IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

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No. 18-CV-543 (DCK)

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PATRICK MULLIGAN,

Plaintiff - Appellant

v.

BROWN, MOORE & McKENZIE, LLP,

Defendant - Appellee

___________________________
Appeal from the United States District Court
For the Northern District of Illinois
___________________________

BRIEF OF APPELLEE
BROWN, MOORE & MACKENZIE, LLP
____________________________

PRELIMINARY STATEMENT

This appeal arises from defendant’s (now “Appellee”) motion for summary judgment

granted by the District Court of the Northern District of Illinois on plaintiff’s (now “Appellant”),

sexual harassment and retaliatory discharge claims finding that the sexual improprieties

complained of did not “rise to the level of “severe and pervasive” such that a reasonable person

would find the environment hostile or abusive.”” (R. 39.) The district court further ruled that

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plaintiff failed to proffer “sufficient evidence from which a reasonable trier of fact could find his

termination as a pretext for discrimination.” (R. 41.)

Appellee submits that the district court’s grant of summary judgment should be

affirmed. The undisputed facts negate the claim of sexual harassment because Rowley’s

alleged conduct was neither sufficiently severe nor pervasive that created a detriment

towards Appellant’s employment. Furthermore, appellant’s termination from employment

has a non-discriminatory reason which is the exercise of an employer’s inherent prerogative

to lay-off its employees to avert financial losses. As such, the claim of retaliatory discharge

has no support in law.

STATEMENT OF THE ISSUES

I. Whether Appellant established a prima facie case of sexual harassment

discrimination under Title VII of the Civil Rights Act of 1964

The district court correctly held no.

II. Whether Defendant-Appellee had actual or constructive notice of the existence

of the harassment claimed by Appellant

The district court correctly held no.

III. Whether Appellant established a prima facie case of retaliatory discharge.

The district court correctly held no.

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 STATEMENT OF THE CASE

Appellant Patrick Mulligan filed a complaint against Defendant-Appellee for

unlawful sexual harassment (hostile work environment claim) and Retaliatory Discharge

under Title VII of the Civil Rights Act of 1964. On March 1, 2019, the U.S. District Court

of the Northern District of Illinois granted Defendant’s motion for summary judgment on

Appellant’s sexual harassment-hostile work environment and retaliation claims.

Appellant filed a timely notice of appeal and statement of the case on March 1, 2019.

STATEMENT OF FACTS

Appellant was employed by Appellee firm Brown, Moore and Mackenzie, LLP as

associate from September 2015 until February 2018. Appellant and Elizabeth Rowley, also

a junior attorney, worked together under one of the partners of the firm, Jeffrey Rutherford.

On September 12, 2017, Appellant and Rowley had a romantic date. The date ended

on a high note as Appellant admitted himself that “At the end of the night…we kissed there

for a few minutes. I think my hands were on her back and might have touched her

behind.” (Mulligan Dep. ¶ 36.) Additionally, Appellant invited Rowley for a second date the

following Saturday night.

Appellant has openly acknowledged his interest towards Rowley in that “We were

just acquaintances before then, but she’s very attractive, and her work was well-regarded by

the partners in the firm.” (Id. at ¶ 14.)

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 Rowley affirmed that “when he asked me out on a date, our relationship became

more personal,” (Rowley Dep. ¶ 52,) in that “he seemed to have a nice time, and he kissed

me at the end of the date for quite a while. It seemed like he was interested in me.” (Id. at ¶

22.). These triggered Rowley’s subsequent actions as follows: (1) sending her photograph in

a hot tub to Appellant via email, and (2) taking the initiative of inviting Appellant for

another date. (Answer. ¶ 10,)

Appellee acknowledges that on two different occasions, Appellant informed

Rutherford of his romantic date with Rowley. Rutherford claimed, “I understood that

Appellant was sharing with me information about his dating life and I did not have time to

discuss it with him.” (Rutherford Aff. ¶ 3.)

