Adam Locke v. Mya Haessig , 788 F.3d 662 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-1857
ADAM A. LOCKE,
Plaintiff-Appellee,
v.
MYA HAESSIG,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 10-CV-430-JPS—J.P. Stadtmueller, Judge.
____________________
ARGUED OCTOBER 31, 2014 — DECIDED JUNE 5, 2015
____________________
Before POSNER, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff Adam Locke sued de-
fendant Mya Haessig, a state official, under 42 U.S.C. § 1983for violating the Equal Protection Clause of the Fourteenth
Amendment. Locke alleges Haessig is liable because of how
she responded to his complaint that her subordinate, a pa-
role officer, was sexually harassing Locke, a parolee. Locke
2 No. 13-1857
has provided evidence that Haessig was told of the harass-
ment, failed to intervene or investigate, and then threatened
to retaliate against Locke for complaining.
The district court denied Haessig’s motion for summary
judgment on the basis of qualified immunity. Haessig
brought this interlocutory appeal, arguing that even Locke’s
version of the facts shows that she lacked the required intent
to discriminate. Haessig contends that because the facts
show only that she failed to intervene to stop her subordi-
nate from sexually harassing Locke, she could not have in-
tended to discriminate and therefore could not have violated
the Equal Protection Clause as a matter of law.
We affirm the denial of qualified immunity. Accepting
Locke’s version of the facts, we conclude that a reasonable
jury could return a verdict for Locke. Haessig was told of
Locke’s complaints of sexual harassment but never met with
him to discuss the allegations or tried to protect him from
further harassment. According to Locke, after hearing of his
complaint, Haessig expressed anger toward Locke and said
he would never get off of his electronic ankle monitor until
he was discharged from parole. A reasonable jury could infer
from these facts—which show not only a failure to intervene
but also a threat of retaliation in response to the complaint—
that Haessig was acting with the intent to discriminate. This
is sufficient for liability under current law and was clearly
established law in 2008 when these events took place.
Haessig had reasonable notice that her alleged actions were
unlawful and so is not entitled to qualified immunity.
No. 13-1857 3
I. Factual and Procedural History
Because this is an interlocutory appeal from the district
court’s denial of qualified immunity, we have appellate ju-
risdiction over only legal questions. Whitlock v. Brueggemann,
682 F.3d 567, 573 (7th Cir. 2012). We do not have jurisdiction
to consider record issues such as whether the record sets
forth a genuine issue of fact for trial. Johnson v. Jones, 515 U.S.
304, 313 (1995) (district court’s determination that summary
judgment record raised a genuine issue of fact concerning
defendants’ involvement in the alleged beating of plaintiff
“was not a ‘final decision’ within the meaning of the relevant
statute”); Whitlock, 682 F.3d at 573.
For purposes of this appeal, then, we accept the district
court’s account of plaintiff’s version of the facts to frame our
review of the purely legal question presented: whether a
reasonable jury could infer from Haessig’s alleged actions
that she had the intent to discriminate on the basis of sex.
See, e.g., White v. Gerardot, 509 F.3d 829, 833 (7th Cir. 2007)
(appellate court may look to the plaintiff’s version of the
facts or the facts the district court assumed as the source of
undisputed facts for a qualified immunity appeal). 1
1
Locke’s version of events is drawn from several documents that he
submitted when he was representing himself in the district court. We
draw some of these facts from his complaint, which “is the equivalent of
an affidavit for summary judgment purposes” because he verified it un-
der penalty of perjury. See, e.g., Devbrow v. Gallegos, 735 F.3d 584, 587
(7th Cir. 2013). We also rely on facts in his memorandum opposing
summary judgment that he swore to under penalty of perjury and were
based on his personal knowledge. See Alvarado v. Litscher, 267 F.3d 648,
651 (7th Cir. 2001) (pro se filings should be “liberally construed”). Final-
4 No. 13-1857
A. Locke’s Complaint of Sexual Harassment
Plaintiff Adam Locke was under the supervision of the
Wisconsin Department of Corrections from 2007 to 2009,
some of the time as a prisoner in custody and some of the
time as a parolee. Locke’s primary parole agent during this
period was Wendy Schwartz, but another agent, defendant
Anthony Flores, occasionally filled in for Schwartz. Flores
sexually harassed Locke while supervising his parole from
May 2007 to the summer of 2009. Flores propositioned Locke
for sex, made unwanted physical advances, and offered to
release him from electronic monitoring if he would allow
Flores to take nude photos of him.
