Bankruptcy Estate of Santoasha Harris v. City of Milwaukee
Bankruptcy Estate of Santoasha Harris v. City of Milwaukee
Opinion
In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 23-2932 BANKRUPTCY ESTATE OF SANTOASHA HARRIS, Plaintiff-Appellant, v.
CITY OF MILWAUKEE, et al., Defendants-Appellees. ____________________
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:20-cv-00609 — Nancy Joseph, Magistrate Judge. ____________________
ARGUED MAY 16, 2024 — DECIDED JUNE 24, 2025 ____________________
Before EASTERBROOK, RIPPLE, and JACKSON-AKIWUMI, Cir- cuit Judges. JACKSON-AKIWUMI, Circuit Judge. For five years, Santoasha Harris endured sexual harassment at her City of Milwaukee job. When she reported the conduct, the City separated Harris from the harasser, conducted an investigation, compelled the harasser’s resignation, and restored Harris to her position— within one month. 2 No. 23-2932
Harris sued the City, arguing it knew about the harass- ment for years, failed to do anything, and instead retaliated against her for reporting it. Because Harris had also filed for bankruptcy, the district court allowed the substitution of her estate as the named plaintiff. The district court granted sum- mary judgment to the City. The court concluded, among other things, that Harris’s Estate had not shown the City unreason- ably failed to prevent the harassment or that she suffered a tangible employment action as a consequence for reporting it. Although the harassment Harris survived was both reprehen- sible and injurious, we agree that the evidence in the record does not support the Title VII and Section 1983 claims against the City. We therefore affirm the judgment. I
We recount the facts in the light most favorable to Harris’s Estate as the party opposing summary judgment. Adebiyi v. S. Suburban Coll., 98 F.4th 886, 889 (7th Cir. 2024). In 2007, Harris began working at the City’s Department of Public Works as an infrastructure repair worker. Harris was assigned to the Department’s barricade shop, which constructed and re- paired street barricades. According to her job description, a laborer in Harris’s position was supposed to allocate five per- cent of her time to barricade work, while trash removal and other outdoor tasks captured anywhere from ten to seventy percent of her remaining duties.
In 2010, Terrence Brumirski became a plant and equip- ment repair supervisor responsible for overseeing several in- dividuals at the barricade shop. From 2012 to 2017, Brumirski subjected Harris to egregious forms of sexual harassment. On more than one occasion, Brumirski attempted to grab her No. 23-2932 3
buttocks, kiss her, place her on his lap, and touch her in inap- propriate ways. Brumirski also tried to pressure Harris into performing sexual acts on him at work. The City maintained an anti-harassment policy that in- structed victimized employees to immediately report in- stances of sexual harassment to their supervisor, department manager, or the Office of Diversity staff, among others. These people would, according to the City’s policy, provide confi- dential assistance to resolve the issue before filing a formal complaint. Under the policy, a formal investigation would not begin unless an employee provided the City with a signed, written complaint. And employees could not be retaliated against for filing a complaint or assisting with an investiga- tion. Despite receiving the City’s anti-harassment policy four times between 2006 and 2011, Harris did not formally report Brumirski to the City until 2017. Harris says she reported Brumirski’s conduct in 2012, when the harassment was just starting. She explains that she sent copies of an anonymous letter, dated July 30, 2012, to three people: Brumirski’s live-in girlfriend, a City alderman whose identity she could not remember, and Dan Thomas, who at the time served as the Department’s personnel com- pliance manager. According to Harris, she dropped the letters in a mailbox without a return receipt, hoping that this would initiate an investigation. As to Thomas’s letter specifically, she addressed it with his full name and an address for the City. Thomas claims he never received the letter. Harris also says she told her friend and coworker, Detria Hardnett, about the harassment in 2012. In response, Hard- nett apparently offered to accompany Harris to the barricade shop to dissuade Brumirski’s advances. At that point, 4 No. 23-2932
Hardnett had recently become a repair worker crew leader. This new title offered her a minimal raise, but did not other- wise bestow new responsibilities that separated her from la- borers like Harris. Hardnett did not assume a supervisory po- sition until 2017. Despite Harris’s efforts, Brumirski’s conduct worsened. On May 25, 2017, Brumirski put his hand down Harris’s pants and fondled her genitalia. That same day, one of Harris’s coworkers reported seeing that Harris was visibly upset. That coworker had previously instructed Brumirski to leave Harris alone. Less than a week after this incident, on May 30, 2017, Har- ris’s attorney sent a letter to Thomas notifying him that Harris would be seeking damages for Brumirski’s sexual harass- ment. After receiving the letter, Thomas immediately sepa- rated Brumirski and Harris by temporarily assigning Harris to the sanitation division, where part of her duties included picking up trash. Thomas also contacted Harris and her attor- ney to gather evidence and investigate any leads, and sus- pended Brumirski for the duration of the investigation. Thomas interviewed multiple employees. No one corrob- orated Brumirski’s harassment of Harris. However, Thomas spoke to one employee, Paulette Lee, who also claimed that Brumirski sexually harassed her. Lee provided several text messages and photos to corroborate Brumirski’s harassment. According to Thomas, because of Lee’s report, the City de- cided to offer Brumirski the choice to resign or be terminated. Brumirski resigned on July 3, 2017, concluding the approxi- mately one month-long investigation. Shortly thereafter, Har- ris returned to the barricade shop. No. 23-2932 5
When Harris returned to her original position, she did not like what she found. Before her reassignment, she had a makeshift desk, but the City had removed it. Harris also no- ticed the City had installed a camera in the vicinity where she used to work. And Harris claimed that Hardnett, who had be- come her supervisor, stopped talking to her for fear of being recorded. Harris felt the City made these changes to retaliate against her for reporting Brumirski’s conduct. After her return, Harris applied for two positions, one of which had been Brumirski’s position of plant and equipment repair supervisor. The positions required experience as a street repair supervisor, which Harris did not have. The City denied Harris’s applications. As it turns out, Hardnett be- came the permanent plant and equipment repair supervisor. In her new role, Hardnett had Harris, along with everyone she supervised, pick up trash around the Department’s head- quarters building. Harris similarly viewed this as a form of retaliation. Harris sued several defendants including the City of Mil- waukee. She alleged violations under Title VII, 42 U.S.C. § 2000(e), and 42 U.S.C. § 1983, for sexual harassment and dis- crimination, hostile work environment, and retaliation. The City moved for summary judgment on all claims, and the dis- trict court granted the motion. Harris’s Estate maintains the district court erred in dis- missing the Title VII and Section 1983 claims. We review ap- peals of summary judgment de novo. Adebiyi, 98 F.4th at 891. In doing so, we construe the record in the light most favorable to the Estate and draw all reasonable inferences for it. Id. But we find no error in the district court’s judgment. 6 No. 23-2932
II
We begin with the Estate’s claims under Title VII for sex- ual harassment and discrimination. The Estate presents two separate theories of why the City is liable: (1) for Brumirski’s quid pro quo harassment of Harris and (2) for the hostile work environment Brumirski’s harassment created. Given the ele- ments of these claims, however, we, like the district court, conclude that no reasonable juror could find the City liable. A. Quid Pro Quo Harassment
In Bryson v. Chicago State University, our court identified a five-part test used by other courts of appeals in quid pro quo cases but left open the question of whether the test “perfectly capture[d]” quid pro quo harassment. 96 F.3d 912, 915–916 (7th Cir. 1996). The test asks whether the plaintiff has shown “(1) that she or he is a member of a protected group, (2) the sexual advances were unwelcome, (3) the harassment was sexually motivated, (4) the employee’s reaction to the super- visor’s advances affected a tangible aspect of her employ- ment, and (5) respondeat superior has been established.” Id. at 915. The parties dispute only the fourth and fifth elements. Be- cause our inquiry turns on the fourth element—which, as ex- plained below, the Estate cannot overcome—we do not revisit the open question about the test’s suitability. We do not reach the final element either. Both parties present persuasive argu- ments about whether Brumirski was Harris’s supervisor, a factual predicate for the Estate’s respondeat superior theory to prevail. But we begin and end with the fourth element, and agree with the district court: the Estate failed to establish that No. 23-2932 7
Harris’s reaction to Brumirski’s advances affected a tangible aspect of Harris’s employment as recognized by our caselaw. The fourth element really asks two questions: (a) “what was the ‘tangible employment benefit’ that was denied to [the employee]” and (b) “was the denial a result of [the em- ployee’s] refusal to submit to [the harasser’s] demands?” Bryson, 96 F.3d at 916. Whether an employment benefit is tan- gible “will normally depend on the facts of each situation.” Id. “[A] wide variety of actions, some blatant and some subtle, can qualify.” Id. These include, “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly di- minished material responsibilities, or other indices that might be unique to a particular situation.” Molnar v. Booth, 229 F.3d 593, 600 (7th Cir. 2000) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (herein Ellerth)). For example, we have found tangible employment actions where a princi- pal confiscated the supplies a teaching intern needed to do her assigned job, see id., and where a tenured professor sud- denly lost all committee responsibilities and had her title stripped, see Bryson, 96 F.3d at 916. The Estate does not argue that Brumirski ever took an em- ployment action against Harris. Instead, the Estate asserts that Brumirski threatened Harris with reassigning her to outdoor work if she did not cooperate with his incessant and invasive advances. But even if Brumirski had the authority to assign Harris to outdoor work—a matter the parties contest—no rea- sonable juror could find that such an assignment would have affected a tangible aspect of Harris’s employment. This is be- cause the bulk of Harris’s job functions were for outdoor work. According to the job description for Harris’s laborer 8 No. 23-2932
