                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 03-2495
THOMAS MATTSON,
                                             Plaintiff-Appellant,
                                v.

CATERPILLAR, INC.,
                                             Defendant-Appellee.

                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
      No. 01 C 7414—Michael T. Mason, Magistrate Judge.
                         ____________
    ARGUED JANUARY 14, 2004—DECIDED MARCH 4, 2004
                    ____________


 Before FLAUM, Chief Judge, and POSNER and DIANE P.
WOOD, Circuit Judges.
  FLAUM, Chief Judge. In 2001, Thomas Mattson filed suit
under Title VII of the Civil Rights Act of 1964, alleging that
his employer, Caterpillar, Inc., retaliated against him in
response to a charge of sexual harassment that he had filed
with the Illinois Department of Human Rights (“IDHR”)
and the Equal Employment Opportunity Commission
(“EEOC”). The district court granted Caterpillar summary
judgment, and Mattson now appeals. For the reasons stated
herein, we affirm.
2                                                No. 03-2495

                      I. BACKGROUND
  In 1999, Thomas Mattson worked as an electrician in the
engine test cell area of Caterpillar’s manufacturing facility
in Mossville, Illinois. The test cell area is quite noisy, and
as a result employees are required to wear earplugs and
must stand in close proximity to one another to converse.
One of Mattson’s supervisors in the test cell area was pro-
duction supervisor Beth Cone. Cone was responsible for
contacting electricians like Mattson whenever there were
maintenance problems. Mattson and senior electrician Paul
Hart were generally uncooperative when contacted by Cone,
and they resisted taking orders from her.
  During this time period, Cone and Mattson had several
encounters. On one occasion, Cone observed Mattson sleep-
ing at work, and reported this to Mattson’s direct supervi-
sor. In April 1999, Mattson and Hart left a test cell unat-
tended when they were in the process of repairing it. When
Cone challenged this disregard of proper safety procedures,
Hart became angry and stepped toward Cone, which
prompted Mattson to restrain him. Hart was subsequently
transferred, leaving Mattson as the electrician dealing most
directly with Cone.
  Approximately five days later, Mattson and two co-
workers told a maintenance manager that they were con-
cerned about physical contact with Cone. The entirety of
Mattson’s complaint consisted of one instance where one of
Cone’s breasts had touched his arm during a conversation
in the test cell area, and one instance where Cone had
reached around him to get a clipboard but had not touched
him. When Caterpillar’s EEO Coordinator Lynda White
later interviewed Mattson about the incident where Cone’s
breast allegedly touched Mattson’s arm, Mattson stated
that he did not know whether Cone had touched him in
a suggestive way and that he did not believe that she was
attracted to him. Mattson further stated that the contact
No. 03-2495                                               3

may have been inadvertent. Based upon this, White con-
cluded that Mattson’s complaint was without merit. Cater-
pillar then issued Mattson a warning letter which stated
that making false accusations of sexual harassment could
lead to disciplinary action and discharge. However, Cater-
pillar also counseled Cone to be careful of how closely she
stood to people.
  Three months later, Mattson filed a charge of sexual
harassment with the Illinois Department of Human Rights
and the Equal Employment Opportunity Commission based
upon the aforementioned incidents with Cone. Caterpillar’s
new EEO Coordinator Christine Troglio then began another
internal investigation into the charges. At this point,
Mattson’s co-worker, Chuck Hollis, came forward with new
information. Hollis submitted a signed affidavit in which he
stated that Cone’s breast did not touch Mattson. Hollis
further stated that Mattson had told him that Mattson’s
goal was to get Cone “out of here any way possible.” After
receiving this information, Caterpillar concluded that
Mattson’s charges against Cone were made in bad faith in
an attempt to retaliate against her. Caterpillar thereafter
decided to discharge Mattson, and contends that the
discharge was due to Mattson’s dishonesty and retaliatory
conduct.
  Mattson filed suit against Caterpillar in 2001, alleging
that his discharge violated Title VII of the Civil Rights
Act of 1964. The parties filed cross motions for summary
judgment, and the district court found that Mattson had
failed to offer direct evidence of discrimination and could
not prove discrimination through indirect evidence because
Caterpillar had articulated a legitimate, non-discriminatory
reason for Mattson’s discharge. The district court therefore
granted summary judgment in favor of Caterpillar, and
Mattson now appeals.
4                                               No. 03-2495

