In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2197

JESSICA MAGYAR,

Plaintiff-Appellant,

v.

SAINT JOSEPH REGIONAL MEDICAL CENTER,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 3:05-CV-0452—Robert L. Miller, Jr., Chief Judge.

ARGUED NOVEMBER 7, 2007—DECIDED SEPTEMBER 12, 2008

Before POSNER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. Jessica Magyar (to whom we refer

in this opinion using her former last name of Houston) lost

her job at Saint Joseph Regional Medical Center (“the

Hospital”) after she complained about perceived sexual

harassment. She sued the Hospital on the theory that it

had violated the anti-retaliation provision of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Reasoning that the evidence Houston submitted in response to
2 No. 07-2197

the Hospital’s summary judgment motion could not

support a finding of causation, or in the alternative

could not show that the Hospital’s stated motive for

terminating her was pretextual, the district court granted

summary judgment to the Hospital. If we were the ultimate trier of fact, we would find this to be a close case.

We are not, however, and we conclude that the record

viewed in the light most favorable to Houston would

permit her to prevail. We therefore reverse and remand

for further proceedings.

I

While attending college, Houston took a position on

April 19, 2004, as a part-time assistant scheduler in the

Hospital’s surgical department. She was classified as a

PRN employee, which means that her work hours depended on the needs of the Hospital; she did not need to

conform to regular hours, did not receive benefits, and was

not required to accept work hours when offered. The

equivalent of a full-time surgery scheduler position was

covered by three people: one regular part-time employee

(Carmen Sanchez) who worked half-time, and two PRN

employees (Houston and Mikisha Williams, also a

college student) who together took up the other half of the

hours.

One day, Dale Carl, a 52-year-old male co-worker, came

into a crowded Hospital lounge where there were no free

chairs. Plopping down on 22-year-old Houston’s lap, he

whispered “You’re pretty” into her ear. Houston was not

amused. This happened some time between her April
No. 07-2197 3

hiring date and late July or early August. That was not

the first instance of Carl’s misbehavior. Houston testified

at her deposition that approximately one week before

that incident, Carl had also sat on her lap and whispered

a comment about her appearance. She explained that

“I was hoping it was just a one-time occurrence, and

I didn’t—I didn’t really—that was my first real job and

I really didn’t know what to do. And I had to check to see,

you know, like what are the exact standards in the

work force. And then I knew once he did that the

second time that I had to talk to her because it was not a

one-time occurrence.” When Carl repeated the same

move, Houston concluded that it was time to take action.

Around the first week of August, Houston reported

the second incident to Pam Goddard, her boss. During

this meeting, Goddard expressed reluctance to speak to

Carl about the incident if Houston was unwilling to file

a formal complaint. In response, Houston revealed that

she had been a victim of sexual assault in the past and

therefore she was sensitive to such behavior. Goddard

agreed to speak to Carl and apparently did so later that

day. Although the dissent asserts that Carl “apologized

profusely,” nothing in the record shows that he ever

said a word to Houston or that she even heard that he

had apologized to Goddard. The reason is because

Goddard actually told him not to apologize to Houston

when he asked whether he should do so.

The dissent contends that Goddard dealt with the

sexual harassment complaint effectively, as no further

incidents took place. But that is only half the story; from
4 No. 07-2197

Houston’s perspective, there was no evidence that anything (effective or otherwise) had happened. Goddard

took no steps whatsoever to communicate with Houston

regarding any resolution of her complaint, and so a trier

of fact could infer that Houston (especially given the

earlier incident of sexual assault) was left in fear that at

any moment there might be a third incident. Goddard

does not even allege that she followed up with Houston;

her deposition testimony reveals that she simply assumed

that the matter had been put to rest: “I talked to Mr. Carl

that afternoon regarding Ms. [Houston]’s complaint.

I heard nothing more from Ms. [Houston] regarding

Mr. Carl and believed the issue had been resolved to

Ms. [Houston]’s satisfaction, as I had spoken to Mr. Carl,

as Ms. [Houston] requested, and no further incidents

had occurred.”

Houston had every reason to wonder whether any

action had been taken at all; she probably attributed the

lack of further incidents to her own attempts to avoid Carl.

When asked in her deposition whether Carl did anything

that Houston considered harassing in nature after Houston’s conversation with Goddard, Houston testified as

follows: “No. But I also tried to stay as much away

from any contact with him. You know, I tried to avoid any

of the conversations that I—you know, I tried to keep

anything I had with him short.” Although the dissent

asserts that Houston sent an email to Goddard after the

meeting to express satisfaction with Goddard’s handling

of the complaint (“the smiley-face email”), this email was

sent on July 16, weeks before the meeting in question,

and did not pertain to the Carl incident.
No. 07-2197 5

Therefore, on September 17, having received no followup information from Goddard about the resolution of the

incident, Houston complained about Goddard’s failure

to respond to her complaint to the Hospital’s General

Counsel and Organizational Integrity Officer, Robert

Wade. Sometime during the following week, Wade contacted Human Resources (“HR”), and HR instructed

Goddard to meet with Houston again. On September 24,

Houston and Goddard met twice; at some point, the

discussion turned from the incident with Carl to the

question why Houston felt the need to approach Wade.

