In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1277

LISA DUNN,

Plaintiff-Appellant,

v.

WASHINGTON COUNTY HOSPITAL

and THOMAS J. COY,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 03-262—William D. Stiehl, Judge.

____________

ARGUED SEPTEMBER 14, 2005—DECIDED NOVEMBER 17, 2005

____________

Before EASTERBROOK,ROVNER, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge. For several years, Lisa

Dunn worked as a nurse at Washington County Hospital in

Nashville, Illinois. It is a small hospital, with only 59 beds,

so members of the staff must be able to work well together;

antagonists cannot be separated readily. Dunn contends in

this suit under Title VII of the Civil Rights Act of 1964 (and

other federal statutes) that Thomas J. Coy, the head of

obstetric and emergency services, made life miserable for

her and other women on the staff. Details do not matter for

current purposes. The district court assumed that Dunn

encountered discriminatory working conditions (men on the

staff faced no similar problems) but granted summary
2 No. 05-1277

judgment for the Hospital anyway, because at the time Dr.

Coy was not one of the Hospital’s employees. He had staff

privileges, which he used to furnish medical services

directly to patients. The Hospital therefore could not control

his conduct, the judge ruled, and could not be liable for it.

The district judge proceeded as if this were a tort suit.

Coy was an independent contractor; the Hospital would not

be liable on principles of respondeat superior for intentional

torts he committed against the nurses; consequently, the

judge thought, the Hospital could not be liable under Title

VII either. The proposition about the limits of vicarious

liability is incontestable. See Berry v. Delta Airlines, Inc.,

260 F.3d 803, 811-12 (7th Cir. 2001). It is also irrelevant,

because liability under Title VII is direct rather than

derivative.

The Supreme Court held in Burlington Industries, Inc. v.

Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton,

524 U.S. 775 (1998), that an employer is answerable under

Title VII only for “its own” deeds—and this is so even if the

person who takes supposedly discriminatory action is on its

payroll. An employer is responsible for every “tangible

employment action” (hiring, firing, promotion or its absence,

wage-setting, and the like) plus any other discriminatory

term or condition of employment that the employer fails to

take reasonable care to prevent or redress.

When a supervisor causes the objectionable conduct, proof

of reasonable care (and reasonable complaint by

the employee) is an affirmative defense; otherwise the

plaintiff bears the burden of showing that the employer

knew of the problem (usually though not always this

requires the employee to show that a complaint was made)

and that the employer did not act reasonably to equalize

working conditions once it had knowledge. See, e.g.,

Faragher, 524 U.S. at 799-808; EEOC v. Indiana Bell

Telephone Co., 256 F.3d 516, 524-26 (7th Cir. 2001) (en
No. 05-1277 3

banc); Shafer v. Kal Kan Foods, Inc., 417 F.3d 663 (7th Cir.

2005); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 809-

11 (7th Cir. 2000).

Because liability is direct rather than derivative, it makes

no difference whether the person whose acts are complained

of is an employee, an independent contractor, or for that

matter a customer. Ability to “control” the actor plays no

role. Employees are not puppets on strings; employers have

an arsenal of incentives and sanctions (including discharge)

that can be applied to affect conduct. It is the use (or failure

to use) these options that makes an employer responsible—and in this respect independent contractors are no

different from employees. Indeed, it makes no difference

whether the actor is human. Suppose a patient kept a

macaw in his room, that the bird bit and scratched women

but not men, and that the Hospital did nothing. The

Hospital would be responsible for the decision to expose

women to the working conditions affected by the macaw,

even though the bird (a) was not an employee, and (b) could

not be controlled by reasoning or sanctions. It would be the

Hospital’s responsibility to protect its female employees by

excluding the offending bird from its premises. This is, by

the way, the norm of direct liability in private law as well:

a person “can be subject to liability for harm resulting from

his conduct if he is negligent or reckless in permitting, or

failing to prevent, negligent or other tortious conduct by

persons, whether or not his servants or agents, upon

premises or with instrumentalities under his control.”

Restatement (2d) of Agency §213(d).

Just so with an offending independent contractor, as

Coy is alleged to be. The employer’s responsibility is to

provide its employees with nondiscriminatory working

conditions. The genesis of inequality matters not; what does

matter is how the employer handles the problem. Accord,

Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072-74 (10th

Cir. 1998) (collecting cases). Dunn alleges that the Hospital
4 No. 05-1277

knew that Coy made life miserable for women (but not men)

and did nothing in response. That states a claim of sex

discrimination under Title VII. The Hospital is mistaken in

saying that Dunn failed to plead the correct theory (or the

right facts) in the district court: Pleadings need not contain

either factual details or legal theories. See Swierkiewicz v.

