The Honorable Gary Feinerman, of the Northern District of 

Illinois, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3862

SAMUEL MILLIGAN, 

Plaintiff-Appellant,

v.

BOARD OF TRUSTEES OF

SOUTHERN ILLINOIS UNIVERSITY,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 09 CV 320—J. Phil Gilbert, Judge.

ARGUED DECEMBER 2, 2011—DECIDED JULY 10, 2012 

Before RIPPLE and ROVNER, Circuit Judges, and

FEINERMAN, District Judge.



FEINERMAN, District Judge. Samuel Milligan, then a

freshman at Southern Illinois University (“SIU”), had
2 No. 10-3862

three uncomfortable encounters with Dr. Cal Meyers—

a professor emeritus at, and substantial donor to, SIU—

in which Meyers touched Milligan inappropriately and

complimented him on what Meyers believed to be his

feminine features. Milligan sued SIU under Title VII

and Title IX for creating a hostile work and educational

environment and also for retaliating against him for

complaining about Meyers’ harassment. The district

court granted summary judgment to SIU, Milligan appealed, and we affirm.

I. Background

The procedural posture requires us to state the facts as

favorably to Milligan as the record permits. See O’Leary v.

Accretive Health, Inc., 657 F.3d 625, 631 (7th Cir. 2011). We

emphasize that no endorsement of any fact regarding

Meyers—who, as a non-party, has had no occasion in

this case to dispute Milligan’s accusations—is intended.

Milligan enrolled at SIU in Fall 2007 as a chemistry

major. He decided to participate in SIU’s student employment program and was hired by Chris Kraft to

work in the chemical stockrooms at Neckers Hall,

the home of the Chemistry Department. Meyers was a

seventy-nine-year-old professor emeritus and Director of

the eponymous Meyers Institute for Interdisciplinary

Research in Organic and Medicinal Chemistry, which

had been established in 2000 with a $2.5 million donation from Meyers. Meyers no longer taught students and

had no supervisory or other authority over Milligan.
No. 10-3862 3

On October 4, 2007, when Milligan was working in the

first floor stockroom, which was directly across the hall

from Meyers’ office, Milligan encountered Meyers in the

hallway. Meyers told Milligan that his hair would make

him “a very sexy lady,” and then giggled and squeezed

Milligan’s buttocks. The encounter lasted four to five

seconds. Milligan reported the incident to Kraft, his

supervisor, who said that this sounded like something

Meyers would do. Kraft asked Milligan if he wanted to

talk to someone about the incident and offered to accompany Milligan if he did. Milligan declined. At

that time, SIU’s sexual harassment policy required any

supervisor who received a written or oral complaint to

“take necessary action to resolve the complaint

promptly” and to consult the Affirmative Action Office

to determine the appropriate course of action.

On October 11, 2007, Meyers approached Milligan in

the stockroom and asked where he could rent hair like

Milligan’s because it would look “pretty sexy on a lady.”

Meyers said that he would date Milligan if he were a

woman, laughed, and then left. The encounter lasted

about twenty to thirty seconds. After learning of

this encounter, Milligan’s mother called the Chemistry

Department and arranged to meet the next day

with Dr. Gary Kinsel, the Department Chair. Prior to

the meeting, Kinsel notified Dr. John Koropchak—the

Vice Chancellor for Research and Graduate Dean, and

the individual responsible for supervising the Meyers

Institute—of the situation.

At his meeting with the Milligans, Kinsel said that

Meyers was an old man with a compromised mental
4 No. 10-3862

state who could not be held accountable for his actions,

that he had once been a greatly admired scientist and

an asset to the university, and that he had no family and

that SIU was his life. Kinsel added that while he had

no disciplinary authority over Meyers, Koropchak did

have that authority and would meet with the Milligans

as soon as he could. Kinsel reviewed SIU’s sexual harassment policy with the Milligans. Kinsel was not familiar

with the policy before the meeting and incorrectly

believed that sexual harassment complaints must be

submitted in writing. Milligan found Kinsel to be receptive to his complaint and did not believe that Kinsel

was brushing him off.

Milligan’s mother then contacted Marcia Phelps from

SIU’s Affirmative Action and Equal Employment Opportunity Office. Phelps encouraged Milligan’s mother to

meet with Koropchak and to tell him that they wished

to proceed with a formal complaint. Phelps also asked

Milligan’s mother to call back after the meeting with

Koropchak.

In the meantime, Kinsel and Kraft assigned Milligan to

the second floor stockroom, where he had worked prior

to the first incident with Meyers and where he would

be less likely to encounter Meyers. Milligan did not

object to the assignment and worked the same number

of hours. On October 16, 2007, however, Milligan encountered Meyers on the stairs between the first and

second floors. Meyers giggled and told Milligan that he

would “look sexy as a girl” because of his hair. Meyers

also grabbed Milligan near the belt line with his index
No. 10-3862 5

finger and thumb; because Milligan wore his jeans low,

the grab “was very close to [his] genital area” and made

him “very uncomfortable.” The encounter lasted about

six seconds.

Koropchak’s meeting with the Milligans took place

a day later. At the outset, Koropchak told them about

Meyers’ great stature at SIU and the $2.5 million donation. After Milligan detailed Meyers’ inappropriate behavior, Koropchak asked whether there were any witnesses, and Milligan responded that there were none.

Koropchak told Milligan that it would be his word

against Meyers’ and asked Milligan four or five times

whether he was sure that he wanted to proceed with a

formal complaint. The Milligans felt that Koropchak’s

statements and questions implied that he was disinterested, did not believe them, and wanted them to drop

the complaint. But Milligan insisted on pursuing a complaint, and Koropchak said that he would begin an investigation and advised Milligan to avoid Meyers in

the interim.

