218 F.3d 725 (7th Cir. 2000)
Michelle Johnson,    Plaintiff-Appellant,v.Togo WEST, Jr., Secretary of   Veterans Affairs,    Defendant-Appellee.
No. 98-3903
In the United States Court of Appeals  For the Seventh Circuit
Argued April 12, 1999Decided July 5, 2000

Appeal from the United States District Court   for the Northern District of Illinois, Eastern Division.  No. 94-C-6530--Blanche M. Manning, Judge. [Copyrighted Material Omitted]
Before Posner, Chief Judge, and Easterbrook and Diane  P. Wood, Circuit Judges.
Diane P. Wood, Circuit Judge.


1
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.


2
* 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."


3
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."


4
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.)


5
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.


6
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.


7
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.


8
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

9
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)).


10
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.


11
A. Vicarious Liability and the Ellerth/Faragher  Affirmative Defense


12
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.


13
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.


14
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.


15
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.


16
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.


17
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.


18
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.)


19
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.


20
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.


21
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

22
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.


23
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.


24
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.


25
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.


26
The judgment of the district court is REVERSED and  the case is REMANDED for further proceedings  consistent with this opinion.