Sorema N.A., 534 U.S. 506 (2002); Bartholet v. Reishauer

A.G. (Zürich), 953 F.2d 1073 (7th Cir. 1992). Nor does it

matter whether Coy intended to injure women; the right

question is whether the Hospital intentionally created or

tolerated unequal working conditions. The district court

therefore must decide on remand whether Coy’s conduct

was severe enough (and the Hospital’s response feeble

enough) to justify liability, and if material facts are in

dispute a trial must be held.

Dunn’s other contentions, however, do not require

additional proceedings. Coy was not a state actor, so claims

under the first amendment fail. Dunn’s equal-protection

argument—that the Hospital favored Coy over her because

he brought in more business—does not show intentional

discrimination against women. Dunn’s own characterization

of events implies that the Hospital tolerated Coy despite,

rather than because of, his puerile behavior, and thus did

not intentionally discriminate. See Personnel Administrator

of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979)

(“Discriminatory purpose . . . implies more than intent as

volition or intent as awareness of consequences. It implies

that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part because of, not merely in

spite of, its adverse effects upon an identifiable group.”)

(internal footnote, citation, and quotation marks omitted).

Dunn does not contend that the Hospital acted as it did

because it shared Coy’s prejudices.

Public employers must avoid sex discrimination in their

own acts (including the acts of their employees) but are

not obliged to root out discrimination by private ac-
No. 05-1277 5

tors—and, as an independent contractor, Coy was a private

actor. If the Hospital protected men but not women from

depredations by third parties, it would transgress the

original sense of equal protection, but Dunn does not

contend that the Hospital protected anyone from Coy. The

Constitution by and large establishes negative liberties; it

does not require the state to prevent or redress the misconduct of private actors. See, e.g., DeShaney v. Winnebago

County Department of Social Services, 489 U.S. 189 (1989);

Leeke v. Timmerman, 454 U.S. 83 (1981). This is an important respect in which Title VII provides public employees

with rights in addition to the Constitution’s requirements.

Dunn’s contention that the Hospital retaliated against her

for complaining about Coy’s misconduct is doubly incorrect:

first because “the Hospital” did nothing at all (Coy is

responsible for all of the supposedly retaliatory acts), and

second because what Coy did would not create a legal

problem even if imputed to the Hospital.

Almost all of what Dunn characterizes as “retaliation” is

verbal requests from Coy to withdraw her complaint of

sexual harassment. We assume (as we must at this juncture) that Coy spoke in a nasty and uncivil tone.

“[P]aybacks are hell,” one of his statements to Dunn,

implied that he would do what he could to impede her

career. Yet his statements did not cause Dunn any injury

(that is to say, no adverse employment action occurred). See

Hottenroth v. Slinger, 388 F.3d 1015, 1030 (7th Cir. 2004)

(“It is well established that unfulfilled threats that result in

no material harm cannot be considered an adverse employment action under Title VII.”). Talk is cheap; unless Dunn

knew that Coy had sabotaged the career of other nurses, his

statements would not have dissuaded reasonable persons

from protecting their own rights under the statute and thus

cannot violate Title VII. See Washington v. Illinois Department of Revenue, 420 F.3d 658, 661-62 (7th Cir. 2005). Dunn

did not offer evidence that Coy had damaged other nurses’
6 No. 05-1277

careers; instead the record shows that she stood up to a

windbag.

The one supposedly retaliatory act that cannot be characterized as cajolery or dark hints of future adverse employment action occurred during late April 2002 when Coy

pushed Dunn against a cabinet in the coffee room and,

while he had her pinned, tapped her on the cheek with a

closed fist. Dunn complained to the Hospital’s management

on May 2 about this assault and battery (which implied the

possibility of a more serious physical attack in the future),

and she never came to work again, sending a letter of

resignation on May 6.

Coy’s assault and battery may be actionable under state

tort law, but they cannot be imputed to the Hospital—not

only because Coy was not its employee but also because

Dunn did not give management time to respond. Only

a variant of absolute liability would deem the Hospital

responsible for Coy’s misbehavior, and Title VII is not an

absolute-liability regime. Trying to pin the label “constructive discharge” on Coy’s threat of violence is unhelpful. One

threat of this kind does not meet the standard of constructive discharge, see Pennsylvania State Police v. Suders, 542

U.S. 129, 141 (2004), and it would not matter if it did—for

only employers can “discharge” workers, and Coy was not

Dunn’s employer.