position, only five percent of the work involved barricades. Even this function could take place outdoors, and not solely inside the barricade shop, because it required laborers to “[p]lace and install barricades, guard rails, thrie beams, sign- age, etc.” The remaining job functions—up to seventy percent of a laborer’s duties—involved working outside to assist pavement repair and bridge maintenance crews. The threat of an assignment to duties so clearly outlined in Harris’s job de- scription cannot constitute a tangible employment action. Even without a tangible employment action, an employer can be held liable for an employee’s harassment. But not if the employer can show “(1) that it exercised reasonable care to prevent and correct promptly any sexually harassing behav- ior, and (2) that [the employee] unreasonably failed to take advantage of any preventive or corrective opportunities pro- vided by her employer or to avoid harm otherwise.” Molnar, 229 F.3d at 600 (citing Ellerth, 524 U.S. at 765 & Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)). This is otherwise re- ferred to as the Faragher-Ellerth defense. Id. Here, the City has satisfied both prongs of the Faragher- Ellerth defense. First, the City exercised reasonable care to pre- vent and promptly correct Brumirski’s sexually harassing be- havior. We have held that the “mere creation of a sexual har- assment policy will not shield a company from its responsi- bility to actively prevent sexual harassment in the work- place.” Passananti v. Cook Cnty., 689 F.3d 655, 673 (7th Cir. 2012). Instead, a company’s policy must give employees a meaningful process to express their concerns about an indi- vidual in their work environment. Id. Beyond appearing “rea- sonably effective on paper …. [t]he policy also must be rea- sonably effective in practice.” Id. at 673–74. For example, in No. 23-2932 9
Trahanas v. Northwestern University, we found that Northwest- ern’s policy prohibiting discrimination and harassment, which was included in its staff handbook, sufficed because it “provided instructions and multiple avenues—including those outside an employee’s supervisory chain of com- mand—for filing complaints.” 64 F.4th 842, 854 (7th Cir. 2023). The City has met its burden of showing both the existence and effectiveness of its formal anti-harassment policy. The City distributed the policy to employees in its “Major Work Rules” packet. Harris received this packet on at least four sep- arate occasions before Brumirski’s sexual harassment began in 2012. The policy outlines several avenues for employees seeking confidential assistance or wanting to file a formal complaint, including the Office of Diversity staff, the depart- mental Complaint Intake Advisor, and the Human Resources Compliance Officer, all offices outside of Harris’s chain of command. In addition to having an effective anti-harassment policy on paper, the City’s actions in addressing Harris’s 2017 com- plaint support a finding that the policy was reasonably effec- tive in practice. Harris’s attorney sent a formal complaint to the City on May 30, 2017. Almost immediately, Thomas sepa- rated Brumirski and Harris, contacted Harris’s attorney to gather evidence, placed Brumirski on administrative leave, and began interviewing witnesses. Once Thomas found an- other employee’s allegations against Brumirski were corrob- orated, the City instigated Brumirski’s resignation on July 3, 2017. It took the City roughly one month to complete the in- vestigation, address Brumirski’s conduct, and return Harris to the barricade shop. Nothing about this chronology 10 No. 23-2932
suggests the City failed to promptly address Brumirski’s be- havior. The City has satisfied the second prong of the Faragher- Ellerth defense too. Until her attorney’s letter in 2017, Harris unfortunately did not take advantage of the City’s avenues for reporting and addressing Brumirski’s sexual harassment. There is no evidence in the record that Harris informed a su- pervisor or any of the offices delineated in the policy outside of her chain of command. Although Harris claims she told Hardnett about Brumirski’s conduct at some point in 2012, Hardnett did not assume a supervisory position until 2017. As for Harris’s anonymous letter in 2012, there is no evidence in the record to establish when the letter was drafted, what date it was delivered, or that Thomas received the copy sent to a City address. There is also no evidence that Harris ever sought to confirm that Thomas had received the letter, or that she sought confidential assistance from him otherwise. Fur- ther, Harris testified she intended the letter to trigger an in- vestigation into Brumirski, but her attempt did not comply with the City’s policy that a complainant submit a “signed, written statement.” On this record, no reasonable jury could find that Harris took advantage of the City’s reporting mechanisms before 2017, that the City acted unreasonably once Harris reported the harassment, or that Harris suffered a tangible employ- ment action at Brumirski’s hands. The district court did not err in rejecting the Estate’s quid pro quo theory of harassment. B. Hostile Work Environment
A hostile work environment is one that is “permeated with discriminatory intimidation, ridicule, and insult, that is No. 23-2932 11
sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environ- ment.” Hambrick v. Kijakazi, 79 F.4th 835, 842 (7th Cir. 2023). To establish this claim under Title VII, a plaintiff must show: “(1) the work environment was both subjectively and objec- tively offensive; (2) the harassment was based on membership in a protected class; (3) the conduct was severe or pervasive; and (4) there is a basis for employer liability.” Id. The standard for evaluating an employer’s liability depends on whether the harasser was the victim’s supervisor or coworker. Trahanas, 64 F.4th at 853. “If the harasser is a ‘supervisor,’ the employer is strictly liable and can only escape that liability if no tangible employ- ment action had been taken, and the employer establishes [a Faragher-Ellerth defense].” Equal Emp. Opportunity Comm'n v. Vill. At Hamilton Pointe LLC, 102 F.4th 387, 405 (7th Cir. 2024) (citing Vance v. Ball State Univ., 570 U.S. 421, 424 (2013)); Tra- hanas, 64 F.4th at 853–54. If the harasser is a coworker, “the employer is liable only if it was negligent in controlling work- ing conditions.” Id. at 853. “Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed” is relevant to a de- termination of negligence. Vance, 570 U.S. at 449. The parties dispute whether Brumirski acted as Harris’s supervisor, and thus the standard to evaluate the City’s liabil- ity. Again, although both parties present persuasive argu- ments about whether Brumirski was Harris’s supervisor, we need not reach the issue. This is because the Estate’s claim of hostile work environment fails under either standard of lia- bility. 12 No. 23-2932
Assuming, as the Estate argues, that Brumirski was a su- pervisor, the Estate has not shown there was a tangible em- ployment action affecting Harris, as explained earlier. At the same time, the City has presented evidence to support its Fa- ragher-Ellerth defense. Assuming Brumirski was a coworker, the Estate must show that the City acted negligently in controlling the work- ing conditions at the Department. Trahanas, 64 F.4th at 853. To do this, the Estate argues that the City was negligent in train- ing its supervisors on how to report sexual harassment. The Estate points to three supervisors as examples, but none suc- ceed. The first example is Hardnett. Harris says she told Hard- nett about the harassment in 2012. But there is no evidence that Hardnett was a supervisor then; the record shows she be- came a supervisor in 2017. The second and third examples are Brian Stankowitz 1 and Rico Lopez who, according to Harris, supervised a laborer named Carrie Graves. Graves alleged that Brumirski told her he would “rape her in the truck wash before he retired.” Ac- cording to the Estate, the City fostered a hostile work environ- ment because Graves reported Brumirski’s misconduct to Stankowitz and Lopez and they did nothing to stop it. The record does not bear out the Estate’s characterization of Stankowitz’s response as doing nothing. When Graves in- formed Stankowitz of Brumirski’s comment, Stankowitz
1 At summary judgment and on appeal, the Estate refers to this indi-
vidual as Brian Stankiewicz. Graves’s deposition refers to him as Brian Stankowitz. It is clear from the record the parties are referring to the same person. No. 23-2932 13
counseled Graves to keep a journal to assist with an investi- gation. Although Graves kept a journal, she acknowledged she never shared it with anyone, not even Stankowitz or hu- man resources. This circumstance does not amount to a hos- tile work environment fostered by the City. See Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1023–24, 1029–31 (7th Cir. 2004) (finding an employer had not been negligent in uncov- ering an employee’s complaint of racial harassment by coworkers where the employee initially failed to report the incident, despite his supervisor approaching him about his experience). As for Lopez, the Estate does not offer any support for its assertion that he held a supervisory role. Although the Es- tate’s summary judgment brief refers to Lopez as an “Inven- tory Services Manager,” Graves testified that she did not know Lopez’s role at the time of Brumirski’s misconduct. And the Estate does not direct us to any evidence to address this confusion. Accordingly, we are unable to evaluate the Estate’s claim that Lopez failed to carry out supervisory duties under the anti-harassment policy. See Draper v. Martin, 664 F.3d 1110, 1113 n.5 (7th Cir. 2011) (“[T]he [p]laintiffs fail to offer any record citations or analysis supporting such a claim and we ‘will not hunt through the record’ looking for corroborat- ing evidence.”). In sum, regardless of whether Brumirski was Harris’s su- pervisor or her coworker, no reasonable jury could find a ba- sis for employer liability. The Estate’s hostile work environ- ment claim thus fails as a matter of law. 14 No. 23-2932
III
We turn next to the Estate’s claim of retaliation, which she has asserted under both Title VII and Section 1983. Because claims of retaliation fall under the exclusive province of Title VII, we address the claim under the Title VII framework only. See Gray v. Lacke, 885 F.2d 399, 414 (7th Cir. 1989) (“[The] right to be free from retaliation for protesting sexual harassment and sex discrimination is a right created by Title VII, not the equal protection clause. Section 1983 provides a remedy for deprivation of constitutional rights. It supplies no remedy for violations of rights created by Title VII.” (citation omitted)). Title VII prohibits an employer from retaliating against an employee “because [s]he has made a charge, testified, as- sisted, or participated in any manner in an investigation, pro- ceeding, or hearing.” Igasaki v. Ill. Dep’t of Fin. and Pro. Regul., 988 F.3d 948, 959 (7th Cir. 2021) (quoting 42 U.S.C. § 2000e- 3(a)). To survive summary judgment, the Estate must offer evi- dence that allows a reasonable jury to find that “(1) [Harris] engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal link be- tween the two.” Adebiyi, 98 F.4th at 891. When looking at whether the plaintiff suffered an adverse employment action for retaliation claims, the harm threshold is higher than that of direct discrimination claims. Rather than causing “some harm,” an action in the retaliation context must be materially adverse, meaning that it causes “signifi- cant” harm. Muldrow v. City of St. Louis, 601 U.S. 346, 350, 357– 58 (2024) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (herein White)); see also Lesiv v. Ill. Cent. R.R. No. 23-2932 15
Co., 39 F.4th 903, 912 (7th Cir. 2022) (holding that a retaliatory action must “rise above trivial harms, such as petty slights or minor annoyances that often take place at work and that all employees experience” (cleaned)). A materially adverse ac- tion is one that would “dissuade[] a reasonable worker from making or supporting a charge of discrimination.” Muldrow, 601 U.S. at 357 (citing White, 548 U.S. at 68). The district court rejected the Estate’s retaliation claim be- cause the record did not show Harris suffered an adverse em- ployment action. We agree. And even if the Estate had pre- vailed on this point, it similarly fails to show more than mere temporal proximity between Harris’s report of sexual harass- ment and the actions she identifies as adverse—reassignment to trash duty, altered work schedule, removal of a makeshift desk, and alleged isolation upon her return. Yet, “temporal proximity between an employee’s protected activity and an adverse employment action is rarely sufficient to show that the former caused the latter.” O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011). We address each of the Es- tate’s proposed retaliatory actions in turn. The Estate offers Harris’s reassignment to trash duty as proof of retaliation. But the record supports the contrary con- clusion. The day the City heard from Harris’s attorney, it transferred Harris to another department to separate her from Brumirski during the investigation. An employer’s decision to temporarily separate two workers in the face of sexual har- assment allegations is not an adverse employment action. See Place v. Abbott Lab’ys, 215 F.3d 803, 811 (7th Cir. 2000) (finding that “an employer’s decision to split up two workers whose interpersonal problems [were] impeding the company’s pro- gress [was] not retaliation”). 16 No. 23-2932