Shortly after the meeting, Koropchak met with Meyers

and told him that a student had complained and that

his behavior would be monitored. On October 26, the

Milligans contacted Lynn Connley, an SIU ombudsman,

to inquire about the investigation. Connley checked in

with Koropchak, but before Connley could call the

Milligans back, Koropchak contacted the Milligans to

give them an update.

During his investigation, Koropchak learned that

Meyers had previously harassed a female Chemistry

Department employee. The employee said that Meyers
6 No. 10-3862

“constantly comment[ed] about [her] clothing” and

touched her in an “inappropriate” manner several times,

including grabbing her by the waist, rubbing his

head against her body, and poking her breast. The employee, however, had declined to pursue a formal complaint against Meyers.

At the conclusion of his investigation of Milligan’s

complaint, Koropchak concluded that Meyers had

violated SIU’s sexual harassment policy and, on November 8, 2007, issued a letter of reprimand. The letter

directed Meyers to cease all contact with student

workers and to attend sexual harassment training by

December 1, 2007. The letter warned Meyers that

future violations or failure to comply with the letter

could result in his termination as Director of the Meyers

Institute and revocation of his university privileges.

Meyers then commenced efforts to determine

who had reported him. He offered money to Kraft,

but Kraft refused to tell. On January 28, 2008, Meyers

asked Milligan whether he had complained; Milligan

mumbled and excused himself. The next day, Milligan’s

mother told SIU about that encounter. SIU also discovered that Meyers had not completed the sexual harassment training. (While Meyers may have attempted

to negotiate away the training requirement, there is no

evidence that SIU relieved him of that obligation.) In a

letter dated January 31, 2008, SIU Chancellor Fernando

Treviño banned Meyers from campus pending completion of a new investigation and warned that he would

be subject to arrest for trespassing if he appeared on
No. 10-3862 7

university property. Milligan saw Meyers on campus

over twenty times after the ban was imposed. SIU’s

public safety personnel escorted Meyers off campus

each time they became aware of his presence but, on

instructions from the Director of Public Safety, he was

not arrested.

In February or March 2008, Milligan decided to

change his major from chemistry to creative writing. One

motivating factor was his desire to get out of Neckers

Hall, where he continued to see Meyers. In April 2008,

Kraft informed Milligan that he could not continue to

work in the chemical stockrooms come Fall 2008. Kraft

testified that his decision was prompted by Milligan’s

waning interest in the job and poor work performance.

Milligan had requested fewer hours to allow him to

study more, leaving him with only one working day

per week. Making matters worse, Milligan had called

in sick two times and missed one day without notifying

Kraft, and also had an accident with a liquid nitrogen

canister. Milligan was able to gain university employment in Fall 2008 with the Graduate School’s admissions office and the university’s ticket office.

The foregoing events gave rise to two lawsuits. In

August 2008, Meyers brought suit against SIU and

Koropchak, alleging violations of federal and state law

related to the sexual harassment investigation and

Meyers’ expulsion from campus. See Meyers v. S. Ill. Univ.,

No. 3:08-cv-556-MJR-CJP (S.D. Ill.). The district court

dismissed Meyers’ suit, see Meyers v. S. Ill. Univ., 2009 WL

3719392 (S.D. Ill. Nov. 5, 2009); Meyers v. S. Ill. Univ., 2009
8 No. 10-3862

WL 2046061 (S.D. Ill. July 10, 2009), and an appeal of that

judgment is pending in No. 09-3931.

In April 2009, Milligan brought this suit against SIU

under Title VII for subjecting him to a hostile work environment, under Title IX for subjecting him to a hostile

educational environment, and under both statutes for

terminating him from his chemical stockroom job in

retaliation for complaining about Meyers. The district

court granted summary judgment to SIU on all claims.

2010 WL 2649917 (S.D. Ill. June 30, 2010), reconsideration

denied, 2010 WL 4818387 (S.D. Ill. Nov. 16, 2010). This

appeal followed.

II. Discussion

A. Hostile Work/Educational Environment Claims

Title VII makes it unlawful for an employer “to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C.

§ 2000e-2(a)(1). To succeed on his Title VII hostile work

environment claim against SIU, Milligan must prove

“(1) that [his] work environment was both objectively

and subjectively offensive; (2) that the harassment was

based on [his sex]; (3) that the conduct was either

severe or pervasive; and (4) that there is a basis for employer liability.” Vance v. Ball State Univ., 646 F.3d 461,

469 (7th Cir. 2011). Assuming without deciding that

Milligan adduced evidence sufficient to satisfy the

first three elements, his claim falters on the fourth.
No. 10-3862 9

Because Meyers was not Milligan’s supervisor, SIU

can be held liable for Meyers’ harassment only if Milligan

proves that SIU was “negligent either in discovering

or remedying the harassment.” Id. at 470; see generally

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

Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). An employer

is negligent if it does not “promptly and adequately

respond to [the] harassment.” Sutherland v. Wal-Mart Stores,

Inc., 632 F.3d 990, 994 (7th Cir. 2011). “[W]hat is [a] reasonable [response] depends on the gravity of the harassment. . . . [A]n employer is required to take more care,

other things being equal, to protect its . . . employees

from serious sexual harassment than to protect them

from trivial harassment.” Baskerville v. Culligan Int’l Co.,

50 F.3d 428, 431-32 (7th Cir. 1995); see also Erickson v.

Wis. Dep’t of Corr., 469 F.3d 600, 606 (7th Cir. 2006). While

Meyers’ demeaning comments and touching might be

enough to constitute severe or pervasive harassment

under Title VII, they did not rise to the level (e.g., sexual

assault or sexual quid pro quo) that would have

required SIU to take drastic action, such as a same-day

investigation and termination of Meyers. See Smith v.

Sheahan, 189 F.3d 529, 535 (7th Cir. 1999); McKenzie v.

Ill. Dep’t of Transp., 92 F.3d 473, 481 (7th Cir. 1996); Baskerville, 50 F.3d at 432. Given the facts and circumstances

before it, SIU’s response was appropriately prompt

and entirely reasonable.

