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

No. 02-2358
KATHY DURKIN,
                                               Plaintiff-Appellant,

                                 v.

CITY OF CHICAGO,
                                              Defendant-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 00 C 4932—Elaine E. Bucklo, Judge.
                          ____________
     ARGUED APRIL 7, 2003—DECIDED AUGUST 22, 2003
                      ____________


  Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
  BAUER, Circuit Judge. Kathy Durkin sued the City of
Chicago for events arising out of her employment training
with the Chicago Police Department. Durkin stated that she
was sexually discriminated against, sexually harassed, and
retaliated against for reporting the discrimination. She also
contended the City violated 42 U.S.C. § 1983. The district
court granted summary judgment for the City, from which
Durkin appeals. For the reasons stated herein, we affirm.
                        BACKGROUND
  In May 1999, Kathy Durkin entered the Chicago Police
Academy as a probationary police officer. Every probation-
ary police officer attends the Academy for a training
2                                                No. 02-2358

program that lasts approximately four months. Recruits are
trained and tested in a variety of different areas, including
the handling and shooting of firearms. The State of Illinois
requires all police officers to pass the Illinois Mandatory
Recruit Firearms Course of Fire. To pass, a trainee must
achieve a score of at least 70% on a pistol course. Recruits
are given four chances to pass the firearms exam. Durkin
signed two statements reflecting her understanding that
she would receive no more than four opportunities to pass
the test, and that failure to do so would result in termina-
tion.
   During her first weeks of firearms training, Durkin’s
firearms instructor, Nick Pappas, berated Durkin for her
poor shooting skills. He repeatedly yelled obscenities at her,
and on one occasion, kicked her leg to show her the proper
shooting stance. Unsurprisingly, Pappas’ demeaning
training techniques did not yield successful results. On
August 2-3, 1999, Durkin failed the firearms test, shooting
a score of 44%. Durkin received an additional three hours
of training by four instructors before her second attempt,
which she failed, scoring 50%.
  Durkin, together with three other recruits who had also
failed in their second attempts, was given ten hours of
supportive training. Unlike the other three recruits, Durkin
failed her third attempt, scoring 54%. After Durkin’s third
unsuccessful try, the Academy gave Durkin the opportunity
to receive twenty additional hours of supportive training.
This training consisted of one-on-one instruction with
Officer James Peck.
  During her training with Peck, Durkin was subjected to
a pattern of offensive remarks and repulsive behavior.
Early in the training, Peck told Durkin that he “could teach
a fucking monkey to shoot.” Later, after a satisfactory
performance by Durkin, Peck noted, “look I taught a fucking
monkey to shoot.” Peck referred to women as “broads,”
No. 02-2358                                                 3

“fucking broads,” and “cunts” in Durkin’s presence. When
Durkin’s father passed away, Peck offered his condolences
by telling her “get over it, my fucking father died too . . .
you don’t need your fucking father.”
  Peck’s teaching style was no less courteous. Peck made
Durkin stand in a two-foot by two-foot box formed with tape
on the floor of the range office. Durkin stated that he forced
her to stand in the box for as long as forty minutes while
Peck conversed with fellow officers. Another of Peck’s highly
unorthodox training methods was making Durkin do
pushups immediately before shooting, a method which Peck
admitted would likely decrease her strength and accuracy.
  Peck’s moral support did little to inspire confidence. He
told Durkin that she would never pass the firearms test and
that she could never make it as a police officer. In addition,
he assailed her intelligence, telling her that her brain was
too small and asking her “who did you fuck to get that
[college] degree?”
  In an attempt to resolve a scheduling conflict that had
arisen between Peck and Durkin, Durkin’s husband,
Chicago Police Detective Patrick Durkin, met with Peck.
Peck told Detective Durkin, “you have a real blonde on your
hands.” Peck then asked him, “is she that stupid at home?”
  Shortly after this encounter, Peck asked Kathy Durkin if
she had “pulled out her witch bag.” After Durkin asked
what he meant, Peck explained “so I hear you told your
husband that you’re not going to fuck him unless he came
down here and talked to me.”
  Durkin’s experience with fellow classmates was not much
better. During driving school, she was in a car with two
classmates when one of them, John Dolan, unzipped his
pants, urinated, and said “suck this.” Another classmate,
Dennis Lopez, told Durkin that he wanted to get her drunk
and “fuck her and lick her all over.”
4                                                  No. 02-2358

