In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 05-4070, 05-4071 & 05-4072

BRENDA JACKSON, SHERRI LISIECKI,

PATRICIA BIRCHELL-SIELAFF, and

ESTATE OF LINDA R. SCHULTZ,

Plaintiffs-Appellants,

v.

COUNTY OF RACINE,

Defendant-Appellee.

____________

Appeals from the United States District Court

for the Eastern District of Wisconsin.

Nos. 02-C-936, 02-C-1262, 02-C-1263—

Aaron E. Goodstein, Magistrate Judge.

____________

ARGUED FEBRUARY 23, 2006—DECIDED JANUARY 25, 2007

____________

Before EASTERBROOK, Chief Judge, and RIPPLE and

WOOD, Circuit Judges.

WOOD, Circuit Judge. Brenda Jackson, Sherri Lisiecki,

Patricia Birchell-Sielaff, and Linda Schultz worked at

the Child Support Division (CSD) of Racine County,

Wisconsin. While there, they assert, they were subjected

to constant sexual harassment from CSD’s Division

Manager, Robert Larsen. The first three women filed

lawsuits based on Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq.; the Estate of Linda R. Schultz

did likewise. The parties agreed to consolidate the cases
2 Nos. 05-4070, 05-4071 & 05-4072

for purposes of discovery and to permit the magistrate

judge to handle them, see 28 U.S.C. § 636(c). After evaluating the parties’ submissions on the County’s motion for

summary judgment, the district court concluded that the

conduct in question was not serious or pervasive enough

to create an actionable hostile work environment; it did

not reach the County’s affirmative defense under Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998), and

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

conclude that, although genuine issues of fact are present with respect to the existence of sexual harassment,

the County is entitled to prevail on its affirmative defense.

We therefore affirm.

I

We present the facts in the light most favorable to the

plaintiffs. Larsen was the Division Manager of CSD from

approximately October 1, 2000, to June 26, 2001. Jackson

and Birchell-Sielaff were supervisors; Schultz was an

assistant supervisor, and Lisiecki worked under Jackson’s

supervision. The workforce as a whole at CSD was approximately 85% female. Racine County had in place a

policy prohibiting sexual harassment, which read as

follows in pertinent part:

(1) It is illegal and against the policies of the county

for any employee, male or female, to sexually harass

another employee by:

a. Making unwelcome sexual advances, or

b. Making requests for sexual favors or other

verbal or physical conduct of a sexual nature,

a condition of employment, or

c. Making submission to or rejection of such

conduct the basis for employment decisions

affecting the employee, or
Nos. 05-4070, 05-4071 & 05-4072 3

d. Creating an intimidating, hostile or offensive

working environment by such conduct.

Examples of prohibited conduct include, but are not

limited to, loud or sexually suggestive comments;

sexual flirtations, touching, advances, or propositions;

off-color language or jokes of a sexual nature; slurs

and other verbal, graphic or physical conduct relating to an individual’s gender; or any display of sexually explicit pictures, greeting cards, articles, books,

magazines, photos or cartoons.

The policy also established an anti-harassment committee and set up procedures that any employee who felt

harassed could use. It concluded by providing that it

was to be communicated to employees annually and

that it was to be posted on appropriate bulletin boards

throughout the county.

Within weeks of Larsen’s appointment to the position

of Director, he began to engage in inappropriate conduct

toward the female employees in the CSD; he did not

engage in similar behavior toward the male employees.

Some of this behavior was rude or intimidating. For

example, Larsen would slam a door in a threatening way

to demonstrate his anger with Birchell-Sielaff, Schultz, or

Jackson. He also interrupted meetings that they were

holding with their subordinates, publicly chastising them

and yelling at them. He forced supervisors to work long

hours and to maintain heavy work loads, leaving them

exhausted.

Some of his behavior was more overtly sexual. We begin

with Jackson. Once, when she asked for Larsen’s help

in unjamming a stapler, he commented that she had “a

great set of boobs.” Indeed, Larsen not only made remarks like this on a daily basis; he also constantly sent

sexual jokes to Jackson as well as others in the office. On

one occasion, Jackson told Larsen that she could not
4 Nos. 05-4070, 05-4071 & 05-4072

paint because she had carpal tunnel syndrome. Larsen

responded, “Can you do this?” and proceeded to simulate

masturbation, stating, “Because that’s the only important one.” In addition, Larsen frequently made comments to Jackson about his sex life with his wife. In a

more juvenile vein, he often sidled up to women and asked

“Can I give you a kiss,” while offering a chocolate Hershey’s kiss to them. Nor did he stop with that. On two

occasions he wet his finger and stuck it in Jackson’s ear

while blowing in her ear. On one occasion, when Jackson

was trying to apologize to Larsen for returning late from

lunch, he placed his arm around her and kissed her on the

lips.