Kraft was the first university official to learn of the

harassment. He offered to accompany Milligan to talk to

other university officials about the incident, but Milligan

declined. Kraft’s decision not to pursue the matter was
10 No. 10-3862

reasonable in light of Milligan’s declination. See Jackson

v. Cnty. of Racine, 474 F.3d 493, 501-02 (7th Cir. 2007)

(holding that an employer did not act unreasonably

where it had notice of a supervisor’s sexual harassment

but took no action for three months because no victim

wished to lodge a formal complaint). Kinsel was the

next university official to be informed. Because he had

no authority over Meyers, Kinsel immediately notified

Koropchak, who did have that authority. Kinsel also

arranged with Kraft to have Milligan work in the

second floor stockroom instead of the first floor stockroom, which was across the hall from Meyers’ office;

this is significant, as Milligan had experienced no

negative encounters with Meyers while working in the

second floor stockroom. Koropchak met with Milligan

and his mother five days later. When Milligan decided to pursue his complaint, Koropchak immediately

warned Meyers and conducted an investigation; three

weeks later, Koropchak issued a letter of reprimand,

requiring Meyers to attend sexual harassment training

and forbidding him from contact with student workers.

When SIU later learned that Meyers had contacted

Milligan and had not completed training, the Chancellor

banned Meyers from campus. And when Meyers continued to appear on campus, the university police

removed him.

SIU’s response is on par with employer responses

held reasonable in several of our cases. See Sutherland,

632 F.3d at 995 (where the employer reprimanded

the harasser and ensured that the harasser’s and the

harassed’s schedules overlapped only ninety minutes per
No. 10-3862 11

week); Roby v. CWI, Inc., 579 F.3d 779, 786 (7th Cir. 2009)

(where the employer required the harasser to attend

training classes and minimized the overlap between the

harasser’s and the harassed’s work schedules); Berry v.

Delta Airlines, Inc., 260 F.3d 803, 812-13 (7th Cir. 2001)

(where the employer investigated the allegations and,

within a month, required the harasser to watch a

training video and ensured that the harasser’s and the

harassed’s work schedules overlapped only ninety

minutes per day); McKenzie, 92 F.3d at 480-81 (where

the employer issued a memorandum to all employees

regarding sexual harassment and prohibited the

harasser from contacting the harassed); Saxton v. AT&T

Co., 10 F.3d 526, 535-36 (7th Cir. 1993) (where the

employer completed the investigation in two weeks

and took action within five weeks, transferring the

harasser to a different department). Milligan offers

three reasons why this case warrants a different result.

Each fails to persuade.

First, Milligan contends that Kinsel and Koropchak

attempted to discourage him from pursuing his

complaint against Meyers. Kinsel told the Milligans that

Meyers once had been a great professor and could not

be held responsible for his conduct due to his compromised mental state; Koropchak asked Milligan whether

there were any witnesses to the alleged harassment,

made him repeatedly affirm that he wanted to pursue

a complaint, and emphasized Meyers’ importance to

SIU. Drawing reasonable inferences in Milligan’s favor,

the record supports the notion that Kinsel and

Koropchak attempted to discourage Milligan from pur-
12 No. 10-3862

suing the matter because it would embarrass and harm

an important member of the university community.

In some cases, such discouragement might be sufficient to render an employer’s response unreasonable,

especially if coupled with a stalled or biased investigation. See Vance, 646 F.3d at 472 (the reasonableness of

an employer’s investigation may be a jury question

where the investigation was biased, with “all ties [going]

to the discriminator”); Porter v. Erie Foods Int’l, Inc., 576

F.3d 629, 636 (7th Cir. 2009) (“a prompt investigation is

the hallmark of a reasonable corrective action”) (internal

quotation marks omitted); Smith, 189 F.3d at 535 (“Just

as an employer may escape liability even if harassment

recurs despite its best efforts, so it can also be liable if

the harassment fortuitously stops, but a jury deems its

response to have fallen below the level of due care.”). Not

so here. The record indisputably shows that two other

SIU officials were quite helpful in shepherding the

Milligans through the complaint process. Phelps, from

the Affirmative Action and Equal Employment Opportunity Office, provided guidance regarding the complaint process and encouraged the Milligans to pursue

a formal complaint. Connley, the ombudsman, counseled Milligan and served as an intermediary between

Koropchak and Milligan. Moreover, despite their apparent discouragement of Milligan’s complaint, Kinsel’s

and Koropchak’s responses were otherwise reasonable

and effective.

Regardless of what he said at his meeting with

the Milligans, Kinsel set the investigative machinery
No. 10-3862 13

in motion before the meeting by referring Milligan’s allegations to Koropchak, the official with disciplinary

authority over Meyers. Kinsel also arranged for Milligan

to work exclusively in the second floor stockroom, away

from Meyers’ office on the first floor. For his part, after

confirming that Milligan wished to proceed, Koropchak

immediately warned Meyers and promptly investigated

the matter, completing the investigation and taking

remedial action about three weeks later. See Porter,

576 F.3d at 636. The record indisputably shows that

neither Kinsel nor Koropchak stalled SIU’s handling of

Milligan’s charge in any way. Also, the record contains

no evidence that the investigation was biased against

Milligan. Cf. Vance, 646 F.3d at 472. To the contrary, SIU

vindicated Milligan’s complaint by determining that

Meyers had violated its sexual harassment policy, by

prohibiting him from contact with students, and, when

Meyers refused to comply, by banning him from campus. Cf. EEOC v. Mgmt. Hospitality of Racine, Inc., 666

F.3d 422, 434-36 (7th Cir. 2012) (holding that management’s failure to investigate and report incidents of

sexual harassment made the employer’s response unreasonable).