The next day, Goddard emailed Wade to report that

Houston’s issues “are resolved.”

Goddard was mistaken. On September 26 (nine days

after her first contact with Wade), Houston sent Wade a

formal letter addressed “To Whom It May Concern,”

complaining about the manner in which Goddard had

handled her initial complaint and the new fact that Houston’s “job had been posted on the job listings” without

notifying her, in apparent “retaliation for me turning

her [Goddard] in.” Houston’s affidavit and her September 26 letter both indicate that she considered it inappropriate that she had to reveal her traumatic past in

order to prod Goddard into action. On October 7,

Goddard submitted to HR a job requisition form to restructure the position covered by PRN employees Houston

and Williams into a single regular half-time position

with benefits. The dissent defends Goddard’s decision to

expend budget funds on the payment of benefits by

assuming that, if Goddard did not use these funds, they

would disappear in the next budget cycle. There is no

support in the record for this factual assumption (which
6 No. 07-2197

interprets the record in the light most favorable to the

defendant Hospital), nor for assuming that this fact,

even if true, motivated Goddard’s decision.

In any event, Houston was unable to bid for the new

position because it conflicted with her class schedule. On

October 20, the Hospital gave the job, which now

included benefits, to Williams, who was the only person

to bid for it since she had dropped out of college and freed

up her schedule. Two days later, Goddard told Houston

that she remained classified as a PRN and that she

would be called if she was needed.

Goddard’s statement turned out to be only half true.

Shortly after she told Houston that she was still a PRN,

Goddard told Williams and Sanchez to let her know if

they needed someone to cover for them, rather than

calling Houston. The Hospital asserts that the reason for

this instruction was Goddard’s business policy of

covering shifts with regular employees whenever it is

possible to do so without paying overtime, rather than

using PRNs. Between October 22, 2004, and April 26, 2005,

Houston was not called in to work at the Hospital a

single time. On April 26, 2005, she received notice that she

had been formally terminated because she did not work

enough hours as a PRN employee during the relevant

period; on the Termination Form submitted to HR effecting

this action, Goddard marked “no” in the box asking

whether the employee was eligible for rehire.

Believing that the Hospital had retaliated against her

for complaining about Carl’s harassment and for complaining about its failure adequately to address that

harassment, Houston filed this suit under Title VII. The
No. 07-2197 7

district court granted summary judgment to the Hospital,

finding that Houston had failed to establish a prima facie

case of retaliation, and that she failed to show that the

Hospital’s assertion that it was planning to restructure

her job was pretextual.

II

Before turning to Houston’s arguments on appeal, we

should address a procedural point that the Hospital has

raised in support of its judgment. In the district court, the

Hospital moved to strike Houston’s affidavit because it

was unsigned, bearing instead solely an “electronic signature.” The district court denied the motion because Houston submitted another affidavit on which her actual

signature was added near the electronic signature. On

appeal, the Hospital asks this court to disregard Houston’s

affidavit and thus to evaluate Houston’s response to its

summary judgment without that information.

A district court’s ruling on a motion to strike an

affidavit is reviewed for an abuse of discretion. Mannoia v.

Farrow, 476 F.3d 453, 456 (7th Cir. 2007). The Hospital

was not prejudiced by the initial defect in the affidavit

(to the extent that it was a defect at all in a world where

electronic signatures are regularly honored, see, e.g.,

Electronic Signatures in Global and National Commerce

Act, 15 U.S.C. § 7001 (requiring recognition of electronic

signatures), Uniform Electronic Transactions Act, and

Indiana Electronic Digital Signature Act, Burns Ind. Code

Ann. § 5-24-3-1). In any event, Houston immediately

substituted a copy with a traditional signature. The
8 No. 07-2197

district court did not abuse its discretion in denying

Hospital’s motion to strike. Houston’s affidavit is thus

properly part of the record before us.

III

The only issue remaining in this appeal is whether

the district court erred in granting summary judgment for

the Hospital. We review a grant of summary judgment

de novo. Sound of Music Co. v. 3M, 477 F.3d 910, 914 (7th

Cir. 2007).

A claim of retaliation under Title VII may be established

under either the direct method or the indirect burden-shifting method, which is an adaptation of the

familiar framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). See Stone v. City of Indianapolis

Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002). Houston

has decided to rely on the direct method of proof. To

establish a prima facie case this way, she must “present

direct evidence of a statutorily protected activity, an

adverse employment action, and a causal connection

between the two.” Haywood v. Lucent Techs., Inc., 323 F.3d

524, 531 (7th Cir. 2003). We consider each element in turn.

A. Statutorily protected activity

The Hospital argues that Houston was not engaging

in statutorily protected activity because, even by

Houston’s allegations, the retaliation was a response to

her approaching Wade to complain about Goddard’s

complaint-management skills (“in retaliation for me
No. 07-2197 9

We note in this connection that the procedures for addressing 1

sexual harassment play a critical role in this area of the law.

(continued...)

turning her in”), not her earlier approach to Goddard to

complain about Carl’s alleged sexual harassment.