Locke complained to Agent Schwartz about the harass-
ment when she visited him in jail sometime between De-
cember 2007 and February 2008. Schwartz told her supervi-
sor, defendant Mya Haessig, about Locke’s complaint.
Haessig in turn called the regional office and told a regional
chief about the complaint. The regional chief directed
Haessig to have Agent Schwartz obtain a written statement
from Locke.
Neither Haessig nor Schwartz ever followed up with
Locke to obtain a written statement. Haessig took no further
action to address the complaint of sexual harassment.
Haessig had the authority to transfer Locke to another facili-
ty away from Flores but did not do so. Haessig never docu-
mented the complaint in Locke’s DOC file. 2
ly, we supplement these facts with those facts contained in Haessig’s
affidavit and responses to interrogatories that Locke does not dispute.
2
Haessig contends that she spoke with Locke about the complaint
and that he told her he did not want to file a formal complaint or talk
No. 13-1857 5
Flores heard about Locke’s complaint, probably from
Agent Schwartz. Flores called Locke into his office and told
him to be careful about what he said and to whom he said it.
Flores continued to harass Locke sexually. After Locke had
complained about harassment, Haessig was irritated with
and negative toward him. Haessig told Locke he would nev-
er be released from his ankle monitor until he was dis-
charged from parole. Agent Schwartz acknowledged to
Locke that Haessig was targeting him for harassment.
Flores’s harassment of Locke finally ended in the summer
of 2009 when the Federal Bureau of Investigation investigat-
ed Flores in response to complaints from several other pa-
rolees. Haessig did not play a significant role in that investi-
gation. Flores resigned from office in June 2010 in the midst
of investigation.
B. Procedural History
Locke filed suit pro se against Flores in May 2010. The
district court screened the complaint and found that it plau-
sibly alleged that a state employee had sexually harassed
Locke in violation of the Equal Protection Clause. Flores was
served with the complaint but never appeared. The clerk of
the court has entered a default against Flores, and the dis-
trict court has said it intends to enter a default judgment
against Flores after Locke has an opportunity to prove the
amount of his damages.
about the incident any further. In this appeal from a denial of summary
judgment based on qualified immunity, we must accept as true Locke’s
sworn statement that neither Haessig nor Schwartz ever spoke with him
about the sexual harassment after his initial complaint. See White, 509
F.3d at 833.
6 No. 13-1857
The district court then allowed Locke to amend his com-
plaint to add Haessig as a defendant. Locke also added two
new claims against both Flores and Haessig, alleging that
Flores’s sexual harassment and Haessig’s inadequate re-
sponse amounted to cruel and unusual punishment in viola-
tion of the Eighth Amendment and a denial of substantive
due process in violation of the Fourteenth Amendment.
Haessig’s motion for summary judgment on the equal pro-
tection claim based on qualified immunity was denied, and
this interlocutory appeal followed.
II. Analysis
We review de novo a district court’s denial of summary
judgment based on qualified immunity. Levin v. Madigan, 692
F.3d 607, 622 (7th Cir. 2012). We can affirm on any ground
supported by the record so long as the issue was raised and
the non-moving party had a fair opportunity to contest the
issue in the district court. Hester v. Indiana State Dep’t of
Health, 726 F.3d 942, 946 (7th Cir. 2013); Cardoso v. Robert
Bosch Corp., 427 F.3d 429, 432 (7th Cir. 2005).