A final comment about the proceedings that lie ahead.

Some of the discovery rulings were shaped by the district

court’s view that the Hospital could not be responsible

for the acts of a non-employee; these must be reexamined on

remand. For his part, Coy contends that much of the

evidence that Dunn proposes to use is privileged under

Illinois law, either because it concerns the relation between

Coy and his patients or because it arises from a “peer

review” proceeding (the process by which hospitals determine the suitability of physicians to serve on their medical
No. 05-1277 7

staffs). See 225 ILCS 60/45, 735 ILCS 5/8-2101. Coy does

not explain, however, why these privileges matter to cases

under the federal-question jurisdiction. Only in diversity

litigation do state evidentiary privileges apply directly, see

Fed. R. Evid. 501, and Coy does not contend that the

privileges he asserts are recognized as a matter of federal

common law. Cf. University of Pennsylvania v. EEOC, 493

U.S. 182 (1990). We need not decide whether they should be

so recognized, as Coy failed to make these arguments in the

district court and has forfeited them.

The judgment is affirmed to the extent that it concerns

claims other than sex discrimination under Title VII. With

respect to that claim the judgment is reversed, and the case

is remanded for proceedings consistent with this opinion.

ROVNER, Circuit Judge, concurring in part and dissenting

in part. I join the majority in reversing the entry

of summary judgment in the Hospital’s favor on Dunn’s

Title VII claim. My colleagues rightly recognize that Dr.

Coy’s alleged status as an independent contractor did not

relieve the Hospital of its own obligation to provide employees with a nondiscriminatory workplace. If, as Dunn

represents, the Hospital was on notice that Coy

was sexually harassing her and other nurses and the

Hospital did nothing to stop him, the Hospital can be

held to account for its own negligence. My colleagues

conclude that this is the sole claim on which the Hospital

could be held liable. But I believe that the Hospital’s alleged

inaction could expose it to liability on two other claims: the

Fourteenth Amendment equal protection claim and retaliation. I therefore dissent from the court’s decision to affirm

the entry of summary judgment on those two claims.
8 No. 05-1277

I begin with the Fourteenth Amendment claim. Because

sexual harassment constitutes illegal gender discrimination

for purposes of the Equal Protection Clause, Bohen v. City

of East Chicago, Ind., 799 F.2d 1180, 1185 (7th Cir. 1986),

the Hospital as a state employer could be held liable for

depriving Dunn of equal protection of the laws if its failure

to effectively address Coy’s alleged misconduct was intentional, id. at 1187. Dunn posits that the Hospital sat on its

hands while Coy harassed her because Coy, as its principal

surgeon, was worth much more to the Hospital in revenue

than she or any other nurse. If so, my colleagues reason, the

Hospital was not intentionally discriminating against

women but rather guarding its own economic bottom line.

Ante at 4. But one must take care to distinguish motive

from intent. See Johnson v. Phelan, 69 F.3d 144, 155 (7th

Cir. 1995) (Posner, J., concurring in part and dissenting in

part) (“The distinction between motive and intent runs all

through the law.”). Discrimination is intentional if it is

deliberate rather than accidental (i.e. negligent); and in the

present context, where the state actor is charged with

deliberately acceding to the discriminatory actions of a third

party, it is beside the point whether the state actor itself

was motivated by a class-based animus or some

other reason. If a prominent surgeon told the Hospital,

“I will come to work for you, but I insist that my nurses be

white,” the Hospital could not fire its African-American

nurses and then evade equal protection liability by claiming

that although the Hospital itself had nothing against people

of color, the pressures of a competitive marketplace for

surgeons left it no choice but to accede to the demands of a

sought-after prospect. The Equal Protection Clause does not

permit the State to yield to private prejudices. See Palmore

v. Sidoti, 466 U.S. 429, 433, 104 S. Ct. 1879, 1882 (1984)