The district court implicitly rejected this argument,

stating that “[e]ven though the Hospital is correct that Ms.

Houston’s complaint to Mr. Wade about Ms. Goddard

can’t be seen as a complaint about sexual harassment

or discrimination, Ms. Houston’s complaint about inappropriate touching by Mr. Carl clearly falls within

Title VII protection.” In support of her position, Houston

cites the district court’s decision in Johnson v. County of

Nassau, 480 F. Supp. 2d 581, 602 (E.D.N.Y. 2007). The

court there found that the plaintiff, who was Director of

the Office of Diversity, had stepped outside his job duties

and therefore engaged in protected activity, because in

addition to raising employee complaints of discrimination “he complained that Defendants were not fulfilling

their duties under Title VII in properly investigating

these complaints.” While that case is obviously not

binding on this court and the facts are somewhat different,

we find it persuasive. Taking the facts in the light most

favorable to Houston, as we must at this stage, the complaint to Goddard with the follow-up complaint to Wade

made up one continuous complaint process to which

Houston resorted. In effect, she was asking Wade to

ensure that the institution do something about sexual

harassment; there is not a hint that she had another,

unrelated, grievance about Goddard.1
10 No. 07-2197

(...continued) 1

Indeed, in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), the Supreme

Court recognized a procedural affirmative defense for employers, when harassment by a supervisor does not result in a

tangible employment action. If the employer has exercised

reasonable care to prevent and correct harassment (typically

through an effective anti-harassment policy for the workplace)

and the employee has unreasonably failed to avail herself of

that policy, then the employer will prevail. See Faragher, 524 U.S.

at 807-08; Ellerth, 524 U.S. at 764-65. An employee in the midst

of complaining about underlying harassment may well wish

to criticize the company’s procedures at the same time.

We note that, to succeed on a retaliation claim,

Houston need not prove that the underlying conduct she

perceived as sexual harassment actually was serious

enough to constitute a Title VII violation. Instead, she

need only show that, when instituting her grievance, she

had a “sincere and reasonable belief” that she was opposing an unlawful practice. Hamner v. St. Vincent Hosp. &

Health Care Ctr., Inc., 224 F.3d 701, 706-07 (7th Cir. 2000).

The objective reasonableness of the belief is not assessed

by examining whether the conduct was persistent or

severe enough to be unlawful, but merely whether it falls

into the category of conduct prohibited by the statute.

Contrast id. (holding that grievance about harassment

engendered by “homophobia” was not objectively reasonable and thus could not form the basis of a retaliation

claim, because “[s]exual orientation is not a classification

that is protected under Title VII”). Title VII does protect

employees from discrimination on the basis of sex, and
No. 07-2197 11

sexual harassment is a recognized species of such discrimination. 29 C.F.R. § 1604.11.

In this case, the record sufficiently demonstrates that

Houston subjectively felt that she had been sexually

harassed. In addition, the lap incidents involved actual

touching. This court has often recognized in the past

that unwanted physical contact falls on the more severe

side for purposes of sexual harassment. As we noted in

Patton v. Keystone RV Co., 455 F.3d 812 (7th Cir. 2006):

Our precedent provides some guidance on how to

evaluate the severity of harassment:

On one side lie sexual assaults; other physical

contact, whether amorous or hostile, for which

there is no consent express or implied; uninvited

sexual solicitations; intimidating words or acts;

obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar

banter, tinged with sexual innuendo, of coarse or

boorish workers . . . .

455 F.3d at 816, citing Baskerville v. Culligan Int’l Co., 50

F.3d 428, 430 (7th Cir. 1995). See also, e.g., Worth v. Tyer,

276 F.3d 249, 268 (7th Cir. 2001) (“The fact that conduct

that involves touching as opposed to verbal behavior

increases the severity of the situation.”); Hostetler v. Quality

Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000). Having a

man old enough to be her father plop into her lap and put

his lips to her ear to whisper “you’re beautiful” is the

type of occurrence that, if it happened often enough,

could constitute sexual harassment, and so Houston’s

grievance was objectively reasonable.
12 No. 07-2197

Viewing the evidence in the light most favorable to

Houston, we conclude that she has shown that she

engaged in a statutorily protected activity when she

complained up the chain of command.

B. Adverse employment action

The parties do not dispute that Houston suffered an

adverse employment action. Whether we look to her

initial loss of work around October 20, 2004, when her

PRN position disappeared and Williams received the

new part-time job, or we focus on her eventual out-andout termination on April 26 (with the added insult stipulating that she was not eligible for rehire), her case

easily satisfies this element.