The defense of qualified immunity “protects government
officials ‘from liability for civil damages insofar as their con-
duct does not violate clearly established statutory or consti-
tutional rights of which a reasonable person would have
known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009), quot-
ing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In evaluat-
ing whether a state actor is entitled to summary judgment
for qualified immunity, we consider (1) whether the facts,
taken in the light most favorable to the plaintiff, show that
the defendant violated a constitutional right; and (2) wheth-
er that constitutional right was clearly established at the time
of the alleged violation. Gonzalez v. City of Elgin, 578 F.3d 526,
No. 13-1857 7
540 (7th Cir. 2009), citing Pearson, 555 U.S. at 232, and Saucier
v. Katz, 533 U.S. 194, 201 (2001).
We may address the two prongs of the qualified immuni-
ty inquiry in whichever order seems better for the case. See
Whitlock v. Brueggemann, 682 F.3d at 580. Here we take the
unusual step of beginning with the second prong because
our discussion of the state of the law in 2007 and 2008 pro-
vides helpful context for analysis of later developments in
the law.
A. Clearly Established Law in 2007 and 2008
If we accept the facts asserted by Locke, Haessig’s actions
violated clearly established law at time of the violation. In
2007 and 2008, when the events took place, it was well estab-
lished that sexual harassment by a state actor under color of
state law violated the Equal Protection Clause and was ac-
tionable under § 1983. Valentine v. City of Chicago, 452 F.3d
670, 682 (7th Cir. 2006); Bohen v. City of East Chicago, 799 F.2d
1180, 1185–86 (7th Cir. 1986). It was also clear that a supervi-
sor could be held liable for a subordinate’s sexual harass-
ment if the plaintiff could show either intentional sex dis-
crimination or a conscious failure to protect the plaintiff
from abusive conditions created by subordinates amounting
to intentional discrimination. Valentine, 452 F.3d at 683–84;
Bohen, 799 F.2d at 1187; see also T.E. v. Grindle, 599 F.3d 583,
588 (7th Cir. 2010) (“At the time of the events at issue in this
litigation [from 2001 to 2005], it was clearly established in
this circuit that a supervisor could be held liable for partici-
pating in or deliberately turning a blind eye to the equal pro-
tection violation of her subordinate.”).
8 No. 13-1857
By 2007, we had recognized that males who were sexual-
ly harassed could bring equal protection claims if they could
show intentional discrimination on the basis of their sex. We
reversed a grant of summary judgment where a male plain-
tiff presented evidence that school officials ignored his com-
plaints of sexual harassment by male classmates but consist-
ently punished the harassers when similar complaints were
made by girls. Nabozny v. Podlesny, 92 F.3d 446, 454–56 (7th
Cir. 1996).
It was also well established in 2007 and 2008, however,
that a supervisor was not liable under a respondeat superior
theory for constitutional torts committed by a subordinate.
Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). And a
merely negligent failure to intervene was not enough to
show discrimination that violated the Equal Protection
Clause. See Nanda v. Moss, 412 F.3d 836, 842 (7th Cir. 2005)
(supervisor would be liable if plaintiffs showed he was “de-
liberately indifferent in facilitating” discriminatory termina-
tion).
A reasonable official in Haessig’s position would have
known that her alleged conduct was unconstitutional. See
Hernandez v. Foster, 657 F.3d 463, 473–74 (7th Cir. 2011) (“A
right is clearly established when, at the time of the chal-
lenged conduct, the contours of a right are sufficiently clear
that every reasonable official would have understood that
what he is doing violates that right.”) (internal quotation
marks and modifications omitted). Accepting Locke’s ver-
sion of the facts, Haessig was more than merely negligent.
She failed to intervene or investigate in response to Locke’s
complaint, and she then threatened to retaliate against him
for complaining of harassment.
