiea [Merriweather] will very insubordination" and "use profane . . . [and] abusive
language."  A146. However, as the Commission pointed out, Wilkins acknowledged that
he had already written up the form, fired Merriweather, and handed her her pay check
when she confronted him in his office and started "cussing me out."  A141. It was after
Merriweather left the restaurant that day (September 29th) that Wilkins then added
that Merriweather had used profane language. A141-42. 
     The Commission also produced evidence that other employees had several
absences but were not fired. For example, Wilkins gave written warnings to Vernell
Staten twice for excessive tardiness and then warned him about excessive absenteeism.
A136-37. Shortly thereafter, Staten was promoted to assistant manager. A137. Even
after Staten's promotion, when Wilkins documented additional absenteeism problems,
Wilkins did not discipline Staten by suspending him or recommending his termination.
A138-39.

District Court Decision

     The district court granted V & J's summary judgment motion. At the outset, the
court held there was sufficient evidence of a hostile work environment, stressing in
particular the "uninvited physical contact" Wilkins made with Merriweather and the
"repeated and uninvited sexual solicitations."  A13-14. The court  rejected V & J's
contention that the environment was not subjectively hostile; the court emphasized
both the evidence that "Merriweather found Wilkins' conduct unwelcome and offensive"
and the "relative ages of Wilkins (35) and Merriweather (16)."  A14.
     The court held that the Commission's harassment claim failed, however, because
it deemed V & J not liable for Wilkins' harassment of his subordinate. The court first
considered whether V & J established the two-pronged affirmative defense for
supervisory harassment in which the harassed employee suffers no tangible
employment action, as set out in Faragher v. City of Boca Raton, 524 U.S. 775 (1998),
and Burlington Industries v. Ellerth, 524 U.S. 742 (1998). The court held that V & J
had established  on summary judgment  that it exercised reasonable care to prevent
and correct harassment largely because it passed out an employee orientation
handbook and had some harassment "training" during new employee orientation. A13-
16. The court then held that V & J established, as a matter of law, that Merriweather
unreasonably failed to take advantage of preventive or corrective opportunities, or to
avoid harm otherwise. The court acknowledged evidence that Merriweather had
complained about Wilkins' behavior to shift supervisors and assistant managers; that
she made efforts to reach the corporate office by asking Staten, the assistant manager,
for the office's telephone number; and that Wilkins, by changing her work schedule,
thwarted Merriweather's effort to speak to the head of V & J when she was to visit the
restaurant. A16-18. Nonetheless, the court concluded, what "matters most" was that
"the complaint did not reach V & J."  A18.
     The district court next briefly addressed what it termed the "quid pro quo"
harassment claim. A18. The court rejected the Commission's argument that
Merriweather's first firing was related to the harassment, A20 n.5, and sidestepped the
question of what motivated Wilkins to fire Merriweather a second time, concluding
that even if Wilkins changed Merriweather's schedule because she would not have sex
with him, "Wilkins could not know, with absolute certainty, that Merriweather would
react in the manner she reacted, thus giving Wilkins cause to fire her."  A20.
     The district court rejected the Commission's retaliation claim. The court held
that complaints Merriweather's mother made on behalf of her minor daughter were not
protected, ruling broadly that third-party retaliation claims are not cognizable under
Title VII. A24-25. The court ruled, in the alternative, that there was insufficient
evidence to show that the complaints of either Merriweather's mother or Merriweather
herself caused her discharge. In particular, the court ruled that Wilkins' statement
that he was terminating Merriweather "because she brought her mother into her
business'" could not be evidence of retaliation because it suggested a legitimate
justification for her termination. A25 n.6. Finally, the court held that the Commission's
evidence of other, better-treated employees was insufficient evidence of pretext. A27.

                       SUMMARY OF ARGUMENT

     The district court in this case acknowledged the evidence that a thirty-five year
old general manager of a restaurant repeatedly made unwelcome sexual solicitations
and physical contact with a sixteen-year old subordinate employee at the restaurant,
and that he eventually fired her. Yet the court held the employer was not liable for the
harassment. The court's holding cannot be reconciled with the evidence in the record.
     The Supreme Court, in Faragher, 524 U.S. 775, and Ellerth, 524 U.S. 742,
explained that an employer is liable for harassment by a supervisor that culminates
in a tangible employment action. Wilkins fired Merriweather, rehired her shortly
thereafter, and then fired her again. The evidence of Wilkins' hostility and frustration
with Merriweather's rejections of his sexual advances, along with evidence that
Wilkins' explanations for Merriweather's firings were false, should have precluded
summary judgment on the employer liability issue.
     Even if Wilkins had not taken tangible employment actions against
Merriweather, V & J did not exercise reasonable care to prevent and correct sexual
harassment, as required by the Faragher and Ellerth affirmative defense. The sexual
harassment policy was conveyed to new employees in a hurried orientation. The policy
was not posted anywhere at the restaurant where Merriweather worked.
Substantively, the policy lacked the assurance this Court has required that the
restaurant would investigate complaints, and it appeared to require that employees
report harassment complaints to the restaurant general manager  the very person
doing the harassment in this case. The policy contained no method to bypass the
manager, nor did it require lower-level supervisors to report harassment to the off-site
corporate office. This policy was especially flawed given that V & J knew its employees
included teenagers who lacked significant work experience. 
     Faragher and Ellerth also require that the employer show, as part of its
affirmative defense, that the employee acted unreasonably in trying to avoid harm. V
& J cannot make this showing, especially since this is an issue on which it bears the
burden of proof. The evidence in the record indicates that Merriweather complained to
the general manager himself, to the assistant general manager, and to various shift
managers. She asked the assistant general manager to provide her with a contact
telephone number so she could report the harassment; he gave her the wrong number,
which she tried, and then professed ignorance about any other number she could call.
She planned to complain to the head of the company when she visited the restaurant,
but was thwarted when Wilkins suddenly changed her schedule. Using the white pages
directory, Merriweather called a corporate official at home to complain, only to have
the official hang up on her. Especially given Merriweather's age, it was an error for the
district court to hold on summary judgment that she acted unreasonably.
     The considerable evidence that Wilkins had a retaliatory motive for firing
Merriweather should have precluded summary judgment on the Commission's
retaliation claim. The district court acknowledged that Merriweather engaged in
protected activity by complaining to supervisors at the restaurant, and by attempting
to complain to the head of V & J about Wilkins' harassment. Merriweather also
complained to Wilkins himself. The court held causation evidence was lacking, even
though there was evidence that Wilkins knew of her complaints and anticipated
complaint, changed her schedule to prevent her from talking to the head, and then lied
about his actions. A jury could infer that his subsequent firing of Merriweather  in
violation of the company's own policies on absences due to a supervisor's last-minute
schedule change  was retaliatory.
     The court also held that complaints Merriweather's mother made on her minor
daughter's behalf were not protected activity, and that firing Merriweather in
retaliation for those complaints therefore would not violate Title VII. The court's
holding cannot be squared with the language of the statute as a whole, nor with its
purpose of encouraging opposition to unlawful employment practices. The district court
also utterly ignored the precedent of this Court on how to construe the anti-retaliation
provision when retaliation takes a form different from the usual situation. Under that
precedent, Merriweather's protests on behalf of her daughter are protected activity.
Finally, the unique facts of this case obviate the need to make a broad ruling on the
question of "third-party retaliation," as the district court did. This was a case in which
both Merriweather and her mother complained, not simply her mother. Merriweather's
status as a minor, and the obligations state law imposes on parents to protect and act
for their minor children, also takes this case outside the usual, and supports a finding
that the protests of Merriweather's mother were protected activity.
     The causation evidence on retaliation for the complaints of Merriweather's
mother is particularly strong because Wilkins told Merriweather that if she had "acted
like a lady" and not brought her mother into her business, she would still have a job.
A reasonable jury could interpret Wilkins' comment as evidence that he fired her in
retaliation for her mother's opposition activity.