C. Causal connection

The last element Houston must establish is a causal

connection between her statutorily protected activity and

the adverse employment action. Suspicious timing, together with other facts, can sometimes raise an inference

of a causal connection. Lalvani v. Cook County, 269 F.3d

785, 790 (7th Cir. 2001); Paluck v. Gooding Rubber Co., 221

F.3d 1003, 1009-10 (7th Cir. 2000). Houston and the Hospital argue over whether the window of time in this case

was narrow enough to be suspicious. We can measure the

time in several ways. The way most favorable to the

Hospital would be from Houston’s early August complaint to Goddard to her termination letter almost ten

months later. The way most favorable to Houston would
No. 07-2197 13

be from her renewed complaint to Wade on September 26

(when Goddard realized that Houston was not going to

let the subject drop) to the day when Goddard submitted the restructuring request to HR, on October 7—a

mere nine days. Or one might look at Houston’s first

complaint to Wade on September 17 as the startingpoint and her dismissal from her existing PRN job on

October 20, approximately a month later, as the end-point.

This court has found a month short enough to reinforce

an inference of retaliation. See Lang v. Ill. Dep’t of Children

& Family Servs., 361 F.3d 416, 419 (7th Cir. 2004) (adverse

employment actions began “the same month” plaintiff

filed the racial discrimination grievance with his union).

Although the lap incidents took place in early August

(and perhaps a bit earlier), we think that the approach most favorable to Houston is to assume that the

suspicious-timing clock was restarted on September 17,

because that is when Houston complained to Wade, the

General Counsel and Integrity Officer. From that point, it

is at most nine days before the first sign of an adverse

employment action, because by the September 26 letter

Houston already knew that her job had been posted on

the job listings. The fact that full execution of the adverse

action took a while longer for bureaucratic reasons is

immaterial. Once the wheels were in motion, Goddard

submitted the requisition form on October 7, filled the

position on October 20, denied Houston work hours,

waited several months, and then terminated her in April

for working insufficient hours (a flaw that Goddard was

able to engineer herself).
14 No. 07-2197

The Hospital attempts to minimize the causal link

between Houston’s complaint to Wade and Goddard’s

allegedly retaliatory restructuring of the job by pointing

out that Goddard “explicitly stated (in a secretly-taperecorded conversation) that she had no problem with

‘anyone taking anything to the Legal Department.’” First

of all, no trier of fact would be compelled to believe

Goddard’s protestation of open-mindedness. Second, while

Goddard did literally utter these words, they are

sandwiched between other words; taken as a whole,

a rational jury could interpret the conversation in Houston’s favor. Here is the full quotation:

I have no problem with anyone taking anything to the

legal department but I am just curious when the

situation was dealt with I thought it was dealt with

very effectively it was a positive out come. You got

what you asked for. And yet you still because you

don’t think I said the right words or I phrased the right

sentence what was your expectation of what you

wanted to see happen after taking it to the hospital (?)

department.

(Hospital Supp. App. 36) (imperfections in transcript of the

tape-recorded conversation). A reasonable jury could find

Goddard’s statements defensive and accusatory. She comes

across as having a substantial problem with Houston’s

decision to take the matter to the legal department, despite

her perfunctory statement to the contrary. This, together

with testimony from Houston that Goddard’s tone with

her was defensive and irritated, Goddard’s own admission

that she felt “shocked” and “bewildered” when she
No. 07-2197 15

learned that Houston had complained about Goddard’s

handling of the complaint, and the fact that Goddard

posted Houston’s job on the job listings within a few days

of this meeting, is more than mere suspicious timing. It is

sufficient to raise an inference of causation.

D. But-for Causation

Even if all that is true, the Hospital argues, it is still

entitled to summary judgment on the basis of what it calls

unrebutted evidence that Goddard already intended to

eliminate Houston’s job for a legitimate business reason.

Compare Stone, 281 F.3d at 644 (holding that summary

judgment in favor of defendant is required when defendant presents “unrebutted evidence that he would have

taken the adverse employment action against the plaintiff even if he had had no retaliatory motive”).

Through Goddard’s deposition, the Hospital presented

evidence that, upon taking the job of Director of Surgical

Services in June 2004, Goddard learned that two PRNs

(Houston and Williams) were doing the job of one

regular part-time employee. Goddard testified that she

regarded this as an undesirable business practice, because

the budget allowed for a part-time position with benefits,

so it should be filled in that way. (The point about benefits

was an odd one, given the fact that benefits impose substantial costs on employers. An August 2005 study performed for the Small Business Administration reported

that about 29% of a business’s total compensation costs

for hourly employees is attributable to benefits. See “Cost

of Employee Benefits in Small and Large Businesses,” at 6,
16 No. 07-2197

at www.sba.gov/advo/research/rs262tot.pdf (last visited

7/19/08). It is unclear why Goddard thought that it would

be better if her employer shouldered that burden.) Also,

she said, a regular employee would have predictable

and reliable hours commitments (though there is no

evidence that Houston and Williams were ever unavailable when the Hospital needed them.)

It is true that Houston responded only by commenting

that Goddard’s statements were self-serving, but this was

just another way of saying that a trier of fact would have

to evaluate everything Goddard said and decide what

to accept and what to reject. Even without direct rebutting

evidence from Houston, the Hospital’s evidence fails to

establish that Houston first would have lost her PRN

position and then would have been effectively blacklisted

for all similar work until her termination in the absence

of the retaliatory motive. It merely shows that the job

restructuring might have occurred anyway at some point.

