In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1277
LISA DUNN,
Plaintiff-Appellant,
v.
WASHINGTON COUNTY HOSPITAL
and THOMAS J. COY,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 03-262—William D. Stiehl, Judge.
____________
ARGUED SEPTEMBER 14, 2005—DECIDED NOVEMBER 17, 2005
____________
Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. For several years, Lisa
Dunn worked as a nurse at Washington County Hospital in
Nashville, Illinois. It is a small hospital, with only 59 beds,
so members of the staff must be able to work well together;
antagonists cannot be separated readily. Dunn contends in
this suit under Title VII of the Civil Rights Act of 1964 (and
other federal statutes) that Thomas J. Coy, the head of
obstetric and emergency services, made life miserable for
her and other women on the staff. Details do not matter for
current purposes. The district court assumed that Dunn
encountered discriminatory working conditions (men on the
staff faced no similar problems) but granted summary
2 No. 05-1277
judgment for the Hospital anyway, because at the time Dr.
Coy was not one of the Hospital’s employees. He had staff
privileges, which he used to furnish medical services
directly to patients. The Hospital therefore could not control
his conduct, the judge ruled, and could not be liable for it.
The district judge proceeded as if this were a tort suit.
Coy was an independent contractor; the Hospital would not
be liable on principles of respondeat superior for intentional
torts he committed against the nurses; consequently, the
judge thought, the Hospital could not be liable under Title
VII either. The proposition about the limits of vicarious
liability is incontestable. See Berry v. Delta Airlines, Inc.,
260 F.3d 803, 811-12 (7th Cir. 2001). It is also irrelevant,
because liability under Title VII is direct rather than
derivative.
The Supreme Court held in Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton,
524 U.S. 775 (1998), that an employer is answerable under
Title VII only for “its own” deeds—and this is so even if the
person who takes supposedly discriminatory action is on its
payroll. An employer is responsible for every “tangible
employment action” (hiring, firing, promotion or its absence,
wage-setting, and the like) plus any other discriminatory
term or condition of employment that the employer fails to
take reasonable care to prevent or redress.
When a supervisor causes the objectionable conduct, proof
of reasonable care (and reasonable complaint by
the employee) is an affirmative defense; otherwise the
plaintiff bears the burden of showing that the employer
knew of the problem (usually though not always this
requires the employee to show that a complaint was made)
and that the employer did not act reasonably to equalize
working conditions once it had knowledge. See, e.g.,
Faragher, 524 U.S. at 799-808; EEOC v. Indiana Bell
Telephone Co., 256 F.3d 516, 524-26 (7th Cir. 2001) (en
No. 05-1277 3
banc); Shafer v. Kal Kan Foods, Inc., 417 F.3d 663 (7th Cir.
2005); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 809-
11 (7th Cir. 2000).
Because liability is direct rather than derivative, it makes
no difference whether the person whose acts are complained
of is an employee, an independent contractor, or for that
matter a customer. Ability to “control” the actor plays no
role. Employees are not puppets on strings; employers have
an arsenal of incentives and sanctions (including discharge)
that can be applied to affect conduct. It is the use (or failure
to use) these options that makes an employer responsi-
ble—and in this respect independent contractors are no
different from employees. Indeed, it makes no difference
whether the actor is human. Suppose a patient kept a
macaw in his room, that the bird bit and scratched women
but not men, and that the Hospital did nothing. The
Hospital would be responsible for the decision to expose
women to the working conditions affected by the macaw,
even though the bird (a) was not an employee, and (b) could
not be controlled by reasoning or sanctions. It would be the
Hospital’s responsibility to protect its female employees by
excluding the offending bird from its premises. This is, by
the way, the norm of direct liability in private law as well:
a person “can be subject to liability for harm resulting from
his conduct if he is negligent or reckless in permitting, or
failing to prevent, negligent or other tortious conduct by
persons, whether or not his servants or agents, upon
premises or with instrumentalities under his control.”
Restatement (2d) of Agency §213(d).