Lisiecki was subjected to similarly offensive behavior.

Larsen touched her constantly, on her neck, shoulders,

hair, and arms. As with Jackson, on several occasions

Larsen stuck a wet finger in her ear and blew on it. He

also made inappropriate comments about each woman’s

clothing, suggesting on a hot day to Lisiecki that she

could come to work in her bikini. He told her once that

he would love to be under her desk. Finally, Lisiecki

claims that Larsen told her that she might be promoted,

implying that the promotion would occur if he could “take

liberties with her.” When she refused his crude invitation,

he no longer discussed her promotion. In fact, Larsen had

no authority to create a management position for Lisiecki.

To Birchell-Sielaff, Larsen made constant remarks

about the way various women looked in their clothing,

including remarks about their breasts. He also gave out

the Hershey’s kisses during meetings that she conducted. He repeatedly told her about his sexual interest

in various female employees, as well as his exploits

with his wife.

Schultz, who passed away before this suit was filed, was

also the target of Larsen’s unwanted attentions, includ-
Nos. 05-4070, 05-4071 & 05-4072 5

ing the unwanted Hershey’s kisses, jokes, emails, comments about her appearance in certain clothing, and

leering. If Larsen saw her eating her morning breakfast of

a banana, he commented that he liked watching her eat.

Within a month of Larsen’s assumption of his job,

Birchell-Sielaff complained to Marta Kultgen, Racine

County’s Human Resource Manager since 2000, about

Larsen’s “kiss” routine and how unpleasant it was to

work with Larsen. Kultgen took no action in response

to this complaint other than to maintain contact with

Birchell-Sielaff. Between October 2000 and February

2001, Birchell-Sielaff complained frequently about Larsen,

but she did not indicate that she was concerned about

sexual harassment.

The first time that Kultgen was alerted to a problem

with sexual harassment came in a February 14, 2001,

telephone call from Birchell-Sielaff, in which BirchellSielaff reported that “some” CSD employees had complained about Larsen’s inappropriate sexual comments.

Kultgen replied that she would need to look into this, as

it might involve a violation of the County’s anti-harassment policy. Although Birchell-Sielaff was initially reluctant to provide the name of the person who had complained, she eventually gave Kultgen one name and

claimed that she did not know if anyone else was experiencing similar problems.

Kultgen followed up with the employee Birchell-Sielaff

had identified, who confirmed that Larsen had made an

unwelcome sexual remark to the effect that “now you can

go home and tell your husband you went up and down

with Bob in the office.” The employee told Kultgen that

she did not want to file an internal complaint of sexual

harassment.

On February 15, Birchell-Sielaff contacted Kultgen

again and gave her Lisiecki and Jackson’s names as
6 Nos. 05-4070, 05-4071 & 05-4072

additional possible victims of Larsen’s sexual harassment.

Again, Kultgen acted promptly. She contacted Jackson,

who confirmed that Larsen had indeed been engaging in

the behaviors detailed above. Kultgen emphasized to

Jackson how important it was to report this kind of

behavior and asked whether Jackson wanted to file a

formal complaint. Jackson declined, saying that Larsen’s

behavior had improved since she told him that his conduct was unwelcome. Kultgen also contacted Lisiecki, but

the latter declined to provide any details about Larsen’s

behavior toward her. She did admit that there had been

an unwelcome touching at one point and that Larsen

had promised her a promotion that had not materialized

after she refused his advances. Kultgen explained that,

regardless of Larsen’s statements or behavior, there was

no vacant management position for which Lisiecki was

qualified and that Larsen lacked the authority to make a

promotion on his own. Like the others, Lisiecki did not

want to file a formal complaint. Kultgen also contacted

several other people.

On February 23, 2001, the Anti-Harassment Committee

met. The members included Kultgen, Matthew McVey

(an assistant corporation counsel), and Connie Mallwitz

(a lieutenant with the Sheriff’s Department). In light of

the lack of any formal complaints before it, the committee concluded that there was nothing at that point for

it to do, apart from counseling Larsen about sexually

inappropriate behavior. The committee also sent letters

to the women Kultgen had met, in order to confirm the

fact that they did not wish to complain. Those letters

spelled out the procedures that should be followed if

they wished to report any further allegations of sexual

harassment.