On the other hand, a trier of fact might have seen

Goddard’s explanation of the timing of her action as

only a post hoc justification. Goddard stated:

I felt the situation I inherited (two PRN employees

filling a regular, part-time position) would need to

be addressed . . . . After dealing with the most

critical issues facing the Surgical Service Department

through the summer of 2004, I turned my attention

to correcting the use of PRN employees in a regular

position in the fall of 2004.

The Hospital cannot meet its burden on summary judgment by having the actor say only that she was thinking
No. 07-2197 17

vaguely of restructuring the job and planned to do it when

she got around to it. The fact that the Hospital also presented testimony that Goddard had not had a situation

in which two PRNs were sharing a job in all her prior

management years at the hospital does not compel a

different result. To the contrary, the fact-finder could

conclude that the fact that the “situation” continued

without being “addressed” for over three months indicates

that there was no urgency or even inevitability about

the Hospital’s decision to terminate Houston’s position.

Although the dissent contends there is “no doubt” that

Goddard intended to convert the PRN positions from the

time she came on board despite the delay in carrying out

this intention, it is able to come to that conclusion only

by viewing the evidence in the record in the light most

favorable to the Hospital. That is not the standard we

must apply; in our view there is enough in the record to

entitle a reasonable jury to find in favor of Houston.

* * *

Because Houston has established a prima facie case of

retaliation and the Hospital has not shown an absence

of material fact on the question whether it would have

taken the same action even without a retaliatory motive,

we REVERSE the district court’s grant of summary judgment in favor of the Hospital and REMAND the case for

further proceedings.
18 No. 07-2197

POSNER, Circuit Judge, dissenting. The plaintiff, Jessica

Houston, contends that the defendant, a hospital that

formerly employed her, dismissed her from her quartertime job in retaliation for her having complained to the

hospital’s general counsel about the handling of her

claim of sexual harassment. There is insufficient evidence

of retaliation to allow the case to go to a jury; and even

if there were sufficient evidence, there is no evidence of

retaliation for engaging in protected conduct, and without

that, there is no violation of Title VII. The district judge

was therefore right to grant summary judgment for the

defendant, and we should affirm.

Shortly after Houston was hired as an assistant

scheduler in the hospital’s surgery department, where

she and another college student shared a half-time position, Pam Goddard became the senior director of surgical

services. She had worked for the hospital for many years

and as senior services director supervised more than

200 employees. The job of assistant scheduler is a responsible one. It includes providing scrubs to physicians, entering information concerning times for surgery that are

given to the scheduler by a nurse, and ordering and

picking up x-rays for use in forthcoming surgical operations. College kids who like Houston were working only

one-quarter of a normal work week did not work regular

hours and there was no assurance that either she or the

other assistant scheduler would be available at all times

when they were needed. Goddard wanted to replace the

two college students with a regular half-time employee,

and eventually she did.
No. 07-2197 19

But meanwhile there had been an incident at work in

which a male employee had sat down in Houston’s lap

uninvited and said “You’re beautiful,” and another

incident in which he had “whispered [to her] an unwelcome sexual comment,” though she has not said what the

comment was. After the second incident Houston complained to Goddard. The latter was reluctant to take

action because Houston had not invoked the hospital’s

prescribed procedure for complaining about sexual

harassment—until Houston volunteered the information

that she had been the victim of a sexual assault, though

not by the same man or at the hospital. The same afternoon that Goddard learned this, she spoke to the male

employee about whom Houston had complained. He was

contrite, and there was no repetition of his offensive

behavior. So, in a matter of a few hours, Houston’s grievance was successfully resolved.

Houston made no further complaints either about the

male employee who she claimed had harassed her or

about anyone else, and this is compelling evidence that

Goddard’s action in response to her complaint had been

effective. The statement in the majority opinion that

Houston “probably attributed the lack of further

incidents to her own attempts to avoid” the alleged

harasser is a conjecture that has no basis in the record;

she did testify that she tried to minimize her contacts

with him, but that is the natural reaction to someone

who you think has harassed you, whether or not you

fear further harassment. There is also no basis for the

assertion in the majority opinion that by not reporting the

conversation with the alleged harasser, Goddard had left
20 No. 07-2197

Houston “in fear that at any moment there might be a third

incident.” No reasonable jury could draw such an inference. Houston had made no complaint about the first

incident, after the second incident had said that she was

in “no rush” to meet with Goddard, filed no complaint

against the harasser, made no effort to follow up with

Goddard, and waited two months before taking the

matter to the general counsel. Those are not the actions of

someone in fear of a third incident of harassment “at any

moment.” When she did eventually complain to the

general counsel, she said nothing about fearing a third act

of harassment. His notes of their meeting, reporting what

she told him, state that “actions have stopped.” The

harassment was a closed book. Houston’s complaint to

the general counsel was about Goddard’s handling of

her complaint. She told him she should not have had to

share with Goddard personal information in order to get

action on her complaint of harassment. (Of course, she

didn’t “have” to share anything; all she had to do was to

follow the procedures specified by the hospital, and not

claimed to be inadequate, for complaining about harassment.)

