In the
United States Court of Appeals
For the Seventh Circuit

No. 98-3903

Michelle Johnson,

Plaintiff-Appellant,

v.

Togo West, Jr., Secretary of
Veterans Affairs,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94-C-6530--Blanche M. Manning, Judge.


Argued April 12, 1999--Decided July 5, 2000



  Before Posner, Chief Judge, and Easterbrook and Diane
P. Wood, Circuit Judges.

  Diane P. Wood, Circuit Judge. Michelle Johnson
sued her former employer, the Department of
Veterans Affairs ("VA"), under Title VII of the
Civil Rights Act of 1964, alleging that her
supervisor, Karl Williams, sexually harassed her
and that the VA retaliated against her for
challenging the harassment. Following a bench
trial, the district court held that Johnson had
been subjected to a hostile work environment but
that the VA was protected from liability by the
affirmative defense set forth in Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and
Faragher v. City of Boca Raton, 524 U.S. 775
(1998). The district court also found that the VA
had a legitimate, nonpretextual reason for firing
Johnson and thus had not improperly retaliated
against her. Because we find the district court’s
findings on the affirmative defense laid out in
Ellerth and Faragher to be incomplete as a matter
of law, and we conclude that the VA may have
retaliated against Johnson for complaining about
the harassment, we reverse the judgment of the
district court and remand for further
proceedings.

I

    From August 28, 1990, to September 1993 Johnson
worked as secretary to Karl Williams, the Chief
of Police at the Hines VA Hospital. Shortly after
Johnson started to work for Williams, he began to
express a crude sexual interest in her. The first
incidents took place on September 19, 1990.
Williams invited Johnson into his office and
locked the door to both of their offices. Holding
a condom in one hand, he pulled down his pants
and exposed himself. When someone knocked at the
door, Williams zipped up his pants and instructed
Johnson to act calm. Later that day, Williams
took Johnson to a hotel. After disrobing and
instructing Johnson to do the same, they had
sexual intercourse. Johnson testified that she
neither wanted nor desired to have sex with
Williams but did so out of fear that she would be
terminated if she rejected his advances. The next
day, Williams gave Johnson a greeting card with
a pre-printed message stating "[i]t’s nice to be
able to share the simple things of life with you:
a quiet walk, a candlelit dinner, an evening by
the fire . . . sex that registers on the Richter
Scale." He signed the card "Luv ’Chief’ a/k/a
Will a/k/a Maurice a/k/a Batman a/k/a Darkman."

  The incidents did not stop there. They
continued through 1991, with Williams engaging in
a variety of inappropriate sexual behavior. He
often touched Johnson inappropriately, for
example, by trying to separate her legs as she
moved from her desk to her typewriter and
pressing his chest against her back while she was
typing. When Williams learned Johnson was dating
another man, he began verbally abusing her.
Williams also gave Johnson a Valentine’s Day card
on February 14, 1991, which read "I can’t imagine
loving you more than I do today . . . but
tomorrow I will. HAPPY VALENTINE’S DAY, SWEETHEART."

  While all of this was going on, Johnson did not
report Williams’s conduct, because she was afraid
of being fired. The Valentine’s Day card,
however, seems to have been the last straw. One
week after she received it, she informed her co-
worker, Valerie Davis, of Williams’s harassment.
Davis encouraged her to report Williams to an EEO
officer, but Johnson refused. In the summer of
1991, when her probationary employment period was
coming to an end, Johnson told VA Associate
Director James Jones, Williams’s supervisor, that
Williams was spreading false rumors that she and
Williams were romantically involved. Johnson,
however, did not tell Jones about the other
incidents of harassment. Jones confronted
Williams about Johnson’s allegations (without
mentioning her name), but Williams denied that he
was involved with any of his employees. In
September 1991, Johnson applied for three other
jobs in order to avoid further contact with
Williams. She was not selected, even though she
was qualified for the positions. (Williams had no
input into the decisions.)