  Amidst this behavior and her shooting difficulties, Durkin
complained to an instructor, Officer Edward Griffin. Griffin
perceived the complaints as stemming from her difficulties
with the firearms test. His conclusion was based on the fact
that Durkin’s concerns centered on her shooting skills; she
made no mention of Peck’s behavior or any of the other
episodes she experienced.
  On September 4, 1999, Officer Raul Gutierrez gave
Durkin additional firearms training. On September 7, 1999,
Durkin made her fourth attempt. She first requested
permission from Lieutenant Samuel Christian, the Com-
manding Officer for Recruit Training, to fire a practice
round. Christian denied the request for a practice round,
and Durkin shot a passing score of 72%. Christian then told
her that it was only a practice round and did not count. She
was forced to shoot the course again, scoring a failing 66%.
  The next day, Patrick Durkin sent a letter to Police
Superintendent Terry Hillard which described the language
and behavior his wife experienced at the Academy. Hillard
forwarded the letter to Deputy Superintendent Jeanne
Clark. On September 9, 1999, Clark conducted an exit
interview with Durkin. Durkin complained to Clark about
the hostile environment at the Academy. However, Durkin’s
complaint was vague; she only identified one specific
incident, Peck’s “witch bag” comment. Clark opened a
formal investigation of Durkin’s complaint. She then sent
the complaint to the Internal Affairs Division.1 Clark also
offered Durkin an additional forty hours of firearms trai-
ning in Mattoon, Illinois, and a fifth opportunity to pass the



1
  The case was then assigned to investigator Billy McBride. In an
interview with McBride, Durkin reiterated the same complaint
and told McBride only about the “witch bag” comment. After two
additional meetings in which Durkin declined to comment,
McBride closed the investigation.
No. 02-2358                                                5

firearms test.
  Durkin went to Mattoon, completed her forty hours of
training, and passed the firearms test. Durkin, at that
point, thought she had successfully met the Chicago Police
Department’s firearms requirements. Clark, however,
asserts it was understood that Durkin would have to take
the test in Chicago after she completed her training in
Mattoon. When Durkin returned to Chicago, she was re-
quired, without advance notice, to take the test. She failed,
shooting a score of 58%.
  After failing on her fifth attempt, Durkin was terminated
as of October 8, 1999.
  Durkin sued the City of Chicago for equal protection
violations under 42 U.S.C. § 1983, sexual discrimination,
sexual harassment, and retaliation under Title VII. The
City moved for and was granted summary judgment on all
counts. Durkin appeals.


                        ANALYSIS
  We review the district court’s grant of summary judgment
de novo. Summary judgment is appropriate if there is no
genuine issue as to any material fact, and the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c).


A. Sexual Harassment
  Durkin claims that the City subjected her to a hostile
working environment in violation of Title VII. To prevail on
her claim of sexual harassment based on hostile work
environment, Durkin must show: (1) she was subjected to
unwelcome sexual harassment in the form of sexual
advances, requests for sexual favors or other verbal or
physical conduct of a sexual nature; (2) the harassment was
6                                                     No. 02-2358

based on her sex; (3) the sexual harassment had the effect
of unreasonably interfering with her work performance in
creating an intimidating, hostile, or offensive working
environment that seriously affected her psychological
well-being; and (4) a basis for employer liability exists. Hall
v. Bodine Elec. Co., 276 F.3d 345, 354-55 (7th Cir. 2002).
The City challenges only the fourth element.
  Whether an employer is liable in a hostile environment
sexual harassment action is guided by Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 765 (1998) and Faragher v.
City of Boca Raton, 524 U.S. 775, 807 (1998). These cases
instruct us that the central question is whether the
harasser is the victim’s supervisor or merely a co-worker.
Faragher, 524 U.S. at 805-06. However, regardless of
whether we find Officer Peck qualifies as a supervisor, the
City cannot be held liable because Peck took no tangible
employment action against Durkin.
  When a supervisor engages in sexual harassment, the
employer is liable for the harassment only if the harasser
took a tangible employment action as part of his harass-
ment. Faragher, 524 U.S. at 807. No affirmative defense is
available under Faragher and Ellerth when the supervisor’s
harassment culminates in a tangible employment action.
Durkin contends that she was denied a tangible employ-
ment benefit-training. A discriminatory denial of job-related
training can constitute an adverse employment action
under Title VII. Pafford v. Herman, 148 F.3d 658, 667 (7th
Cir. 1998).2 However, Durkin’s contention that she was