Later on, Appellant informed Rutherford that Rowley has become more physically

expressive of her interest in him that he requested Rutherford to intervene. Rutherford

suggested Appellant “to discuss the matter directly with Rowley to see if they could resolve

it themselves.” (Id. at ¶ 4.)

Some time in November 2017, Appellant asked Rutherford to reassign Rowley to

another team. As Rutherford and Rowley were working together on a trial for the

beginning of 2018, Rutherford informed Appellant of the situation. Appellant offered

to assume Rowley’s obligations in the trial. Rutherford honestly believed that it would not

be a prudent solution considering that they were heading close to trial. (Id. at ¶ 5.)

After not getting his way, Appellant decided to take a sudden two-week sabbatical at

the end of December, right when it was close to the complex trial that Rutherford’s team was

handling, and when having a full-staffed attorney was urgently required. (Id. at ¶ 6.)

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 In late January 2018, Rutherford’s biggest client, St Mary’s Hospital, pulled out

from Appellee’s retainer services. This would impact over $1 million of Appellee’s annual

income which necessitated laying off an associate. The other partners in the firm believed

that the reduction should come from Rutherford’s team—since the pull-out came from

Rutherford’s string of clients. (Id. at ¶ 7.)

Appellant filed a complaint against Defendant-Appellee for unlawful sexual

harassment—hostile work environment claim, and Retaliatory Discharge under Title VII of

the Civil Rights Act of 1964. (Compl. 1-6.)

SUMMARY OF THE ARGUMENT

Appellant’s claims of sexual harassment and retaliation are not within the purview

of Title VII. The summary judgment ordered by the District Court should be affirmed

because of the following reasons:

(1) The undisputed facts negate the claim of sexual harassment because Rowley’s alleged

conduct was neither sufficiently pervasive nor severe that created a detriment towards

Appellant’s employment;

(2) The complaint did not have sufficient evidence to show that Appellant’s termination

was a pretext of discrimination.

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 STANDARD OF REVIEW

On appeal from summary judgment, there are two questions to be hurdled by the

reviewing court: (1) whether there are any genuine issues of material fact and (2) whether

the district court erred in its application of the law. Chandler v. Roudebush, 425 U.S. 840,

841. Since summary judgment involves purely questions of law, the appellate court reviews

the lower court’s decision de novo. Id.

In considering the record, the court must view the evidence in the light most

favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255.

The principal inquiry is whether a material fact exists. Id. The moving party carries the

burden of proving and persuading the court that no genuine issue of material fact exists.

In this case, no genuine issue of material fact exists as no prima facie case of Title

VII sexual harassment and retaliation were established before the district court.

ARGUMENT

I. The District Court correctly ruled that Rowley’s sexual improprieties were not

sufficiently severe or pervasive that created a hostile work environment

A sexual harassment claim under Title VII requires Appellant to show: (1) his work

environment was objectively and subjectively offensive, (2) the harassment he complained of

was based on his gender, (3) the conduct was so severe or pervasive as to alter the conditions of

his employment and create a hostile or abusive working environment, and (4) there is a basis for

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employer liability. Johnson v. Advocate Health and Hosps. Corp., 892 F.3d 887, 900 (7th Cir.

2018). This test has objective and subjective elements: the misconduct shown must be "severe or

pervasive enough to create an objectively hostile or abusive work environment," and the victim

must also subjectively perceive that environment to be abusive.” Harris v. Forklift Sys., Inc., 510

U.S. 17, 21 (1993).

a. Under the Objective Test, Rowley’s sexual conduct did not rise to the level as to create a

hostile work environment

To determine whether a particular work environment is objectively offensive, courts must

consider the severity of the conduct, its frequency, whether it is merely offensive as opposed to

physically threatening or humiliating, and whether it unreasonably interfered with an employee’s

work performance. Swyear v. Fare Foods Corp., 911 F.3d 874, 877 (7th Cir. 2018). “We also

assume employees are generally mature individuals with the thick skin that comes from living in

the modern world.” Passananti v. Cook Cty., 689 F.3d 655, 667 (7th Cir. 2012). As a result,

employers generally do not face liability for “off-color comments, isolated incidents, teasing,

and other unpleasantries that are, unfortunately, not uncommon in the workplace.” Id. The

inquiry is objective: “Did working conditions become so intolerable that a reasonable person in

the employee’s position would have felt compelled to resign?” Pa. State Police v. Suders, 542

U.S. 129, 141 (2004).