  In January 1992, Johnson met with Dr. Joan
Cummings, Director of Hines Hospital, and told
her about the harassment. Cummings instructed
Johnson to file a formal complaint with an EEO
counselor, which Johnson did on February 28,
1992. Cummings then appointed an administrative
board to review Johnson’s complaint. Although
Cummings declined Johnson’s offer to drop the
complaint in exchange for a promotion elsewhere
in the hospital, on May 21, 1992, Cummings
transferred Johnson to an equivalent position in
another area as a temporary corrective measure
while the investigation was ongoing.

  In June 1992, Johnson started seeing a
therapist, complaining that she was suffering
from hallucinations, substance abuse, and
depression. The EEO investigation ultimately
concluded that Johnson had been sexually
harassed. Cummings reviewed the EEO report and,
on November 9, removed Williams as chief of
police and sent him to a different area,
transferred Johnson back to her old job, and
assigned her to a new supervisor.

  On September 23, 1992 (prior to Cummings’s
notice of corrective action), Johnson encountered
Williams in the hallway as he was leaving his
interview with the EEO officials. Johnson struck
Williams across the face because she believed he
had lied to the EEO investigators about her
allegations. A year later, in September 1993,
Cummings fired Johnson for striking Williams.

  Johnson responded with this Title VII action.
Her complaint claimed that she had been exposed
to a hostile work environment, and that the VA
retaliated against her by denying her promotions,
transferring her back to the department where she
experienced the harassment, and, ultimately,
terminating her employment. The district court
found that Johnson was subjected to a hostile
work environment. However, the court denied
Johnson relief, because it found that the VA,
upon discovering the harassment, took reasonable
and adequate measures to prevent it. The VA had
removed Williams from his position as Chief of
Police in November 1992 and had appointed a
replacement, but in May 1993, as a result of an
investigative review board’s findings, it
reinstated Williams to the Chief of Police
position and reassigned Johnson to a different
but equivalent job in another department. The
district court also found that the VA fired
Johnson not because she filed a sexual harassment
claim but because she struck Williams.
II

  Because this case comes to us after a full
bench trial, we review the district court’s
conclusions of law de novo and its findings of
fact for clear error. NRC Corp. v. Amoco Oil Co.,
205 F.3d 1007, 1011 (7th Cir. 2000). "If the
trial judge correctly states the law, then his
findings as to whether the facts meet the legal
standard will be disturbed only if they are
clearly erroneous. Our review [is] more searching
if the district court has committed an error of
law, including one that ’infect[s] a so-called
mixed finding of law and fact, or a finding of
fact that is predicated on a misunderstanding of
the governing rule of law.’" Daniels v. Essex
Group, Inc., 937 F.2d 1264, 1269-70 (7th Cir.
1991) (internal citations omitted) (quoting Bose
Corp. v. Consumers Union, 466 U.S. 485, 501
(1984)).

  Johnson raises six arguments on appeal, five of
which focus on her hostile environment claim. In
contesting the district court’s handling of that
claim, she first argues that the VA was not
entitled to the affirmative defense set forth in
Ellerth and Faragher. She then asserts in the
alternative that, even if the VA is entitled to
the affirmative defense, it failed to satisfy the
affirmative defense’s two requirements. Johnson’s
last argument on appeal focuses on her
retaliatory discharge claim.


  A.Vicarious Liability and the Ellerth/Faragher
Affirmative Defense
  The district court found that Johnson was
sexually harassed. As this finding was not
clearly erroneous and in any event the VA has not
cross-appealed from it, we focus on the standards
of vicarious liability, which is the focus of the
parties’ arguments on appeal. The VA does argue
that if this court reverses the district court’s
judgment on the Ellerth/Faragher defense, this
court should remand for a new trial on the
finding of sexual harassment. According to the
VA, the district court inexplicably ignored
evidence that Johnson and Williams were--at least
at the start-- involved in a consensual
relationship. A new trial, however, is
unnecessary, even if we could give this relief
without a cross-appeal. Whether or not the
initial sexual relationship was consensual, the
VA’s proffered evidence does not refute the
district court’s findings concerning Williams’s
behavior after the "relationship" dissolved.