                      II. DISCUSSION
  We review a district court’s grant of summary judgment
de novo, viewing the facts and drawing all reasonable in-
ferences in the light most favorable to the nonmoving party.
See Stockett v. Muncie Indiana Transit Sys., 221 F.3d 997,
1000 (7th Cir. 2000). Summary judgment is appropriate
only where “there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as
a matter of law.” See Fed. R. Civ. P. 56(c).
   In this case, the district court found that Mattson was
unable to prove retaliatory discharge through either the di-
rect or indirect methods of proof. Under the direct method,
the plaintiff must provide either direct evidence or circum-
stantial evidence that shows that the employer acted based
on prohibited animus. See Venturelli v. ARC Comty. Servs.,
Inc., 350 F.3d 592, 599 (7th Cir. 2003). Under the indirect
method, the plaintiff must provide evidence that “after
filing the charge only he, and not any similarly situated
employee who did not file a charge, was subjected to an
adverse employment action even though he was performing
his job in a satisfactory manner.” See Stone v. City of
Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.
2002). If the plaintiff provides this evidence, the defendant
must then present evidence of a non-invidious reason for
the adverse action. Once the defendant presents a legiti-
mate, non-invidious reason for the adverse action, the
burden shifts back to the plaintiff to prove that the defen-
dant’s reason is pretextual. See Sitar v. Indiana Dept. of
Transp., 344 F.3d 720, 728 (7th Cir. 2003). Both methods of
proof require that the plaintiff show that he or she was
retaliated against after engaging in activity protected under
Title VII. See Hilt-Dyson v. City of Chicago, 282 F.3d 456,
465 (7th Cir. 2002).
  We therefore begin by analyzing whether Mattson’s
activity was protected under Title VII. It is clear that
No. 03-2495                                                  5

Mattson was not sexually harassed when Cone’s breast al-
legedly brushed against his arm on a single occasion or
when Cone reached around Mattson without touching him.
See, e.g., Clark County Sch. Dist. v. Breeden, 532 U.S. 268,
270 (2001) (stating that “sexual harassment is actionable
under Title VII only if it is ‘so “severe or pervasive” as to
“alter the conditions of [the victim’s] employment and create
an abusive working environment’’ ’ ”); Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998) (stating that simple
teasing, “offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory
changes in the ‘terms and conditions of employment’ ”). It is
also clear that no reasonable person could believe this
constituted sexual harassment. See Adusumilli v. City of
Chicago, 164 F.3d 353, 362 (7th Cir. 1998) (holding that no
reasonable person could believe that a poke to the buttocks
constitutes sexual harassment because such conduct is too
“tepid or intermittent or equivocal”). Finally, even Mattson
himself did not believe that he had been sexually harassed,
as is evidenced by his admissions that he did not believe
Cone was attracted to him and that the touch could have
been inadvertent, as well as his statements to co-worker
Chuck Hollis that he wanted to get Cone “out of here any
way possible.” Thus, the sexual harassment charge Mattson
filed with the IDHR and EEOC was both objectively and
subjectively unreasonable, as well as made with the bad
faith purpose of retaliating against his female supervisor.
  Still, Mattson insists that Title VII protects those who file
charges that are unreasonable, false, and even malicious
and defamatory. Mattson structures his argument by
drawing a distinction between the “opposition clause” and
“participation clause” of Title VII. Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-3(a) provides that
    It shall be an unlawful employment practice for an em-
    ployer to discriminate against [an employee] . . . be-
    cause [the employee] has opposed any practice made an
6                                                No. 03-2495