(“The Constitution cannot control such biases but neither

can it tolerate them. Private biases may be outside the

reach of the law, but the law cannot, directly or indirectly,

give them effect.”); City of Cleburne, Tex. v. Cleburne Living
No. 05-1277 9

Ctr., 473 U.S. 432, 448, 105 S. Ct. 3249, 3259 (1985) (“It is

plain that the electorate as a whole, whether by referendum

or otherwise, could not order city action violative of the

Equal Protection Clause, and the City may not avoid the

strictures of that Clause by deferring to the wishes or

objections of some fraction of the body politic.”) (citation

omitted). If the facts are as Dunn describes them, the

Hospital made a calculated decision not to stop Coy from

harassing its female nurses because it did not wish to

alienate a prized rainmaker. A jury could conclude that in

so deciding, the Hospital intentionally subjected Dunn and

its other female nurses to a patently discriminatory work

environment. Whether it did so because its management did

not like women or because Coy held an economic gun to its

head is irrelevant. When the State ratifies the discriminatory acts of a private party, it is discriminating, period. See

United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1223-

26 (2d Cir. 1987); Smith v. Town of Clarkton, N.C., 682 F.2d

1055, 1066-67 (4th Cir. 1982); Dailey v. City of Lawton,

Okla., 425 F.2d 1037, 1039 (10th Cir. 1970).

Personnel Administrator of Mass. v. Feeney, 442 U.S. 256,

99 S. Ct. 2282 (1979), see ante at 4, is not to the contrary.

Feeney dealt with a state statute that gave preference to

veterans in hiring for the state’s civil service jobs. The

statute was challenged under the Equal Protection Clause

as a form of gender discrimination. Facially, the statute

made no distinction based on gender, but because the

overwhelming majority of veterans were men, the preference had an undeniably adverse impact on female job

applicants. Yet the Court held that this disparate impact,

although it was the inevitable and foreseeable result of the

veterans’ preference, was not enough to establish that the

State had acted with a discriminatory purpose in enacting

the preference. Id. at 278-79, 99 S. Ct. at 2295-96. What

was missing was proof that the State had enacted the

preference “because of” rather than “in spite” of its adverse

impact on women. Id. at 279; 99 S. Ct. at 2296.
10 No. 05-1277

This case, by contrast, charges a state actor with deliberately embracing a condition of employment that was, on

its face, discriminatory. Coy was harassing only women,

after all, and accepting as true Dunn’s version of the facts,

there could be no doubt that he did so because of sex. See

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-

81, 118 S. Ct. 998, 1002 (1998). For its part, the Hospital,

by (allegedly) doing nothing to rein in Coy, ratified his

conduct and perpetuated the hostile work environment of

which Dunn and other nurses were complaining. The Equal

Protection Clause would not permit the Hospital to inform

its job applicants that women would be hired as nurses only

if they agreed to submit to on-the-job sexual harassment.

But that is, in effect, the very message that the Hospital

allegedly sent to the female nurses who worked with Coy.

The discrimination that these nurses claim to have experienced was not an incidental but a direct effect of the Hospital’s decision to let Coy have his way with them. And if the

facts are as Dunn claims them to be, one could reasonably

conclude that the Hospital made that decision “because of”

rather than “in spite of” its discriminatory effect—that it

tolerated the harassment precisely because the freedom to

sexually harass women was what Coy demanded (or the

Hospital believed he demanded) as a condition of his

contract with the Hospital. (It is entirely plausible that Coy

was that important to the Hospital, given the dearth of

talented surgeons in southern Illinois.)

Outsourcing has come into vogue at all levels of government as a means of cutting costs; but farming out public

functions to private contractors does not relieve state or

local governments of their Fourteenth Amendment obligation not to intentionally discriminate. Dunn

does not seek to impose on the Hospital as a state actor

a duty to root out discrimination by private persons nor

does she seek to treat every action by Coy as the Hospital’s

own. See ante at 5. Rather, she seeks to hold the Hospital
No. 05-1277 11

liable for its own deliberate failure to intercede once it

learned that Coy was discriminating against the Hospital’s

female employees. The State always has the ability to

tell an independent contractor like Coy to stop discriminating or lose his contract. But if my colleagues are right,

the State need never exercise that power; the State has

a blank check to tolerate discrimination by its contractors so long as it does not share their prejudices. Indeed,

under that narrow understanding of the Equal Protection

Clause, state and local governments would be free to

contract out public functions to firms that engage in all

manner of discrimination that would be illegal if committed

by governments agencies, so long as the governments

themselves harbor no discriminatory animus. For example,

a city would be free to award a trash collection contract to

a scavenger firm that it knew would ignore African-American and Hispanic neighborhoods, on the ground that the

firm offered the lowest price. If this is a correct understanding of the Equal Protection Clause, then its guarantee has

very little meaning vis-à-vis the vast array of public

functions that governments contract out to private firms.