Second, Milligan contends that SIU’s response was

ineffective because it did not prevent all contact between

him and Meyers. This argument fails because SIU was

not required to completely insulate Milligan from

Meyers. See Sutherland, 632 F.3d at 995 (holding that

the employer’s response was reasonable even where the

harassed employee periodically had to work in the

harasser’s general vicinity); Roby, 579 F.3d at 786 (same);

Berry, 260 F.3d at 813 (same). Rather, the law required
14 No. 10-3862

only that SIU’s response be “reasonably likely to prevent future harassment.” Parkins v. Civil Constructors

of Ill., Inc., 163 F.3d 1027, 1036 (7th Cir. 1998); see also

Vance, 646 F.3d at 471; Saxton, 10 F.3d at 536 (“Whatever

reasons there might be for the company’s failure to

take additional steps . . . are irrelevant absent evidence

suggesting that the [action taken] was not reasonably

likely to prevent the harassment from recurring.”). As

the above-cited precedents establish, the assignment

of Milligan to the second floor stockroom, the reprimand, the training requirement, and the good faith

efforts to minimize Meyers’ contact with Milligan were

sufficient under the circumstances. In fact, after

Koropchak’s meeting with the Milligans, Milligan

suffered no further sexual harassment. See Porter, 576

F.3d at 637 (“There is no question that a stoppage of

harassment shows effectiveness.”) (internal quotation

marks omitted); Smith, 189 F.3d at 535.

Nor is there any evidence that SIU’s response was

an unenforced sham. When SIU discovered that Meyers

had not completed the required sexual harassment

training and had contacted Milligan to ask whether he

was the complainant, the Chancellor punished Meyers

further, banning him from campus. SIU enforced this

ban and removed Meyers from campus whenever he

was seen. At most, SIU might be faulted for not

following up sooner to see if Meyers had completed the

training. Still, SIU’s overall response—the investigation,

the prohibition on contact with students, the imposition of the training requirement, and, ultimately, the ban

from campus—comprised a reasonable response to the
No. 10-3862 15

events as they unfolded. See Saxton, 10 F.3d at 536.

No reasonable jury could find that SIU’s failure to immediately learn of Meyers’ noncompliance with the

training requirement rendered its response patently

ineffective or a sham.

Our dissenting colleague maintains that a jury could

find that Koropchak’s letter of reprimand was an insufficient response in light of Meyers’ “earlier history of

untoward conduct, a history that had persisted despite

an earlier letter of reprimand, an earlier encounter

with another student and numerous other informal

complaints by staff members.” Dissenting op. 28-29. We

doubt that Meyers’ alleged history of improper conduct

is properly considered in evaluating the reasonableness

of SIU’s response. As an initial matter, Milligan’s appellate brief affirmatively maintains that “Milligan is the

only person who complained of sexual harassment by

Dr. Meyers.” Milligan Br. 12; see also id. at 11, 18 (arguing

that evidence regarding Meyers’ supposed harassment

of a female Chemistry Department employee is “inadmissible hearsay”). It is true, as the dissent observes, that

Milligan made this point in addressing a different

issue, i.e., whether Meyers was an “equal opportunity”

harasser and thus whether his harassment of Milligan

was based on sex. But still, having argued for that purpose that he was “the only person who complained of

sexual harassment by Dr. Meyers,” it would have lain

poorly in Milligan’s mouth to switch gears and argue, for

the purpose of challenging the adequacy of SIU’s response to his situation, that he was not the only person

to have complained of Meyers’ harassment.
16 No. 10-3862

As it turns out, Milligan did not make that argument,

either here or in the district court. His failure to do so

forfeits the argument. See Escobar v. Holder, 657 F.3d

537, 548 (7th Cir. 2011) (“the government did not argue

this and so this point is forfeited”); United States v. Bullock,

632 F.3d 1004, 1014 n.1 (7th Cir. 2011) (“because the

government did not argue that there was probable cause

to justify the pre-search detention, . . . it has forfeited

that argument.”). The dissent maintains that there is

no forfeiture because “Milligan raised adequately the

argument that the University’s response to Meyers’s

attacks was inadequate . . .” Dissenting op. 29 n.4. But as

we have held on several occasions, the forfeiture doctrine

applies not only to a litigant’s failure to raise a general

argument—here, that SIU’s response was inadequate,

rendering it liable for Meyers’ harassment—but also to a

litigant’s failure to advance a specific point in support of a

general argument—here, that SIU’s response was inadequate due, in part, to Meyers’ earlier history of untoward

conduct. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th

Cir. 2012) (“We have also recognized that raising an issue

in general terms is not sufficient to preserve specific

arguments that were not previously presented.”) (citing

Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 841 (7th

Cir. 2010)); Hannemann v. S. Door Cnty. Sch. Dist., 673

F.3d 746, 754 (7th Cir. 2012) (“a party ‘waive[s] the ability

to make a specific argument for the first time on appeal

when the party failed to present that specific argument

to the district court, even though the issue may have

been before the district court in more general terms’ ”)

(quoting Fednav Int’l Ltd., 624 F.3d at 841) (alteration in
No. 10-3862 17

original); Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th

Cir. 2011) (“[w]e apply [the forfeiture] rule where a

party fails to develop arguments related to a discrete

issue”); Domka v. Portage Cnty., Wis., 523 F.3d 776, 783 n.11

(7th Cir. 2008) (citing Libertyville Datsun Sales, Inc. v.

Nissan Motor Corp., 776 F.2d 735, 737 (7th Cir. 1985), for

the proposition that “where a party raises a specific

argument for the first time on appeal, it is waived even

though the ‘general issue’ was before the district court”);

4901 Corp. v. Town of Cicero, 220 F.3d 522, 529 (7th Cir.

2000) (same).