No. 13-1857 9
The facts of Valentine are similar to this case and show
that Haessig was on notice her alleged conduct was uncon-
stitutional. In Valentine, the plaintiff, a state employee, com-
plained several times to her supervisor that a co-worker was
sexually harassing her by making profane comments about
her body, making obscene gestures to her, and caressing her
arm and shoulder. Each time the plaintiff complained, the
supervisor told the harassing co-worker to stop, yet the har-
assment continued. The court held that a “reasonable juror
could find under these circumstances that [the supervisor’s]
response was obviously inadequate, and [he] was aware that
to prevent the harassment he would have to take more se-
vere action.” Valentine, 452 F.3d at 684. The supervisor fur-
ther told the plaintiff that she was making trouble by report-
ing the harassment up the chain of command. Id. The court
concluded that a jury could infer that the supervisor had
“consciously chosen not to protect” the plaintiff and that
there was a material question of fact as to whether the su-
pervisor had intentionally discriminated against the plain-
tiff, precluding summary judgment. Id.Locke alleges that Haessig did even less in response to
Locke’s complaint of harassment than the supervisor in Val-
entine. The supervisor in Valentine told the harasser to stop
each time the plaintiff complained. Even then we found that
a jury could infer the supervisor was intentionally discrimi-
nating by failing to do more when that response was clearly
inadequate. In contrast, we must assume Haessig did noth-
ing to intervene to stop the harassment in response to
Locke’s complaint. While she reported the complaint to her
supervisor, she failed to follow up with Locke as her super-
visor directed and never spoke to Locke about the com-
plaint. Locke presents further evidence that Haessig threat-
10 No. 13-1857
ened to retaliate against him for making the complaint by
threatening to keep his ankle monitor on for the duration of
his parole. As in Valentine, a jury could infer that Haessig had
“consciously chosen not to protect” Locke from the sexual
harassment and on that basis hold Haessig liable for inten-
tional sex discrimination. See id. at 684.
After Valentine, it should have been clear to a reasonable
officer that Haessig’s alleged conduct was unlawful in this
situation. See Pearson, 555 U.S. at 231; Foster, 657 F.3d at 473–
74. Haessig cannot claim the protection of qualified immuni-
ty on the ground that she had no notice that her actions were
unlawful.
B. Constitutional Violation Under Current Law
Haessig could still be entitled to qualified immunity if
the undisputed facts show that her conduct violates no con-
stitutional right under current law. In other words, if devel-
opments in constitutional law since 2008 mean that Haessig’s
conduct did not violate any constitutional right, she would
be entitled to summary judgment even if her conduct was
unlawful under prevailing law in 2008. Haessig contends
that her conduct violated no constitutional right because the
facts show that she did not have the intent to discriminate
that Ashcroft v. Iqbal, decided in 2009, now requires for su-
pervisory liability for constitutional violations. 556 U.S. 662,
676–77 (2009).
In Iqbal, the complaint alleged in relevant part that the
Attorney General and Director of the FBI adopted an uncon-
stitutional policy subjecting thousands of Arab Muslim men
to harsh conditions of confinement in the wake of the Sep-
tember 11, 2001 attacks because of their race, religion, or na-
No. 13-1857 11
tional origin. Id. at 667–69. The plaintiff brought his claim of
unconstitutional discrimination as a Bivens action, the feder-
al analog to suits brought against state officials under § 1983.
See Iqbal, 556 U.S. at 675–76, citing Hartman v. Moore, 547 U.S.
250, 254 n.2 (2006); see generally Bivens v. Six Unknown Feder-
al Narcotics Agents, 403 U.S. 388 (1971). The plaintiff argued
that the defendants could be liable for “knowledge and ac-
quiescence in their subordinates’ use of discriminatory crite-
ria.” Iqbal, 556 U.S. at 677.
The Supreme Court rejected the view that a supervisor
could violate the Equal Protection Clause because of “mere
knowledge of his subordinate’s discriminatory purpose.” Id.For constitutional violations under § 1983 or Bivens, a gov-
ernment official “is only liable for his or her own miscon-
duct.” Id. This means that a plaintiff who sues a supervisor
must show the state of mind when the underlying constitu-
tional violation requires a state of mind for liability. Id. at
676; see also Barkes v. First Correctional Medical, Inc., 766 F.3d
307, 319 (3rd Cir. 2014) (“[U]nder Iqbal, the level of intent
necessary to establish supervisory liability will vary with the
underlying constitutional tort alleged.”), rev’d on other
grounds sub nom. Taylor v. Barkes, No. 14-939, 575 U.S. —
(June 1, 2015); Dodds v. Richardson, 614 F.3d 1185, 1204 (10th
Cir. 2010) (“The Court in Iqbal explained that the factors nec-
essary to establish a § 1983 violation depend upon the consti-
tutional provision at issue, including the state of mind re-
quired to establish a violation of that provision.”).