  In Ellerth and Faragher, the Supreme Court
considered an employer’s vicarious liability for
the sexually harassing conduct of its supervisory
staff. "An employer is subject to vicarious
liability to a victimized employee for an
actionable hostile work environment created by a
supervisor with immediate (or successively
higher) authority over the employee." Ellerth,
524 U.S. at 765; Faragher, 524 U.S. at 807.
Vicarious liability automatically applies when
the harassing supervisor is either (1)
"indisputably within that class of an employer
organization’s officials who may be treated as
the organization’s proxy," Faragher, 524 U.S. at
789, or (2) "when the supervisor’s harassment
culminates in a tangible employment action, such
as discharge, demotion, or undesirable
reassignment." Id. at 808. Absent either of these
situations, however, an employer may avoid
vicarious liability by showing "(a) that the
employer exercised reasonable care to prevent and
correct promptly any sexually 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. Johnson argues that the VA was not entitled
to the affirmative defense because (1) Williams
was an "employer" for the purposes of Title VII--
that is, the VA’s "proxy" or "alter-ego," and in
any event (2) she suffered a tangible employment
action as a result of her harassment.

  Johnson argues that Williams was, for Title VII
purposes, her "employer" or the VA’s alter-ego,
and, as such, his actions are automatically
attributable to the VA. Faragher suggests that
the following officials may be treated as an
employer’s proxy: a president, owner, proprietor,
partner, corporate officer, or supervisor
"hold[ing] a sufficiently high position in the
management hierarchy of the company for his
actions to be imputed automatically to the
employer." 524 U.S. at 789-90 (citing with
approval Torres v. Pisano, 116 F.3d 625, 634-35
& n.11 (2d Cir. 1997)). Williams was not such a
person. Although Williams had an important title,
"Chief of Police," he had no less than two
supervisors (Jones and his supervisor, Cummings)
within the hospital and no doubt others within
the VA’s bureaucracy. As such, he was not a high-
level manager whose actions "spoke" for the VA.
See Harrison v. Eddy Potash, Inc., 158 F.3d 1371,
1376 (10th Cir. 1998). If automatic vicarious
liability is warranted for Williams, there would
be little or nothing left of the affirmative
defense the Supreme Court took care to fashion in
Ellerth and Faragher.

  Williams was, in fact, a rather low-level
supervisor. He was not the only person to whom
Johnson reported, as she worked for a number of
people. Outside of signing off on Johnson’s
performance appraisals, Williams had no ability
to change the terms and conditions of Johnson’s
employment. The VA had systems in place to check
the behavior of its low-level supervisors like
Williams: it disseminated its sexual harassment
policy and had grievance procedures through which
an employee could make a complaint without having
to go through the offending supervisor. See
Montero v. Agco Corp., 192 F.3d 856, 864 (9th
Cir. 1999). Her case therefore turns on the
question whether the district court correctly
concluded that the VA had met the requirements of
its affirmative defense.

  In one final effort to avoid this inquiry,
Johnson argues that hers is a case in which a
tangible employment action occurred--her
discharge--and thus that the affirmative defense
is not available to the VA. She is certainly
correct that being discharged is a "tangible
employment action." See Silk v. City of Chicago,
194 F.3d 788, 804 & n.16 (7th Cir. 1999).
However, Johnson’s termination did not result
from Williams’s harassment in the way Ellerth and
Faragher contemplate. An employer is vicariously
liable for tangible employment actions undertaken
by the harassing supervisor. Faragher, 524 U.S.
at 808 ("No affirmative defense is available [ ]
when the supervisor’s harassment culminates in a
tangible employment action.") (emphasis added).
When a supervisor takes a tangible employment
action--in contrast to harassment that does not
involve such a tangible action--"there is
assurance the injury could not have been
inflicted absent the agency relation" and thus
the supervisor’s action becomes for Title VII
purposes the act of the employer. Ellerth, 524
U.S. at 761-62.