In Swyear, the plaintiff argued that the work environment was permeated by sexism with

prevalent name-calling amongst co-workers such as “Nips,” “Bitchy Ritchie” and “Cunty.” The

Court of Appeals however found the environment not rising to the level of hostile or abusive as

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“occasional vulgar banter, tinged with sexual innuendo of coarse or boorish workers generally

does not create a work environment that a reasonable person would find intolerable.” Swyear

911 F.3d at 881.

In Faragher, the female lifeguards complained of offensive touching, lewd remarks

and demeaning references to women by their supervisors. The High Court declared that

when sexual harassment hostile work environment tests are properly applied, “ordinary

tribulations of the workplace, such as sporadic use of abusive language, gender-related jokes

and occasional teasing” will be filtered out. Faragher v. City of Boca Raton, 524 U.S. 775,

788 (1998). Relying on Oncale, the Faragher Court ruled that simple teasing, offhand

comments—unless extremely serious, will not amount to discriminatory changes in the

terms and conditions of employment, Oncale v. Sundowner Offshore Services Inc., 523 U.S.

75 (1998) and that Title VII does not prohibit “genuine but innocuous differences in the

ways men and women routinely interact with members of the same sex and of the opposite

sex.” Id. at 76.

Harris tested severity of the sexual conduct by determining if it is physically

threatening or humiliating, or a mere offensive utterance and whether it unreasonably

interferes with an employee’s work performance. Harris, 510 U.S. at 18.

In this case, the district court correctly applied the objective test and filtered out the

“ordinary tribulations of the workplace” under Faragher when in relying on Patton v.

Keystone, it ruled that “TITLE VII is not a “civility code” and thus does not reach all

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“offensive conduct.” Patton v. Keystone RV Co., 455 F.3d 812, 815 (7th Cir. 2006), (R.

39.)

Furthermore, the district court correctly adopted case precedents that Title VII “is not

designed to purge the workplace of vulgarity.” Wolf v. Nw. Ind. Symphony Soc’y, 250

F.3d 1136, 1144 (7th Cir. 2001) (quoting Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430

(7th Cir. 1995)), (R. 39.)

Here, applying the objective test, Rowley’s sexual improprieties did not rise to the level

of severe or pervasive such that a reasonable person would find the environment hostile or

abusive. As the district court accurately observed “[T]he conduct here lasted less than three

months and consisted primarily of requests for dates and verbal remarks…While there were

sexually suggestive remarks and perhaps one display of nudity, there was nothing obscene…to

the extent some of the conduct was witnessed by other members of the firm, it was not

humiliating but was more of joking, albeit wholly inappropriate nature.” (R. 40.) The Supreme

Court has emphasized that hostile work environment claims by “their very nature involve

repeated conduct and occur over a series of days or perhaps years.” Nat'l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 115 (2002).

The district court equated Rowley’s conduct to Faragher’s ordinary tribulations at work

and Swyear’s occasional vulgar banter. Thus, the district accurately characterized Rowley’s

conduct as not sufficiently severe or pervasive and outside of the ambit of Title VII violative

conduct.

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b. Under the subjective test, Rowley’s conduct is neither sufficiently severe nor pervasive

as to create a hostile work environment.

With respect to the subjective element of the test, the standard is “not what a reasonable

person might be capable of enduring but whether the offensive acts alter the conditions of

employment.” Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 440 (7th Cir. 1994).

The subjective test requires that the target of harassment believes that the environment is

hostile. The crux of this test is whether or not the plaintiff was subjected to unwelcome sexual

conduct, advances or requests. Hilgers v. Rothschild Inv. Corp., No. 15 C 3572, 2017 U.S. Dist.