As for the Title VII retaliation claim, the record permits

the inference that after Dunn gave the Hospital a statement

averring that Coy was sexually harassing her, the Hospital

materially altered the terms of her employment in a way

that would have dissuaded a reasonable worker in her

position from making or supporting a charge of discrimination. See Washington v. Illinois Dep’t of Revenue, 420 F.3d

658, 662 (7th Cir. 2005). Dunn’s theory is that Coy, with the

Hospital’s full knowledge and acquiescence, embarked on a

campaign to pressure her to retract her statement. That

campaign was so unrelenting, lengthy, and ultimately

threatening, Dunn alleges, that it amounted to a constructive discharge. My colleagues find two faults with Dunn’s

claim: (1) Coy is responsible for all of the allegedly retaliatory acts, whereas the Hospital itself did nothing, and (2)
12 No. 05-1277

Coy’s acts, even if imputed to the Hospital, would not

constitute legally cognizable retaliation. Ante at 5-6. With

respect, these points do not give the evidence its due.

That the Hospital “did nothing at all” (ante at 5) is exactly

why it might be liable for retaliation. It would be one thing

if the Hospital were completely in the dark as to the actions

Coy was taking against Dunn. But according to Dunn,

throughout the nearly two-year period between her statement and her resignation, she complained repeatedly to her

superiors that Coy was pressuring her to withdraw the

statement, all to no avail. Indeed, Dunn alleges that just

prior to her resignation, her supervisor remarked, “I see

what’s happening. I wish[ ] I could do something about it,

but I can’t. I understand that you are going to have to quit.”

2002 Dunn Dep. at 31-32. Around the same time, Dunn told

the Hospital’s CEO that she was frightened by Coy’s

actions. “I’m scared, too,” the CEO allegedly replied. R. 115

Ex. 8 ¶ 11; see also 2002 Dunn Dep. at 152-53. As with the

Title VII discrimination claim, such allegations readily

permit the inference that the Hospital knew what Coy was

up to but made no effort to stop him; and as with that

claim, the Hospital can be charged with its own failure to

intervene.

Moreover, if the facts are as Dunn recounts them, it was

the Hospital itself that put Dunn in this position. The

relevant chain of events commenced in 2000 when another

nurse, Jamie Jones, complained that Coy was sexually

harassing her. The Hospital commissioned its attorney, Eric

Trelz, to conduct an investigation into Jones’ complaint.

Trelz in turn spoke with a number of nurses, including

Dunn; and either the Hospital’s CEO or its Human Resources Director sat in on each of the interviews. At least

six of the nurses, including Dunn, reported that Coy was

sexually harassing them. Several of these nurses expressed

concern about the possibility that Coy might retaliate

against them if he were to learn of their statements. They
No. 05-1277 13

were promised that their statements would remain confidential unless and until the matter proceeded to court and

the Hospital were compelled to produce the statements. It

is a fair inference that Dunn and the other nurses relied on

that promise in cooperating with the Hospital’s investigation. The report that Trelz prepared at the conclusion of his

investigation confirms that Dunn herself was worried about

what might happen if Coy discovered what she said. “She is

very concerned about her career with the Hospital and

retaliation from Dr. Coy,” the attorney wrote of Dunn. R.

115, Ex. 1 at 6. Despite the Hospital’s awareness that the

cooperating nurses were concerned about retaliation, and

despite the assurances of confidentiality that the nurses

had been given, Coy had copies of the nurses’ statements in

hand within weeks after the Trelz report was submitted to

the Hospital’s executive committee, and more than a year

before Jones went to court on her charge. Coy would later

testify that it was the chairman of that Hospital committee

who gave him a copy of that report. A jury might conclude

that the apparent breach of the Hospital’s promise of

confidentiality opened the door to the ensuing retaliation of

which Dunn complains.