    unlawful employment practice by this subchapter, or
    because [the employee] has made a charge, testified,
    assisted, or participated in any manner in an investiga-
    tion, proceeding, or hearing under this subchapter.
Mattson asserts that the opposition clause, which protects
an employee who opposes “any practice made an unlawful
employment practice by this subchapter,” may include a
good faith or reasonableness requirement, but that the
participation clause, which protects an employee who
“participated in any manner in an investigation” does not
require either good faith or reasonableness for the employee
to receive Title VII protection.
  Mattson finds support for this interpretation of Title VII
in dicta from several cases. See, e.g., Johnson v. University
of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000); Womack v.
Munson, 619 F.2d 1292, 1298 (8th Cir. 1980); Booker v.
Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th
Cir. 1989) (stating that under the participation clause,
protection “is not lost if the employee is wrong on the merits
of the charge, nor is protection lost if the contents of the
charge are malicious and defamatory as well as wrong”
(internal citations omitted)); Pettway v. American Cast Iron
Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969). It is important
to note, however, that none of these cases actually involved
a plaintiff who filed unreasonable charges, let alone charges
that were both unreasonable and made in bad faith.
  The case that most supports Mattson’s argument is
Pettway, 411 F.2d at 1003. In Pettway, an employer fired an
employee for filing a letter with the EEOC which the
employer claimed contained false and malicious accusa-
tions. The employee’s claim in Pettway, however, is distin-
guishable from Mattson’s claim. See id. The Fifth Circuit
agreed that the Pettway letter was false, but concluded that
there was no evidence that it had been motivated by malice.
Id. at 1004. In fact, the EEOC determined that the charge
No. 03-2495                                                  7

was not made maliciously, but rather was made so that the
plaintiff could receive a hearing on his discrimination
charges. Id. The Pettway charge also did not involve a claim
that was baseless on its face. If true, the charges against
the employer would certainly have stated a claim of dis-
crimination. See id. at 1002 n.5 (The letter stated that the
employer had threatened to fire 75% of the African-Ameri-
can employees). This stands in stark contrast to Mattson’s
charges, which as already discussed did not objectively state
a claim of sexual harassment. Furthermore, there is
evidence that Mattson’s claim was filed maliciously. Thus,
Pettway does not persuade this Court that employees should
receive Title VII protection for filing unreasonable charges
in bad faith.
   Rather, this Court has consistently stated that utterly
baseless claims do not receive protection under Title VII.
See, e.g., Fine v. Ryan Int’l Airlines, 305 F.3d 746, 752 (7th
Cir. 2002) (holding that to win a retaliation claim, it is
required that the employee “reasonably believed in good
faith that the practice she opposed violated Title VII” and
that it “is improper to retaliate against anyone for claiming
a violation of Title VII unless that claim is ‘completely
groundless’ ”); McDonnell v. Cisneros, 84 F.3d 256, 259 (7th
Cir. 1996) (stating that it “is improper to retaliate for the
filing of a claim of violation of Title VII even if the claim
does not have merit—provided it is not completely ground-
less. There is nothing wrong with disciplining an employee
for filing frivolous complaints” (internal citations omitted));
Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir.
1994) (stating that plaintiffs need not succeed on retaliatory
discharge claims, but that they must have “a reasonable
belief” that they are challenging conduct that violates Title
VII and that they therefore cannot assert claims that are
“utterly baseless”). The purpose of requiring that plaintiffs
reasonably believe in good faith that they have suffered
discrimination is clear. Title VII was designed to protect the
8                                               No. 03-2495

rights of employees who in good faith protest the discrimi-
nation they believe they have suffered and to ensure that
such employees remain free from reprisals or retaliatory
conduct. Title VII was not designed to “arm employees with
a tactical coercive weapon” under which employees can
make baseless claims simply to “advance their own retalia-
tory motives and strategies.” See Spadola v. New York City
Transit Auth., 242 F. Supp. 2d 284, 292 (S.D.N.Y. 2003).
Although our Court has not explicitly held that the “not
utterly baseless” standard applies to both opposition clause
and participation clause cases, it also has not stated that
the standard is limited to opposition clause cases.
   We believe that the same threshold standard should
apply to both opposition and participation clause cases.
That is, the claims must not be utterly baseless. Were we to
adopt a different standard, an employee could immunize his
unreasonable and malicious internal complaints simply by
filing a discrimination complaint with a government agency.
Similarly, an employee could assure himself unlimited
tenure by filing continuous complaints with the government
agency if he fears that his employer will discover his
duplicitous behavior at the workplace. This is not an
unrealistic parade of horribles—it is, after all, what may
have occurred in this case. Mattson filed an internal
complaint that was baseless. Had Caterpillar immediately
discovered the evidence that proved Mattson acted mali-
ciously, both parties agree that Mattson could have been
discharged at that time. However, Mattson then filed the
charge with the IDHR and EEOC and now argues that he
cannot be terminated even though Caterpillar discovered
that both charges were filed maliciously. If we were to adopt
Mattson’s arguments, it would encourage the abuse of Title
VII and the proceedings that it establishes.
  Our holding is in accord with Johnson v. University of
Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000), and Wideman
v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1455 (11th Cir.
No. 03-2495                                                9