In any event, whatever history of “untoward conduct”

Meyers might have had did not render Koropchak’s

reprimand letter an insufficient response to the situation before him. In 1995, Koropchak issued a letter of

reprimand to Meyers for telling offensive jokes that

may have been sexual in nature. The record contains

no evidence of any other inappropriate conduct until

2005, when several students and staff members informally complained about Meyers’ behavior. However,

it appears from the record that those students and staff

members—including the female Chemistry Department

employee referenced above—declined to pursue their

complaints. Against this backdrop, Koropchak’s decision to issue a reprimand letter was reasonably likely to

prevent future harassment. After all, the 1995 letter

had been effective—it curbed offensive behavior by

Meyers for ten years.

Third, Milligan notes that Kraft, Kinsel, and Koropchak

were poorly versed in SIU’s sexual harassment policy
18 No. 10-3862

and did not follow it properly. While that appears to be

true to some degree, “[o]ur focus . . . is on whether [SIU]

responded promptly and effectively to the incident,”

Porter, 576 F.3d at 636, not on whether it complied with

its own internal policy. The failure to follow internal

policy does not matter so long as the employer’s response is otherwise reasonable under Title VII, which

it was here. See generally Restatement (Third) of Torts:

Phys. & Emot. Harm. § 13 cmt. f (2010) (evidence of

internal standards “does not set a higher standard of

care for the actor”).

In holding that SIU is entitled to judgment on the

Title VII claim, we acknowledge and share our dissenting

colleague’s concern with the vulnerability of Milligan

and student workers like him. That said, the approach

recommended by the dissent—made manifest by its

suggestion that although SIU’s actions might have been

sufficient in some employment situations, it was insufficient where the plaintiff is a student working on a

college campus—would threaten to carve a higher standard of protection for student workers than for other

plaintiffs. We do not believe it is necessary to take this

step. A breach of trust in a student work environment

indeed can have dire consequences, but so can breaches

of trust in a myriad of situations, such as those

involving interns, probationary workers, recent hires

desperate to attain long-term employment, or more

experienced workers not wanting to jeopardize their

pensions. Many if not most harassment cases involve

allegations that someone in a position of power harassed

someone else for whom job retention is an important if
No. 10-3862 19

not paramount consideration. The ordinary standards

governing sexual harassment claims take account of

this dynamic, and thus need no modification when

the plaintiff is a student worker.

Because summary judgment is warranted under Title

VII, the Title IX harassment claim requires little discussion. SIU can be held liable under Title IX for Meyers’

harassment only if it acted with “deliberate indifference.”

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998);

see also Doe-2 v. McClean Cnty. Unit Dist. No. 5 Bd. of

Dirs., 593 F.3d 507, 512 (7th Cir. 2010). Deliberate indifference is a more exacting standard than the negligence

standard governing employer liability under Title VII.

See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011)

(“Deliberate indifference is more than negligence and

approaches intentional wrongdoing.”) (internal quotation marks omitted). Thus, the fact that SIU’s response

was reasonable under Title VII necessarily absolves it

of liability under Title IX.

B. Retaliation Claims

 Title VII forbids an employer from discriminating

against an employee who “opposed any practice” prohibited by Title VII or who “made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C.

§ 2000e-3(a). “The antiretaliation provision seeks to

prevent employer interference with ‘unfettered access’ to

Title VII’s remedial mechanisms . . . by prohibiting employer actions that are likely ‘to deter victims of discrimi-
20 No. 10-3862

nation from complaining to the EEOC,’ the courts, and

their employers.” Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 68 (2006) (quoting Robinson v. Shell Oil Co.,

519 U.S. 337, 346 (1997)). Title IX’s prohibition on discrimination “on the basis of sex” likewise covers “retaliat[ion] against a person because he complains of sex discrimination.” Jackson v. Birmingham Bd. of Educ., 544

U.S. 167, 174 (2005).

Milligan may forestall summary judgment on his

Title VII retaliation claim through the direct or indirect

methods of proof. See Turner v. The Saloon, Ltd., 595

F.3d 679, 687-88 (7th Cir. 2010). Milligan pursues only

the direct method on appeal. Under that method, Milligan

“must present evidence of (1) a statutorily protected

activity; (2) a materially adverse action taken by the

employer; and (3) a causal connection between the two.”

Id. at 687 (internal quotation marks omitted); see also

Coleman v. Donahoe, 667 F.3d 835, 859 (7th Cir. 2012). The

Title VII retaliation framework applies with equal force

to retaliation claims brought under Title IX. See Papelino

v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 91

(2d Cir. 2011); Lucero v. Nettle Creek Sch. Corp., 566 F.3d

720, 728-30 (7th Cir. 2009); Frazier v. Fairhaven Sch. Comm.,

276 F.3d 52, 67 (1st Cir. 2002). The district court correctly

held that Milligan’s retaliation claims founder on the

third element, causation.

Milligan can establish causation at the summary judgment stage by showing that his complaints about Meyers

“were a substantial or motivating factor” in SIU’s decision to inform Milligan in April 2008 that he could not
No. 10-3862 21

return to his chemical stockroom position in Fall 2008.

Leitgen v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668,

675 (7th Cir. 2011) (internal quotation marks omitted).

“This may be done via direct evidence, which would

entail something akin to an admission by the employer

(’I’m firing you because you had the nerve to accuse me

of sex discrimination!’).” Coleman, 667 F.3d at 860 (some

internal quotation marks omitted); see also Nagle v. Vill. of

Calumet Park, 554 F.3d 1106, 1114 (7th Cir. 2009). Direct

evidence is “rare indeed,” ibid., and Milligan presents

none here. Causation also may be established “by presenting a ‘convincing mosaic’ of circumstantial evidence

that would permit the same inference [of retaliation]

without the employer’s admission.” Coleman, 667 F.3d

at 860 (some internal quotation marks omitted). Such

circumstantial evidence may consist of (1) “suspicious

timing, ambiguous statements oral or written, behavior

toward or comments directed at other employees in

the protected group, and other bits and pieces from

which an inference of causation might be drawn,”

(2) “evidence showing that the employer systematically

treated other, similarly situated . . . employees better,” or

(3) “evidence that . . . the employer’s justification [for

the adverse action was] pretextual.” Silverman v. Bd. of

Educ. of City of Chicago, 637 F.3d 729, 734 (7th Cir. 2011)

(internal quotation marks omitted); see also Coleman, 667

F.3d at 860. The appropriate focus “is not whether the

evidence offered is direct or circumstantial but rather

whether the evidence points directly to a discriminatory

reason for the employer’s action.” Atanus v. Perry, 520

F.3d 662, 671 (7th Cir. 2008) (internal quotation marks
22 No. 10-3862

omitted); see also Davis v. Time Warner Cable of Se. Wis.,

L.P., 651 F.3d 664, 672 (7th Cir. 2011).