At a meeting with Goddard shortly after complaining

to the general counsel, Houston secretly recorded a conversation in which Goddard said: “I have no problem

with anyone taking anything to the legal department but

I am just curious when the situation was dealt with

I thought it was dealt with very effectively it was a

positive outcome. You got what you asked for . . . . I am

sorry that you feel the way you feel that as difficult . . . .

I felt like it was handled well but obviously you didn’t
No. 07-2197 21

and you are entitled to your opinion.” Houston replied:

“I said that at the end you handled it correctly after I told

you all the stuff and I stand o[n] that.” Notice of the

restructured job—a half-time job in place of the two

quarter-time jobs one of which Houston had filled—was

posted a few days later. Houston could not apply for

the job because a half-time job would not leave her

enough time for her college classes.

It strains credulity that Goddard would have converted two jobs for college kids into one regular job (with

benefits) merely to get rid of Houston because of the

latter’s criticism of Goddard’s handling of her complaint

of harassment. (Even that, as we shall see, wouldn’t be

enough to create a prima facie case. Houston was not

complaining that Goddard had failed to deal effectively

with sexual harassment. There was no harassment after

she first contacted Goddard, and she acknowledges that

“at the end you handled it correctly.” That “end” came

within hours of Houston’s first complaining about harassment.) It is true that the restructuring of the job came

hard on the heels of the meeting (the one Houston

secretly recorded) at which Goddard expressed irritation

(who wouldn’t?) at Houston’s having complained to the

general counsel. But there is no evidence to contradict

Goddard’s claim that she intended the restructuring from

the start and that the delay in implementation was due

to her having more pressing matters to attend to in her

new job.

The majority expresses puzzlement that Goddard would

prefer having one part-time employee with benefits to
22 No. 07-2197

two part-time employees without benefits, since benefits

are an expense. But her departmental budget allowed for

a part-time position with benefits, and it made sense for

her to use the funds allotted for that position before they

disappeared in the next budget cycle. The majority’s

conjecture is based on a government report concerning

average employee benefits, a report that makes no reference to the benefits expense of the St. Joseph Regional

Medical Center—obviously not all employers pay the

same benefits. Moreover, a part-time employee who

receives benefits is bound to be more dependable than

one who does not, because part-time jobs with benefits

are tough to come by. “Part-time workers are much less

likely to have employment-based health insurance

than full-timers . . . . In 2004, 18.6 percent of part-time

workers were covered by employment-based health

benefits through their own employer, compared with

61.5 percent of full-time workers.” Employee Benefit

Research Institute, “EBRI News: Growing Trend of PartTime Workers Feeds Into Overall Decline of U.S.

Health Coverage,” May 2, 2006, www.ebri.org/pdf/

PR_735_2May06.pdf (visited Aug. 22, 2008); to same effect,

see Peter S. Fisher, Elaine Ditsler, Colin Gordon and David

West, “Nonstandard Jobs, Substandard Benefits,” July

2005, pp. 15-22, http://cfcw.org/Nonstandard.pdf (visited

Aug. 22, 2008). And it is preferable from an employer’s

standpoint to have one person doing a job rather than

two splitting it, which complicates supervision and increases paperwork (two separate personnel files, etc.).

Houston points out that after the hiring of a regular

employee to do her job she was still available for part-time
No. 07-2197 23

work, since the regular employee was sometimes

swamped, but that Goddard gave her no work. But

Goddard testified without contradiction that her practice

was to offer part-time work to other regular employees

first—which would certainly be the normal practice—and

that there was nothing left over for the college kids. (The

majority opinion oddly describes this as “blacklist[ing]”

Houston.)

Houston argues that the fact that Goddard considered

her rude and disrespectful (notably in secretly recording

their conversation in violation of Illinois law, 720 ILCS

5/14-2(a)(1)) is evidence of retaliation. No; it is evidence

that Goddard considered Houston rude and disrespectful—and an infringer of Goddard’s legally protected

privacy rights and ungrateful to boot, for Goddard could

have insisted that Houston follow the hospital’s prescribed

procedure for complaining about sexual harassment, but

instead she cut the red tape and confronted the alleged

harasser without requiring Houston to file a complaint.

It is not a violation of Title VII to refuse to employ a

person whom you consider (whether or not reasonably)

rude and disrespectful, but in any event there is no evidence that that was the motive for the restructuring.

The majority thinks it suspicious that Goddard felt

“shocked” and “bewildered” when she learned that

Houston had complained about her to her employer’s

lawyer. That is the natural human reaction to a groundless

complaint to your superior. The majority’s reasoning

places employees such as Pam Goddard in an impossible

position: If the employee reacts indignantly to being
24 No. 07-2197

complained about, this is taken as evidence of retaliation;

but if she reacts by admitting that the complaint about

her to her superior is justified, or by not protesting

seems tacitly to admit that, she sets herself and her company up for a lawsuit (with the admission as evidence)

for failing to handle a claim of sexual harassment in

accordance with Title VII.

The majority bolsters its argument that Goddard was

conducting a vendetta against Houston by saying that

after filling the restructured job Goddard “denied [Houston] work hours, waited several months, and then terminated her in April for working insufficient hours (a flaw

that Goddard was able to engineer herself).” But if

Goddard wanted to punish Houston, all she had to do

was not give her an assignment. No work, no pay. What

additional benefit did Goddard obtain by formally terminating her? Why not have let her twist in the wind,

always hoping she might receive an assignment?