2
  Amicus asserts that this case should be considered under the
methodology of a denial of training, as we did in Pafford v.
Herman, 148 F.3d 658, 667 (7th Cir. 1998). However, this
approach is inapplicable because Durkin was not only trained, but
also the sole recipient of forty additional hours of special training
in Mattoon, Illinois.
No. 02-2358                                                7

denied training is not borne out by the record. Durkin
received the same course of training as the other recruits,
and was not assigned to Officer Peck until after she had
received the basic course of training and had taken the
exam three times. She was also given five opportunities to
pass the firearms exam instead of the standard four and
additional training in Mattoon, Illinois. Given this factual
background, we cannot agree that Durkin was denied
training. In fact, the exact opposite occurred; she was given
more training than the Academy customarily gives.
  Since no tangible employment action was taken, Durkin
must show that the City was negligent in discovering or
remedying the harassment. Parkins v. Civil Constructors,
163 F.3d 1027, 1032 (7th Cir. 1998). An employer may
defend against harassment charges by showing it exer-
cised reasonable care to discover and rectify promptly
any sexually harassing behavior. Id. Since an employer is
not omniscient, it must have notice or knowledge of the
harassment before it can be held liable. We determine
whether an employer had notice of sexual harassment
by considering the channel for complaints of harassment.
Hall, 276 F.3d at 356-57. When an employer designates
a “point person” to accept complaints, as the City did here,
“this person becomes the natural channel for the making
and forwarding of complaints, and complainants can be
expected to utilize it in the normal case.” Id. (quoting
Parkins, 163 F.3d at 1035). Finally, for a plaintiff to sur-
vive summary judgment, she must show she provided the
employer with enough information so that a reasonable
employer would think there was some probability that she
was being sexually harassed. Hall, 276 F.3d at 356.
  Durkin claims the City was negligent because it failed to
properly investigate her complaints about harassment. She
argues the City made a “meager effort” because it merely
questioned Peck and no one else. She also contends the City
never corrected any of the sexual harassing behavior since
8                                                No. 02-2358

it did not punish or fire anyone.
  A review of the record reveals that the City has a proper
system for the making and forwarding of complaints about
sexual harassment. Durkin’s training included a lesson on
the City’s sexual harassment policies and complaint
procedures. The policy provides that a Chicago Police
Department member who experiences sexually harassing
conduct to:
    report the incident to their immediate supervisor, by
    notifying the supervisor orally of the incident, no later
    than 180 days following the alleged incident. If the
    immediate supervisor is the alleged offender, the
    member will notify a supervisor one rank above that of
    the accused member.
The supervisor who receives the complaint must then
contact the Office of Professional Standards, obtain a
complaint register number, and submit a written report to
the Internal Affairs Division. The Internal Affairs Division
must then investigate the allegations.
   A sexual harassment policy must provide for “effective
grievance mechanisms” and have a “meaningful process” for
employees to seek redress for their concerns. Gentry v.
Export Packaging Co., 238 F.3d 842, 847 (7th Cir. 2001).
The City has a reasonable mechanism for detecting and
correcting harassment. However, Durkin did not avail
herself of the procedure. Probationary officers at the
Academy are directed to make complaints of sexual harass-
ment to their homeroom instructor. Durkin failed to tell her
homeroom instructor, Officer Smith, about the sexual
harassment because he was Peck’s friend and she believed
it would be “futile.” Durkin’s feelings of futility or unpleas-
antness do not alleviate her duty to bring her mistreat-
ment to the City’s attention. See Shaw v. AutoZone, Inc.,
180 F.3d 806, 813 (7th Cir. 1999). An employer is not liable
for co-employee sexual harassment when a mechanism to
report the harassment exists, but the victim fails to utilize
No. 02-2358                                                9