                        STANDARD OF REVIEW

     This Court reviews the district court's grant of summary judgment de novo. See
Webb v. Clyde L. Choate Mental Health & Dev. Ctr., 230 F.3d 991, 997 (7th Cir. 2000).
This Court will "construe all facts and inferences in the light most favorable to the
nonmoving party," and will affirm summary judgment "only if the record as a whole
reveals no genuine issue of material fact."  Id. (citing Fed.R.Civ.P. 56(c)). This Court
has indicated that it applies this standard "with added rigor in employment
discrimination cases, where intent and credibility are crucial issues."  Id. (citation
omitted). When the moving party will bear the burden of proof on an issue at trial 
such as on any affirmative defense it asserts  then "that party must establish
affirmatively the lack of "sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party,"' in order to obtain summary judgment on the issue." 
Branham v. Snow, 392 F.3d 896, 907 (7th Cir. 2005) (citations omitted). The party
asserting the affirmative defense must show the question "is so one-sided no
reasonable jury could find for [the plaintiff]."  Id.

                             ARGUMENT

I. Summary judgment on the harassment claim was improper because the 35-year
old supervisor's harassment of his 16-year old subordinate culminated in a tangible
                employment action  her firing.

     When a supervisor sexually harasses a subordinate employee  as Wilkins did
here  the employer is liable for the harassment if that harassment results in a
tangible employment action taken against the employee. Moreover, as the Supreme
Court explained, "[n]o affirmative defense [to liability for a supervisor's harassment]
is available . . . when the supervisor's harassment culminates in a tangible
employment action, such as discharge . . . ."  Faragher, 524 U.S. at 808; see also
Ellerth, 524 U.S. at 762-63. Wilkins fired Merriweather from her job on two different
occasions  in early August 2003 and then again in late September 2003. With only a
cursory assessment of the evidence, the district court held that Wilkins fired
Merriweather for legitimate reasons, and not because of her refusals to have sex with
him. In so holding, the district court erred, for there is considerable evidence that
Wilkins took adverse actions against Merriweather because she did not succumb to his
sexual advances.
     The record evidence shows that Merriweather repeatedly had to reject sexual
advances from Wilkins, and that Wilkins grew increasingly frustrated by her
rejections. For example, Wilkins berated Merriweather, telling her "he was tired of
doing things for me and he [wasn't] going to do [anything] else for me because I'm
sitting here giving my body away for free when he's trying to pay me."  A84-85. With
her consistent resistance to his sexual overtures, "everything goes down the drain
again. Tony's unfriendly. Tony [Wilkins] is very hostile. He seemed to be violent. He
want to talk crazy all the time."  A101. Wilkins would act "real[ly] irritated. He didn't
want me around."  A102. The evidence of Wilkins' hostility consists not only of
Merriweather's own accounts, but also of the accounts of other Burger King employees,
such as Monique Carson, who noticed that Wilkins "would always nitpick with her, like
just the littlest thing."  A44. Based on Carson's experience working under Wilkins, she
concluded that Wilkins was acting as he had with another female employee with whom
he had been sexually involved: "Tony [Wilkins] was just doing stuff on purpose to make
her mad, to make her want to quit. That's what he did with [Merriweather]."  A44. 
     Wilkins' hostility in the face of the Merriweather's rejections, and his
subsequent decisions to fire her, are actions similar to those that have arisen in other
Title VII cases, and courts in those cases have held it reasonable to infer that the two
are not unrelated. The Eleventh Circuit, for example, has held that  "the fact that the
harasser was the decisionmaker for the tangible employment action gives rise to an
inference that the harasser's discriminatory animus motivated that action."  See
Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1247 (11th Cir. 1998). The
rationale for this inference, the Llampallas court stated, is that once a supervisor
begins to harass a subordinate, the supervisor cannot "act as an objective, non-
discriminatory decisionmaker with respect to the [subordinate]."  Id.; see also id. (Title
VII plaintiff therefore "may establish her entire case simply by showing that she was
sexually harassed by a fellow employee, and that the harasser took a tangible
employment action against her").
     The Commission acknowledges that although a supervisor's harassment creates
an inference that a subsequent tangible employment action was motivated by rejection
of the harassment, that inference may be rebutted with evidence from the employer.
See, e.g., Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1312 (11th Cir. 2001)
(noting inference under Llampallas that tangible action was harassment-related, but
holding Faragher/Ellerth affirmative defense nonetheless was available where
employer provided "unrebutted evidence" that plaintiff was denied promotion "on
grounds independent of the alleged harassment"); cf. Johnson v. West, 218 F.3d 725,
731 (7th Cir. 2000) (affirmative defense available where harassing supervisor "himself
did not use his supervisory authority to get [employee] fired"). V & J provided an
explanation for both the first and second firings of Merriweather but, unlike the
Frederick case, the Commission rebutted those explanations and showed them to be
pretextual. Summary judgment on the tangible employment actions therefore was
improper.
     As to the first termination, V & J contended that Wilkins fired Merriweather not
because she was rejecting his sexual advances, but because her wish to visit her
hospitalized grandmother meant she could not work some previously-assigned hours.
The district court accepted V & J's explanation because the court apparently believed
that Merriweather violated V & J's rules for probationary employees, under which
employees can be fired for one "no-call/no show" during the employee's 90-day
probationary period. A8. The district court appeared confused about the relevance of
this policy. First, in its summary judgment filings, V & J never invoked the
probationary period in explaining the termination. R.44, R.61. Second, Merriweather's
absence was not a "no-call" absence because she did call Wilkins. A88, A153 ("Our
notification procedure for absenteeism requires that you call the manager on duty at
least 3 hours prior to your scheduled shift."). Finally, and perhaps most significantly,