As for Coy’s actions and whether they qualify as retaliation, I respectfully submit that to characterize them mostly

as mere “verbal requests . . . [of Dunn] to withdraw her

complaint of sexual harassment” (ante at 5) is to strip them

of their tone and context. Coy’s alleged actions against

Dunn began with an invitation to apologize— “I can’t

believe you said what you said about me. I know you are

sorry. I will accept your apology.” (2002 Dunn Dep. at 27-

28)—and went downhill from there. On one or

more occasions, according to Dunn, Coy told her that he

would not be responsible for his actions if she did not

change her statement. 2004 Dunn Dep. at 256. On other

occasions he told her, “If you’re not nice to me, there is no

telling what could happen.” Id. at 252, 254-55. On yet
14 No. 05-1277

another occasion, he told Dunn that she would one day need

a hysterectomy and that he would be happy to do

it “because paybacks are hell.” Id. at 251-52; see also

id. at 147. These are but a few examples of the comments

that Coy allegedly made to Dunn beginning in July 2000,

following the release of the Trelz report, until Dunn’s

resignation in May 2002. A jury might infer that this

was not a simple, civilized dialogue between Coy and Dunn

as to the accuracy of her statement, but a pattern of

bullying aimed at forcing Dunn to withdraw her accusations.

Dunn, by the way, was not the only one on the receiving

end of Coy’s alleged arm-twisting. When Nurse Nikki

Jablonski resigned from the Hospital in February 2002, she

cited the pressure that Coy had placed on her to change her

own statement as a reason for quitting. Jablonski would

later testify that she felt “cornered” when Coy approached

her outside the presence of others. Jablonski Dep. at 117-

18. Jablonski also advised the Hospital’s Human Resources

Director that Coy was pressuring yet another nurse, Kelly

Hare, to change her statement as well. Indeed, the evidence

suggests that Coy was making the rounds of all of the

nurses who had given statements against him in the course

of the Jones investigation. According to Dunn, Coy told her

in April 2002, just a few weeks before she resigned, that

everyone except Dunn and Hare had changed their stories

and that Dunn needed to do the same. R. 115, Ex. 9.

Although inaction describes much of the Hospital’s course

of conduct during this time, it played a more direct role in

an incident that took place at the end of Dunn’s tenure. On

April 12, 2002, several months after Jones had initiated

litigation against Coy, the Hospital’s CEO allegedly ordered

Dunn into a meeting with Coy’s attorney as well as the

Hospital’s own counsel. At that meeting, according to Dunn,

Coy’s attorney proceeded to interrogate her in a rude and

belligerent tone about the statement she had given in the
No. 05-1277 15

course of the Hospital’s investigation, suggesting that Dunn

and the other nurses had conspired to tell a common story

and that Dunn might have given the Hospital false information. Throughout the cross-examination, Dunn alleges, the

Hospital’s attorney sat silently by. Upset at how she was

being treated, Dunn left the meeting. The Hospital’s CEO,

who witnessed her exit, testified that Dunn had “bolted.”

Newby Dep. at 109. According to Dunn, the pressure from

Coy only increased after this meeting, with Coy ultimately

going so far as to commit the assault that my colleagues

have mentioned.

Faced with this evidence, a jury could reasonably determine that Coy would stop at nothing to convince Dunn to

retract her statement. It could find that Coy’s badgering

rendered the workplace hostile to Dunn and the nurses who

had implicated him—sufficiently hostile that two of these

nurses (Jablonski and Dunn), seeing that complaining

about Coy did them no good, decided to resign. It might find

that the Hospital itself—by abandoning the promise of

confidentiality and handing the nurses’ statements over to

Coy, by allegedly doing nothing about the pressure Coy was

putting on these nurses to withdraw their allegations, and

by summoning Dunn into a hostile debriefing by Coy’s

attorney—was deliberately letting Dunn and the other

complainants twist in the wind, precisely as they had feared

would happen. See Washington, 420 F.3d at 662 (noting the

significance of an employee’s known vulnerabilities to the

retaliation analysis). This may not have been retaliation in

the more blatant sense (being fired or demoted for speaking

out against discrimination), but a jury could nonetheless

decide that the Hospital materially altered the terms of

Dunn’s employment by letting Coy run amok after Dunn cooperated in the investigation in Jones’ complaint. For although an isolated and unfulfilled threat of retribution may

not amount to an adverse employment action, see ante at 5,

a series of such threats, unchecked by the employer, can
16 No. 05-1277

give rise to a hostile work environment, see Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 754, 118 S. Ct. 2257,

2265 (1998) (categorizing multiple unfulfilled threats by

alleged harasser as a hostile environment claim), and a

hostile work environment can be a form of retaliation.

Stutler v. Ill. Dep’t of Corrections, 263 F.3d 698, 703 (7th

Cir. 2001); see also Washington, 420 F.3d at 662-63.

For these reasons, I would reverse the grant of summary

judgment on Dunn’s Equal Protection and retaliation claims

and remand them to the district court for further proceedings.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-17-05