For discrimination claims like those at issue in Iqbal and
here, where the state of mind of purposeful discrimination is
an element of the violation, a supervisor is liable only if she
had the specific intent to discriminate. Iqbal, 556 U.S. at 676.
12 No. 13-1857
For these claims, the plaintiff must show “more than ‘intent
as volition or intent as awareness of consequences.’” Id., cit-
ing Personnel Administrator v. Feeney, 442 U.S. 256, 279 (1979).
The supervisor is liable for undertaking a course of action
only because of, not merely in spite of, the action’s adverse
effects upon an identifiable group. Id., citing Feeney, 442 U.S.
at 279.
Although Iqbal involved a claim of invidious discrimina-
tion, the Court’s discussion shaped the law of supervisory
liability for constitutional violations more generally. Before
Iqbal, most circuits required that a supervisor act (or fail to
act) with the state of mind of deliberate indifference to be
liable, no matter the underlying constitutional violation. Wil-
liam N. Evans, Supervisory Liability in the Fallout of Iqbal, 65
Syracuse L. Rev. 103, 117–18 & n.41 (2014) (collecting cases).
The deliberate indifference test required knowledge of the
subordinate’s misconduct and deliberate indifference to or
tacit authorization of the misconduct. Id. at 117; see also
Jones, 856 F.2d at 992 (“The supervisors must know about the
conduct and facilitate it, approve it, condone it, or turn a
blind eye for fear of what they might see.”). Our pre-Iqbal
precedents on some discrimination claims seemed to allow a
plaintiff to recover for a supervisor’s deliberate indifference
to a subordinate’s purposeful discrimination. Grindle, 599
F.3d at 588 (discussing pre-Iqbal precedents for supervisory
liability in this circuit), citing Nanda, 412 F.3d at 842 (holding
that a supervisor would not be entitled to qualified immuni-
ty if the facts showed the supervisor “was deliberately indif-
ferent in facilitating [his subordinate’s] discriminatory ter-
mination”).
No. 13-1857 13
However, our precedents on sexual harassment claims, a
subset of discrimination claims, have focused on requiring
intentional gender discrimination as an element of a claim
against a supervisor. In our first case discussing a sexual
harassment claim brought against a state or local official un-
der the Equal Protection Clause, we said “the ultimate in-
quiry is whether the sexual harassment constitutes inten-
tional discrimination.” Bohen, 799 F.2d at 1187. We explained
in regard to supervisory liability that “a plaintiff can make
an ultimate showing of sex discrimination either by showing
that sexual harassment that is attributable to the employer
under § 1983 amounted to intentional sex discrimination or
by showing that the conscious failure of the employer to pro-
tect the plaintiff from the abusive conditions created by fel-
low employees amounted to intentional discrimination.” Id.,
citing Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
Decades later, in Valentine, we repeated the same stand-
ard, saying that a jury could infer that the supervisor had
“consciously chosen not to protect” the plaintiff from the
harassment so there was “a material question of fact as to
whether [the supervisor] intentionally discriminated against
[the plaintiff].” 452 F.3d at 684. These cases made clear that a
supervisor was liable only if the ultimate trier of fact found
that the supervisor intended to discriminate. But a reason-
able jury could infer—though it would not be required to
infer—the specific intent to discriminate from evidence that
a supervisor knew about the harassment and chose not to
intervene, so evidence of that nature was sufficient to sur-
vive summary judgment.
After Iqbal, we re-examined the state of mind required for
supervisory liability for sexual harassment in T.E. v. Grindle,
14 No. 13-1857
599 F.3d 583 (7th Cir. 2010). In Grindle, the plaintiffs sued a
school principal for her response to complaints that a band
teacher was sexually harassing students at the school. After
receiving a school counselor’s reports of inappropriate
touching, the principal interviewed the complaining stu-
dents, spoke with their parents and the school’s social work-
er, and wrote an incident report. The plaintiffs alleged that
the principal soft-pedaled the investigation and response
and discounted the complaints of serious harassment as an
overreaction to the teacher tapping students’ knees to keep
time. The principal also told the harasser of the complaints
and directed him to avoid making physical contact with stu-
dents and to refrain from comments regarding students’ ap-
pearance. The principal received other complaints about the
teacher but addressed the problem as a teaching-methods
issue rather than sexual harassment. Id. at 585–87.