Merriweather was well past her 90-day probationary period at the time of the
termination  Merriweather was hired in January 2003 and she was fired, for the first
time, roughly 180 days later,  in early August 2003. A145. The probationary-employee
policy (see A150) therefore was inapplicable, and could not justify Merriweather's
termination. See Logan v. Caterpillar, Inc., 246 F.3d 912, 920 (7th Cir. 2001) (pretext
may be shown by presenting evidence that "the reason given was insufficient to
warrant the adverse job action").
     The Commission produced additional evidence rebutting V & J's explanation.
Several V & J employees testified that firing an employee for one visit to an ill family
member would have been highly unusual.  Indeed, V & J's own written policy does not
support a firing for a single absence; the employee handbook indicates that suspension
or termination is possible only after repeated absences. The Orientation Handbook
states:  "We recognize that instances will arise where you will be away from work due
to such reasons as . . . illness in your immediate family . . . . Repeated frequent
absences can result in suspension or termination."  A153 (emphasis added). V & J's
own policy thus would not support Merriweather's termination. See Logan, 246 F.3d
at 920 (pretext established if reason given cannot support adverse action); see also
DeMarco v. Holy Cross High Sch., 4 F.3d 166, 171 (2d Cir. 1993) (pretext inquiry
focuses on whether asserted reason for challenged action "comports with the
defendant's policies and rules"). 
     There was, moreover, additional evidence indicating that it was implausible that
Wilkins fired Merriweather for absenteeism. See DeMarco, 4 F.3d at 171
(implausibility of employer's explanation creates fact issue on question of pretext);
Santiago-Ramos v. Centennial P.R. Wireless, 217 F.3d 46, 56 (1st Cir. 2000) (same);
Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (same). The Commission pointed
to evidence that Merriweather was a strong employee, without a history of disciplinary
problems or absences. Merriweather received several performance awards during her
first few months at V & J. A33. Wilkins explained that she received one of them, the
"Top Gun Award," because "she would always come in."  A168. Wilkins further
explained that he could depend on her. "[I]f somebody [did not] show up, we call her in,
she'll come in."   A168. Wilkins also described her conscientiousness: Merriweather
"always [had a] sense of urgen[cy] [in] taking care of customers, getting them in and
out and doing stuff by the book."  A168; see also A132 (Merriweather was a strong
cashier, she was "motivated," and "good" at food preparation). Given her outstanding
record, it is implausible that Wilkins would have fired Merriweather for a single
absence. 
     Wilkins' willingness to rehire Merriweather so quickly also belies V & J's
assertion that she had disciplinary issues. Only a few weeks after he fired her, Wilkins
asked Merriweather to return because he "had to hire two or three people to make
your spot up in cashier.'" A99-100. Again, this evidence demonstrates the
implausibility of V & J's explanation for Merriweather's firing, and thus suggests that
the real reason was Wilkins' frustration that his sexual advances were rejected.
Finally, Wilkins' apology for "what I put you through'" and his promises to "be right,"
A100, also could support an inference that her negative reactions to his harassment
played a role in his decision to end her employment.
     As to the second termination in September, there is evidence that Merriweather
was fired, at least in part, because she rejected Wilkins' advances,<5> and not because of
her inability to work the later shift. Both Merriweather and Monique Carson observed
that Wilkins was growing more and more hostile towards Merriweather as she resisted
his increasingly direct sexual advances. A44, A84-85, A101-02. Wilkins began telling
her, explicitly, that "he wanted [her] body," and that he was willing to pay her to go to
a hotel room and model lingerie. A113. After she refused, Wilkins' treatment of
Merriweather worsened. Merriweather described how Wilkins would use his authority
at work to get back at her  "Hours, schedule, time on the clock. He just started . . .
hav[ing] me punch out, go home. I don't need you here today.'" A101 see also A44
(Carson observed that Wilkins would "always nitpick with her, . . . doing stuff . . . to
make her want to quit").
     A reasonable jury could infer from this evidence of Wilkins' hostility that
Merriweather's inability to work the later shift after Wilkins made the last-minute
schedule change was the excuse Wilkins was looking for to fire her. See Logan, 246
F.3d at 920 (plaintiff may establish pretext directly by showing "employer was more
likely than not motivated by a discriminatory reason'") (citation omitted). A jury could
find, based on the evidence of Wilkins' hostility, that he wanted to punish
Merriweather for her rejection of him, and that Wilkins' subsequent explanations for
Merriweather's discharge were nothing more than "a phony excuse."  Hudson v.
Chicago Transit Auth., 375 F.3d 552, 561 (7th Cir. 2004).
     A jury could also find that V & J's explanation was pretext for discrimination
based on the evidence that V & J's explanation for the firing was false because of the
flimsiness of that explanation. See Logan, 246 F.3d at 920; see also Fuentes, 32 F.3d
at 765 (pretext may be shown by pointing to "weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions" in employer's explanation). As
Wilkins himself acknowledged, V & J rules do not permit imposing discipline for an
absence when the absent employee had less than 24 hours notice of a scheduling
change. A126. Merriweather had less than the requisite notice, and given the
circumstances of her dismissal, a jury could reasonably find that the absence
explanation was pretextual and that Merriweather's rejections in fact motivated
Wilkins to fire her. The district court was dismissive of this argument, observing that
Wilkins could not know with "absolute certainty" that Merriweather would not return
for the rescheduled, later shift. A20. The critical inquiry, though, is not whether
Wilkins changed the schedule with the intent to make Merriweather miss work so he
would have a reason to fire her. The critical inquiry is whether her refusals to have sex
played a role in Wilkins' decision to fire her. See 42 U.S.C.  2000e-2(m) (unlawful
employment practice established by showing sex was "a motivating factor" in
challenged employment action). There is considerable evidence that it did.
                                