Just so with an offending independent contractor, as
Coy is alleged to be. The employer’s responsibility is to
provide its employees with nondiscriminatory working
conditions. The genesis of inequality matters not; what does
matter is how the employer handles the problem. Accord,
Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072-74 (10th
Cir. 1998) (collecting cases). Dunn alleges that the Hospital
4 No. 05-1277
knew that Coy made life miserable for women (but not men)
and did nothing in response. That states a claim of sex
discrimination under Title VII. The Hospital is mistaken in
saying that Dunn failed to plead the correct theory (or the
right facts) in the district court: Pleadings need not contain
either factual details or legal theories. See Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002); Bartholet v. Reishauer
A.G. (Zürich), 953 F.2d 1073 (7th Cir. 1992). Nor does it
matter whether Coy intended to injure women; the right
question is whether the Hospital intentionally created or
tolerated unequal working conditions. The district court
therefore must decide on remand whether Coy’s conduct
was severe enough (and the Hospital’s response feeble
enough) to justify liability, and if material facts are in
dispute a trial must be held.
Dunn’s other contentions, however, do not require
additional proceedings. Coy was not a state actor, so claims
under the first amendment fail. Dunn’s equal-protection
argument—that the Hospital favored Coy over her because
he brought in more business—does not show intentional
discrimination against women. Dunn’s own characterization
of events implies that the Hospital tolerated Coy despite,
rather than because of, his puerile behavior, and thus did
not intentionally discriminate. See Personnel Administrator
of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979)
(“Discriminatory purpose . . . implies more than intent as
volition or intent as awareness of consequences. It implies
that the decisionmaker . . . selected or reaffirmed a particu-
lar course of action at least in part because of, not merely in
spite of, its adverse effects upon an identifiable group.”)
(internal footnote, citation, and quotation marks omitted).
Dunn does not contend that the Hospital acted as it did
because it shared Coy’s prejudices.
Public employers must avoid sex discrimination in their
own acts (including the acts of their employees) but are
not obliged to root out discrimination by private ac-
No. 05-1277 5
tors—and, as an independent contractor, Coy was a private
actor. If the Hospital protected men but not women from
depredations by third parties, it would transgress the
original sense of equal protection, but Dunn does not
contend that the Hospital protected anyone from Coy. The
Constitution by and large establishes negative liberties; it
does not require the state to prevent or redress the miscon-
duct of private actors. See, e.g., DeShaney v. Winnebago
County Department of Social Services, 489 U.S. 189 (1989);
Leeke v. Timmerman, 454 U.S. 83 (1981). This is an impor-
tant respect in which Title VII provides public employees
with rights in addition to the Constitution’s requirements.
Dunn’s contention that the Hospital retaliated against her
for complaining about Coy’s misconduct is doubly incorrect:
first because “the Hospital” did nothing at all (Coy is
responsible for all of the supposedly retaliatory acts), and
second because what Coy did would not create a legal
problem even if imputed to the Hospital.
Almost all of what Dunn characterizes as “retaliation” is
verbal requests from Coy to withdraw her complaint of
sexual harassment. We assume (as we must at this junc-
ture) that Coy spoke in a nasty and uncivil tone.
“[P]aybacks are hell,” one of his statements to Dunn,
implied that he would do what he could to impede her
career. Yet his statements did not cause Dunn any injury
(that is to say, no adverse employment action occurred). See
Hottenroth v. Slinger, 388 F.3d 1015, 1030 (7th Cir. 2004)
(“It is well established that unfulfilled threats that result in
no material harm cannot be considered an adverse employ-
ment action under Title VII.”). Talk is cheap; unless Dunn
knew that Coy had sabotaged the career of other nurses, his
statements would not have dissuaded reasonable persons
from protecting their own rights under the statute and thus
cannot violate Title VII. See Washington v. Illinois Depart-
ment of Revenue, 420 F.3d 658, 661-62 (7th Cir. 2005). Dunn
did not offer evidence that Coy had damaged other nurses’
6 No. 05-1277
careers; instead the record shows that she stood up to a
windbag.
The one supposedly retaliatory act that cannot be charac-
terized as cajolery or dark hints of future adverse employ-
ment action occurred during late April 2002 when Coy
pushed Dunn against a cabinet in the coffee room and,
while he had her pinned, tapped her on the cheek with a
closed fist. Dunn complained to the Hospital’s management
on May 2 about this assault and battery (which implied the
possibility of a more serious physical attack in the future),
and she never came to work again, sending a letter of
resignation on May 6.
Coy’s assault and battery may be actionable under state
tort law, but they cannot be imputed to the Hospital—not
only because Coy was not its employee but also because
Dunn did not give management time to respond. Only
a variant of absolute liability would deem the Hospital
responsible for Coy’s misbehavior, and Title VII is not an
absolute-liability regime. Trying to pin the label “construc-
tive discharge” on Coy’s threat of violence is unhelpful. One
threat of this kind does not meet the standard of construc-
tive discharge, see Pennsylvania State Police v. Suders, 542
U.S. 129, 141 (2004), and it would not matter if it did—for
only employers can “discharge” workers, and Coy was not
Dunn’s employer.