When Harris returned to the barricade shop, she contin- ued to receive assignments to pick up trash around the build- ing, now from Hardnett as her new supervisor. According to the Estate, Hardnett’s assignments were retaliation for Harris having brought Hardnett into the sexual harassment investi- gation. But there is no evidence to support this theory. In fact, Hardnett testified that she assigned every employee she su- pervised to pick up trash. The Estate does not refute Hard- nett’s testimony. Instead, it takes issue with Harris not having been asked to perform this duty before. Although trash pickup and other outdoor tasks may have been new for Har- ris, these tasks were not outside her responsibilities. Accord- ing to the City’s job description, trash-related responsibilities fell within ten to seventy percent of Harris’s laborer job func- tion. Further, as Thomas explained, it was not uncommon for laborers to work in different parts of barricade infrastructure, which could include both indoor and outdoor work. As we have explained, “[a] materially adverse employment action is something ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.’” Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004), overruled on other grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760, 761 (7th Cir. 2016). Moving from one function to another within a job, when nothing guarantees the employee will always remain assigned to the same function, does not amount to an adverse employment action. 2 See Place, 215 F.3d at 810 (finding a
2 The Estate likewise alleges that Harris’s trash assignments have di-
minished her prospects for promotion. For support, the Estate cites only testimony from Graves, a coworker who has worked for the City’s street cleaning department since approximately 2012 but has never held a man- agerial, supervisory, or administrative position. Graves testified that she was not aware of any trash pickup position that would lead to a No. 23-2932 17
transfer could not amount to an adverse employment action where “[t]here was no guarantee that [the employee] would remain forever in the job she held before her transfer,” and the industry at issue was “a dynamic business that involve[d] regularly shifting people from one job to another”). Here, there is no evidence that Harris was guaranteed solely to con- struct and repair barricades, a mere five percent of her job de- scription. Next, the Estate claims the City retaliated against Harris by changing her work schedule. During the City’s month- long investigation, Harris’s schedule changed from 6:00 a.m. to 2:30 p.m., to 7:00 a.m. to 3:30 p.m. Harris explains this forced her to arrange an additional hour of childcare for sev- eral weeks. She did not report this impact to Thomas, and her schedule went back to normal when she returned to the bar- ricade shop. Although we recognize the added stress Harris faced that month, a reasonable jury would not conclude that a temporary one-hour schedule change during a sexual har- assment investigation would dissuade a reasonable employee from coming forward with sexual harassment complaints. This is especially true where the change was not accompanied by reduced pay or significantly diminished job responsibili- ties—harms the Estate does not claim Harris suffered. The Estate presents as additional evidence of retaliation the City’s removal of Harris’s makeshift desk and the place- ment of a camera in the vicinity of her workspace. As the Es- tate explains it, Harris no longer had a sense of comfort in her environment without the makeshift desk, and was subjected
promotion. Graves’s testimony is an insufficient basis on which a jury can infer anything about the City’s promotion policy. 18 No. 23-2932
to harsh, cold winds in the winter. We understand Harris’s genuine discomfort. But these changes do not amount to an adverse employment action, especially when the Estate has not shown that Harris required a desk to complete her duties, most of which could involve outdoor assignments like snow shoveling and concrete removal. Cf. Place, 215 F.3d at 810 (“Some of her complaints—losing her telephone and cubi- cle—are too trivial to amount to an adverse employment ac- tion. Maybe her new working quarters were not as nice, but there is no indication they were shabby or unpleasant.”); Molnar, 229 F.3d at 600 (finding a tangible employment action when a jury could find that confiscated supplies were “neces- sary” to perform the assigned job). As for the camera, the City presented unrefuted evidence that there are surveillance cameras throughout the Depart- ment. Even if the City placed the camera at issue close in time to Harris’s return to the barricade shop, this temporal prox- imity is insufficient. See Davis, 651 F.3d at 675 (underscoring “the importance of context” when assessing suspicious tim- ing). And the Estate does not offer any evidence to support its speculation that the City wanted to monitor Harris and make her feel uncomfortable. The Estate’s last asserted evidence of retaliation is that the City failed to give Harris performance reviews and isolated her in the barricade shop. Harris recounted an instance when she worked with a coworker on a barricade project and a manager from another department congratulated only the coworker on the joint work. Harris also described how em- ployees stopped holding the door for her or greeting her in the mornings. On another occasion, she recalled, Hardnett al- lowed several other employees in her Department, but not No. 23-2932 19
Harris, to leave thirty minutes early. Although the withhold- ing of a performance review might be cause for concern, the Estate does not offer any argument about how this relates back to Harris’s protected activity. On the record before us, none of the remaining isolated and general allegations permit a finding of retaliatory conduct. Because no reasonable jury could find that the Estate es- tablished two elements necessary for the success of a retalia- tion claim—an adverse employment action and causation— the district court did not err in granting the City’s summary judgment on the Estate’s retaliation claim. IV
The Estate pursues a final claim under § 1983 that the City violated Harris’s rights under the Fourteenth Amendment’s Equal Protection Clause. This Court has held that “[s]exual harassment by a state employer constitutes sex discrimination in violation of the equal protection clause.” Valentine v. City of Chicago, 452 F.3d 670, 682 (7th Cir. 2006), as amended (July 6, 2006) (citing Bohen v. City of East Chicago, 799 F.2d 1180, 1185 (7th Cir. 1986)). The Estate contends that its claim succeeds if we apply the same reasoning in Bohen. But the Estate’s case is materially distinguishable from Bohen in several ways. In Bohen, we held the employer liable based on a practice and custom of permitting sexual harassment, evident from the employee having suffered “many instances of sexual har- assment[,] often complain[ing] of [the harassment] through official channels, but that nothing was done.” 799 F.2d at 1187. The employer lacked a written sexual harassment policy, and we concluded that it was “clear that supervisory department officials knew of the sexually oppressive working conditions 20 No. 23-2932
even before Bohen was hired since they warned her of them during an office interview.” Id. (emphasis added). Inherent in this finding is the Equal Protection Clause’s protection against “intentional discrimination.” See de Lima Silva v. Wis. Dep't of Corr., 917 F.3d 546, 559 (7th Cir. 2019) (“The Equal Protection Clause protects against intentional discrimination on the ba- sis of race or national origin, and 42 U.S.C. § 1983 provides an employee subjected to such discrimination a path to relief.”). Here, the City is unlike the employer in Bohen because there is no evidence that the City’s supervisory department knew about Brumirski’s misconduct until 2017, when Harris’s attorney reported it to Thomas. The City also had a written policy that it distributed to its employees. And once Harris availed herself of the City’s complaint process, the City, un- like the employer in Bohen, acted almost immediately to ad- dress and prevent any future sexual harassment. Because no reasonable jury could find intentional discrimination, the Es- tate cannot prevail on its equal protection claim. V
No employee should have to endure the sexual harass- ment Harris endured. But to survive summary judgment and have a trial seeking to hold the City liable for Brumirski’s con- duct, the Estate had the burden to present evidence demon- strating genuine dispute about whether Harris experienced a tangible or adverse employment action. It did not do so. Meanwhile, the City presented evidence that it took respon- sive and appropriate actions once Harris formally reported Brumirski. The record does not permit us to conclude that a No. 23-2932 21
reasonable jury could find for the Estate on its claims against the City. AFFIRMED.
Opinion
In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 23-2932 BANKRUPTCY ESTATE OF SANTOASHA HARRIS, Plaintiff-Appellant, v.
CITY OF MILWAUKEE, et al., Defendants-Appellees. ____________________
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:20-cv-00609 — Nancy Joseph, Magistrate Judge. ____________________
ARGUED MAY 16, 2024 — DECIDED JUNE 24, 2025 ____________________
Before EASTERBROOK, RIPPLE, and JACKSON-AKIWUMI, Cir- cuit Judges. JACKSON-AKIWUMI, Circuit Judge. For five years, Santoasha Harris endured sexual harassment at her City of Milwaukee job. When she reported the conduct, the City separated Harris from the harasser, conducted an investigation, compelled the harasser’s resignation, and restored Harris to her position— within one month. 2 No. 23-2932
Harris sued the City, arguing it knew about the harass- ment for years, failed to do anything, and instead retaliated against her for reporting it. Because Harris had also filed for bankruptcy, the district court allowed the substitution of her estate as the named plaintiff. The district court granted sum- mary judgment to the City. The court concluded, among other things, that Harris’s Estate had not shown the City unreason- ably failed to prevent the harassment or that she suffered a tangible employment action as a consequence for reporting it. Although the harassment Harris survived was both reprehen- sible and injurious, we agree that the evidence in the record does not support the Title VII and Section 1983 claims against the City. We therefore affirm the judgment. I
We recount the facts in the light most favorable to Harris’s Estate as the party opposing summary judgment. Adebiyi v. S. Suburban Coll., 98 F.4th 886, 889 (7th Cir. 2024). In 2007, Harris began working at the City’s Department of Public Works as an infrastructure repair worker. Harris was assigned to the Department’s barricade shop, which constructed and re- paired street barricades. According to her job description, a laborer in Harris’s position was supposed to allocate five per- cent of her time to barricade work, while trash removal and other outdoor tasks captured anywhere from ten to seventy percent of her remaining duties.