II. Summary judgment on the Faragher/Ellerth affirmative defense to supervisory
harassment was improper because V & J maintained a woefully inadequate sexual
harassment policy and because Merriweather, the victim, made numerous and
          reasonable attempts to stop the harassment.

     Only if Wilkins had not taken any tangible employment actions against
Merriweather would the Faragher/Ellerth affirmative defense be potentially available
to V & J. As discussed above, it is the Commission's position that Wilkins did take
tangible employment actions against Merriweather, and that the affirmative defense
therefore is inapplicable. Even if the affirmative defense were available, however, V
& J's harassment policy was so profoundly flawed that V & J cannot properly be
permitted to invoke it. The district court's ruling to the contrary  on summary
judgment, and on an issue on which the moving party bore the burden of proof  was
in error. See Branham v. Snow, 392 F.3d 896, 907 (7th Cir. 2005) (where party moving
for summary judgment is asserting affirmative defense, moving party must show the
question "is so one-sided no reasonable jury could find for [the non-moving party]"). 

     The affirmative defense comprises two necessary elements: 
     (a) that the employer exercised reasonable care to prevent and correct promptly
     any sexually harassing behavior, and 
     (b) that the . . . employee unreasonably failed to take advantage of any
     preventative or corrective opportunities provided by the employer or to avoid
     harm otherwise.

Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. There is considerable evidence that
V & J cannot meet either prong.
     What the first prong requires, the Supreme Court explained, is "a stated policy
suitable to the employment circumstances."  Faragher, 524 U.S. at 807; see also id. at
806 (employer must have "a proven, effective mechanism for reporting and resolving
complaints of sexual harassment"); see also Gentry v. Export Packaging, 238 F.3d 842,
847 (7th Cir. 2001) (sexual harassment policy must have "effective grievance
mechanisms' and therefore the mere creation of a sexual harassment policy will not
shield a company from its responsibility to actively prevent sexual harassment in the
workplace"). The record evidence indicates that V & J's policy was wholly unsuitable
to the employment circumstances present here  in which very young employees,
inexperienced with being in the workforce, were employed in satellite locations, where
they had virtually no contact with anyone higher in V & J's hierarchy than the
restaurant general manager.
     There was evidence that the policy against sexual harassment was poorly
conveyed to hourly employees such as Merriweather and to supervisory employees.
Merriweather stated that in her orientation  which Merriweather characterized as a
"rush-through job" (A69)  all that the V & J official said about sexual harassment was
"sexual harassment, well, you all know what that is.'"  A32. Because Merriweather
was a 16-year old in her first job, V & J should not have assumed she knew "what that
is."  Further, whatever training supervisors received appeared extremely cursory.
Wilkins' only recollection of his training was "Basically, it can be  it can be
horseplaying or playing around, you know, and the employee can take it the wrong
way."  A127. A shift supervisor, Shawana Hollins, stated that she had been trained,
but when asked specific questions  such as what to do if one's boss is the one
harassing  she responded "I don't remember. It's a long time ago."  A39. As another
indication of the apparently cursory nature of the training, Hollins also repeatedly
referred to her training in "sexual morassment."  A38.
     The shortcomings in its training of employees might have been mitigated if V
& J had posted its sexual harassment policy. See Jackson v. County of Racine, 474 F.3d
493, 501 (7th Cir. 2007) (employer satisfied first prong of affirmative defense where,
inter alia, it had comprehensive anti-harassment policy "posted in every department");
Savino v. C.P. Hall Co., 199 F.3d 925, 932-33 (7th Cir. 1999) (employer satisfied first
prong where, inter alia, it posted sexual harassment policy and reporting instructions).
V & J did not post its policy anywhere at the restaurant, however. A127.
     Even if V & J's policy had been posted, it was deficient both in substance, and
in its lack of an effective reporting mechanism. As to substance, the policy did not
guarantee that complaints would be kept confidential, did not give assurances that the
harasser would be disciplined, and did not even promise that complaints would be
investigated. Cf. Durkin v. City of Chicago, 341 F.3d 606, 612 (7th Cir. 2003) (employer
had "proper system" for making harassment complaints where, inter alia, it required
that every complaint be investigated).
     Particularly troubling for this case, V & J's policy did not contain a meaningful
way to bypass a restaurant general manager if the manager himself was the harasser.
See Faragher, 524 U.S. at 808 (affirmative defense not available where, inter alia,
employer's policy "did not include any assurance that the harassing supervisors could
be bypassed in registering complaints"); cf. Durkin, 341 F.3d at 612 (employer's
"reasonable" policy elaborated how to complain if the harasser was the employee's
immediate supervisor); Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000) (employer's 
policy checked behavior of supervisors because policy "had grievance procedures
through which an employee could make a complaint without having to go through the
offending supervisor"). The policy in the orientation handbook handed out to hourly
employees identified only one person to whom they should made complaints  the
"District Manager."  A156. It was unclear from the handbook just who the District
Manager was. See Gentry, 238 F.3d at 847 (employer's policy ineffective where it only
identified job title, and not name, of person to whom report should be made). In any
event, the general understanding of all employees at the restaurant, from Wilkins on
down, was that complaints had to go through Wilkins, the restaurant's general
manager. A54-55, A129-31.
     The policy did not require supervisory employees to report complaints that they
received of harassment by a restaurant's general manager. The facts of this case thus
resemble those in Faragher, in which the Supreme Court criticized the employer's
officials for "ma[king] no attempt to keep track of the conduct of supervisors."  Cf.
Faragher, 524 U.S. at 808; see also Doe v. Oberweis Dairy, 456 F.3d 704, 717-18 (7th
Cir. 2006) (employer liable where  shift supervisors were aware of another shift
supervisor's harassment but did not report harassment), cert. denied, ___ S. Ct. ___,
75 U.S.L.W. 3493 (Mar. 19, 2007). The Oberweis Dairy Court held the employer could
be liable because "[n]o procedures were in force or utilized for protecting [16-year old]
girls like the plaintiff from what happened to her."  Id. at 718. Similarly here V & J's
ineffective policy meant that when Merriweather complained to shift supervisor
McBride, McBride did not forward the complaint to company officials or tell
Merriweather how to lodge a complaint herself. Her only advice to Merriweather was 
"[y]ou need to just probably go with it or tell him that you don't like him, cuss his ass
out.'" A111. And assistant manager Staten "just giggled[d] and laugh[ed] a little bit"
when Merriweather complained to him. A167. Even when Merriweather specifically
asked Staten for the corporate office telephone number, Staten initially told her "I
don't know if I can give you a phone number. I don't know [if] there even is one.'" A112.
He then gave Merriweather an incorrect number, and refused to help further when she
told him the number was wrong.
     The lack of a posted list of  individuals to contact in V & J's corporate office, with
contact information, rendered V & J's policy ineffective. See Gentry, 238 F.3d at 847
(policy allowing harassment complaint to be made to a "Human Resource
Representative" was flawed where "management did not post whom they considered
to be a Human Resources Representative"); cf. Rhodes v. Illinois Dep't of Transp., 359