A final comment about the proceedings that lie ahead.
Some of the discovery rulings were shaped by the district
court’s view that the Hospital could not be responsible
for the acts of a non-employee; these must be reexamined on
remand. For his part, Coy contends that much of the
evidence that Dunn proposes to use is privileged under
Illinois law, either because it concerns the relation between
Coy and his patients or because it arises from a “peer
review” proceeding (the process by which hospitals deter-
mine the suitability of physicians to serve on their medical
No. 05-1277 7
staffs). See 225 ILCS 60/45, 735 ILCS 5/8-2101. Coy does
not explain, however, why these privileges matter to cases
under the federal-question jurisdiction. Only in diversity
litigation do state evidentiary privileges apply directly, see
Fed. R. Evid. 501, and Coy does not contend that the
privileges he asserts are recognized as a matter of federal
common law. Cf. University of Pennsylvania v. EEOC, 493
U.S. 182 (1990). We need not decide whether they should be
so recognized, as Coy failed to make these arguments in the
district court and has forfeited them.
The judgment is affirmed to the extent that it concerns
claims other than sex discrimination under Title VII. With
respect to that claim the judgment is reversed, and the case
is remanded for proceedings consistent with this opinion.
ROVNER, Circuit Judge, concurring in part and dissenting
in part. I join the majority in reversing the entry
of summary judgment in the Hospital’s favor on Dunn’s
Title VII claim. My colleagues rightly recognize that Dr.
Coy’s alleged status as an independent contractor did not
relieve the Hospital of its own obligation to provide employ-
ees with a nondiscriminatory workplace. If, as Dunn
represents, the Hospital was on notice that Coy
was sexually harassing her and other nurses and the
Hospital did nothing to stop him, the Hospital can be
held to account for its own negligence. My colleagues
conclude that this is the sole claim on which the Hospital
could be held liable. But I believe that the Hospital’s alleged
inaction could expose it to liability on two other claims: the
Fourteenth Amendment equal protection claim and retalia-
tion. I therefore dissent from the court’s decision to affirm
the entry of summary judgment on those two claims.
8 No. 05-1277
I begin with the Fourteenth Amendment claim. Because
sexual harassment constitutes illegal gender discrimination
for purposes of the Equal Protection Clause, Bohen v. City
of East Chicago, Ind., 799 F.2d 1180, 1185 (7th Cir. 1986),
the Hospital as a state employer could be held liable for
depriving Dunn of equal protection of the laws if its failure
to effectively address Coy’s alleged misconduct was inten-
tional, id. at 1187. Dunn posits that the Hospital sat on its
hands while Coy harassed her because Coy, as its principal
surgeon, was worth much more to the Hospital in revenue
than she or any other nurse. If so, my colleagues reason, the
Hospital was not intentionally discriminating against
women but rather guarding its own economic bottom line.
Ante at 4. But one must take care to distinguish motive
from intent. See Johnson v. Phelan, 69 F.3d 144, 155 (7th
Cir. 1995) (Posner, J., concurring in part and dissenting in
part) (“The distinction between motive and intent runs all
through the law.”). Discrimination is intentional if it is
deliberate rather than accidental (i.e. negligent); and in the
present context, where the state actor is charged with
deliberately acceding to the discriminatory actions of a third
party, it is beside the point whether the state actor itself
was motivated by a class-based animus or some
other reason. If a prominent surgeon told the Hospital,
“I will come to work for you, but I insist that my nurses be
white,” the Hospital could not fire its African-American
nurses and then evade equal protection liability by claiming
that although the Hospital itself had nothing against people
of color, the pressures of a competitive marketplace for
surgeons left it no choice but to accede to the demands of a
sought-after prospect. The Equal Protection Clause does not
permit the State to yield to private prejudices. See Palmore
v. Sidoti, 466 U.S. 429, 433, 104 S. Ct. 1879, 1882 (1984)
(“The Constitution cannot control such biases but neither
can it tolerate them. Private biases may be outside the
reach of the law, but the law cannot, directly or indirectly,
give them effect.”); City of Cleburne, Tex. v. Cleburne Living
No. 05-1277 9
Ctr., 473 U.S. 432, 448, 105 S. Ct. 3249, 3259 (1985) (“It is
plain that the electorate as a whole, whether by referendum
or otherwise, could not order city action violative of the
Equal Protection Clause, and the City may not avoid the
strictures of that Clause by deferring to the wishes or
objections of some fraction of the body politic.”) (citation
omitted). If the facts are as Dunn describes them, the
Hospital made a calculated decision not to stop Coy from
harassing its female nurses because it did not wish to
alienate a prized rainmaker. A jury could conclude that in
so deciding, the Hospital intentionally subjected Dunn and
its other female nurses to a patently discriminatory work
environment. Whether it did so because its management did
not like women or because Coy held an economic gun to its
head is irrelevant. When the State ratifies the discrimina-
tory acts of a private party, it is discriminating, period. See
United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1223-
26 (2d Cir. 1987); Smith v. Town of Clarkton, N.C., 682 F.2d
1055, 1066-67 (4th Cir. 1982); Dailey v. City of Lawton,
Okla., 425 F.2d 1037, 1039 (10th Cir. 1970).
