                           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 evaluat-
ing 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 Burling-
ton 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 pre-
sent 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 ap-
proximately 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 relat-
   ing to an individual’s gender; or any display of sex-
   ually explicit pictures, greeting cards, articles, books,
   magazines, photos or cartoons.
The policy also established an anti-harassment com-
mittee 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 re-
marks 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 im-
portant one.” In addition, Larsen frequently made com-
ments 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 Her-
shey’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 con-
ducted. 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, com-
ments 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 Birchell-
Sielaff reported that “some” CSD employees had com-
plained 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-harass-
ment policy. Although Birchell-Sielaff was initially reluc-
tant to provide the name of the person who had com-
plained, she eventually gave Kultgen one name and
claimed that she did not know if anyone else was experi-
encing 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 con-
duct 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 com-
mittee 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 fur-
ther had happened. Two did not respond; Lisiecki an-
swered “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 Com-
mittee 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 reduc-
tion 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 discrimina-
tion 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 environ-
ment. 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 Su-
preme 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 environ-
ment.” 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; wheth-
er it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably inter-
feres 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 condi-
tions 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 inap-
propriate 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 al-
leged a racially hostile environment, generally com-
plained 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 harass-
ing conduct. Lisiecki too complained of constant unwel-
come touching, offensive sexually-based remarks about
her appearance and that of other women at the work-
place, 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 unre-
solved. 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 con-
   duct 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 perfor-
   mance, 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 discrim-
   ination 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 bound-
   ary 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, over-
wrought 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 dis-
charge, 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 advan-
tage of any preventive or corrective opportunities pro-
vided 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 gen-
uine 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 compre-
hensive anti-harassment policy in effect that plainly
covered sexual harassment. The policy was posted in every
department, including CSD. Marta Kultgen, the man-
ager 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 Anti-
Harassment 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 de-
fense where plaintiff waited seven months before report-
ing 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 would-
n’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 com-
plied.
  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