A few months later, on April 27, 2001, the County held

a training session about the sexual harassment policy. At

the end of the session, Jackson and Birchell-Sielaff spoke
Nos. 05-4070, 05-4071 & 05-4072 7

with the session coordinator, Alice Oliver, and told

Oliver that they believed that Larsen had engaged in

prohibited behavior. Oliver passed this word along to

Kultgen, who followed up with emails to the same women

she had contacted earlier, asking whether anything further had happened. Two did not respond; Lisiecki answered “everything is fine, thanks for checking!”, and the

fourth woman also responded “all is well.”

Two weeks later, Corporation Counsel Mark Janiuk

met with Jackson, Schultz, and Birchell-Sielaff to discuss

management issues about Larsen. What he heard

prompted him to contact Kultgen with the details; the

two of them decided that the Anti-Harassment Committee had to convene to conduct a full investigation of

Larsen’s management of the CSD. Within days, it had

done so, and the County placed Larsen on administrative

leave. The Committee took statements from 21 employees

in the course of its investigation. It concluded that

Larsen’s employment should be terminated based on his

inappropriate conduct as manager of the CSD. Upon

review of that report, County Executive Jean Jacobsen

decided that demotion, rather than termination, was an

adequate punishment. With the demotion came a reduction in pay, a lesser title with fewer responsibilities, and

banishment from the CSD. As far as the record shows, no

further allegations of sexual misconduct were lodged

against him.

II

As we noted earlier, based on all of this the district

court concluded that the acts to which the plaintiffs

were subjected were not severe or pervasive enough to

amount to sexual harassment, and it thus granted the

County’s motion for summary judgment. We review that

decision de novo, Koszola v. Bd. of Educ. of City of Chicago,
8 Nos. 05-4070, 05-4071 & 05-4072

385 F.3d 1104, 1107 (7th Cir. 2004); summary judgment

is proper only if there is no disputed issue of material

fact and, based on the undisputed facts, the moving

party is entitled to judgment as a matter of law. Schneiker

v. Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir. 2000).

A

We consider first whether the ground on which the

district court relied—the absence of disputed facts on the

question whether sexual harassment existed with respect

to any of the plaintiffs—is sustainable. One of the ways

in which Title VII’s prohibition against sex discrimination in the terms and conditions of employment may be

violated is through sexual harassment that is either severe

or pervasive enough to create an abusive working environment. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.

75, 78 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S.

17, 21 (1993)). Indeed, more than 20 years ago, the Supreme Court recognized that “a plaintiff may establish

a violation of Title VII by proving that discrimination

based on sex has created a hostile or abusive work environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66

(1986). In order to establish a prima facie case under

this theory, a plaintiff must show, among other things,

that she has been subjected to “behavior so objectively

offensive as to alter the conditions of [her] employment.”

Oncale, 523 U.S. at 81 (internal quotations omitted). In

addition, she must show the link between this treatment

and her sex: as the Court stressed in Oncale, “Title VII

does not prohibit all verbal or physical harassment in

the workplace; it is directed only at ‘discriminat[ion] . . .

because of . . . sex.’ ” Id. at 80 (emphasis in original). In

order to decide whether a plaintiff’s showing at the

summary judgment stage meets this standard, the court

must examine all the circumstances, including the “fre-
Nos. 05-4070, 05-4071 & 05-4072 9

quency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Moser v.

Indiana Dept. of Corr., 406 F.3d 895, 902 (7th Cir. 2005)

(quoting Harris, 510 U.S. at 23). There is both an objective

and a subjective dimension to these inquiries. Harris,

510 U.S. at 21-22.

It is important to recall that harassing conduct does

not need to be both severe and pervasive. Cerros v. Steel

Tech., Inc. (Cerros II), 398 F.3d 944, 950 (7th Cir. 2005).

One instance of conduct that is sufficiently severe may

be enough. See Smith v. Sheahan, 189 F.3d 529, 533 (7th

Cir. 1999). Conversely, conduct that is not particularly

severe but that is an incessant part of the workplace

environment may, in the end, be pervasive enough and

corrosive enough that it meets the standard for liability.

Ultimately, as we noted in Smith, “The conduct must . . .

be so severe or pervasive as to alter the terms or conditions of the employment relationship.” Id. at 533 (citing

Ellerth, 524 U.S. at 752; Harris, 510 U.S. at 21; and

Meritor, 477 U.S. at 64).

What concerns us about the district court’s disposition

of all four cases is its characterization of Larsen’s inappropriate touching and sexual comments as “isolated

incidents,” when the plaintiffs’ deposition testimony

asserts that he engaged in this type of behavior on a

daily basis. The County supports the district court’s

decision with a reference to Lucas v. Chicago Transit

Auth., 367 F.3d 714 (7th Cir. 2004), but Lucas is not as

helpful as it thinks. In that case, the plaintiff, who alleged a racially hostile environment, generally complained that African-Americans were treated more harshly

and were written up for reasons that whites were not,

without providing any specific examples. Not surpris-
10 Nos. 05-4070, 05-4071 & 05-4072

ingly, this court held that the plaintiff needed something

more concrete before his case could go forward. Id. at 726.