Personnel Administrator of Mass. v. Feeney, 442 U.S. 256,
99 S. Ct. 2282 (1979), see ante at 4, is not to the contrary.
Feeney dealt with a state statute that gave preference to
veterans in hiring for the state’s civil service jobs. The
statute was challenged under the Equal Protection Clause
as a form of gender discrimination. Facially, the statute
made no distinction based on gender, but because the
overwhelming majority of veterans were men, the prefer-
ence had an undeniably adverse impact on female job
applicants. Yet the Court held that this disparate impact,
although it was the inevitable and foreseeable result of the
veterans’ preference, was not enough to establish that the
State had acted with a discriminatory purpose in enacting
the preference. Id. at 278-79, 99 S. Ct. at 2295-96. What
was missing was proof that the State had enacted the
preference “because of” rather than “in spite” of its adverse
impact on women. Id. at 279; 99 S. Ct. at 2296.
10 No. 05-1277
This case, by contrast, charges a state actor with deliber-
ately embracing a condition of employment that was, on
its face, discriminatory. Coy was harassing only women,
after all, and accepting as true Dunn’s version of the facts,
there could be no doubt that he did so because of sex. See
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-
81, 118 S. Ct. 998, 1002 (1998). For its part, the Hospital,
by (allegedly) doing nothing to rein in Coy, ratified his
conduct and perpetuated the hostile work environment of
which Dunn and other nurses were complaining. The Equal
Protection Clause would not permit the Hospital to inform
its job applicants that women would be hired as nurses only
if they agreed to submit to on-the-job sexual harassment.
But that is, in effect, the very message that the Hospital
allegedly sent to the female nurses who worked with Coy.
The discrimination that these nurses claim to have experi-
enced was not an incidental but a direct effect of the Hospi-
tal’s decision to let Coy have his way with them. And if the
facts are as Dunn claims them to be, one could reasonably
conclude that the Hospital made that decision “because of”
rather than “in spite of” its discriminatory effect—that it
tolerated the harassment precisely because the freedom to
sexually harass women was what Coy demanded (or the
Hospital believed he demanded) as a condition of his
contract with the Hospital. (It is entirely plausible that Coy
was that important to the Hospital, given the dearth of
talented surgeons in southern Illinois.)
Outsourcing has come into vogue at all levels of gov-
ernment as a means of cutting costs; but farming out public
functions to private contractors does not relieve state or
local governments of their Fourteenth Amend-
ment obligation not to intentionally discriminate. Dunn
does not seek to impose on the Hospital as a state actor
a duty to root out discrimination by private persons nor
does she seek to treat every action by Coy as the Hospital’s
own. See ante at 5. Rather, she seeks to hold the Hospital
No. 05-1277 11
liable for its own deliberate failure to intercede once it
learned that Coy was discriminating against the Hospital’s
female employees. The State always has the ability to
tell an independent contractor like Coy to stop discrim-
inating or lose his contract. But if my colleagues are right,
the State need never exercise that power; the State has
a blank check to tolerate discrimination by its contrac-
tors so long as it does not share their prejudices. Indeed,
under that narrow understanding of the Equal Protection
Clause, state and local governments would be free to
contract out public functions to firms that engage in all
manner of discrimination that would be illegal if committed
by governments agencies, so long as the governments
themselves harbor no discriminatory animus. For example,
a city would be free to award a trash collection contract to
a scavenger firm that it knew would ignore African-Ameri-
can and Hispanic neighborhoods, on the ground that the
firm offered the lowest price. If this is a correct understand-
ing of the Equal Protection Clause, then its guarantee has
very little meaning vis-à-vis the vast array of public
functions that governments contract out to private firms.