F.3d 498, 507 (7th Cir. 2004) (effective anti-harassment policy "identifies designated
contact persons to accept complaints of . . . harassment" and employer displays "the
names and phone numbers of these contact persons" in prominent location) (co-worker
harassment case). As in Faragher, Merriweather worked in a location far-removed
from V & J's human resources department. See Faragher, 524 U.S. at 808 ("Faragher
and her colleagues were completely isolated from the [employer's] higher
management'").  The Supreme Court in Faragher stressed that where individuals work
in "far-flung locations," the employer must promulgate a harassment policy with a
"sensible complaint procedure."  Id. at 808-09; see also id. at 807 (policy must be
"suitable to the employment circumstances"); Gentry, 238 F.3d at 847 (policy must
provide for "a meaningful process whereby an employee can express his or her concerns
. . ."). 
     A posted harassment policy with a clear reporting mechanism was especially
critical in this case. V & J knew it was employing teenagers unversed in the working
world, and it therefore should have taken care to spell out how and to whom
employees could complain. Cf. Oberweis Dairy, 456 F.3d at 718 ("[S]exual harassment
may be a particular problem in the restaurant industry because restaurants often hire
young, inexperienced workers.'") (quoting Jennifer Ann Drobac, Sex and the
Workplace:  "Consenting" Adolescents and a Conflict of Laws, 79 Wash. L. Rev. 471,
481 (2004)); see also Roper v. Simmons, 543 U.S. 551, 569 (2005) ("Even the normal
16-year-old customarily lacks the maturity of an adult'") (citation omitted); Kiefer v.
Fred Howe Motors, 39 Wis.2d 20, 23-24,158 N.W.2d 288 (Wis. 1968) (noting general
rule that contract made by a minor is either void or voidable because of view that
"minor was immature in both mind and experience and that, therefore, he should be
protected from his own bad judgments as well as from adults who would take
advantage of him"); Wis. Stat. 893.16(1) (if person entitled to bring action is, at the
time the cause of action accrues, under 18 years old, statute of limitations is tolled; the
action may be commenced within 2 years after the minor turns 18).
     The telephone numbers listed on the cover of the orientation handbook and on
employees' pay statements did not establish, as a matter of law, that V & J exercised
the "reasonable care" required for the affirmative defense. The Orientation Handbook
does not contain a telephone number in its discussion of sexual harassment. A156. If
an employee misplaces the handbook, no other document contains the number for the
corporate office. As for the "hotline" number on the bottom corner of an individual's pay
statement, the ineffectiveness of placing such a number on a pay statement was made
manifest by the fact that no V & J employee working at the restaurant  including
Wilkins and Staten  knew the number was there or knew where to find the "hotline"
number. A143-44, A166. Merriweather, who also did not know about the number,
stated she never was told that she could use a number on a pay statement to report
harassment. A32.
     Finally, the ineffectiveness of V & J's policy is apparent from what happened in
this case: a restaurant manager was able to harass a 16-year old employee over a
period of months. Cf. Loughman v. Malnati Org., 395 F.3d 404, 407 (7th Cir. 2005) ("the
consistent stream of harassment at the restaurant suggests that [the employer's] policy
was actually not very effective at all"). V & J's flawed policy should have precluded a
finding that it established the first prong set out in Faragher and Ellerth, and that the
affirmative defense therefore was unavailable to it.
      V & J also cannot establish, on summary judgment, that it met the second
prong of the affirmative defense, largely because Merriweather did complain about
harassment to a number of different supervisory employees, including the harassing
general manager. A49-51, A71, A77, A79-80, A83, A98, A113. Given the ambiguity of
who is the "District Manager" mentioned, but not named, in the Orientation Handbook,
Merriweather may have satisfied V & J's own policy by complaining to Wilkins about
his harassment. Regardless, the Faragher/Ellerth defense does not require that an
employee comply with a flawed policy, but instead encourages the employee to take
reasonable steps "to avoid harm."  Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.
     Merriweather did take reasonable steps to avoid harm, especially in light of her
age and relative inexperience in the working world. She tried to call the corporate
office but Staten, who initially told her he did not know if he could give her the
number, gave her an incorrect telephone number. A112. He did not find the correct
number when Merriweather told him the number was wrong. A112. Merriweather
tried to complain to Daniels-Carter, but was thwarted when Wilkins changed her
schedule. A92. Merriweather did actually complain to numerous other supervisors at
the restaurant, including the assistant general manager. A80. It is true that these
supervisors were lower than Wilkins in the corporate hierarchy, but it was not
unreasonable for Merriweather to believe they would be able to help her. In light of the
lack of a posted policy or posted contact information, and in light of her age, the
summary judgment evidence demonstrates that Merriweather acted reasonably, and
tried "to avoid harm," by attempting to contact a corporate official and by actually
complaining to every supervisory official at the restaurant.     
     Finally, Merriweather did contact a V & J official by finding her home telephone
number in the white pages directory. The official, Mary Blake, only expressed
annoyance that she was being contacted at home:  "She asked us how the hell did we
get her phone number, and she hung up on us. And she said she's not the person we
need to be talking to."  A66. Although Merriweather contacted Blake after her
termination, V & J could still have taken steps to correct Wilkins' harassing behavior.
V & J could have disciplined, transferred, or terminated Wilkins and offered
Merriweather a job in a harassment-free environment.
     In sum, if V & J officials never learned about Wilkins' harassment of
Merriweather, it was because of inadequacies in their own complaint system and not
because of any unreasonable inaction by Merriweather. Given this evidence, V & J
cannot show, as it must on summary judgment on its affirmative defense,  that the
reasonableness of Merriweather's efforts was a question "so one-sided [that] no
reasonable jury could find for [the Commission]."  Branham, 392 F.3d at 907.
                                