In 2010, Terrence Brumirski became a plant and equip- ment repair supervisor responsible for overseeing several in- dividuals at the barricade shop. From 2012 to 2017, Brumirski subjected Harris to egregious forms of sexual harassment. On more than one occasion, Brumirski attempted to grab her No. 23-2932 3
buttocks, kiss her, place her on his lap, and touch her in inap- propriate ways. Brumirski also tried to pressure Harris into performing sexual acts on him at work. The City maintained an anti-harassment policy that in- structed victimized employees to immediately report in- stances of sexual harassment to their supervisor, department manager, or the Office of Diversity staff, among others. These people would, according to the City’s policy, provide confi- dential assistance to resolve the issue before filing a formal complaint. Under the policy, a formal investigation would not begin unless an employee provided the City with a signed, written complaint. And employees could not be retaliated against for filing a complaint or assisting with an investiga- tion. Despite receiving the City’s anti-harassment policy four times between 2006 and 2011, Harris did not formally report Brumirski to the City until 2017. Harris says she reported Brumirski’s conduct in 2012, when the harassment was just starting. She explains that she sent copies of an anonymous letter, dated July 30, 2012, to three people: Brumirski’s live-in girlfriend, a City alderman whose identity she could not remember, and Dan Thomas, who at the time served as the Department’s personnel com- pliance manager. According to Harris, she dropped the letters in a mailbox without a return receipt, hoping that this would initiate an investigation. As to Thomas’s letter specifically, she addressed it with his full name and an address for the City. Thomas claims he never received the letter. Harris also says she told her friend and coworker, Detria Hardnett, about the harassment in 2012. In response, Hard- nett apparently offered to accompany Harris to the barricade shop to dissuade Brumirski’s advances. At that point, 4 No. 23-2932
Hardnett had recently become a repair worker crew leader. This new title offered her a minimal raise, but did not other- wise bestow new responsibilities that separated her from la- borers like Harris. Hardnett did not assume a supervisory po- sition until 2017. Despite Harris’s efforts, Brumirski’s conduct worsened. On May 25, 2017, Brumirski put his hand down Harris’s pants and fondled her genitalia. That same day, one of Harris’s coworkers reported seeing that Harris was visibly upset. That coworker had previously instructed Brumirski to leave Harris alone. Less than a week after this incident, on May 30, 2017, Har- ris’s attorney sent a letter to Thomas notifying him that Harris would be seeking damages for Brumirski’s sexual harass- ment. After receiving the letter, Thomas immediately sepa- rated Brumirski and Harris by temporarily assigning Harris to the sanitation division, where part of her duties included picking up trash. Thomas also contacted Harris and her attor- ney to gather evidence and investigate any leads, and sus- pended Brumirski for the duration of the investigation. Thomas interviewed multiple employees. No one corrob- orated Brumirski’s harassment of Harris. However, Thomas spoke to one employee, Paulette Lee, who also claimed that Brumirski sexually harassed her. Lee provided several text messages and photos to corroborate Brumirski’s harassment. According to Thomas, because of Lee’s report, the City de- cided to offer Brumirski the choice to resign or be terminated. Brumirski resigned on July 3, 2017, concluding the approxi- mately one month-long investigation. Shortly thereafter, Har- ris returned to the barricade shop. No. 23-2932 5
When Harris returned to her original position, she did not like what she found. Before her reassignment, she had a makeshift desk, but the City had removed it. Harris also no- ticed the City had installed a camera in the vicinity where she used to work. And Harris claimed that Hardnett, who had be- come her supervisor, stopped talking to her for fear of being recorded. Harris felt the City made these changes to retaliate against her for reporting Brumirski’s conduct. After her return, Harris applied for two positions, one of which had been Brumirski’s position of plant and equipment repair supervisor. The positions required experience as a street repair supervisor, which Harris did not have. The City denied Harris’s applications. As it turns out, Hardnett be- came the permanent plant and equipment repair supervisor. In her new role, Hardnett had Harris, along with everyone she supervised, pick up trash around the Department’s head- quarters building. Harris similarly viewed this as a form of retaliation. Harris sued several defendants including the City of Mil- waukee. She alleged violations under Title VII, 42 U.S.C. § 2000(e), and 42 U.S.C. § 1983, for sexual harassment and dis- crimination, hostile work environment, and retaliation. The City moved for summary judgment on all claims, and the dis- trict court granted the motion. Harris’s Estate maintains the district court erred in dis- missing the Title VII and Section 1983 claims. We review ap- peals of summary judgment de novo. Adebiyi, 98 F.4th at 891. In doing so, we construe the record in the light most favorable to the Estate and draw all reasonable inferences for it. Id. But we find no error in the district court’s judgment. 6 No. 23-2932
II
We begin with the Estate’s claims under Title VII for sex- ual harassment and discrimination. The Estate presents two separate theories of why the City is liable: (1) for Brumirski’s quid pro quo harassment of Harris and (2) for the hostile work environment Brumirski’s harassment created. Given the ele- ments of these claims, however, we, like the district court, conclude that no reasonable juror could find the City liable. A. Quid Pro Quo Harassment
In Bryson v. Chicago State University, our court identified a five-part test used by other courts of appeals in quid pro quo cases but left open the question of whether the test “perfectly capture[d]” quid pro quo harassment. 96 F.3d 912, 915–916 (7th Cir. 1996). The test asks whether the plaintiff has shown “(1) that she or he is a member of a protected group, (2) the sexual advances were unwelcome, (3) the harassment was sexually motivated, (4) the employee’s reaction to the super- visor’s advances affected a tangible aspect of her employ- ment, and (5) respondeat superior has been established.” Id. at 915. The parties dispute only the fourth and fifth elements. Be- cause our inquiry turns on the fourth element—which, as ex- plained below, the Estate cannot overcome—we do not revisit the open question about the test’s suitability. We do not reach the final element either. Both parties present persuasive argu- ments about whether Brumirski was Harris’s supervisor, a factual predicate for the Estate’s respondeat superior theory to prevail. But we begin and end with the fourth element, and agree with the district court: the Estate failed to establish that No. 23-2932 7
Harris’s reaction to Brumirski’s advances affected a tangible aspect of Harris’s employment as recognized by our caselaw. The fourth element really asks two questions: (a) “what was the ‘tangible employment benefit’ that was denied to [the employee]” and (b) “was the denial a result of [the em- ployee’s] refusal to submit to [the harasser’s] demands?” Bryson, 96 F.3d at 916. Whether an employment benefit is tan- gible “will normally depend on the facts of each situation.” Id. “[A] wide variety of actions, some blatant and some subtle, can qualify.” Id. These include, “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly di- minished material responsibilities, or other indices that might be unique to a particular situation.” Molnar v. Booth, 229 F.3d 593, 600 (7th Cir. 2000) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (herein Ellerth)). For example, we have found tangible employment actions where a princi- pal confiscated the supplies a teaching intern needed to do her assigned job, see id., and where a tenured professor sud- denly lost all committee responsibilities and had her title stripped, see Bryson, 96 F.3d at 916. The Estate does not argue that Brumirski ever took an em- ployment action against Harris. Instead, the Estate asserts that Brumirski threatened Harris with reassigning her to outdoor work if she did not cooperate with his incessant and invasive advances. But even if Brumirski had the authority to assign Harris to outdoor work—a matter the parties contest—no rea- sonable juror could find that such an assignment would have affected a tangible aspect of Harris’s employment. This is be- cause the bulk of Harris’s job functions were for outdoor work. According to the job description for Harris’s laborer 8 No. 23-2932
position, only five percent of the work involved barricades. Even this function could take place outdoors, and not solely inside the barricade shop, because it required laborers to “[p]lace and install barricades, guard rails, thrie beams, sign- age, etc.” The remaining job functions—up to seventy percent of a laborer’s duties—involved working outside to assist pavement repair and bridge maintenance crews. The threat of an assignment to duties so clearly outlined in Harris’s job de- scription cannot constitute a tangible employment action. Even without a tangible employment action, an employer can be held liable for an employee’s harassment. But not if the employer can show “(1) that it exercised reasonable care to prevent and correct promptly any sexually harassing behav- ior, and (2) that [the employee] unreasonably failed to take advantage of any preventive or corrective opportunities pro- vided by her employer or to avoid harm otherwise.” Molnar, 229 F.3d at 600 (citing Ellerth, 524 U.S. at 765 & Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)). This is otherwise re- ferred to as the Faragher-Ellerth defense. Id. Here, the City has satisfied both prongs of the Faragher- Ellerth defense. First, the City exercised reasonable care to pre- vent and promptly correct Brumirski’s sexually harassing be- havior. We have held that the “mere creation of a sexual har- assment policy will not shield a company from its responsi- bility to actively prevent sexual harassment in the work- place.” Passananti v. Cook Cnty., 689 F.3d 655, 673 (7th Cir. 2012). Instead, a company’s policy must give employees a meaningful process to express their concerns about an indi- vidual in their work environment. Id. Beyond appearing “rea- sonably effective on paper …. [t]he policy also must be rea- sonably effective in practice.” Id. at 673–74. For example, in No. 23-2932 9
Trahanas v. Northwestern University, we found that Northwest- ern’s policy prohibiting discrimination and harassment, which was included in its staff handbook, sufficed because it “provided instructions and multiple avenues—including those outside an employee’s supervisory chain of com- mand—for filing complaints.” 64 F.4th 842, 854 (7th Cir. 2023). The City has met its burden of showing both the existence and effectiveness of its formal anti-harassment policy. The City distributed the policy to employees in its “Major Work Rules” packet. Harris received this packet on at least four sep- arate occasions before Brumirski’s sexual harassment began in 2012. The policy outlines several avenues for employees seeking confidential assistance or wanting to file a formal complaint, including the Office of Diversity staff, the depart- mental Complaint Intake Advisor, and the Human Resources Compliance Officer, all offices outside of Harris’s chain of command. In addition to having an effective anti-harassment policy on paper, the City’s actions in addressing Harris’s 2017 com- plaint support a finding that the policy was reasonably effec- tive in practice. Harris’s attorney sent a formal complaint to the City on May 30, 2017. Almost immediately, Thomas sepa- rated Brumirski and Harris, contacted Harris’s attorney to gather evidence, placed Brumirski on administrative leave, and began interviewing witnesses. Once Thomas found an- other employee’s allegations against Brumirski were corrob- orated, the City instigated Brumirski’s resignation on July 3, 2017. It took the City roughly one month to complete the in- vestigation, address Brumirski’s conduct, and return Harris to the barricade shop. Nothing about this chronology 10 No. 23-2932