As for the Title VII retaliation claim, the record permits
the inference that after Dunn gave the Hospital a statement
averring that Coy was sexually harassing her, the Hospital
materially altered the terms of her employment in a way
that would have dissuaded a reasonable worker in her
position from making or supporting a charge of discrimina-
tion. See Washington v. Illinois Dep’t of Revenue, 420 F.3d
658, 662 (7th Cir. 2005). Dunn’s theory is that Coy, with the
Hospital’s full knowledge and acquiescence, embarked on a
campaign to pressure her to retract her statement. That
campaign was so unrelenting, lengthy, and ultimately
threatening, Dunn alleges, that it amounted to a construc-
tive discharge. My colleagues find two faults with Dunn’s
claim: (1) Coy is responsible for all of the allegedly retalia-
tory acts, whereas the Hospital itself did nothing, and (2)
12 No. 05-1277
Coy’s acts, even if imputed to the Hospital, would not
constitute legally cognizable retaliation. Ante at 5-6. With
respect, these points do not give the evidence its due.
That the Hospital “did nothing at all” (ante at 5) is exactly
why it might be liable for retaliation. It would be one thing
if the Hospital were completely in the dark as to the actions
Coy was taking against Dunn. But according to Dunn,
throughout the nearly two-year period between her state-
ment and her resignation, she complained repeatedly to her
superiors that Coy was pressuring her to withdraw the
statement, all to no avail. Indeed, Dunn alleges that just
prior to her resignation, her supervisor remarked, “I see
what’s happening. I wish[ ] I could do something about it,
but I can’t. I understand that you are going to have to quit.”
2002 Dunn Dep. at 31-32. Around the same time, Dunn told
the Hospital’s CEO that she was frightened by Coy’s
actions. “I’m scared, too,” the CEO allegedly replied. R. 115
Ex. 8 ¶ 11; see also 2002 Dunn Dep. at 152-53. As with the
Title VII discrimination claim, such allegations readily
permit the inference that the Hospital knew what Coy was
up to but made no effort to stop him; and as with that
claim, the Hospital can be charged with its own failure to
intervene.
Moreover, if the facts are as Dunn recounts them, it was
the Hospital itself that put Dunn in this position. The
relevant chain of events commenced in 2000 when another
nurse, Jamie Jones, complained that Coy was sexually
harassing her. The Hospital commissioned its attorney, Eric
Trelz, to conduct an investigation into Jones’ complaint.
Trelz in turn spoke with a number of nurses, including
Dunn; and either the Hospital’s CEO or its Human Re-
sources Director sat in on each of the interviews. At least
six of the nurses, including Dunn, reported that Coy was
sexually harassing them. Several of these nurses expressed
concern about the possibility that Coy might retaliate
against them if he were to learn of their statements. They
No. 05-1277 13
were promised that their statements would remain confi-
dential unless and until the matter proceeded to court and
the Hospital were compelled to produce the statements. It
is a fair inference that Dunn and the other nurses relied on
that promise in cooperating with the Hospital’s investiga-
tion. The report that Trelz prepared at the conclusion of his
investigation confirms that Dunn herself was worried about
what might happen if Coy discovered what she said. “She is
very concerned about her career with the Hospital and
retaliation from Dr. Coy,” the attorney wrote of Dunn. R.
115, Ex. 1 at 6. Despite the Hospital’s awareness that the
cooperating nurses were concerned about retaliation, and
despite the assurances of confidentiality that the nurses
had been given, Coy had copies of the nurses’ statements in
hand within weeks after the Trelz report was submitted to
the Hospital’s executive committee, and more than a year
before Jones went to court on her charge. Coy would later
testify that it was the chairman of that Hospital committee
who gave him a copy of that report. A jury might conclude
that the apparent breach of the Hospital’s promise of
confidentiality opened the door to the ensuing retaliation of
which Dunn complains.