it. Murray v. Chi. Transit Auth., 252 F.3d 880, 889 (7th Cir.
2001). Durkin points out that her failure to broach the
subject with her homeroom instructor is not fatal because
she complained to many people at the Academy. While
there could be instances where this approach is sufficient to
put an employer on notice, this is not one of them. Durkin’s
complaints were vague; she never expressed her feelings of
harassment or offered any specific examples of what she
considered harassing or demeaning conduct. Instead, she
complained about matters that were not sexual in nature
such as Officer Pappas kicking her to correct her stance and
her troubles with the firearms test. The ubiquitous nature
of her complaints did not shed light upon the abusive
behavior or demoralizing feelings she was experiencing. The
City simply was not provided with enough information to
create some probability that it would think Durkin was
being sexually harassed. For these reasons, the City was
not negligent in discovering or remedying the harassment.
  Finally, Durkin argues that the district court did not
properly consider the totality of the circumstances in
determining whether a hostile work environment existed.
See Mason v. Southern Ill. Univ. at Carbondale, 233 F.3d
1036, 1044-45 (7th Cir. 2000). She points out that the
harassment was persistent and pervasive, yet the district
court analyzed the incidents in a piecemeal fashion.
However, reviewing the totality of the circumstances
reveals boorish conduct and unexplained animosities
toward Durkin, but not to the extent that it meets the legal
requirements of Title VII.


B. Sexual Discrimination
  Durkin also avers that the City sexually discriminated
against her because instructors made offensive comments
based on her gender and treated her differently than the
male recruits. A plaintiff seeking to prove gender discrimi-
10                                             No. 02-2358

nation may either offer direct or circumstantial evidence of
discrimination or provide indirect evidence through the
framework articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Lim v. Trs. of Ind. Univ., 297
F.3d 575, 580 (7th Cir. 2002). Durkin offers no direct or
circumstantial evidence that she was terminated because of
her gender and so we examine her claim under the
McDonnell Douglas burden-shifting framework. Under
McDonnell Douglas, a plaintiff establishes a prima facie
case of sex discrimination if she demonstrates that: (1) she
is a member of a protected class; (2) she was meeting her
employer’s legitimate employment expectations; (3) in spite
of meeting the legitimate employment expectations of her
employer, she suffered an adverse employment action; and
(4) she was treated less favorably than similarly situated
male employees. Markel v. Bd. of Regents of the Univ. of
Wis. Sys., 276 F.3d 906, 911 (7th Cir. 2002). The district
court determined that Durkin’s harassment claim failed
because no evidence existed that similarly situated male
employees were treated more favorably than she. We agree.
  To show that another employee is “similarly situated,” a
plaintiff must show that there is someone who is compara-
ble to her in all material respects. Patterson v. Avery
Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002). We
consider all relevant factors to determine whether two
employees are similarly situated. Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 617-18 (7th Cir. 2000). Durkin must
show that she was not different from her male counterparts
with respect to performance, qualifications, or conduct. Id.
  Durkin contends that there were no similarly situated
male employees in her class because she was the only
recruit from her class who failed the firearms exam. Durkin
argues that she was treated less favorably than similarly
situated males because Peck did not demean or intimidate
male recruits. We are unpersuaded by either argument.
No. 02-2358                                                       11

  Durkin’s argument that Peck did not insult males is
simply a recycled version of her harassment claim which we
have denied. Durkin’s other contention is also rejected
because as the district court correctly noted, Durkin “cannot
meet her burden by pointing to an absence of any similarly
situated male recruits.” Durkin v. City of Chicago, 199 F.
Supp. 2d 836, 845-46 (N.D. Ill. 2002) (emphasis in original).
It is her duty to prove the City treated similarly situated
male employees more favorably. See Spearman v. Ford
Motor Co., 231 F.3d 1080, 1087 (7th Cir. 2000). Durkin has
pointed to no evidence of male employees who were simi-
larly situated to her, indeed, in her reply brief, she says
there were no similarly situated male employees. The
district court’s decision to grant the City’s motion for
summary judgment of this claim was appropriate.