We affirmed the district court’s denial of the principal’s
motion for summary judgment based on qualified immunity.
We acknowledged that after Iqbal a plaintiff must show “that
the supervisor possessed the requisite discriminatory in-
tent.” Id. at 588 (internal citation omitted). We concluded,
however, that the plaintiffs’ evidence would
allow a jury to conclude that [the principal]
knew about [the teacher’s] abuse of the girls
and deliberately helped cover it up by mislead-
ing the girls’ parents, the superintendent, and
other administrators. From this evidence, a ju-
ry could reasonably infer—though it would not
be required to infer—that [the principal] also
had a purpose of discriminating against the
girls based on their gender. If [the principal]
No. 13-1857 15
wishes to argue that she merely wanted to
avoid a scandal or that she would have taken
similar steps to conceal abuse if boys had been
the victims, she can present those arguments to
the jury, but such suggestions do not mean that
she is entitled to judgment as a matter of law.
… [A] jury could conclude that by attempting
to convert claims about sexual abuse by [the
teacher] into complaints about teaching meth-
ods, [the principal] treated the girls’ complaints
differently because of their sex.
Id. at 589 (internal citations omitted).
Haessig argues that Iqbal and Grindle together mean that
there is a constitutional difference between action and inac-
tion—that purposeful discrimination may be inferred from
the former but not the latter. She contends the district court
erred as a matter of law in holding that a jury could find
Haessig liable for an equal protection violation for purpose-
fully ignoring Locke’s complaint of harassment. 3
3
The district court’s opinion was not entirely clear about the legal
standard it applied to analyze Haessig’s liability. Parts of the opinion
seem to use the “deliberate indifference” standard for intent that Grindle
disavowed after Iqbal. Some confusion is understandable because
Haessig’s summary judgment brief in the district court said that Locke
could survive summary judgment if he showed that she “acted with the
requisite culpable state of mind, i.e. deliberate indifference.” Locke ar-
gues that Haessig’s objection to the district court ruling is barred by in-
vited error. See Int’l Travelers Cheque Co. v. BankAmerica Corp., 660 F.2d
215, 224 (7th Cir. 1981) (“It is well settled law that a party cannot com-
plain of errors which it has … invited [or] induced the court to make.”).
Because we affirm the district court even under the discriminatory intent
16 No. 13-1857
We have doubts about this argument. For one, there is lit-
tle support in these cases for a distinction between action
and inaction. Haessig points us to the Supreme Court’s
statement that purposeful discrimination “involves a deci-
sionmaker’s undertaking a course of action because of … the
action’s adverse effects upon an identifiable group.” Iqbal,
556 U.S at 676–77 (internal quotation marks and modifica-
tions omitted). Haessig seizes on one phrase, “course of ac-
tion,” as implying that a supervisor who takes no action
cannot, as a matter of law, intend discrimination. We reject
such an expansive reading of Iqbal.
Haessig’s argument conflicts with the principle that a su-
pervisor could be liable for ignoring complaints from one
identifiable group while acting on similar complaints from
those of another group. See Nabozny v. Podlesny, 92 F.3d at454–56 (reversing summary judgment on equal protection
claim; school officials ignored male plaintiff’s complaints of
harassment but acted on female students’ harassment com-
plaints); see also Bohen v. City of East Chicago, 799 F.2d at 1190(Posner, J., concurring) (“The chief of the fire department
was aware of the harassment, which was frequent rather
than isolated and in which at least one supervisory employ-
ee was implicated; yet he did nothing. It was as if the chief
knew that his men were systematically refusing to put out
fires in homes owned by blacks, yet did nothing to correct
the situation.”). Short perhaps only of a confession of inten-
tional discrimination, selective inaction can be strong evi-
dence of discriminatory intent.
standard that Haessig argues on appeal, we do not reach the issue of in-
vited error.