suggests the City failed to promptly address Brumirski’s be- havior. The City has satisfied the second prong of the Faragher- Ellerth defense too. Until her attorney’s letter in 2017, Harris unfortunately did not take advantage of the City’s avenues for reporting and addressing Brumirski’s sexual harassment. There is no evidence in the record that Harris informed a su- pervisor or any of the offices delineated in the policy outside of her chain of command. Although Harris claims she told Hardnett about Brumirski’s conduct at some point in 2012, Hardnett did not assume a supervisory position until 2017. As for Harris’s anonymous letter in 2012, there is no evidence in the record to establish when the letter was drafted, what date it was delivered, or that Thomas received the copy sent to a City address. There is also no evidence that Harris ever sought to confirm that Thomas had received the letter, or that she sought confidential assistance from him otherwise. Fur- ther, Harris testified she intended the letter to trigger an in- vestigation into Brumirski, but her attempt did not comply with the City’s policy that a complainant submit a “signed, written statement.” On this record, no reasonable jury could find that Harris took advantage of the City’s reporting mechanisms before 2017, that the City acted unreasonably once Harris reported the harassment, or that Harris suffered a tangible employ- ment action at Brumirski’s hands. The district court did not err in rejecting the Estate’s quid pro quo theory of harassment. B. Hostile Work Environment
A hostile work environment is one that is “permeated with discriminatory intimidation, ridicule, and insult, that is No. 23-2932 11
sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environ- ment.” Hambrick v. Kijakazi, 79 F.4th 835, 842 (7th Cir. 2023). To establish this claim under Title VII, a plaintiff must show: “(1) the work environment was both subjectively and objec- tively offensive; (2) the harassment was based on membership in a protected class; (3) the conduct was severe or pervasive; and (4) there is a basis for employer liability.” Id. The standard for evaluating an employer’s liability depends on whether the harasser was the victim’s supervisor or coworker. Trahanas, 64 F.4th at 853. “If the harasser is a ‘supervisor,’ the employer is strictly liable and can only escape that liability if no tangible employ- ment action had been taken, and the employer establishes [a Faragher-Ellerth defense].” Equal Emp. Opportunity Comm'n v. Vill. At Hamilton Pointe LLC, 102 F.4th 387, 405 (7th Cir. 2024) (citing Vance v. Ball State Univ., 570 U.S. 421, 424 (2013)); Tra- hanas, 64 F.4th at 853–54. If the harasser is a coworker, “the employer is liable only if it was negligent in controlling work- ing conditions.” Id. at 853. “Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed” is relevant to a de- termination of negligence. Vance, 570 U.S. at 449. The parties dispute whether Brumirski acted as Harris’s supervisor, and thus the standard to evaluate the City’s liabil- ity. Again, although both parties present persuasive argu- ments about whether Brumirski was Harris’s supervisor, we need not reach the issue. This is because the Estate’s claim of hostile work environment fails under either standard of lia- bility. 12 No. 23-2932
Assuming, as the Estate argues, that Brumirski was a su- pervisor, the Estate has not shown there was a tangible em- ployment action affecting Harris, as explained earlier. At the same time, the City has presented evidence to support its Fa- ragher-Ellerth defense. Assuming Brumirski was a coworker, the Estate must show that the City acted negligently in controlling the work- ing conditions at the Department. Trahanas, 64 F.4th at 853. To do this, the Estate argues that the City was negligent in train- ing its supervisors on how to report sexual harassment. The Estate points to three supervisors as examples, but none suc- ceed. The first example is Hardnett. Harris says she told Hard- nett about the harassment in 2012. But there is no evidence that Hardnett was a supervisor then; the record shows she be- came a supervisor in 2017. The second and third examples are Brian Stankowitz 1 and Rico Lopez who, according to Harris, supervised a laborer named Carrie Graves. Graves alleged that Brumirski told her he would “rape her in the truck wash before he retired.” Ac- cording to the Estate, the City fostered a hostile work environ- ment because Graves reported Brumirski’s misconduct to Stankowitz and Lopez and they did nothing to stop it. The record does not bear out the Estate’s characterization of Stankowitz’s response as doing nothing. When Graves in- formed Stankowitz of Brumirski’s comment, Stankowitz
1 At summary judgment and on appeal, the Estate refers to this indi-
vidual as Brian Stankiewicz. Graves’s deposition refers to him as Brian Stankowitz. It is clear from the record the parties are referring to the same person. No. 23-2932 13
counseled Graves to keep a journal to assist with an investi- gation. Although Graves kept a journal, she acknowledged she never shared it with anyone, not even Stankowitz or hu- man resources. This circumstance does not amount to a hos- tile work environment fostered by the City. See Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1023–24, 1029–31 (7th Cir. 2004) (finding an employer had not been negligent in uncov- ering an employee’s complaint of racial harassment by coworkers where the employee initially failed to report the incident, despite his supervisor approaching him about his experience). As for Lopez, the Estate does not offer any support for its assertion that he held a supervisory role. Although the Es- tate’s summary judgment brief refers to Lopez as an “Inven- tory Services Manager,” Graves testified that she did not know Lopez’s role at the time of Brumirski’s misconduct. And the Estate does not direct us to any evidence to address this confusion. Accordingly, we are unable to evaluate the Estate’s claim that Lopez failed to carry out supervisory duties under the anti-harassment policy. See Draper v. Martin, 664 F.3d 1110, 1113 n.5 (7th Cir. 2011) (“[T]he [p]laintiffs fail to offer any record citations or analysis supporting such a claim and we ‘will not hunt through the record’ looking for corroborat- ing evidence.”). In sum, regardless of whether Brumirski was Harris’s su- pervisor or her coworker, no reasonable jury could find a ba- sis for employer liability. The Estate’s hostile work environ- ment claim thus fails as a matter of law. 14 No. 23-2932
III
We turn next to the Estate’s claim of retaliation, which she has asserted under both Title VII and Section 1983. Because claims of retaliation fall under the exclusive province of Title VII, we address the claim under the Title VII framework only. See Gray v. Lacke, 885 F.2d 399, 414 (7th Cir. 1989) (“[The] right to be free from retaliation for protesting sexual harassment and sex discrimination is a right created by Title VII, not the equal protection clause. Section 1983 provides a remedy for deprivation of constitutional rights. It supplies no remedy for violations of rights created by Title VII.” (citation omitted)). Title VII prohibits an employer from retaliating against an employee “because [s]he has made a charge, testified, as- sisted, or participated in any manner in an investigation, pro- ceeding, or hearing.” Igasaki v. Ill. Dep’t of Fin. and Pro. Regul., 988 F.3d 948, 959 (7th Cir. 2021) (quoting 42 U.S.C. § 2000e- 3(a)). To survive summary judgment, the Estate must offer evi- dence that allows a reasonable jury to find that “(1) [Harris] engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal link be- tween the two.” Adebiyi, 98 F.4th at 891. When looking at whether the plaintiff suffered an adverse employment action for retaliation claims, the harm threshold is higher than that of direct discrimination claims. Rather than causing “some harm,” an action in the retaliation context must be materially adverse, meaning that it causes “signifi- cant” harm. Muldrow v. City of St. Louis, 601 U.S. 346, 350, 357– 58 (2024) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (herein White)); see also Lesiv v. Ill. Cent. R.R. No. 23-2932 15
Co., 39 F.4th 903, 912 (7th Cir. 2022) (holding that a retaliatory action must “rise above trivial harms, such as petty slights or minor annoyances that often take place at work and that all employees experience” (cleaned)). A materially adverse ac- tion is one that would “dissuade[] a reasonable worker from making or supporting a charge of discrimination.” Muldrow, 601 U.S. at 357 (citing White, 548 U.S. at 68). The district court rejected the Estate’s retaliation claim be- cause the record did not show Harris suffered an adverse em- ployment action. We agree. And even if the Estate had pre- vailed on this point, it similarly fails to show more than mere temporal proximity between Harris’s report of sexual harass- ment and the actions she identifies as adverse—reassignment to trash duty, altered work schedule, removal of a makeshift desk, and alleged isolation upon her return. Yet, “temporal proximity between an employee’s protected activity and an adverse employment action is rarely sufficient to show that the former caused the latter.” O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011). We address each of the Es- tate’s proposed retaliatory actions in turn. The Estate offers Harris’s reassignment to trash duty as proof of retaliation. But the record supports the contrary con- clusion. The day the City heard from Harris’s attorney, it transferred Harris to another department to separate her from Brumirski during the investigation. An employer’s decision to temporarily separate two workers in the face of sexual har- assment allegations is not an adverse employment action. See Place v. Abbott Lab’ys, 215 F.3d 803, 811 (7th Cir. 2000) (finding that “an employer’s decision to split up two workers whose interpersonal problems [were] impeding the company’s pro- gress [was] not retaliation”). 16 No. 23-2932
When Harris returned to the barricade shop, she contin- ued to receive assignments to pick up trash around the build- ing, now from Hardnett as her new supervisor. According to the Estate, Hardnett’s assignments were retaliation for Harris having brought Hardnett into the sexual harassment investi- gation. But there is no evidence to support this theory. In fact, Hardnett testified that she assigned every employee she su- pervised to pick up trash. The Estate does not refute Hard- nett’s testimony. Instead, it takes issue with Harris not having been asked to perform this duty before. Although trash pickup and other outdoor tasks may have been new for Har- ris, these tasks were not outside her responsibilities. Accord- ing to the City’s job description, trash-related responsibilities fell within ten to seventy percent of Harris’s laborer job func- tion. Further, as Thomas explained, it was not uncommon for laborers to work in different parts of barricade infrastructure, which could include both indoor and outdoor work. As we have explained, “[a] materially adverse employment action is something ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.’” Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004), overruled on other grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760, 761 (7th Cir. 2016). Moving from one function to another within a job, when nothing guarantees the employee will always remain assigned to the same function, does not amount to an adverse employment action. 2 See Place, 215 F.3d at 810 (finding a
2 The Estate likewise alleges that Harris’s trash assignments have di-
minished her prospects for promotion. For support, the Estate cites only testimony from Graves, a coworker who has worked for the City’s street cleaning department since approximately 2012 but has never held a man- agerial, supervisory, or administrative position. Graves testified that she was not aware of any trash pickup position that would lead to a No. 23-2932 17
transfer could not amount to an adverse employment action where “[t]here was no guarantee that [the employee] would remain forever in the job she held before her transfer,” and the industry at issue was “a dynamic business that involve[d] regularly shifting people from one job to another”). Here, there is no evidence that Harris was guaranteed solely to con- struct and repair barricades, a mere five percent of her job de- scription. Next, the Estate claims the City retaliated against Harris by changing her work schedule. During the City’s month- long investigation, Harris’s schedule changed from 6:00 a.m. to 2:30 p.m., to 7:00 a.m. to 3:30 p.m. Harris explains this forced her to arrange an additional hour of childcare for sev- eral weeks. She did not report this impact to Thomas, and her schedule went back to normal when she returned to the bar- ricade shop. Although we recognize the added stress Harris faced that month, a reasonable jury would not conclude that a temporary one-hour schedule change during a sexual har- assment investigation would dissuade a reasonable employee from coming forward with sexual harassment complaints. This is especially true where the change was not accompanied by reduced pay or significantly diminished job responsibili- ties—harms the Estate does not claim Harris suffered. The Estate presents as additional evidence of retaliation the City’s removal of Harris’s makeshift desk and the place- ment of a camera in the vicinity of her workspace. As the Es- tate explains it, Harris no longer had a sense of comfort in her environment without the makeshift desk, and was subjected