LEXIS 152733, at *14 (N.D. Ill. Sep. 20, 2017).

Furthermore, one of the factors that courts assess is whether the conduct “unreasonably

interferes with [the] employee’s work performance.” 510 U.S. at 23. Courts have dismissed

harassment claims because the plaintiff could not demonstrate that the alleged harassing

behavior affected his or her job performance.

In Doe 1 v. City of Chicago, there was unlawful interference with an individual’s work

performance when the supervisor would incessantly send text messages and degrading emails to

the complainant which included threats of suicide, posted her photo in Facebook and left

vexatious and demeaning comments about her. The supervisor also followed her in her shifts at

various office branches, and would scream “that fucking bitch” in reference to her, within

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earshot during casual conversations with co-workers. Doe 1 v. City of Chi., 335 F. Supp. 3d

1098 (N.D. Ill. 2018).

In considering the frequency of an innocuous sexual conduct, the three occasions in

which the supervisor touched the worker, and actually sat outside the victim’s house to observe

who she was associated with, the court concluded that the supervisor's conduct could have been

sufficiently severe or pervasive to alter the worker's terms and conditions of employment. Carl v.

Parmely, 188 F. Supp. 2d 991, 997 (S.D. Ill. 2001).

Here, Appellant failed to sufficiently establish a nexus between Rowley’s conduct and a

detriment to his work performance. On the contrary, Appellant admitted himself that he “has

received positive reviews of his work performance,” R. 6, while Rutherford corroborated, “I told

him his work had always been exemplary,” (Rutherford Aff. ¶ 8.), which thus means that

Rowley’s conduct did nothing to affect appellant’s employment adversely.

In Hilgers, a 2nd year law student holding a summer associate position complained of

sexual harassment when the supervisor grabbed her by the shoulders in an attempt to kiss her.

The defendant argued that there was no sexual harassment because the complainant agreed to

have lunches and dinners with him, voluntarily hugged him, allowed him to walk her home

holding an umbrella over her head. Verily, the conduct complained of was encouraged by a

series of encounters between the parties that connoted acceptance by the complainant of the

supervisor’s initial onset of improprieties. Hilgers, 2017 U.S. Dist. LEXIS 152733, at *15.

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 The district court ruled that a reasonable jury could find that the harassment was

unwelcome where the Plaintiff complained about the conduct to the partners of the firm

immediately after the fact and that complainant’s reluctance to make initial reports was because

she did not want to jeopardize her long-term professional opportunities with the company. As

declared by her “If I report every single person in the office, I was really at risk for no continued

employment.” Id. at *17

Appellant’s failure to report Rowley’s conduct via a formal complaint notwithstanding

the lack of any threat and/or impediment whatsoever, as in Hilgers, to pursue all reporting

channels available within the Appellee firm, negates the first element of unwelcomeness of the

sexual conduct, and falls short of the subjective test of the sexual harassment hostile work

environment.

c. The complaint failed to adduce evidence that Appellee was on notice of the alleged

harassment.

Vague statements by an employee concerning coworkers’ conduct are often not sufficient

to put the employer on notice of workplace harassment. “If the employer has established a set of

procedures for reporting complaints about harassment, the complainant ordinarily should follow

that policy in order to provide notice sufficient for the employer to be held responsible…”

Lambert v. Peri Formworks Sys., 723 F.3d 863, 864 (7th Cir. 2013).

In Zimmerman, the court concluded that the employer is not on notice of workplace

sexual harassment when the reported issue against the defendant was a mere "personality

conflict.” Zimmerman v. Cook Cnty. Sheriff's Dep't, 96 F.3d 1017, 1018 (7th Cir. 1996). The

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employee must give the employer “enough information to make a reasonable employer think that

there was some probability that she was being sexually harassed.” Erickson v. Wis. Dep't of

Corr., 469 F.3d 600, 601 (7th Cir. 2006).