C. Retaliation
  Durkin next asserts that the City fired her in retaliation
for complaining about her experiences at the Academy. Title
VII forbids an employer from punishing an employee for
complaining about discriminating treatment in the work-
place. 42 U.S.C. § 2000e-3(a). Retaliation occurs when an
employer takes an adverse employment action against an
employee for opposing impermissible discrimination. Rogers
v. City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003). A
plaintiff has two ways to establish a prima facie case of
retaliation, the direct method and the indirect method.3


3
  Durkin contends there is an inconsistency in this Circuit’s
precedent as to whether circumstantial evidence can be presented
under the direct method. See Stone v. City of Indianapolis Pub.
Utils. Div., 281 F.3d 640 (7th Cir. 2002), cert. denied, 123 S. Ct. 79
(2002) (plaintiff under the direct method must “present direct
evidence (evidence that establishes without resort to inferences
                                                       (continued...)
12                                                    No. 02-2358

Haywood v. Lucent Techs., 323 F.3d 524, 531 (7th Cir.
2003). However, we need not undertake this analysis as
Durkin’s claim fails at the outset.
  Durkin must show she engaged in statutorily protected
activity. Hilt-Dyson, 282 F.3d at 465. Usually a claim for
retaliation is preceded by an obligatory complaint about
discriminatory conduct, so that the employer is aware of the
mistreatment and the corresponding protected activity.
Unsurprisingly, there is a dearth of case law on this point.4
  It is axiomatic that a plaintiff engage in statutorily
protected activity before an employer can retaliate against
her for engaging in statutorily protected activity. While we
have held that an employee may engage in protected
activity under § 2000e-3(a) even if the conduct at issue does
not violate Title VII, Dey v. Colt Constr. & Dev. Co., 28 F.3d
1446, 1457 (7th Cir. 1994), we have never held that an
employer can retaliate when there has been no protected
expression. An employer cannot retaliate if there is nothing
for it to retaliate against.



3
  (...continued)
from circumstantial evidence) that [a plaintiff] engaged in
protected activity”). Id. at 644. But see Rogers v. City of Chicago,
320 F.3d 748, 753 (7th Cir. 2003), (“[t]he second type of evidence
permitted under the direct method is circumstantial evidence; i.e.,
evidence that allows a jury to infer intentional discrimination by
the decisionmaker”). Since the issue is not material to the
outcome of this case, we decline to address the question.
4
   The Second and Ninth Circuits both explicitly make proof of the
employer’s knowledge part of the prima facie case of retaliation.
Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276,
292 (2nd Cir. 1998); Gifford v. Atchison, T.&S.F.R. Co., 685 F.2d
1149, 1155 (9th Cir. 1982). We have assumed that this aspect
is implicit in the first element of this Circuit’s prima facie case
under the indirect methodology.
No. 02-2358                                               13

   As we have previously noted, Durkin never complained
about sexual harassment through the formal channels of
the City’s complaint mechanism. We agree with Durkin’s
sentiment that the record is replete with examples of her
complaints. However, her complaints were vague and
concerned subject matters other than harassment. More-
over, she did not utilize the City’s policy for reporting
harassment because she believed it would accomplish
nothing. It was not until September 9, 1999 that Durkin
requested a meeting with Clark. Durkin never engaged in
statutorily protected expression until this meeting. When
she did engage in protected activity, lodging a complaint
with Clark, Clark acted on her own authority and provided
Durkin with another, meaningful opportunity to pass the
firearms exam. When Durkin returned to Chicago, she took
the exam and shot a 58%, a failing score.


D. 42 U.S.C. § 1983
  Finally, Durkin claims that under 42 U.S.C. § 1983, the
City is liable because a person with final policy making
authority caused her constitutional injury. However, a
municipality cannot be found liable if there is no finding
that the individual officer is liable on the underlying
substantive claim. City of Los Angeles v. Heller, 475 U.S.
796, 799 (1986) (per curiam). Since Durkin did not suffer a
constitutional injury, she has no claim against the munici-
pality. Pasiewicz v. Lake County Forest Pres. Dist., 270 F.3d
520, 527 (7th Cir. 2001).
                      CONCLUSION
  While we expressly condemn the conduct Durkin was
subjected to, she cannot prevail because she does not meet
the requirements set forth in McDonnell Douglas. More-
over, in the future, we expect the City to better monitor the
workplace such that the atrocious behavior exemplified in
this case is not allowed to fester.
14                                        No. 02-2358

                                            AFFIRMED.

A true Copy:
      Teste:

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




               USCA-02-C-0072—8-22-03