I conclude that no reasonable jury could find a retaliatory

motive in Goddard’s actions. But if I am wrong and it

could, it could not take the next step and find that the

retaliation was for statutorily protected activity, that is,

for “oppos[ing] any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). Houston’s only concern in complaining to the general counsel

and repeating the complaint to Goddard was with

Goddard’s not having acted until Houston told her of

having been the victim of a sexual assault prior to her

employment by the hospital. Houston was complaining

to the general counsel not of having been sexually harassed
No. 07-2197 25

(she mentioned the alleged harassment only by way of

background, for that grievance had long since been resolved), but of Goddard’s handling of the grievance. In

the conversation with Goddard that she secretly

recorded in violation of Illinois law, Houston confirmed

that she had complained to the general counsel only

because she didn’t like having had to share “all the stuff.”

(In fact she hadn’t had to, as I noted earlier.) Yet she

took the initiative in sharing the information with the

general counsel and now, in this lawsuit, with the world.

The majority’s statement that “in effect, [Houston] was

asking [the general counsel] to ensure that the institution

do something about sexual harassment” is an unwarranted

gloss on Houston’s own version of her complaint (“in

effect” is the giveaway). Houston was not concerned

about sexual harassment. The alleged harassment was

history, and there is nothing to suggest that she was

concerned about actual or potential harassment of other

employees. The statement in a footnote of the majority

opinion that “an employee in the midst of complaining

about underlying harassment may well wish to criticize

the company’s procedures at the same time” thus contains

two errors: Houston was not complaining about being

harassed—that complaint had been resolved long

ago—and she was not complaining about the company’s

procedures either. I cannot find any hint that she was

dissatisfied with those procedures. She does argue that

Goddard violated them. The hospital’s antiharassment

policy (the only possible “procedures” to which the

majority opinion can be referring) states that “If you

believe you or any other employee is being subjected to
26 No. 07-2197

conduct or comments that violate this policy, you are

encouraged and have a responsibility to immediately

report these matters to the Human Resources Department. If for any reason you do not feel comfortable reporting your concerns to Human resources, you may report

your concerns to the Integrity Officer.” Houston believed

that she had been harassed, and she therefore had a

responsibility to report the matter not to Goddard, but

to either the Human Resources Department or the

Integrity Officer. She did not fulfill that responsibility.

Goddard, who did not witness the incident that Houston

alleged to be harassment, did not, when Houston first

spoke to her, believe that Houston had been harassed.

Not that she disbelieved it; she just didn’t have evidence

beyond Houston’s say-so. So the policy did not require

her to report the matter to the Human Resources Department or the Integrity Officer.

Notice also that Goddard could have complied with

the antiharassment policy fully just by reporting

Houston’s concern to the Human Resources Department.

That would have delayed remediation. Goddard went out

of her way, by directly confronting the alleged harasser,

to make sure that the problem was resolved immediately.

The statement in the majority opinion that Houston

“subjectively felt that she had been sexually harassed,”

while true, is irrelevant. She was not (Irepeat) complaining

about the harasser. She was complaining about Goddard,

who had not harassed her. If when Houston met with the

general counsel she was still concerned about being

sexually harassed, why didn’t she tell him? Nor had
No. 07-2197 27

Goddard failed to handle Houston’s complaint of sexual

harassment properly. She had, as Houston concedes,

acted correctly in the end. And in the beginning too; her

initial reluctance to take action had been reasonable. We

warned in McDonnell v. Cisneros, 84 F.3d 256, 260-61 (7th

Cir. 1996), against placing supervisors on a razor’s edge,

where if they fail to act precipitately on a complaint of

sexual harassment they are sued for violating Title VII,

while if they act precipitately they are sued by the alleged

harasser. “Alleged harassers . . . have brought a number of

state common law claims, including wrongful discharge,

breach of contract, tortious interference with an employment contract, invasion of privacy, negligent investigation, intentional interference with an employment relationship, defamation, libel, and intentional infliction of

emotional distress.” 1 Alba Conte, Sexual Harassment in the

Workplace: Law and Practice 703-05 (3d ed. 2000); see also

Barbara Lindemann & David D. Kadue, Sexual Harassment in Employment Law 359-60 (1992).

At first Goddard wasn’t sure that the incident about

which Houston was complaining had been sexually

motivated, because Houston’s email requesting the meeting to discuss it had said that it was “not a rush” (that is,

that there was no urgency about Goddard’s meeting

with her) and because Houston was unwilling to use the

hospital’s prescribed procedure for reporting sexual

harassment. Shortly after the meeting with Goddard of

which Houston now complains (the meeting in which she

revealed the sexual assault), she emailed Goddard saying:

“Thank you . . . so much for listening and understanding.

You made me feel a lot more comfortable when I left.
28 No. 07-2197

Thanks (.” The statement in the majority opinion that the

meeting to which the email referred was not about the

alleged sexual harassment is unpersuasive in light of

Houston’s failure to offer an alternative explanation of

what the meeting was about.