In Hilgers, a formal complaint was lodged against the supervisor whereas here, Appellant

merely informed his supervisor of his brewing discomfort over Rowley’s actuations. As

appellant initially disclosed having dated Rowley, it is to be reasonably expected from

Rutherford to suggest to Appellant to resolve whatever issue he has with Rowley personally, as

Rutherford is well-aware that any conflict between Appellant and Rowley would most likely

have arisen out of purely personal relations outside of work. Appellant testified that Rutherford

stated that “he was willing to talk to Liz, but he thought it would be better if I spoke with her

myself first, to see if we could resolve things without involving him.” (Mulligan Dep. ¶ 76.)

Therefore, Appellant’s refusal to take the extra steps as suggested by Rutherford may reasonably

be equated to Appellant’s acquiescence on Rowley’s conduct.

Variance between supervisor harassment and coworker harassment

An employer's liability for sexual harassment is determined by the status of the harasser

and the type of injury caused by the harassment. One standard exists for harassment by

supervisors and another for harassment by coworkers. The standard for supervisors is strict

liability, and the standard for coworkers is negligence. The greater the potential injury to the

employee, the greater care the employer must take. Erickson, 469 F.3d at 601.

In Parkins, the Court relied in Faragher in its holding that “[A]n employer's liability

for hostile environment sexual harassment depends upon whether the harasser is the victim's

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supervisor or merely a co-employee.” Parkins, 163 F.3d at 1038. Where the harasser is a

supervisor or has a form of moral ascendancy over the employee by reason of his authority

in the workplace, an employer’s strict liability comes into play. Id.

Thus, an employer is vicariously liable for the hostile environment created by the

supervisor. Id. It follows then that because normally co-employees do not possess any

significant authority or moral ascendancy with which they might harass a co-employee, an

employer becomes vicariously liable for a co-employee’s harassment under the alter ego doctrine

only when the employer is “negligent in discovering or remedying the harassment.” Perry v.

Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir.1997). “An employer's legal duty in co-

employee harassment cases will be discharged if it takes “reasonable steps to discover and rectify

acts of sexual harassment of its employees.” Id.

Applying these standards to the case at bar, nothing suggests that Rowley had exercised

informal supervision over Appellant’s work. Accordingly, Appellee’s liability, must be

determined according to the standard for co-employees. 163 F.3d at 1035. Therefore, Appellee

is entitled to raise affirmative defenses.

A viable affirmative defense for an employer would be to prove its exercise of reasonable

care to prevent and/or curb sexual harassment by proving that an anti-harassment policy is in

place. “[T]he need for a stated policy suitable to the employment circumstances may

appropriately be addressed in any case when litigating the contours of the employer’s affirmative

defense.” 524 U.S. at 799.

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 Here, Appellee has a sexual harassment policy in place. The policy states in relevant

part, “Any employee who believes that discriminatory harassment has occurred should

immediately report the incident to the employee’s immediate supervisor or Human Resources.”

(R. 36.) As Appellee has an appropriate anti-harassment policy, it reasonably prevented sexual

harassment.

Where an employer sets up a “point person” to accept complaints, “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.” Young v. Bayer Corp., 123 F.3d 672, 674 (7th

Cir.1997).

Here, the Defendant’s policy designates either the immediate supervisor or human

resources as the channel to receive complaints under the harassment policy. Assuming then that

Appellant reported Rowley’s conduct to Rutherford, “[A] reasonable person, realizing that her

complaints were ineffective, would then seek a remedy elsewhere.” 163 F.3d at 1038.

Hilgers involved a 2nd year law student occupying a mere temporary position yet she

knew exactly the need to exhaust channels then available to her to report the harassment.