  Williams’s actions created a hostile working
environment for Johnson, but he himself did not
use his supervisory authority to get her fired.
To the contrary, Williams reported Johnson’s
assault to his higher-ups in the VA hospital
administration, who in turn investigated his
complaint and resolved it through the appropriate
administrative channels. Although his report of
her actions resulted in her being fired, he was
not her supervisor at the time, he played no role
in the decision to fire Johnson, and the decision
to fire her was made after his report of
Johnson’s assault was considered in the proper
administrative channels. See Silk, 194 F.3d at
806 & n.17 (holding employer not vicariously
liable for tangible employment action when
supervisor submitted complaint regarding
plaintiff-employee’s violation of regulations and
employment action was taken after full
investigation and hearing on the issue). We
therefore hold that the district court correctly
found that the VA could claim the affirmative
defense and consequently move on to determine
whether the court applied the defense correctly.

  Johnson argues that even if the VA was entitled
in principle to the Ellerth/Faragher affirmative
defense, it did not meet its burden of proof.
That burden requires the employer to establish
two points, not just one. Given the fact that our
review of the district court’s findings here is
only for clear error, we see nothing reversible
in its finding that the VA "exercised reasonable
care to prevent and correct promptly any sexually
harassing behavior," which is the first part of
the defense. The district court found that the VA
had an established harassment policy. Faragher,
524 U.S. at 807; Caridad v. Metro-North Commuter
R.R., 191 F.3d 283, 295 (2d Cir. 1999) ("Although
not necessarily dispositive, the existence of an
anti-harassment policy with complaint procedures
is an important consideration in determining
whether the employer has satisfied the first
prong of [the affirmative] defense."). When
Johnson finally reported the full extent of the
harassment to Cummings and the agency EEO staff,
the VA responded adequately: it ordered an
investigation and it immediately separated
Johnson and Williams. Cummings even refused to
drop the investigation in the face of Johnson’s
request that she do so. Johnson does not point to
anything to suggest these findings are clearly
erroneous. (In her motion for reconsideration
before the district court, Johnson made the
argument that the harassment was so pervasive
that the VA should have discovered it and taken
action even before her complaints. Johnson failed
to make this argument at trial, however, so the
district court deemed it waived. That is enough
for us to disregard it as well.)

  The problem with the district court’s decision
does not lie, however, in its factual findings
with respect to the first element of the defense.
It lies in the absence of the court’s
consideration of element 2, which requires a
finding about whether "the plaintiff employee
unreasonably failed to take advantage of any
protective or corrective opportunities provided
by the employer or to avoid harm otherwise." In
other words, it is the VA’s burden to show that
Johnson acted unreasonably. The district court
made no findings at all about the reasonableness
of Johnson’s failure to take advantage of any
preventive or corrective opportunities the VA
provided. Even though the district court’s
failure to state explicitly what it was doing
would not require a remand if the court’s factual
findings were sufficient for us to draw our own
legal conclusions, see Brooms v. Regal Tube Co.,
881 F.2d 412, 420 (7th Cir. 1989), we do not find
this to be such a case.

  On this record, a trier of fact could
rationally come to either conclusion on the
second element: that Johnson behaved reasonably,
or that she did not. The VA stressed the fact
that it took Johnson nearly a year to report the
harassment, which is surely an element in its
favor. But, as the district court itself
acknowledged, her failure to do so may have
stemmed from Williams’s threats and intimidation,
which convinced Johnson (still at that point a
probationary employee) that to take any action
would come at the price of her job. Such a
reaction may not be unreasonable. Cf. Caridad,
191 F.3d at 295 (finding employee’s failure to
report harassment unreasonable where it was based
on fear of her co-workers’ reaction). There was
evidence that Williams threatened Johnson,
verbally abused her, and even threw mail in her
face. A trier of fact could find that Johnson was
under severe emotional and psychological stress
as a result of the harassment. Her co-workers
observed that she appeared fearful and
introverted when she was working for Williams; at
one point, when Williams had her backed into a
corner, she yelled "I’m going to scream!"
Eventually, she consulted a therapist to help her
through the hallucinations, substance abuse, and
depression she suffered.