Houston is not complaining that Goddard interrogated

her about her sexual history in a way that might discourage complaints about sexual harassment. There was no

interrogation. The information about a previous sexual

assault was volunteered by Houston in order to prod

Goddard into what could have turned out to be a precipitate reaction to the complaint. As the majority puts it “In

response [to Goddard’s reluctance to speak to the

alleged harasser unless Houston filed a formal complaint],

Houston revealed that she had been a victim of sexual

assault.”

Goddard’s reluctance to act, until Houston volunteered

the information suggestive of Houston’s special sensitivity

to sexual harassment, was not only reasonable but also

harmless, because no harassment occurred in the brief

interval (a matter of hours) between Houston’s complaining about the harassment and Goddard’s taking action,

conceded by Houston to have been effective—in fact it

was, as I noted, beyond the call of duty.

The only possible explanation for Houston’s dramatic

swerve from being pleased with Goddard’s handling of

the situation (the smiley-face email) to litigation

planning, complete with an illegal secret tape recording,

is that she saw that she was about to lose her job. Otherwise the two-month interval between the meeting with
No. 07-2197 29

Goddard that is the core of her complaint about Goddard’s

handling of the harassment grievance and the meeting with

the general counsel makes no sense (and she requested and

met with the general counsel on the same day, so the

delay was her doing, not his). Nothing had happened in

between. We know she knew about the job restructuring

by September 26, and she may well have gotten wind of

it earlier—before the meeting with the general counsel,

which took place on September 17.

She claims not to have known that Goddard had spoken

with the accused harasser about the incident. But Goddard

had told Houston she would do so, and why wouldn’t

Houston either assume she had or, if uncertain, check

with her? It’s not as if the harassment had continued,

which would have suggested that Goddard had not

followed through. On the contrary, the fact that the

harassment ceased should have made Houston realize

that Goddard had done as promised—as she had.

To say as the majority opinion does that Houston

“engaged in a statutorily protected activity when she

complained up the chain of command” is to equivocate.

Her complaint to Goddard about sexual harassment was

protected; her complaint to the general counsel about

Goddard, and its repetition to Goddard in the recorded

conversation, were not. That is why, even if Goddard did

restructure the job just in order to get rid of Houston

for having criticized her, her action, while it would not

have been nice, could not have violated Title VII.

Against this the majority opinion just cites a district

court decision and remarks that it must “tak[e] the facts in
30 No. 07-2197

the light most favorable to Houston.” The district court

case is inapposite (and anyway is not authority) because

the plaintiff’s complaint in that case concerned the violation of duties imposed by Title VII, and there was no

violation of any such duty in this case. Houston complained about harassment; the hospital responded; the

harassment ceased. The evidence that she was not complaining to the general counsel about protected activity

consists of her own admissions.

Suppose she had complained to Goddard about the

first incident of unwanted attention from the male

coworker, Goddard had done nothing, and then the

second incident had occurred. Whether or not Goddard

had acted reasonably in failing to prevent that second

incident, Houston could not be fired for complaining

about Goddard’s failure; for that failure would raise a

question about the adequacy of the hospital’s practices

or procedures for preventing sexual harassment, and so

she would not have lacked a “reasonable belief” (whether

or not correct) that the hospital had violated Title VII.

Her complaint would be statutorily protected, e.g.,

Holland v. Jefferson National Life Ins. Co., 883 F.2d 1307, 1315

(7th Cir. 1989), because she would be complaining about

inaction, not about insensitivity.

All that the hospital “was required to do in order to

satisfy its obligations under Title VII was to take prompt

action reasonably calculated to end the harassment and

reasonably likely to prevent the conduct from recurring.

The steps taken by [Goddard] clearly satisfied this standard.” Berry v. Delta Airlines, 260 F.3d 803, 813 (7th Cir.
No. 07-2197 31

2001); see also Cerros v. Steel Technologies, Inc., 398 F.3d 944,

954 (7th Cir. 2005) (“the efficacy of an employer’s

remedial action is material to our determination whether

the action was ‘reasonably likely to prevent the harassment from recurring’ ”); Williams v. Waste Management of

Illinois, 361 F.3d 1021, 1029-30 (7th Cir. 2004) (“the net

result [of a mere verbal warning] was that Williams’s

complaint was dealt with within twenty-four hours, and

he experienced no further race-based harassment”);

Andreoli v. Gates, 482 F.3d 641, 644 n. 2 (3d Cir. 2007) (“a

remedial action that stops the harassment is adequate as

a matter of law”); Swenson v. Potter, 271 F.3d 1184, 1196-

98 (9th Cir. 2001); Spicer v. Virginia, 66 F.3d 705, 710-11

(4th Cir. 1995). No reasonable person would have thought

that Goddard had violated Title VII by her handling of

Houston’s complaint; the majority’s contrary conclusion

is inconsistent with the case law.

My colleagues are deceived. This is not a case about

the sexual harassment of an employee, but about the

litigation harassment of an employer. The district judge

was right to end it.

9-12-08