Appellant on the other hand is a practicing attorney, and a tenured associate of a reputable law

firm. He should have known the most efficacious manner of obtaining resolution to his

complaint. Hilgers said no to her supervisor and reported the matter to the partners. Appellant

did not say no to Rowley, did not speak to Rowley as suggested by Rutherford, and did not

exhaust channels available to him. In his deposition Appellant admitted, “I was just trying to

avoid complicating things more than necessary and hoped she would get the hint.” (Mulligan

Dep. ¶ 48.) On the other hand, Rowley was left clueless, “I wasn’t aware that he was avoiding

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interactions with me…I assumed something might be going on with him personally.” (Rowley

Dep. ¶ 94.)

Thus, the district court properly held that “Based on the totality of these circumstances…

plaintiff failed to establish that the conduct was severe and pervasive as a matter of law.” (R.

40.)

II. The district court correctly held that Appellant did not have sufficient evidence

that his termination was a pretext of discrimination.

A plaintiff may establish a prima facie case of retaliatory discharge if: “(1) the employer

discharged the employee, (2) in retaliation for the employeeʹs activities, and (3) that the

discharge violates a clear mandate of public policy.” Walker v. Ingersoll Cutting Tool Co., 915

F.3d 1154, 1156 (7th Cir. 2019).

Thus, a plaintiff must establish a causal relationship between the employee's activities

and the discharge. And to prove causality, the plaintiff must show more than a sequential

connection but that the discharge was primarily in retaliation for his exercise of a protected right.

Walker, 2018 U.S. Dist. LEXIS 127054, at *16. Plaintiff must show that his protected activity

was the “motivating factor of the defendant’s adverse actions.” Gomez v. Randle, 680 F.3d 859,

866 (7th Cir. 2012). Suspicious timing is some evidence of retaliatory motive, but it is rarely

sufficient, Morgan v. SVT, LLC, 724 F.3d 990, 998 (7th Cir. 2013).

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 Walker was discharged for engaging into a physical altercation with a co-employee and

for hurling violent threats. The company asserted that it fired Walker because of his history of

workplace conflict. 2018 U.S. Dist. LEXIS 127054 at *16. Thus, complainant failed to establish

that his discharge had any discrimination pretext.

In Hilgers, complainant was not hired into a permanent position allegedly due to

unreasonably high salary demand. The district court found this argument unpersuasive as “a jury

could reasonably conclude that Rothschild’s failure to offer a permanent position to Hilgers is a

means of retaliating against her for engaging in a protected activity – that is for lodging a

complaint against her supervisor. Also, that a reasonable jury could infer based on the timing of

the events that the complaint was causally connected to Rothschild’s failure to hire or promote

Hilgers.” 2017 U.S. Dist. LEXIS 152733, at *32.

In Hilgers, the reason for discharge emanated solely from within the defendant company,

whereas in this case, Appellant’s termination of employment was an exercise of management

prerogative for a non-discriminatory eventuality—that is a major client pull-out amongst

Rutherford’s string of clients, which is a fact independent of the will of Appellee. As such,

although there is minimal space in time between Appellant’s complaint and his lay-off, the

timing aspect of his severance cannot be made the sole basis of retaliation in light of the fact that

the ultimate cause of his severance from the company is a legitimate non-discriminatory reason.

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 PROPRIETY OF THE SUMMARY JUDGEMENT

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.

R. CIV. P. 56(c) [**5] . In ruling on a motion for summary judgment, the evidence of the

nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant's

favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In considering a motion for

summary judgment, the district court is not required to scour the record in search of evidence to

defeat the motion; the nonmoving party must identify with reasonable particularity the evidence

upon which the party relies. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898 (7th Cir.

2003). In evaluating a motion for summary judgment, the district court's function is not to weigh

the evidence and determine the truth of the matter, but to determine whether there is a genuine

issue for trial. Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001) ("The primary

purpose of summary judgment is to isolate and dispose of factually unsupported claims."). A

party who bears the burden of proof on a particular issue may not rest on its pleadings, but must

affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material

fact that require trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

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 CONCLUSION

For the reasons laid down herein, the district court’s summary judgment should be affirmed.

Dated: April 22, 2019 Respectfully submitted,

384659063

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