promotion. Graves’s testimony is an insufficient basis on which a jury can infer anything about the City’s promotion policy. 18 No. 23-2932
to harsh, cold winds in the winter. We understand Harris’s genuine discomfort. But these changes do not amount to an adverse employment action, especially when the Estate has not shown that Harris required a desk to complete her duties, most of which could involve outdoor assignments like snow shoveling and concrete removal. Cf. Place, 215 F.3d at 810 (“Some of her complaints—losing her telephone and cubi- cle—are too trivial to amount to an adverse employment ac- tion. Maybe her new working quarters were not as nice, but there is no indication they were shabby or unpleasant.”); Molnar, 229 F.3d at 600 (finding a tangible employment action when a jury could find that confiscated supplies were “neces- sary” to perform the assigned job). As for the camera, the City presented unrefuted evidence that there are surveillance cameras throughout the Depart- ment. Even if the City placed the camera at issue close in time to Harris’s return to the barricade shop, this temporal prox- imity is insufficient. See Davis, 651 F.3d at 675 (underscoring “the importance of context” when assessing suspicious tim- ing). And the Estate does not offer any evidence to support its speculation that the City wanted to monitor Harris and make her feel uncomfortable. The Estate’s last asserted evidence of retaliation is that the City failed to give Harris performance reviews and isolated her in the barricade shop. Harris recounted an instance when she worked with a coworker on a barricade project and a manager from another department congratulated only the coworker on the joint work. Harris also described how em- ployees stopped holding the door for her or greeting her in the mornings. On another occasion, she recalled, Hardnett al- lowed several other employees in her Department, but not No. 23-2932 19
Harris, to leave thirty minutes early. Although the withhold- ing of a performance review might be cause for concern, the Estate does not offer any argument about how this relates back to Harris’s protected activity. On the record before us, none of the remaining isolated and general allegations permit a finding of retaliatory conduct. Because no reasonable jury could find that the Estate es- tablished two elements necessary for the success of a retalia- tion claim—an adverse employment action and causation— the district court did not err in granting the City’s summary judgment on the Estate’s retaliation claim. IV
The Estate pursues a final claim under § 1983 that the City violated Harris’s rights under the Fourteenth Amendment’s Equal Protection Clause. This Court has held that “[s]exual harassment by a state employer constitutes sex discrimination in violation of the equal protection clause.” Valentine v. City of Chicago, 452 F.3d 670, 682 (7th Cir. 2006), as amended (July 6, 2006) (citing Bohen v. City of East Chicago, 799 F.2d 1180, 1185 (7th Cir. 1986)). The Estate contends that its claim succeeds if we apply the same reasoning in Bohen. But the Estate’s case is materially distinguishable from Bohen in several ways. In Bohen, we held the employer liable based on a practice and custom of permitting sexual harassment, evident from the employee having suffered “many instances of sexual har- assment[,] often complain[ing] of [the harassment] through official channels, but that nothing was done.” 799 F.2d at 1187. The employer lacked a written sexual harassment policy, and we concluded that it was “clear that supervisory department officials knew of the sexually oppressive working conditions 20 No. 23-2932
even before Bohen was hired since they warned her of them during an office interview.” Id. (emphasis added). Inherent in this finding is the Equal Protection Clause’s protection against “intentional discrimination.” See de Lima Silva v. Wis. Dep't of Corr., 917 F.3d 546, 559 (7th Cir. 2019) (“The Equal Protection Clause protects against intentional discrimination on the ba- sis of race or national origin, and 42 U.S.C. § 1983 provides an employee subjected to such discrimination a path to relief.”). Here, the City is unlike the employer in Bohen because there is no evidence that the City’s supervisory department knew about Brumirski’s misconduct until 2017, when Harris’s attorney reported it to Thomas. The City also had a written policy that it distributed to its employees. And once Harris availed herself of the City’s complaint process, the City, un- like the employer in Bohen, acted almost immediately to ad- dress and prevent any future sexual harassment. Because no reasonable jury could find intentional discrimination, the Es- tate cannot prevail on its equal protection claim. V
No employee should have to endure the sexual harass- ment Harris endured. But to survive summary judgment and have a trial seeking to hold the City liable for Brumirski’s con- duct, the Estate had the burden to present evidence demon- strating genuine dispute about whether Harris experienced a tangible or adverse employment action. It did not do so. Meanwhile, the City presented evidence that it took respon- sive and appropriate actions once Harris formally reported Brumirski. The record does not permit us to conclude that a No. 23-2932 21
reasonable jury could find for the Estate on its claims against the City. AFFIRMED.
Opinion
In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 23-2932 BANKRUPTCY ESTATE OF SANTOASHA HARRIS, Plaintiff-Appellant, v.
CITY OF MILWAUKEE, et al., Defendants-Appellees. ____________________
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:20-cv-00609 — Nancy Joseph, Magistrate Judge. ____________________
ARGUED MAY 16, 2024 — DECIDED JUNE 24, 2025 ____________________
Before EASTERBROOK, RIPPLE, and JACKSON-AKIWUMI, Cir- cuit Judges. JACKSON-AKIWUMI, Circuit Judge. For five years, Santoasha Harris endured sexual harassment at her City of Milwaukee job. When she reported the conduct, the City separated Harris from the harasser, conducted an investigation, compelled the harasser’s resignation, and restored Harris to her position— within one month. 2 No. 23-2932
Harris sued the City, arguing it knew about the harass- ment for years, failed to do anything, and instead retaliated against her for reporting it. Because Harris had also filed for bankruptcy, the district court allowed the substitution of her estate as the named plaintiff. The district court granted sum- mary judgment to the City. The court concluded, among other things, that Harris’s Estate had not shown the City unreason- ably failed to prevent the harassment or that she suffered a tangible employment action as a consequence for reporting it. Although the harassment Harris survived was both reprehen- sible and injurious, we agree that the evidence in the record does not support the Title VII and Section 1983 claims against the City. We therefore affirm the judgment. I
We recount the facts in the light most favorable to Harris’s Estate as the party opposing summary judgment. Adebiyi v. S. Suburban Coll., 98 F.4th 886, 889 (7th Cir. 2024). In 2007, Harris began working at the City’s Department of Public Works as an infrastructure repair worker. Harris was assigned to the Department’s barricade shop, which constructed and re- paired street barricades. According to her job description, a laborer in Harris’s position was supposed to allocate five per- cent of her time to barricade work, while trash removal and other outdoor tasks captured anywhere from ten to seventy percent of her remaining duties.
In 2010, Terrence Brumirski became a plant and equip- ment repair supervisor responsible for overseeing several in- dividuals at the barricade shop. From 2012 to 2017, Brumirski subjected Harris to egregious forms of sexual harassment. On more than one occasion, Brumirski attempted to grab her No. 23-2932 3
buttocks, kiss her, place her on his lap, and touch her in inap- propriate ways. Brumirski also tried to pressure Harris into performing sexual acts on him at work. The City maintained an anti-harassment policy that in- structed victimized employees to immediately report in- stances of sexual harassment to their supervisor, department manager, or the Office of Diversity staff, among others. These people would, according to the City’s policy, provide confi- dential assistance to resolve the issue before filing a formal complaint. Under the policy, a formal investigation would not begin unless an employee provided the City with a signed, written complaint. And employees could not be retaliated against for filing a complaint or assisting with an investiga- tion. Despite receiving the City’s anti-harassment policy four times between 2006 and 2011, Harris did not formally report Brumirski to the City until 2017. Harris says she reported Brumirski’s conduct in 2012, when the harassment was just starting. She explains that she sent copies of an anonymous letter, dated July 30, 2012, to three people: Brumirski’s live-in girlfriend, a City alderman whose identity she could not remember, and Dan Thomas, who at the time served as the Department’s personnel com- pliance manager. According to Harris, she dropped the letters in a mailbox without a return receipt, hoping that this would initiate an investigation. As to Thomas’s letter specifically, she addressed it with his full name and an address for the City. Thomas claims he never received the letter. Harris also says she told her friend and coworker, Detria Hardnett, about the harassment in 2012. In response, Hard- nett apparently offered to accompany Harris to the barricade shop to dissuade Brumirski’s advances. At that point, 4 No. 23-2932
Hardnett had recently become a repair worker crew leader. This new title offered her a minimal raise, but did not other- wise bestow new responsibilities that separated her from la- borers like Harris. Hardnett did not assume a supervisory po- sition until 2017. Despite Harris’s efforts, Brumirski’s conduct worsened. On May 25, 2017, Brumirski put his hand down Harris’s pants and fondled her genitalia. That same day, one of Harris’s coworkers reported seeing that Harris was visibly upset. That coworker had previously instructed Brumirski to leave Harris alone. Less than a week after this incident, on May 30, 2017, Har- ris’s attorney sent a letter to Thomas notifying him that Harris would be seeking damages for Brumirski’s sexual harass- ment. After receiving the letter, Thomas immediately sepa- rated Brumirski and Harris by temporarily assigning Harris to the sanitation division, where part of her duties included picking up trash. Thomas also contacted Harris and her attor- ney to gather evidence and investigate any leads, and sus- pended Brumirski for the duration of the investigation. Thomas interviewed multiple employees. No one corrob- orated Brumirski’s harassment of Harris. However, Thomas spoke to one employee, Paulette Lee, who also claimed that Brumirski sexually harassed her. Lee provided several text messages and photos to corroborate Brumirski’s harassment. According to Thomas, because of Lee’s report, the City de- cided to offer Brumirski the choice to resign or be terminated. Brumirski resigned on July 3, 2017, concluding the approxi- mately one month-long investigation. Shortly thereafter, Har- ris returned to the barricade shop. No. 23-2932 5
When Harris returned to her original position, she did not like what she found. Before her reassignment, she had a makeshift desk, but the City had removed it. Harris also no- ticed the City had installed a camera in the vicinity where she used to work. And Harris claimed that Hardnett, who had be- come her supervisor, stopped talking to her for fear of being recorded. Harris felt the City made these changes to retaliate against her for reporting Brumirski’s conduct. After her return, Harris applied for two positions, one of which had been Brumirski’s position of plant and equipment repair supervisor. The positions required experience as a street repair supervisor, which Harris did not have. The City denied Harris’s applications. As it turns out, Hardnett be- came the permanent plant and equipment repair supervisor. In her new role, Hardnett had Harris, along with everyone she supervised, pick up trash around the Department’s head- quarters building. Harris similarly viewed this as a form of retaliation. Harris sued several defendants including the City of Mil- waukee. She alleged violations under Title VII, 42 U.S.C. § 2000(e), and 42 U.S.C. § 1983, for sexual harassment and dis- crimination, hostile work environment, and retaliation. The City moved for summary judgment on all claims, and the dis- trict court granted the motion. Harris’s Estate maintains the district court erred in dis- missing the Title VII and Section 1983 claims. We review ap- peals of summary judgment de novo. Adebiyi, 98 F.4th at 891. In doing so, we construe the record in the light most favorable to the Estate and draw all reasonable inferences for it. Id. But we find no error in the district court’s judgment. 6 No. 23-2932