No. 13-1857 17
In any event, Locke has provided evidence that tends to
show that Haessig’s response was more than mere inaction.
A reasonable jury could infer that Haessig had the requisite
intent to discriminate because she threatened to retaliate
against Locke after he complained of sexual harassment. See
Grindle, 599 F.3d at 589 (evidence that principal failed to in-
tervene and downplayed seriousness of the harassment was
enough to allow a reasonable jury to infer intent to discrimi-
nate); see also Jackson v. Birmingham Board of Education, 544
U.S. 167, 173–174 (2005) (interpreting Title IX prohibition of
“discrimination” “on the basis of sex” to include retaliation
and holding: “Retaliation is, by definition, an intentional
act.”). Haessig was irritated with Locke after he made the
complaint and told him that he would not be released from
his ankle monitor until he was discharged from parole.
Agent Schwartz acknowledged to Locke that Haessig’s ac-
tions were retaliation for reporting the sexual harassment.
This evidence of retaliation, especially when combined with
the evidence of a failure to intervene or investigate, is
enough to defeat summary judgment on the qualified im-
4
munity defense.
Haessig responds by arguing that retaliation simply can-
not support an inference of discriminatory intent. She cites
Boyd v. Illinois State Police, 384 F.3d 888 (7th Cir. 2004), but
Boyd denied a different sort of claim and should not be read
4
The admissibility of Schwartz’s statement is not within the limited
scope of our appellate jurisdiction on this interlocutory appeal. See Whit-
lock, 682 F.3d at 575 (“Questions of admissibility are indeed legal ques-
tions; but they are not the sort of legal questions that are sufficiently sep-
arable from the merits so as to provide us with jurisdiction in a collat-
eral-order appeal.”).
18 No. 13-1857
so broadly. In Boyd, the plaintiff brought an equal protection
claim against his employer for withholding a raise because
the plaintiff was suing the employer for Title VII violations.
We specifically noted that the plaintiff had not asserted that
his employer “retaliated against him on the basis of a pro-
tected trait or because of his membership in a particular
class, but only because of his participation in this litigation.”
Id. at 898. We held that this claim could be brought under
Title VII or the First Amendment but not under the Equal
Protection Clause. Id. We reaffirmed that the Equal Protec-
tion Clause “does not establish a general right to be free
from retaliation.” Id., quoting Grossbaum v. Indianapolis-
Marion County Building Auth., 100 F.3d 1287, 1296 n.8 (7th
Cir. 1996).
In contrast, Locke is not asserting a general right to be
free from retaliation, so Boyd has no bearing on his claim.
Locke argues that Haessig retaliated against him because of
a protected characteristic, his sex. See Jackson, 544 U.S. at 174(“[R]etaliation is discrimination ‘on the basis of sex’ because
it is an intentional response to the nature of the complaint:
an allegation of sex discrimination.”). A reasonable jury
could conclude from these facts that Haessig responded to
his complaint with irritation and told him he would remain
on an ankle monitor because of his sex—because he was a
man rather than a woman complaining of sexual harass-
ment. See Nabozny, 92 F.3d at 455–56.
Haessig may still argue to the jury that she “merely
wanted to avoid a scandal,” that she consistently failed to
take action in responding to all parolee complaints, or that
she would have had the same response to a woman who
complained of sexual harassment. See Grindle, 599 F.3d at
No. 13-1857 19
589. But the availability of those arguments does not mean
that Haessig is entitled to judgment as a matter of law. Id.Locke may submit his evidence to a jury and can prevail if
he can convince the jury that Haessig treated Locke’s com-
plaint differently because he was a man complaining of sex-
ual harassment. Locke does not need to prove that Haessig
was motivated solely by his sex in the way that she respond-
ed to his complaint, but he must show that she chose her
course of action at least in part because of his sex. See id., cit-
ing Feeney, 442 U.S. at 279.
For the foregoing reasons, we AFFIRM the district court’s
denial of summary judgment and REMAND for proceedings
consistent with this opinion.