But Jackson and Lisiecki, at least, provided the necessary

specifics to support their charges against Larsen. They

testified that he regularly touched them on the hair and

the back of the neck whenever he had the occasion to

interact with them. Jackson’s testimony about a number

of Larsen’s offensive actions (simulating masturbation,

sticking his finger in her ear, kissing her on the lips),

coupled with her testimony about his day-to-day behavior,

could, if believed by a trier of fact, show pervasive harassing conduct. Lisiecki too complained of constant unwelcome touching, offensive sexually-based remarks about

her appearance and that of other women at the workplace, and a clumsy effort to induce her to succumb to

sexual relations in exchange for a promotion that, in

reality, he could not deliver. If believed, this too could

support a finding of the kind of abusive behavior directed

against her because of her sex that alters the terms and

conditions of her employment.

The testimony supporting Birchell-Sielaff and especially

Schultz (now deceased) is not as strong, but taken as a

whole it might also suffice to show that they suffered

from discrimination in the form of sexual harassment

in the workplace. Rather than rule definitively on that

point, however, we prefer to leave this question unresolved. Even if their evidence supported a finding that they

experienced harassment at the CSD, it would still be

necessary to consider the County’s Ellerth/Faragher

defense, to which we turn in a moment.

Before concluding, however, we note that all parties

in this case seem to think that a working environment

must be “hellish” before a Title VII suit can succeed. The

Supreme Court’s decision in Harris establishes that

something short of the Ninth Ring may violate the statute:
Nos. 05-4070, 05-4071 & 05-4072 11

Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily

abusive work environment, even one that does not

seriously affect employees’ psychological well-being,

can and often will detract from employees’ job performance, discourage employees from remaining on the

job, or keep them from advancing in their careers.

Moreover, even without regard to these tangible

effects, the very fact that the discriminatory conduct

was so severe or pervasive that it created a work

environment abusive to employees because of their

race, gender, religion, or national origin offends Title

VII’s broad rule of workplace equality. The appalling

conduct alleged in Meritor, and the reference in that

case to environments “so heavily polluted with discrimination as to destroy completely the emotional and

psychological stability of minority group workers,” id.

at 66, merely present some especially egregious

examples of harassment. They do not mark the boundary of what is actionable.

510 U.S. at 22 (internal citations omitted). We trust that

in the future counsel will avoid the use of a single, overwrought word like “hellish” to describe the workplace

and focus on the question whether a protected group is

experiencing abuse in the workplace, on account of their

protected characteristic, to the detriment of their job

performance or advancement.

B

Even if each of the four plaintiffs here experienced

unlawful sexual harassment at the workplace, there still

must be a basis for employer liability. In Ellerth and

Faragher, the Supreme Court established the rules for

employer liability when the harassing individual is a

supervisor, as Larsen was. It distinguished between two
12 Nos. 05-4070, 05-4071 & 05-4072

situations: those in which the supervisor’s harassment

resulted in “a tangible employment action, such as discharge, demotion, or undesirable reassignment,” see Hill

v. American General Finance, Inc., 218 F.3d 639, 643 (7th

Cir. 2000), and those in which it did not. In the former

situation, the employer’s vicarious liability is strict, in

the sense that no defense is available once the other

elements of the case have been proven. If, however, the

harassment is not accompanied by, or does not result in,

any tangible employment action, then the employer is

entitled to defeat the plaintiff’s case by showing “a) that

the employer exercised reasonable care to prevent and

correct promptly any . . . harassing behavior, and b) that

the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Ellerth,

524 U.S. at 765.

Before this court, the parties dispute whether Larsen

took any tangible employment action such that the County

may not invoke the affirmative defense. The only one of

the four plaintiffs who seriously asserts that such an

action was taken is Lisiecki; we see nothing that would

deprive the County of the defense in the cases brought

by Jackson, Birchell-Sielaff, and Schultz. Even in Lisiecki’s

case, we conclude that the record does not create a genuine issue of fact about the alleged lost promotion. Of

course, a failure to promote would qualify as an adverse

employment action, if that is what we had. See Volovsek v.

Wisconsin Dept. of Agr., Trade and Consumer Protection,

344 F.3d 680, 688 (7th Cir. 2003). But there is no evidence

that Lisiecki was denied a promotion for a job that was

actually available and for which she was qualified. See

Jordan v. City of Gary, 396 F.3d 825, 833 (7th Cir. 2005).