Milligan relies on three pieces of circumstantial

evidence to establish causation: (1) the suspicious timing

between his October 2007 and January 2008 complaints

about Meyers, on the one hand, and Kraft’s informing

him in April 2008 that he would not be retained in the

chemical stockrooms in Fall 2008, on the other; (2) the

fact that SIU hired him to work in the Graduate School’s

admissions office and the university’s ticket office in

Fall 2008 despite his supposedly poor performance in

the chemical stockrooms; and (3) the fact that Milligan

is the only student for whom Kraft ever conducted a

performance review. Milligan forfeited any reliance on

the second and third pieces of evidence because he did

not raise them in his district court brief opposing summary judgment. See Liberles v. Cook Cnty., 709 F.2d 1122,

1126 (7th Cir. 1983) (“It is a well-settled rule that a

party opposing a summary judgment motion must

inform the trial judge of the reasons, legal or factual,

why summary judgment should not be entered. If it

does not do so, and loses the motion, it cannot raise

such reasons on appeal.”); see also Chi. Reg. Council of

Carpenters v. Vill. of Schaumburg, 644 F.3d 353, 356 (7th

Cir. 2011) (same); India Breweries, Inc. v. Miller Brewing Co.,

612 F.3d 651, 659 n.2 (7th Cir. 2010) (same); Amrhein v.

Health Care Serv. Corp., 546 F.3d 854, 859 (7th Cir. 2008)

(same); Domka, 523 F.3d at 783 (same).

The second and third pieces of evidence are

immaterial in any event. There is no evidence that
No. 10-3862 23

those who hired Milligan in Fall 2008 knew why he no

longer worked in the chemical stockrooms; even if they

had such knowledge, poor performance in the

chemical stockrooms does not necessarily predict poor

performance in the less dangerous positions Milligan

assumed in the admissions and ticket offices. Thus,

Milligan’s hiring in Fall 2008 does not give rise to a reasonable inference that he was fired for reasons other

than poor performance. The same holds for the fact

that Milligan is the only employee that Kraft ever

subjected to a performance review. For all the record

shows, Kraft conducted a performance review because

Milligan deserved it. There is no evidence that Kraft

had other employees with comparable performance

problems—weak attendance and accidents with

dangerous materials—who were equally deserving of a

performance review but did not receive one.

That leaves only timing. In egregious cases, suspicious

timing alone might create a triable issue on causation.

See Loudermilk v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir.

2011) (“Occasionally, . . . an adverse action comes so

close on the heels of a protected act that an inference

of causation is sensible.”); Boumehdi v. Plastag Holdings,

LLC, 489 F.3d 781, 793 (7th Cir. 2007). But it rarely does.

See Coleman, 667 F.3d at 860 (“We have often invoked

the general rule that temporal proximity between an

employee’s protected activity and an adverse employment action is rarely sufficient to show that the former

caused the latter.”) (internal quotation marks omitted);

Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 905 (7th Cir.

2005) (“suspicious timing alone rarely is sufficient to
24 No. 10-3862

create a triable issue”); Wyninger v. New Venture Gear,

Inc., 361 F.3d 965, 981 (7th Cir. 2004) (“ ‘mere temporal

proximity’ is not enough to establish a genuine issue of

material fact”). Under ordinary circumstances, “[c]lose

temporal proximity provides evidence of causation and

may permit a plaintiff to survive summary judgment

provided that there is other evidence that supports the

inference of a causal link.” Scaife v. Cook Cnty., 446 F.3d

735, 742 (7th Cir. 2006) (internal quotation marks

omitted, emphasis added).

This is not the rare case where temporal proximity

alone creates a triable issue on causation. Milligan

received notice in April 2008 that he would not retain

his chemical stockroom position; that was approximately

six months after his last sexual harassment complaint

in October 2008, and over two months after his complaint in January 2008 that Meyers contacted him in

violation of the letter of reprimand. We previously

have held that a seven-week interval, standing alone, is

insufficient to create a material issue regarding causation. See Argyropoulos v. City of Alton, 539 F.3d 724, 734

(7th Cir. 2008). The same result is warranted here, particularly given that SIU put forth strong and uncontradicted evidence that Kraft had good cause to decline

to invite Milligan to return in Fall 2008—Milligan’s

waning interest in the chemical stockroom job and the

accident with the liquid nitrogen canister.
No. 10-3862 25

Since my colleagues in the majority have pretermitted any 1

discussion of the other requirements of a sexual harassment

claim, I shall not elaborate on the merits of these elements.

Suffice it to say that, upon examination of the record and the

(continued...)

III. Conclusion

Meyers’ treatment of Milligan—assuming it occurred as Milligan says—was despicable. If a comparable

situation were to arise in the future, SIU would be welladvised to focus solely on whether the accusation is

valid and not at all on the accused’s stature on campus.

But as shown above, SIU responded reasonably to

Milligan’s complaints about Meyers, and on this record

a reasonable jury could not find SIU liable on his harassment claims. Nor could a reasonable jury find for

Milligan on his retaliation claims.

AFFIRMED.