II
We begin with the Estate’s claims under Title VII for sex- ual harassment and discrimination. The Estate presents two separate theories of why the City is liable: (1) for Brumirski’s quid pro quo harassment of Harris and (2) for the hostile work environment Brumirski’s harassment created. Given the ele- ments of these claims, however, we, like the district court, conclude that no reasonable juror could find the City liable. A. Quid Pro Quo Harassment
In Bryson v. Chicago State University, our court identified a five-part test used by other courts of appeals in quid pro quo cases but left open the question of whether the test “perfectly capture[d]” quid pro quo harassment. 96 F.3d 912, 915–916 (7th Cir. 1996). The test asks whether the plaintiff has shown “(1) that she or he is a member of a protected group, (2) the sexual advances were unwelcome, (3) the harassment was sexually motivated, (4) the employee’s reaction to the super- visor’s advances affected a tangible aspect of her employ- ment, and (5) respondeat superior has been established.” Id. at 915. The parties dispute only the fourth and fifth elements. Be- cause our inquiry turns on the fourth element—which, as ex- plained below, the Estate cannot overcome—we do not revisit the open question about the test’s suitability. We do not reach the final element either. Both parties present persuasive argu- ments about whether Brumirski was Harris’s supervisor, a factual predicate for the Estate’s respondeat superior theory to prevail. But we begin and end with the fourth element, and agree with the district court: the Estate failed to establish that No. 23-2932 7
Harris’s reaction to Brumirski’s advances affected a tangible aspect of Harris’s employment as recognized by our caselaw. The fourth element really asks two questions: (a) “what was the ‘tangible employment benefit’ that was denied to [the employee]” and (b) “was the denial a result of [the em- ployee’s] refusal to submit to [the harasser’s] demands?” Bryson, 96 F.3d at 916. Whether an employment benefit is tan- gible “will normally depend on the facts of each situation.” Id. “[A] wide variety of actions, some blatant and some subtle, can qualify.” Id. These include, “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly di- minished material responsibilities, or other indices that might be unique to a particular situation.” Molnar v. Booth, 229 F.3d 593, 600 (7th Cir. 2000) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (herein Ellerth)). For example, we have found tangible employment actions where a princi- pal confiscated the supplies a teaching intern needed to do her assigned job, see id., and where a tenured professor sud- denly lost all committee responsibilities and had her title stripped, see Bryson, 96 F.3d at 916. The Estate does not argue that Brumirski ever took an em- ployment action against Harris. Instead, the Estate asserts that Brumirski threatened Harris with reassigning her to outdoor work if she did not cooperate with his incessant and invasive advances. But even if Brumirski had the authority to assign Harris to outdoor work—a matter the parties contest—no rea- sonable juror could find that such an assignment would have affected a tangible aspect of Harris’s employment. This is be- cause the bulk of Harris’s job functions were for outdoor work. According to the job description for Harris’s laborer 8 No. 23-2932
position, only five percent of the work involved barricades. Even this function could take place outdoors, and not solely inside the barricade shop, because it required laborers to “[p]lace and install barricades, guard rails, thrie beams, sign- age, etc.” The remaining job functions—up to seventy percent of a laborer’s duties—involved working outside to assist pavement repair and bridge maintenance crews. The threat of an assignment to duties so clearly outlined in Harris’s job de- scription cannot constitute a tangible employment action. Even without a tangible employment action, an employer can be held liable for an employee’s harassment. But not if the employer can show “(1) that it exercised reasonable care to prevent and correct promptly any sexually harassing behav- ior, and (2) that [the employee] unreasonably failed to take advantage of any preventive or corrective opportunities pro- vided by her employer or to avoid harm otherwise.” Molnar, 229 F.3d at 600 (citing Ellerth, 524 U.S. at 765 & Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)). This is otherwise re- ferred to as the Faragher-Ellerth defense. Id. Here, the City has satisfied both prongs of the Faragher- Ellerth defense. First, the City exercised reasonable care to pre- vent and promptly correct Brumirski’s sexually harassing be- havior. We have held that the “mere creation of a sexual har- assment policy will not shield a company from its responsi- bility to actively prevent sexual harassment in the work- place.” Passananti v. Cook Cnty., 689 F.3d 655, 673 (7th Cir. 2012). Instead, a company’s policy must give employees a meaningful process to express their concerns about an indi- vidual in their work environment. Id. Beyond appearing “rea- sonably effective on paper …. [t]he policy also must be rea- sonably effective in practice.” Id. at 673–74. For example, in No. 23-2932 9
Trahanas v. Northwestern University, we found that Northwest- ern’s policy prohibiting discrimination and harassment, which was included in its staff handbook, sufficed because it “provided instructions and multiple avenues—including those outside an employee’s supervisory chain of com- mand—for filing complaints.” 64 F.4th 842, 854 (7th Cir. 2023). The City has met its burden of showing both the existence and effectiveness of its formal anti-harassment policy. The City distributed the policy to employees in its “Major Work Rules” packet. Harris received this packet on at least four sep- arate occasions before Brumirski’s sexual harassment began in 2012. The policy outlines several avenues for employees seeking confidential assistance or wanting to file a formal complaint, including the Office of Diversity staff, the depart- mental Complaint Intake Advisor, and the Human Resources Compliance Officer, all offices outside of Harris’s chain of command. In addition to having an effective anti-harassment policy on paper, the City’s actions in addressing Harris’s 2017 com- plaint support a finding that the policy was reasonably effec- tive in practice. Harris’s attorney sent a formal complaint to the City on May 30, 2017. Almost immediately, Thomas sepa- rated Brumirski and Harris, contacted Harris’s attorney to gather evidence, placed Brumirski on administrative leave, and began interviewing witnesses. Once Thomas found an- other employee’s allegations against Brumirski were corrob- orated, the City instigated Brumirski’s resignation on July 3, 2017. It took the City roughly one month to complete the in- vestigation, address Brumirski’s conduct, and return Harris to the barricade shop. Nothing about this chronology 10 No. 23-2932
suggests the City failed to promptly address Brumirski’s be- havior. The City has satisfied the second prong of the Faragher- Ellerth defense too. Until her attorney’s letter in 2017, Harris unfortunately did not take advantage of the City’s avenues for reporting and addressing Brumirski’s sexual harassment. There is no evidence in the record that Harris informed a su- pervisor or any of the offices delineated in the policy outside of her chain of command. Although Harris claims she told Hardnett about Brumirski’s conduct at some point in 2012, Hardnett did not assume a supervisory position until 2017. As for Harris’s anonymous letter in 2012, there is no evidence in the record to establish when the letter was drafted, what date it was delivered, or that Thomas received the copy sent to a City address. There is also no evidence that Harris ever sought to confirm that Thomas had received the letter, or that she sought confidential assistance from him otherwise. Fur- ther, Harris testified she intended the letter to trigger an in- vestigation into Brumirski, but her attempt did not comply with the City’s policy that a complainant submit a “signed, written statement.” On this record, no reasonable jury could find that Harris took advantage of the City’s reporting mechanisms before 2017, that the City acted unreasonably once Harris reported the harassment, or that Harris suffered a tangible employ- ment action at Brumirski’s hands. The district court did not err in rejecting the Estate’s quid pro quo theory of harassment. B. Hostile Work Environment
A hostile work environment is one that is “permeated with discriminatory intimidation, ridicule, and insult, that is No. 23-2932 11
sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environ- ment.” Hambrick v. Kijakazi, 79 F.4th 835, 842 (7th Cir. 2023). To establish this claim under Title VII, a plaintiff must show: “(1) the work environment was both subjectively and objec- tively offensive; (2) the harassment was based on membership in a protected class; (3) the conduct was severe or pervasive; and (4) there is a basis for employer liability.” Id. The standard for evaluating an employer’s liability depends on whether the harasser was the victim’s supervisor or coworker. Trahanas, 64 F.4th at 853. “If the harasser is a ‘supervisor,’ the employer is strictly liable and can only escape that liability if no tangible employ- ment action had been taken, and the employer establishes [a Faragher-Ellerth defense].” Equal Emp. Opportunity Comm'n v. Vill. At Hamilton Pointe LLC, 102 F.4th 387, 405 (7th Cir. 2024) (citing Vance v. Ball State Univ., 570 U.S. 421, 424 (2013)); Tra- hanas, 64 F.4th at 853–54. If the harasser is a coworker, “the employer is liable only if it was negligent in controlling work- ing conditions.” Id. at 853. “Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed” is relevant to a de- termination of negligence. Vance, 570 U.S. at 449. The parties dispute whether Brumirski acted as Harris’s supervisor, and thus the standard to evaluate the City’s liabil- ity. Again, although both parties present persuasive argu- ments about whether Brumirski was Harris’s supervisor, we need not reach the issue. This is because the Estate’s claim of hostile work environment fails under either standard of lia- bility. 12 No. 23-2932
Assuming, as the Estate argues, that Brumirski was a su- pervisor, the Estate has not shown there was a tangible em- ployment action affecting Harris, as explained earlier. At the same time, the City has presented evidence to support its Fa- ragher-Ellerth defense. Assuming Brumirski was a coworker, the Estate must show that the City acted negligently in controlling the work- ing conditions at the Department. Trahanas, 64 F.4th at 853. To do this, the Estate argues that the City was negligent in train- ing its supervisors on how to report sexual harassment. The Estate points to three supervisors as examples, but none suc- ceed. The first example is Hardnett. Harris says she told Hard- nett about the harassment in 2012. But there is no evidence that Hardnett was a supervisor then; the record shows she be- came a supervisor in 2017. The second and third examples are Brian Stankowitz 1 and Rico Lopez who, according to Harris, supervised a laborer named Carrie Graves. Graves alleged that Brumirski told her he would “rape her in the truck wash before he retired.” Ac- cording to the Estate, the City fostered a hostile work environ- ment because Graves reported Brumirski’s misconduct to Stankowitz and Lopez and they did nothing to stop it. The record does not bear out the Estate’s characterization of Stankowitz’s response as doing nothing. When Graves in- formed Stankowitz of Brumirski’s comment, Stankowitz
1 At summary judgment and on appeal, the Estate refers to this indi-
vidual as Brian Stankiewicz. Graves’s deposition refers to him as Brian Stankowitz. It is clear from the record the parties are referring to the same person. No. 23-2932 13
counseled Graves to keep a journal to assist with an investi- gation. Although Graves kept a journal, she acknowledged she never shared it with anyone, not even Stankowitz or hu- man resources. This circumstance does not amount to a hos- tile work environment fostered by the City. See Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1023–24, 1029–31 (7th Cir. 2004) (finding an employer had not been negligent in uncov- ering an employee’s complaint of racial harassment by coworkers where the employee initially failed to report the incident, despite his supervisor approaching him about his experience). As for Lopez, the Estate does not offer any support for its assertion that he held a supervisory role. Although the Es- tate’s summary judgment brief refers to Lopez as an “Inven- tory Services Manager,” Graves testified that she did not know Lopez’s role at the time of Brumirski’s misconduct. And the Estate does not direct us to any evidence to address this confusion. Accordingly, we are unable to evaluate the Estate’s claim that Lopez failed to carry out supervisory duties under the anti-harassment policy. See Draper v. Martin, 664 F.3d 1110, 1113 n.5 (7th Cir. 2011) (“[T]he [p]laintiffs fail to offer any record citations or analysis supporting such a claim and we ‘will not hunt through the record’ looking for corroborat- ing evidence.”). In sum, regardless of whether Brumirski was Harris’s su- pervisor or her coworker, no reasonable jury could find a ba- sis for employer liability. The Estate’s hostile work environ- ment claim thus fails as a matter of law. 14 No. 23-2932