III. There is record evidence that Wilkins unlawfully retaliated against
                  Merriweather by firing her.

     A. Both Merriweather and her mother engaged in protected activity.
     The district court held, somewhat grudgingly, that Merriweather's complaints
to an assistant manager and to shift supervisors comprised protected activity even
though Merriweather "never filed an official complaint through V & J's complaint
mechanism." A21 (citing Durkin, 341 F.3d at 615). The district court's ultimate holding
is correct, but there are two flaws in the court's analysis and in its reading of Durkin.
First, this Court rejected Durkin's complaints not because they were informal, but
because they "were vague and concerned subject matters other than harassment." 
Durkin, 341 F.3d at 615. In this case, by contrast, there was nothing vague about
Merriweather's complaints  she repeatedly and explicitly complained about sexual
harassment from Wilkins. 
     The second flaw in the analysis of the district court is that Title VII's retaliation
provision does not require the use of an official complaint procedure. The opposition
clause of Title VII's anti-retaliation provision makes it "an unlawful employment
practice for an employer to discriminate against any of his employees . . . because he
has opposed any practice made an unlawful employment practice by this subchapter
. . . ."  Section 704(a), 42 U.S.C.  2000e-3(a). Nothing in the language of this provision
requires that protected opposition must take the form of an "official complaint."  This
language is significant, for the Supreme Court grounds its interpretation of the anti-
retaliation provision in that provision's language, see Robinson v. Shell Oil Co., 519
U.S. 337, 340-41 (1997), in the language of the statute as a whole, and in the
provision's fundamental purpose of "prohibiting employer actions that are likely to
deter victims of discrimination from complaining to the EEOC,' the courts, and their
employers."  Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2415 (2006)
(quoting Robinson, 519 U.S. at 346). 
     Merriweather also told Wilkins himself to stop his offensive behavior. For
example, she asked him, in response to Wilkins' comments that "he wanted to be with
me," not to speak like that to her. A98. She requested that he "please keep your
business to yourself,' [and told him that] he need[ed] to . . . respect me in the
workplace.'" A98. She also pointedly told him that she was "not interested" in him, and
she asked Wilkins not to call himself her daddy. A83. Merriweather's acts of
complaining directly to Wilkins about his harassment is "the most basic form of
protected activity.'" Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000)
(citation omitted). 
     There was evidence that Merriweather planned on complaining about Wilkins
to the head of V & J, Daniels-Carter, but was thwarted by Wilkins' last-minute
schedule change. A92. If Wilkins fired Merriweather even in part because of her
planned complaints, the firing would violate Title VII for, as the district court correctly
held (A22), it violates Title VII to fire someone "in anticipation of that person engaging
in protected opposition to discrimination."  Sauers v. Salt Lake County, 1 F.3d 1122,
1128 (10th Cir. 1993); see also Johnson v. ITT Aerospace/Communications Div., 272
F.3d 498, 500-01 (7th Cir. 2001) (citing Sauers).
     The complaints of Merriweather's mother also comprise protected activity under
Title VII, especially since they were made on behalf of her minor daughter, and they
supplemented the complaints Merriweather herself had made. The district court held
otherwise, ruling broadly that Title VII does not encompass "third-party retaliation." 
A22-24. Therefore, according to the district court, an employer is not prohibited from
retaliating against an employee for complaints another person had made on her behalf.
     The district court's ruling is incorrect, and it ignores this Court's precedent on
Title VII's retaliation provision. In McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir.
1996), this Court observed that "[g]enerally one retaliates against someone because of
something he did rather than because of something someone else did. Not always." 
McDonnell, like this case, involved one of those "[n]ot always" situations  there it was
retaliation taken against an employee for failing to prevent another employee from
filing a discrimination complaint. The Court emphasized that such situations,
"apparently not foreseen by Congress," were ones in which a "literal interpretation of
the provision would leave a gaping hole in the protection of complainants and
witnesses."  Id. The Court noted this was a case of "genuine retaliation," and that it did
"no great violence to the statutory language" to construe the provision to encompass
such acts of retaliation. Id.
     The McDonnell Court relied on other Seventh Circuit precedent interpreting the
anti-retaliation provision to encompass "endeavors to obtain the employer's compliance
with Title VII."  Id. (citing Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1182 (7th
Cir. 1982)). McDonnell also relied on a Sixth Circuit case with facts very much like this
one. In EEOC v. Ohio Edison, 7 F.3d 541 (6th Cir. 1993) (cited in McDonnell, 84 F.3d
at 262), an employer retaliated against an employee after another individual
complained about discrimination on his behalf. The Ohio Edison court, after analyzing
the language and purpose of the anti-retaliation provision, concluded that "[s]ince
tolerance of third-party reprisals would, no less than tolerance of direct reprisals, deter
persons from exercising their protected rights under Title VII,'" it was fair to interpret
42 U.S.C.  2000e-3(a) as encompassing retaliation for complaints an employee's
representative made on his behalf. Ohio Edison, 7 F.3d at 543 (citation omitted). Ohio
Edison has been cited favorably not only in McDonnell, but also in a subsequent
decision of this Court. See Heuer v. Weil-McLain, 203 F.3d 1021, 1023 (7th Cir. 2000).
The Fourth Circuit also relied upon Ohio Edison in a case with facts similar to this one,
in which a child suffered retaliation because her mother engaged in protected activity
on her behalf. See Baird v. Rose, 192 F.3d 462, 471 n.10 (4th Cir. 1999) (retaliation was
prohibited because is was "clear that Baird's mother was acting on Baird's behalf").
     The statutory analyses of the McDonnell, Ohio Edison, and Baird courts are
consistent with the Supreme Court's instruction that "[i]n ascertaining the plain
meaning of the statute, the court must look to the particular statutory language at
issue, as well as the language and design of the statute as a whole."  K Mart v. Cartier,
Inc., 486 U.S. 281, 291 (1988); see also Crandon v. United States, 494 U.S. 152, 158
(1990) (to determine meaning court must look at language, design of statute as a
whole, and statute's object and policy). Section 704(a), which prohibits retaliation
against an employee "because he has opposed any practice made an unlawful
employment practice by this subchapter," 42 U.S.C.  2000e-3(a), is silent as to
whether an employer can retaliate against an employee because another person
complained on his or her behalf. Statutory silence "normally creates ambiguity. It does
not resolve it."  Barnhart v. Walton, 535 U.S. 212, 218 (2002); see also State of Ill.
Dep't of Pub. Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir. 1983) ("Not every silence is
pregnant.").<6>
     Looking at the "language and design of the statute as a whole," it is apparent
that Congress intended to encourage individuals to register complaints about
discrimination not only on behalf of themselves, but also on behalf of others. See 42
U.S.C.  2000e-5(b) (authorizing filing of charge "by or on behalf of a person claiming
to be aggrieved"). It would make little sense to authorize complaints on behalf of an
individual, but then permit an employer to retaliate against that individual. See Bob
Jones Univ. v. United States, 461 U.S. 574, 586 (1983) (statute should not be
interpreted in way that "would defeat the object which the Legislature intended to
accomplish'"). Anything that deters individuals from coming forward to challenge
discrimination hampers the enforcement that Congress desired. See EEOC v.
Associated Dry Goods, 449 U.S. 590, 602 (1981) (Title VII charging parties are "private
attorney[s] general,' whose role in enforcing the ban on discrimination is parallel to
that of the [EEOC] itself") (citation omitted). And as the Supreme Court recently
stressed, "[i]nterpreting the anti-retaliation provision to provide broad protection from
retaliation helps assure the cooperation upon which accomplishment of the Act's
primary objective depends."  White, 126 S. Ct. at 2414.
     The district court's decision, in addition to ignoring this Court's well-reasoned
precedent, also disregarded the factual context of this case. The factual context 
retaliation against an employee after another person has complained on her behalf 
is significant. None of the three appellate decisions upon which the district court relied
(see A23) involved a situation in which one individual complained on an employee's
behalf. Indeed, one of those appellate decisions, Holt v. JTM Industries, 89 F.3d 1224
(5th Cir. 1996), recognized the validity of the Ohio Edison ruling in the factual context
of that case. Holt involved a situation in which one employee engaged in protected
activity on her own behalf, and the employer then retaliated against her husband. Id.
The Holt court rejected the husband's retaliation claims, but in so doing it determined
that the holding of Ohio Edison  that an employee is protected from retaliation "where
the employee's representative opposes a discriminatory practice"  was "not
inconsistent" with the Holt court's ruling. Holt, 89 F.3d at 1227 n.2. According to the
court, "[t]he fact that the employee [in Ohio Edison] had engaged a representative' to
act on his behalf to protest his discharge illustrates that the employee had opposed a
discriminatory employment practice . . . [and he therefore] fell within the plain
meaning of the statute as one who . . . [can] sue for retaliation."  Id.
     There are two other unique factual aspects to this case that distinguish it from
Holt, and that make it unnecessary to reach the broad question of third-party
retaliation that the district court felt compelled to address. First, this is not a case in
which only Merriweather's mother protested the harassment; Merriweather also
protested the very same harassment. The Third Circuit has found this distinction
significant. In Moore v. City of Philadelphia, 461 F.3d 331, 351 & n.11 (3d Cir. 2006),
the court held that "retaliating against [one brother] for [another brother's] lawsuit
might well be actionable."  The Moore court noted that the brothers "are not just
brothers. They are co-whistle blowers. They both engaged in protected conduct."  Id.
at 351 n.11. The court accordingly held that "an employer cannot retaliate against one
whistle-blower by taking actions against an ally who is blowing the whistle on the
same conduct."  Id. As in Moore, the complaints of Merriweather and her mother are
so intertwined that Merriweather should be protected from retaliation for her mother's
complaints.                        
     Finally, this case differs from other third-party retaliation cases because of
Merriweather's age and her attendant status as a minor. Under both Federal and
Wisconsin state law, parents are often authorized  or required  to act on behalf of
their minor children. The Federal Rules of Civil Procedure, for example, explain that
a general guardian may sue or defend on behalf of a minor, and that a court may
appoint guardian ad litem to protect the interests of the minor. See Fed.R.Civ.P. 17(c).
Wisconsin has an analogous provision authorizing appearance in court by a minor's
guardian. Wis. Stat. 803.01(3); see also Wis. Stat. 949.04(1)(a) ("Application by a minor
may be made on the minor's behalf by his or her parent . . ."). Cf. Oberweis Dairy, 456
F.3d at 713-14 (Title VII case looking to Wisconsin state law for legislative judgment
on maturity of minors). Because of the special responsibility a parent possesses to act
on behalf of a minor child, it is reasonable to treat opposition by a parent on the minor
child's behalf as if the minor child herself engaged in the opposition.