RIPPLE, Circuit Judge, dissenting. This case presents

many close questions of fact assessment and therefore

presents a jury question. Accordingly, I would reverse the

judgment of the district court and remand the case for

further proceedings.1
26 No. 10-3862

(...continued) 1

relevant case law, I am convinced, as my colleagues assume,

that the other elements have been met. I note that the record

in this case supports Mr. Milligan’s theory that he was the

object of the behavior in question because the perpetrator

regarded him as not possessing the physical attributes usually

attributed to someone of the male sex. Price Waterhouse v.

Hopkins, 490 U.S. 228, 250-52 (1989) (plurality opinion) (woman

harassed because she was perceived as being not sufficiently

feminine), superseded in part by statute, Civil Rights Act of

1991, Pub. L. No. 102-166, 105 Stat. 1074. 

It is well-established that an employer is liable for a

hostile work environment created by an employee

when the employer does not respond promptly and

adequately to employee harassment. Sutherland v. WalMart Stores, Inc., 632 F.3d 990, 994 (7th Cir. 2011); Porter

v. Erie Foods Int’l, Inc., 576 F.3d 629, 636 (7th Cir. 2009).

Just as the severity and the pervasiveness of harassment

must be assessed in light of all the circumstances, see

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81

(1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993),

the assessment of whether a response to that harassment

has been prompt and adequate must take into account

all the facts and circumstances, see Berry v. Delta Airlines,

Inc., 260 F.3d 803, 811 (7th Cir. 2001) (noting that we

must “ ‘determine whether the employer’s total response

was reasonable under the circumstances as then existed’ ”) (quoting McKenzie v. Illinois Dep’t of Transp., 92

F.3d 473, 480 (7th Cir. 1996)).

The majority opinion suggests that the response in the

present case can be justified because it is “on par” with
No. 10-3862 27

responses determined to be prompt and adequate in

other circumstances. Majority Op. at 10. But simply

utilizing remedial tools found adequate in other circumstances hardly establishes that those tools were adequate

for the present case. Nor does it establish that those tools

were implemented with sufficient skill and sensitivity to

constitute an adequate remedy in the situation at hand.

Although “[w]e do not ignore hindsight, . . . the ultimate

question is whether the [employer’s] response was likely

to succeed ex ante.” Sutherland, 632 F.3d at 995; see also

Porter, 576 F.3d at 637; Berry, 260 F.3d at 811. The basic

purpose of the remedy is to permit an employee to get

on with the business of making a living without the

extraneous, and illegal, interference of the harassing

activity. The absence of another attack by a predator is

no “solution” if the employer’s remedy nevertheless leaves

the victim in substantial and reasonable fear of another

imminent strike. See Smith v. Sheahan, 189 F.3d 529, 535

(7th Cir. 1999) (“Just as an employer may escape liability

even if harassment recurs despite its best efforts, so it can

also be liable if the harassment fortuitously stops, but

a jury deems its response to have fallen below the level

of due care.”); see also Berry, 260 F.3d at 813 n.3 (same).

Actionable sexual harassment occurs when, under all

the circumstances, the actions of the harasser are so

severe or pervasive as to change the victim’s terms and

conditions of employment. Oncale, 523 U.S. at 81. In this

case, among those facts and circumstances is the plaintiff’s status as a student worker whose terms and conditions of employment most certainly included the need
28 No. 10-3862

R.40-5 at 11 (Koropchak Dep. 39-40). 2

Id. at 12 (Koropchak Dep. 42-45). 3

for a work environment compatible with his status as a

first-year, indeed, first-semester, college student in the

academic department where he worked. An institution

of higher learning assumes special responsibilities for all

students, but especially undergraduate students, who

undertake such a formative educational experience

within its walls. A breach of that trust, even in a work

environment, can have dire consequences to a neophyte

in the halls of higher education. If sexual harassment

occurs, and especially if the perpetrator is a faculty member, the University has a responsibility to implement a

remedy that restores the victim’s ability to work comfortably and effectively as a student worker.

On this record, a jury well might conclude that the

implemented discipline of a letter of reprimand that

forbade further contact between the alleged perpetrator

and student workers was an ineffective response to the

situation confronting the student-worker victim and,

under the circumstances, presented little hope of restoring

the victim to the terms and conditions of employment

that he had a right to expect. In making this assessment, the jury would have the right to assess the alleged

perpetrator’s earlier history of untoward conduct, a

history that had persisted despite an earlier letter of

reprimand, an earlier encounter with another student

2 3

and numerous other informal complaints by staff
No. 10-3862 29

R.40-4 at 16-17 (Kraft Dep. 61-64); R.40-7 at 7 (Kinsel Dep. 23). 4

The majority claims that we ought not consider these incidents in determining whether SIU’s response was adequate.

It does so by quoting a statement in Mr. Milligan’s brief that he

was “the only person who complained of sexual harassment by

Dr. Meyers.” Appellant’s Br. 12. That statement was made in the

context of Mr. Milligan’s effort to respond to the district court’s

view that Meyers was an “equal opportunity” harasser. There

can be no question that Mr. Milligan raised adequately the

argument that the University’s response to Meyers’s attacks was

inadequate, and the record makes crystal clear that in the period

between the first letter of reprimand in 1995 and the letter now

in question, Meyers persisted in his untoward conduct toward

University employees and students.

The record unequivocally demonstrates that the 1995 letter

of reprimand did not quash Meyers’s bad behavior. Koropchak’s

deposition says that, when the 2007 Milligan complaints

came in, Koropchak received correspondence from the Dean

of Science noting that the Dean himself had, at some

unspecified time, “personally observed Dr. Meyers casually

touching female members of [the Dean’s] staff” and it made

the staff “feel uncomfortable.” R.40-5 at 11 (Koropchak Dep.

38). Koropchak described the correspondence as “additional

evidence that was suggestive of [an ongoing] pattern.” Id.