III
We turn next to the Estate’s claim of retaliation, which she has asserted under both Title VII and Section 1983. Because claims of retaliation fall under the exclusive province of Title VII, we address the claim under the Title VII framework only. See Gray v. Lacke, 885 F.2d 399, 414 (7th Cir. 1989) (“[The] right to be free from retaliation for protesting sexual harassment and sex discrimination is a right created by Title VII, not the equal protection clause. Section 1983 provides a remedy for deprivation of constitutional rights. It supplies no remedy for violations of rights created by Title VII.” (citation omitted)). Title VII prohibits an employer from retaliating against an employee “because [s]he has made a charge, testified, as- sisted, or participated in any manner in an investigation, pro- ceeding, or hearing.” Igasaki v. Ill. Dep’t of Fin. and Pro. Regul., 988 F.3d 948, 959 (7th Cir. 2021) (quoting 42 U.S.C. § 2000e- 3(a)). To survive summary judgment, the Estate must offer evi- dence that allows a reasonable jury to find that “(1) [Harris] engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal link be- tween the two.” Adebiyi, 98 F.4th at 891. When looking at whether the plaintiff suffered an adverse employment action for retaliation claims, the harm threshold is higher than that of direct discrimination claims. Rather than causing “some harm,” an action in the retaliation context must be materially adverse, meaning that it causes “signifi- cant” harm. Muldrow v. City of St. Louis, 601 U.S. 346, 350, 357– 58 (2024) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (herein White)); see also Lesiv v. Ill. Cent. R.R. No. 23-2932 15
Co., 39 F.4th 903, 912 (7th Cir. 2022) (holding that a retaliatory action must “rise above trivial harms, such as petty slights or minor annoyances that often take place at work and that all employees experience” (cleaned)). A materially adverse ac- tion is one that would “dissuade[] a reasonable worker from making or supporting a charge of discrimination.” Muldrow, 601 U.S. at 357 (citing White, 548 U.S. at 68). The district court rejected the Estate’s retaliation claim be- cause the record did not show Harris suffered an adverse em- ployment action. We agree. And even if the Estate had pre- vailed on this point, it similarly fails to show more than mere temporal proximity between Harris’s report of sexual harass- ment and the actions she identifies as adverse—reassignment to trash duty, altered work schedule, removal of a makeshift desk, and alleged isolation upon her return. Yet, “temporal proximity between an employee’s protected activity and an adverse employment action is rarely sufficient to show that the former caused the latter.” O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011). We address each of the Es- tate’s proposed retaliatory actions in turn. The Estate offers Harris’s reassignment to trash duty as proof of retaliation. But the record supports the contrary con- clusion. The day the City heard from Harris’s attorney, it transferred Harris to another department to separate her from Brumirski during the investigation. An employer’s decision to temporarily separate two workers in the face of sexual har- assment allegations is not an adverse employment action. See Place v. Abbott Lab’ys, 215 F.3d 803, 811 (7th Cir. 2000) (finding that “an employer’s decision to split up two workers whose interpersonal problems [were] impeding the company’s pro- gress [was] not retaliation”). 16 No. 23-2932
When Harris returned to the barricade shop, she contin- ued to receive assignments to pick up trash around the build- ing, now from Hardnett as her new supervisor. According to the Estate, Hardnett’s assignments were retaliation for Harris having brought Hardnett into the sexual harassment investi- gation. But there is no evidence to support this theory. In fact, Hardnett testified that she assigned every employee she su- pervised to pick up trash. The Estate does not refute Hard- nett’s testimony. Instead, it takes issue with Harris not having been asked to perform this duty before. Although trash pickup and other outdoor tasks may have been new for Har- ris, these tasks were not outside her responsibilities. Accord- ing to the City’s job description, trash-related responsibilities fell within ten to seventy percent of Harris’s laborer job func- tion. Further, as Thomas explained, it was not uncommon for laborers to work in different parts of barricade infrastructure, which could include both indoor and outdoor work. As we have explained, “[a] materially adverse employment action is something ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.’” Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004), overruled on other grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760, 761 (7th Cir. 2016). Moving from one function to another within a job, when nothing guarantees the employee will always remain assigned to the same function, does not amount to an adverse employment action. 2 See Place, 215 F.3d at 810 (finding a
2 The Estate likewise alleges that Harris’s trash assignments have di-
minished her prospects for promotion. For support, the Estate cites only testimony from Graves, a coworker who has worked for the City’s street cleaning department since approximately 2012 but has never held a man- agerial, supervisory, or administrative position. Graves testified that she was not aware of any trash pickup position that would lead to a No. 23-2932 17
transfer could not amount to an adverse employment action where “[t]here was no guarantee that [the employee] would remain forever in the job she held before her transfer,” and the industry at issue was “a dynamic business that involve[d] regularly shifting people from one job to another”). Here, there is no evidence that Harris was guaranteed solely to con- struct and repair barricades, a mere five percent of her job de- scription. Next, the Estate claims the City retaliated against Harris by changing her work schedule. During the City’s month- long investigation, Harris’s schedule changed from 6:00 a.m. to 2:30 p.m., to 7:00 a.m. to 3:30 p.m. Harris explains this forced her to arrange an additional hour of childcare for sev- eral weeks. She did not report this impact to Thomas, and her schedule went back to normal when she returned to the bar- ricade shop. Although we recognize the added stress Harris faced that month, a reasonable jury would not conclude that a temporary one-hour schedule change during a sexual har- assment investigation would dissuade a reasonable employee from coming forward with sexual harassment complaints. This is especially true where the change was not accompanied by reduced pay or significantly diminished job responsibili- ties—harms the Estate does not claim Harris suffered. The Estate presents as additional evidence of retaliation the City’s removal of Harris’s makeshift desk and the place- ment of a camera in the vicinity of her workspace. As the Es- tate explains it, Harris no longer had a sense of comfort in her environment without the makeshift desk, and was subjected
promotion. Graves’s testimony is an insufficient basis on which a jury can infer anything about the City’s promotion policy. 18 No. 23-2932
to harsh, cold winds in the winter. We understand Harris’s genuine discomfort. But these changes do not amount to an adverse employment action, especially when the Estate has not shown that Harris required a desk to complete her duties, most of which could involve outdoor assignments like snow shoveling and concrete removal. Cf. Place, 215 F.3d at 810 (“Some of her complaints—losing her telephone and cubi- cle—are too trivial to amount to an adverse employment ac- tion. Maybe her new working quarters were not as nice, but there is no indication they were shabby or unpleasant.”); Molnar, 229 F.3d at 600 (finding a tangible employment action when a jury could find that confiscated supplies were “neces- sary” to perform the assigned job). As for the camera, the City presented unrefuted evidence that there are surveillance cameras throughout the Depart- ment. Even if the City placed the camera at issue close in time to Harris’s return to the barricade shop, this temporal prox- imity is insufficient. See Davis, 651 F.3d at 675 (underscoring “the importance of context” when assessing suspicious tim- ing). And the Estate does not offer any evidence to support its speculation that the City wanted to monitor Harris and make her feel uncomfortable. The Estate’s last asserted evidence of retaliation is that the City failed to give Harris performance reviews and isolated her in the barricade shop. Harris recounted an instance when she worked with a coworker on a barricade project and a manager from another department congratulated only the coworker on the joint work. Harris also described how em- ployees stopped holding the door for her or greeting her in the mornings. On another occasion, she recalled, Hardnett al- lowed several other employees in her Department, but not No. 23-2932 19
Harris, to leave thirty minutes early. Although the withhold- ing of a performance review might be cause for concern, the Estate does not offer any argument about how this relates back to Harris’s protected activity. On the record before us, none of the remaining isolated and general allegations permit a finding of retaliatory conduct. Because no reasonable jury could find that the Estate es- tablished two elements necessary for the success of a retalia- tion claim—an adverse employment action and causation— the district court did not err in granting the City’s summary judgment on the Estate’s retaliation claim. IV
The Estate pursues a final claim under § 1983 that the City violated Harris’s rights under the Fourteenth Amendment’s Equal Protection Clause. This Court has held that “[s]exual harassment by a state employer constitutes sex discrimination in violation of the equal protection clause.” Valentine v. City of Chicago, 452 F.3d 670, 682 (7th Cir. 2006), as amended (July 6, 2006) (citing Bohen v. City of East Chicago, 799 F.2d 1180, 1185 (7th Cir. 1986)). The Estate contends that its claim succeeds if we apply the same reasoning in Bohen. But the Estate’s case is materially distinguishable from Bohen in several ways. In Bohen, we held the employer liable based on a practice and custom of permitting sexual harassment, evident from the employee having suffered “many instances of sexual har- assment[,] often complain[ing] of [the harassment] through official channels, but that nothing was done.” 799 F.2d at 1187. The employer lacked a written sexual harassment policy, and we concluded that it was “clear that supervisory department officials knew of the sexually oppressive working conditions 20 No. 23-2932
even before Bohen was hired since they warned her of them during an office interview.” Id. (emphasis added). Inherent in this finding is the Equal Protection Clause’s protection against “intentional discrimination.” See de Lima Silva v. Wis. Dep't of Corr., 917 F.3d 546, 559 (7th Cir. 2019) (“The Equal Protection Clause protects against intentional discrimination on the ba- sis of race or national origin, and 42 U.S.C. § 1983 provides an employee subjected to such discrimination a path to relief.”). Here, the City is unlike the employer in Bohen because there is no evidence that the City’s supervisory department knew about Brumirski’s misconduct until 2017, when Harris’s attorney reported it to Thomas. The City also had a written policy that it distributed to its employees. And once Harris availed herself of the City’s complaint process, the City, un- like the employer in Bohen, acted almost immediately to ad- dress and prevent any future sexual harassment. Because no reasonable jury could find intentional discrimination, the Es- tate cannot prevail on its equal protection claim. V
No employee should have to endure the sexual harass- ment Harris endured. But to survive summary judgment and have a trial seeking to hold the City liable for Brumirski’s con- duct, the Estate had the burden to present evidence demon- strating genuine dispute about whether Harris experienced a tangible or adverse employment action. It did not do so. Meanwhile, the City presented evidence that it took respon- sive and appropriate actions once Harris formally reported Brumirski. The record does not permit us to conclude that a No. 23-2932 21
reasonable jury could find for the Estate on its claims against the City. AFFIRMED.
Reference
- Status
- Published