As for Coy’s actions and whether they qualify as retalia-
tion, I respectfully submit that to characterize them mostly
as mere “verbal requests . . . [of Dunn] to withdraw her
complaint of sexual harassment” (ante at 5) is to strip them
of their tone and context. Coy’s alleged actions against
Dunn began with an invitation to apologize— “I can’t
believe you said what you said about me. I know you are
sorry. I will accept your apology.” (2002 Dunn Dep. at 27-
28)—and went downhill from there. On one or
more occasions, according to Dunn, Coy told her that he
would not be responsible for his actions if she did not
change her statement. 2004 Dunn Dep. at 256. On other
occasions he told her, “If you’re not nice to me, there is no
telling what could happen.” Id. at 252, 254-55. On yet
14 No. 05-1277
another occasion, he told Dunn that she would one day need
a hysterectomy and that he would be happy to do
it “because paybacks are hell.” Id. at 251-52; see also
id. at 147. These are but a few examples of the comments
that Coy allegedly made to Dunn beginning in July 2000,
following the release of the Trelz report, until Dunn’s
resignation in May 2002. A jury might infer that this
was not a simple, civilized dialogue between Coy and Dunn
as to the accuracy of her statement, but a pattern of
bullying aimed at forcing Dunn to withdraw her accusa-
tions.
Dunn, by the way, was not the only one on the receiving
end of Coy’s alleged arm-twisting. When Nurse Nikki
Jablonski resigned from the Hospital in February 2002, she
cited the pressure that Coy had placed on her to change her
own statement as a reason for quitting. Jablonski would
later testify that she felt “cornered” when Coy approached
her outside the presence of others. Jablonski Dep. at 117-
18. Jablonski also advised the Hospital’s Human Resources
Director that Coy was pressuring yet another nurse, Kelly
Hare, to change her statement as well. Indeed, the evidence
suggests that Coy was making the rounds of all of the
nurses who had given statements against him in the course
of the Jones investigation. According to Dunn, Coy told her
in April 2002, just a few weeks before she resigned, that
everyone except Dunn and Hare had changed their stories
and that Dunn needed to do the same. R. 115, Ex. 9.
Although inaction describes much of the Hospital’s course
of conduct during this time, it played a more direct role in
an incident that took place at the end of Dunn’s tenure. On
April 12, 2002, several months after Jones had initiated
litigation against Coy, the Hospital’s CEO allegedly ordered
Dunn into a meeting with Coy’s attorney as well as the
Hospital’s own counsel. At that meeting, according to Dunn,
Coy’s attorney proceeded to interrogate her in a rude and
belligerent tone about the statement she had given in the
No. 05-1277 15
course of the Hospital’s investigation, suggesting that Dunn
and the other nurses had conspired to tell a common story
and that Dunn might have given the Hospital false informa-
tion. Throughout the cross-examination, Dunn alleges, the
Hospital’s attorney sat silently by. Upset at how she was
being treated, Dunn left the meeting. The Hospital’s CEO,
who witnessed her exit, testified that Dunn had “bolted.”
Newby Dep. at 109. According to Dunn, the pressure from
Coy only increased after this meeting, with Coy ultimately
going so far as to commit the assault that my colleagues
have mentioned.
Faced with this evidence, a jury could reasonably deter-
mine that Coy would stop at nothing to convince Dunn to
retract her statement. It could find that Coy’s badgering
rendered the workplace hostile to Dunn and the nurses who
had implicated him—sufficiently hostile that two of these
nurses (Jablonski and Dunn), seeing that complaining
about Coy did them no good, decided to resign. It might find
that the Hospital itself—by abandoning the promise of
confidentiality and handing the nurses’ statements over to
Coy, by allegedly doing nothing about the pressure Coy was
putting on these nurses to withdraw their allegations, and
by summoning Dunn into a hostile debriefing by Coy’s
attorney—was deliberately letting Dunn and the other
complainants twist in the wind, precisely as they had feared
would happen. See Washington, 420 F.3d at 662 (noting the
significance of an employee’s known vulnerabilities to the
retaliation analysis). This may not have been retaliation in
the more blatant sense (being fired or demoted for speaking
out against discrimination), but a jury could nonetheless
decide that the Hospital materially altered the terms of
Dunn’s employment by letting Coy run amok after Dunn co-
operated in the investigation in Jones’ complaint. For al-
though an isolated and unfulfilled threat of retribution may
not amount to an adverse employment action, see ante at 5,
a series of such threats, unchecked by the employer, can
16 No. 05-1277
give rise to a hostile work environment, see Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 754, 118 S. Ct. 2257,
2265 (1998) (categorizing multiple unfulfilled threats by
alleged harasser as a hostile environment claim), and a
hostile work environment can be a form of retaliation.
Stutler v. Ill. Dep’t of Corrections, 263 F.3d 698, 703 (7th
Cir. 2001); see also Washington, 420 F.3d at 662-63.
For these reasons, I would reverse the grant of summary
judgment on Dunn’s Equal Protection and retaliation claims
and remand them to the district court for further proceed-
ings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-17-05