To the contrary, the only evidence of availability comes

from Kultgen, and she testified that there was no such

job opening. Larsen was vague about the position he was
Nos. 05-4070, 05-4071 & 05-4072 13

promising to Lisiecki, and so it is impossible to know

whether she would have qualified for it. Moreover, Lisiecki

has no response to the County’s evidence that Larsen had

no authority to create the position. It is important to

distinguish between the real loss of a promotion (a tangible

action) and the disappointment that follows when it

turns out that there is no tangible benefit available at

all and that the supervisor has been lying in order to win

sexual favors. Lisiecki’s testimony could establish the

latter fact, but that is not what Ellerth requires for strict

liability.

We turn, therefore, to the affirmative defense. The

County’s first task is to show that it took reasonable care

to prevent or correct any harassing behavior. Although the

plaintiffs argue that it failed to take steps to prevent

harassment and that it had no sexual harassment policy,

the record shows that the contrary is true. At the time

these incidents took place, the County had a comprehensive anti-harassment policy in effect that plainly

covered sexual harassment. The policy was posted in every

department, including CSD. Marta Kultgen, the manager of the Human Resources Department, responded

promptly to every complaint that reached her.

Nor could any trier of fact find that the County did not

act reasonably to correct harassing behavior that was

brought to its attention. Neither the County, nor the AntiHarassment Committee, nor Kultgen can be criticized for

attempting to work with complainants who did not wish to

lodge formal complaints, at least over the short time

between mid-February 2001 and early May 2001, when the

Committee launched its comprehensive investigation. After

all, when Kultgen followed up at the end of April with

the four original complainants (including Jackson and

Lisiecki), she received either no response or an assurance

that all was well. The investigation was thorough and

resulted in a significant disciplinary measure for Larsen:
14 Nos. 05-4070, 05-4071 & 05-4072

demotion and all of its attendant disadvantages. Although

the plaintiffs argue in their reply brief that any action

short of firing Larsen was insufficient, that position

misses the goal of anti-harassment law. We have said

that “[a]n employer’s response to alleged instances of

employee harassment must be reasonably calculated to

prevent further harassment under the particular facts and

circumstances of the case at the time the allegations are

made.” McKenzie v. Ill. Dept. of Transp., 92 F.3d 473, 480

(7th Cir. 1996) (emphasis added). The steps that the

County took against Larsen achieved this goal.

The County also has the burden of showing that the

plaintiffs unreasonably failed to take advantage of any

preventive or corrective opportunities that it provided. One

sign of unreasonable behavior on the plaintiffs’ part is

undue delay in calling the problem to the employer’s

attention. See, e.g., Gawley v. Indiana Univ., 276 F.3d 301

(7th Cir. 2001) (holding that defendant was entitled to

summary judgment with respect to the affirmative defense where plaintiff waited seven months before reporting sexual harassment). In Ellerth, the Court wrote:

[W]hile proof that an employee failed to fulfill the

corresponding obligation of reasonable care to avoid

harm is not limited to showing any unreasonable

failure to use any complaint procedure provided by

the employer, a demonstration of such failure will

normally suffice to satisfy the employer’s burden under

the second element of the defense.

524 U.S. at 765.

It was not until four months after Larsen became

manager that any of the plaintiffs first complained to

Kultgen about his behavior. Birchell-Sielaff admitted in

her deposition that although she talked to Kultgen often

and generally complained about Larsen’s job performance

and lack of attention to his duties, it was not until later
Nos. 05-4070, 05-4071 & 05-4072 15

that she revealed the inappropriate exchanges between

Larsen and another co-worker (not a plaintiff here).

Birchell-Sielaff also admitted that as soon as she told

Kultgen about those comments, Kultgen informed her

that this was sexual harassment, that she was going to

have to report it and talk to the co-worker, and that she

wanted to know about any other such instances. In

response to the last inquiry, Birchell-Sielaff said, “I wouldn’t know.” Jackson conceded in her deposition that she

was aware that there was a sexual harassment policy

in place during the time she worked in the CSD, but

she waited for a long time before invoking it. It was not

until May 2001 that three of the plaintiffs indicated

that they wanted a full investigation, and the record shows

that the Anti-Harassment Committee immediately complied.

We conclude that this is enough to require summary

judgment in the County’s favor based on the Ellerth/

Faragher affirmative defense, both for the plaintiffs who

unequivocally succeeded in raising material issues of

fact on the question of harassment and for those whose

initial showing we have granted for the sake of argument.

We therefore AFFIRM the judgment of the district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-25-07