     B. There was considerable evidence that Merriweather and her mother's
     protected activity caused Wilkins to fire Merriweather.

     This Court has held that a Title VII plaintiff may prove unlawful retaliation
through either a "direct" or an "indirect" method of proof. Under the "direct" method,
the plaintiff must provide "either direct evidence or circumstantial evidence that shows
that the employer acted based on prohibited animus."  Mattson v. Caterpillar, Inc., 359
F.3d 885, 888 (7th Cir. 2004); see also Tomanovich v. City of Indianapolis, 457 F.3d 656,
662-63 (7th Cir. 2006) (under direct method plaintiff must show "a causal connection"
between statutorily-protected activity and adverse action taken by the employer). The
evidence here proves the causal connection between the protected conduct and
Merriweather's termination directly.
     There is considerable evidence that Wilkins fired Merriweather because of her
and her mother's opposition to the sexual harassment. The most straightforward
evidence is what Wilkins himself told Merriweather was the reason for her firing. He
told her that "if you [had] acted like a lady and finished handling business like you
[had] been doing, you'd still have a job.'" A104. He scolded her:  "But instead you want
to put your mother in your business and that's why you don't have [a job].'" A104. It is
reasonable to infer from this statement, on summary judgment, that Wilkins was
retaliating because of the sexual harassment complaint. The district court held
otherwise, concluding that the firing was legitimate because Wilkins' statement
"suggests that Wilkins was upset that Merriweather's mother was disrupting the
workplace by complaining on her behalf."  A25 n.6. Merriweather's mother was not
making general complaints about matters unrelated to Title VII, however. She was
complaining about the sexual harassment of her 16-year old daughter by the
restaurant's general manager, and Wilkins was told as much by McBride. Wilkins'
subsequent statement to Merriweather  that she should have handled the situation
he created "like a lady"  indicates that he was perturbed about her mother's
involvement in the harassment matter. A reasonable jury therefore could find that it
was the content of the complaint by Merriweather's mother, and not simply the fact
that her mother came to the workplace to complain, that motivated Wilkins to fire
Merriweather.
     The district court also erred in discounting the evidence that Wilkins fired
Merriweather because of her intention to complain to Daniels-Carter. The district court
stated there was no "concrete evidence" McBride told Wilkins about Merriweather's
complaints. A26. The district court is incorrect. A reasonable jury could infer from
Wilkins' acknowledgment that he was able to monitor Merriweather through McBride
 his "eyes and ears on the floor" (A135)  that he learned of Merriweather's
harassment complaints and of her intention, which she vocalized, to complain to
Daniels-Carter. Such an inference is especially reasonable in light of Wilkins' actions: 
he changed Merriweather's shift schedule at the last minute, ensuring she would not
be present during Daniels-Carter's visit, and then he lied about his role in changing
her shift.
     Given the evidence of causation under this Court's direct method of proof, it was
error for the district court to take this question away from the jury. See Stone v. City
of Indianapolis, 281 F.3d 640, 644 (7th Cir. 2002) (noting that where evidence of
causation is uncontradicted, plaintiff is entitled to summary judgment and where it is
contradicted by evidence of non-retaliatory reasons for the adverse action, "the case
must be tried"). Here, V & J did assert a non-retaliatory reason for firing
Merriweather. But there was evidence that the reasons V & J gave for Merriweather's
firing were pretextual. As discussed above, Wilkins acknowledged that V & J rules do
not permit imposing discipline for an absence when the absent employee had less than
24 hours notice of a scheduling change. A126. Merriweather also was given permission
by Staten, who was going to be in charge of the restaurant during the later shift, not
to work. A167a. In short, Merriweather appeared not to have broken any V & J rules
when she did not return for the later shift. Finally, there were other employees, such
as Staten, with serious and frequent rule violations who nonetheless were not fired, as
Merriweather was. A136-39. This evidence should have precluded summary judgment
on the retaliation claim.


                            CONCLUSION

     This Court should reverse the judgment of the district court and remand the
case for further proceedings.
Respectfully submitted,

RONALD S. COOPER
General Counsel

CAROLYN L. WHEELER
Acting Associate General Counsel



________________________
JENNIFER S. GOLDSTEIN
Attorney

EQUAL EMPLOYMENT
  OPPORTUNITY COMMISSION


                    CERTIFICATE OF COMPLIANCE

     I certify that this brief complies with the type-volume limitation set forth in
Fed.R.App.P. 32(a)(7)(B). This brief contains 13,973 words.

____________________________
JENNIFER S. GOLDSTEIN



                   CIRCUIT RULE 30(d) STATEMENT

     I certify that all of the materials certified by Circuit Rule 30(a) are included in
the attached short appendix. The materials required by Circuit Rule 30(b) are included
in a separate appendix. The materials are not available electronically in a non-scanned
format.

_________________________________
JENNIFER S. GOLDSTEIN




                 ATTACHED REQUIRED SHORT APPENDIX





                      CERTIFICATE OF SERVICE

     I hereby certify that two copies of this brief were mailed, first class, postage
prepaid, on this day to the following:
Andre E. Townsel
Law Office of Andre Townsel
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Thomas P. Krukowski
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____________________________
JENNIFER S. GOLDSTEIN
Attorney

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May 1, 2007


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<<FOOTNOTES>>

<1> R.# refers to the record entry number in the district court docket sheet.  
A# refers to the page in the Plaintiff-Appellants Appendix

<2> McBride contradicted herself in her deposition.  After explaining that she only was 
to go to Wilkins with a harassment complaint, she later stated that she was supposed to 
report sexual harassment to headquarters if someone reported it to her.  McBride added 
that she thought she could be disciplined for failing to report the harassment.  A56.

<3> The evidence suggests that Wilkins may have fired Merriweather because she rejected 
his advances, because of his retaliatory motive (discussed infra), or because of a 
combination of both. Any of these three scenarios would mean Wilkins relied on an 
impermissible motive, and so would make V & J liable for the termination. See 42 U.S.C. 
 2000e-2(m).

<4> In addition to the standard information new employees must provide to employers, 
Wisconsin requires that minors under 18 receive a work permit before beginning 
employment. Wis. Stat. 103.70. There was evidence in the record that Merriweather 
obtained the requisite permit. A70. Wisconsin law further requires that the employer 
file the permit, and that it keep special records for minors indicating the employed 
minors date of birth, the time the minors work began and ended, and the total hours 
worked. Wis. Stat. 103.74. Because of these enhanced record-keeping requirements for 
minors, V & J officials presumably were mindful of each and every minor the company 
employed.

<5> The leading treatise on statutory interpretation reiterates that the lack of 
specific mention does not necessarily imply deliberate exclusion:

Where an issue arises within a general area covered by statute but for which the 
legislature has not made specific provision . . . , the court must discern the 
applicable legislative intent by what is necessarily an act of projection starting from 
the areas where legislative intent is . . . discernible, and projecting to . . . 
reasonable corollaries of that intent for the specific issue before the court. Courts 
cannot avoid the problem by refusing to apply the statute . . . on the ground that the 
legislature has not yet extended the statute to make it clearly apply . . . .

2A Sutherland Statutory Construction  45.09 at 42-43; see also Johnson v. United 
States, 163 F. 30, 32 (1st Cir. 1908) (Holmes, J.) (it is not an adequate discharge of 
duty for courts to say:  We see what you are driving at, but you have not said it, and 
therefore we shall go on as before.).