(Koropchak Dep. 39) (emphasis added). In their depositions,

Kraft and Kinsel also mention incidents involving other

staff members, none of which resulted in a formal complaint,

without detailing when the behavior took place—although

it was clearly before 2007 when Mr. Milligan complained. R.40-4

at 17 (Kraft Dep. 62); R.40-7 at 6-7 (Kinsel Dep. 18-23).

(continued...)

members. The jury reasonably could conclude that the

4
30 No. 10-3862

(...continued) 4

Drawing reasonable inferences in Mr. Milligan’s favor, there

is certainly evidence from which a jury could have concluded that Meyers’s conduct was part of a pattern known to

SIU officials and not sufficiently corrected by prior disciplinary attempts.

The majority acknowledges that “the record supports the 5

notion that Kinsel and Koropchak attempted to discourage

Milligan from pursuing the matter because it would embarrass

and harm an important member of the university community.”

Majority Op. at 11-12. Nevertheless, the majority is persuaded

that SIU’s response is adequate, as a matter of law, based on two

other surrounding facts. First, two university employees, one

in the Affirmative Action Office and one an ombudsman,

encouraged the Milligans in the complaint process on one

occasion and checked in with Koropchak after the investigation had started to determine its progress. See id. at 12. Second,

(continued...)

situation was not going to be cured by yet another letter

of reprimand. The jury might conclude that the student

worker, upon his arrival at the University, found

himself in a situation in which an atmosphere of sexual

harassment already was prevalent and with respect to

which the University had adopted, negligently or consciously, a de facto policy of laissez-faire. Given these

circumstances, the jury well might decide that the

decision to issue yet another letter of reprimand constituted nothing more than an effort to maintain the

status quo while placating the victim and his family. It

might well determine that the University was obliged

to act earlier and with more stringent measures. After 5
No. 10-3862 31

(...continued) 5

although they required repeated assurances that Mr. Milligan

wished to proceed, Kinsel and Koropchak subsequently offered

responses that “were otherwise reasonable and effective.” Id.

(emphasis added). The point remains that the most senior and

important University officials with whom Mr. Milligan dealt

throughout his ordeal discouraged his going forward with the

complaint. While the ultimate question is whether the total

response was reasonable under the circumstances, see Berry v.

Delta Airlines, Inc., 260 F.3d 803, 811 (7th Cir. 2001), the jury

certainly had the right to assess whether the efforts of these

University officials contributed to the inadequacy of the

response.

all, the remedy chosen by the University left the perpetrator on the scene, free to prowl the department

in search of the individual who had caused the

disciplinary action. Few first-semester college students

tackle first-year chemistry courses in this ambiance.

The University’s follow-up response of an order

barring the alleged perpetrator from the campus might

convince the jury that the University’s response was

indeed adequate. On the other hand, the jury might

determine that this second course of action was

too-little-too-late or that the enforcement of the bar was

half-hearted or negligently lax. The evidence of record

would support either view and therefore presents a

jury question.

Finally, in determining the adequacy of the remedy, the

jury was not obliged to ignore the plaintiff’s account of

the effect that the University’s alleged failure to
32 No. 10-3862

respond adequately had on his future at the University.

According to the plaintiff’s testimony, which we must

accept as true as long as the case is in summary judgment posture, the prospect of encountering the alleged

perpetrator in the building was a prime cause in his shift

of focus from a pre-medical concentration to another

discipline. The jury might well determine that the

student worker’s account of the effect of this non-enforcement on his academic well-being was not as significant

as he states and that intervening factors were the true

cause in the alteration in his work and academic plans.

On the other hand, the jury might determine that the

plaintiff’s second-semester decision-making was indeed

caused by the alleged harassment and alleged lethargic

implementation of a remedy. The jury might conclude

that, given the plaintiff’s age, education, experience and

his student worker status, the response of the University

was indeed negligent.

It is undisputed that the University acted; indeed, in

some employment situations, its action may have been

adequate. It is questionable, however, whether, in

Mr. Milligan’s particular situation, the University’s action was a reasonable one. In assessing this question, the

jury could consider the surrounding circumstances to

determine whether the remedy was inadequate or

whether its implementation was half-hearted. The cold

record on summary judgment yields no definitive

answer to this question, but a reasonable juror could

construe the facts in such a way as to reach a conclusion supportive of the plaintiff’s position.
No. 10-3862 33

The majority fears that this analysis “threaten[s] to

carve a higher standard of protection for student workers

than for other plaintiffs,” a result that is unwarranted,

among other reasons, because student workers are not

so unusual in terms of the power imbalance that they

face with their employers. Majority Op. at 18. I certainly

agree that an imbalance of power is at the heart of “[m]any

if not most harassment cases.” Id. The situation of a

student worker is unique not solely because of the student’s characteristic vulnerability; it is unique because

it is a part of a larger, special relationship between an

institution of higher learning and an individual. In

that relationship, the institution is entrusted with responsibilities for care of the student different from, and

far in excess of, what an employer is expected to provide

for an employee. See supra pp. 27-28. More importantly,

however, my approach is hardly a new or radical

statement of the standard to be applied and certainly

recognizes no new category of protection for students

or any other group in the abstract. Current law unequivocally instructs that we account for the particular circumstances of an individual employment relationship in

assessing the reasonableness of an employer’s response.

It is a significant mischaracterization of my position to

suggest that I propose some sort of heightened

standard of protection for student workers. I simply

suggest that Mr. Milligan’s student-worker status must

be included among the totality of the circumstances a

jury would consider in the present case. The considerations I have outlined above simply highlight the particular facts of this case which might convince a jury, in
34 No. 10-3862

applying current law, to conclude that SIU failed to meet

its obligations with respect to Mr. Milligan.

Because the record is not free of material factual

issues regarding the adequacy of the University’s response, I would reverse the judgment of the district

court and remand the case for trial. Accordingly, I respectfully dissent.

7-10-12