  This presents a factual issue on the
affirmative defense that was never resolved by
the district court, and that cannot be resolved
by this court on appeal. It is more than a loose
end, as its resolution will be determinative of
the VA’s liability and the outcome of Johnson’s
case. We therefore conclude that the proper
course is to remand for further proceedings on
this point.


  B.   Retaliatory Discharge

  Finally, Johnson argues that she was the
subject of a retaliatory discharge in violation
of Title VII. She maintains that Williams’s
incessant harassment and subsequent denials
rendered her emotionally unstable. It was this
instability, she says, that caused her to slap
him. Because the harassment was causally
connected to the assault, she concludes, the VA
should not be able to use the assault as a
legitimate reason for firing her.

  Title VII prohibits retaliation against an
employee who has engaged in activity protected by
the Act. 42 U.S.C. sec. 2000e-3(a). To make out
her retaliation claim, Johnson must establish
that: (1) she engaged in statutorily protected
expression; (2) her employer took adverse action
against her; and (3) the protected expression and
the adverse action are causally linked. Parkins
v. Civil Constructors of Illinois, Inc., 163 F.3d
1027, 1038 (7th Cir. 1998); Dunning v. Simmons
Airlines, Inc., 62 F.3d 863, 869 (7th Cir. 1995).
The burden then shifts to the VA to articulate a
legitimate, nondiscriminatory reason for
Johnson’s discharge. Parkins, 163 F.3d at 1038-
39. Johnson, however, bears the ultimate burden
of persuasion that the VA’s proffered reason is
not merely a pretext for discrimination. Id. at
1039. One of the ways in which Johnson can so
demonstrate is to show that the VA’s decision was
more likely than not motivated by discriminatory
animus. Dunning, 62 F.3d at 869.

  Here, Johnson introduced evidence supporting the
three required elements of her retaliation claim.
The district court rejected it because it found
that the VA articulated a legitimate,
nondiscriminatory reason for her discharge:
Johnson was fired because she broke a department
rule against assaulting one’s superiors. On first
glance, this apparent lack of discriminatory
intent dooms any claim of pretext. However, one
means of demonstrating pretext is to put forth
evidence that employees outside the protected
class who were involved in misconduct of
comparable seriousness were not subject to
similar adverse employment action. Hiatt v.
Rockwell Int’l Corp., 26 F.3d 761, 770 (7th Cir.
1994). In this case, a fact finder might conclude
discrimination was present if it compared the
actions the VA took against Johnson with the
actions it took against Williams. Although their
acts of misconduct were not identical, they are
comparable in that both involved unwanted,
harmful physical contact. Cf. id. at 771
(distinguishing falsification of records from
alcohol-related misconduct). Johnson’s single
strike to Williams’s face may have caused more
physical pain (though that is questionable--the
parties characterize Johnson’s act differently.
Williams claims she punched him, leaving his face
bruised, while Johnson avers that she slapped
him) but his repeated acts of sexual touching
caused Johnson severe emotional and psychological
harm, and, for all we know, equivalent physical
discomfort. After all the dust had cleared,
Johnson--the victim of the harassment--had been
fired and Williams--the perpetrator--was renamed
to the position of Chief of Police.
  On this point as well, we find the district
court’s legal analysis incomplete. In the
abstract, we have no quarrel with the idea that
an employer need not tolerate employees who go
around resolving their problems with physical
assaults, however frustrating the established
complaint channels may be. Cf. Staples v. City of
Milwaukee, 142 F.3d 383 (7th Cir. 1998).
Nevertheless, the assault happened in close
conjunction with the VA’s processing of her
harassment grievance, and the record does not
explain why the VA treated Johnson so much more
harshly than it treated Williams, nor does it
reveal how the VA handled similar problems in the
past. This point too will require further
proceedings on remand.

  The judgment of the district court is REVERSED and
the case is REMANDED for further proceedings
consistent with this opinion.