1998), both of which left open the possibility that the
participation clause may include a good faith and reason-
ableness requirement. While Johnson stated in dicta that
an employee may file a charge that is malicious and still
receive participation clause protection, the court still
inquired into the good faith basis for the plaintiff’s com-
plaint before determining whether the plaintiff was pro-
tected under Title VII. See 215 F.3d at 582 (stating that the
plaintiff “could have reasonably believed that he had a
viable discrimination claim”). Wideman specifically dis-
cussed the possibility that retaliation claims brought under
the participation clause should not be distinguished from
those brought under the opposition clause and that both
may include a good faith, reasonableness requirement. See
141 F.3d at 1454. However, because Wideman did have a
good faith, reasonable basis for filing her charge, the court
did not have to decide whether protection from retaliation
under the participation clause is conditioned by a good
faith, reasonableness requirement. Id. at 1455.
  Our holding is also consistent with the Supreme Court’s
most recent decision on this issue. See Clark County Sch.
Dist. v. Breeden, 532 U.S. 268 (2001). In Breeden, the
plaintiff’s supervisor read aloud from a personnel file that
one employee had once commented to a co-worker, “I hear
making love to you is like making love to the Grand Can-
yon.” Id. at 269. After the plaintiff complained about the
reading of this statement, she was punished for her com-
plaints. The Ninth Circuit applied its reasonableness test
and concluded that the plaintiff’s complaints were protected
activity under Title VII because they were made with a
reasonable, good faith belief that the incident constituted
unlawful sexual harassment. However, the Supreme Court
reversed, holding that “no one could reasonably believe that
the incident recounted above violated Title VII.” Id. at 270.
The Supreme Court based its decision on the fact that
“offhand comments, and isolated incidents (unless ex-
10                                              No. 03-2495

tremely serious) will not amount” to sexual harassment, as
well as the fact that the plaintiff had conceded that it did
not bother or upset her to read the statement in the file
herself. Id. at 271. The Supreme Court therefore concluded
that the plaintiff’s complaint did not qualify as protected
activity under Title VII.
  Mattson argues that Breeden cannot be read to support a
good faith, reasonableness requirement under the parti-
cipation clause, because the Supreme Court applied this
standard only to the opposition clause conduct in that case.
While we acknowledge that the Supreme Court did not
apply the reasonableness requirement in a participation
clause context, the Supreme Court also did not hold that
the reasonableness requirement only applies to the opposi-
tion clause. Because the Supreme Court did not distinguish
between opposition and participation claims, we also decline
to do so and hold that the good faith, reasonableness
requirement applies to all Title VII claims.
   We emphasize that this decision sets a low bar for re-
ceiving Title VII protection. Protection is not lost simply
because an employee is mistaken on the merits of his or her
charge. Protection also is not lost if an employee drafts a
complaint as best he or she can but does not state an
effective legal claim. Cf. Sias v. City Demonstration Agency,
588 F.2d 692, 695 (9th Cir. 1978) (expressing concern that
if protection turns on the merits of an employee’s claim,
participation under Title VII “would be severely chilled”);
Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005
(5th Cir. 1969) (explaining that the participation clause
must offer broad protection because individuals draft
charges as best they can “without expert legal advice” in
challenging “huge industrial employer[s] in this modern day
David and Goliath confrontation”). However, the unique
circumstances of this case present us with a complaint that
is not only unreasonable and meritless, but also motivated
by bad faith. Against this factual backdrop, we find that
No. 03-2495                                               11

Mattson’s claim is not deserving of protection under the
participation clause of Title VII. The paucity of case law on
point illustrates the rarity of such claims as well as the
limited nature of our holding.


                     III. CONCLUSION
  For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of Caterpillar.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—3-4-04
