Milligan v. Bd. of Trs. of S. Ill. Univ.

• Decision Date: 15 August 2012
• Docket Number: No. 10–3862.,10–3862.
• Citation: 282 Ed. Law Rep. 795,686 F.3d 378,115 Fair Empl.Prac.Cas. (BNA) 750
• Parties: Samuel MILLIGAN, Plaintiff–Appellant, v. BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

686 F.3d 378

115 Fair Empl.Prac.Cas. (BNA) 750

282 Ed. Law Rep. 795

Samuel MILLIGAN, Plaintiff–Appellant,

v.BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY, Defendant–Appellee.

No. 10–3862.

United States Court of Appeals,Seventh Circuit.

Argued Dec. 2, 2011.

Decided July 10, 2012.

Rehearing and Rehearing En Banc Denied Aug. 15, 2012.

Shari R. Rhode (argued), Attorney, Rhode & Jackson, Carbondale, IL, for Plaintiff–Appellant.

Ian P. Cooper (argued), Attorney, Tueth, Keeney, Cooper, Mohan & Jackstadt, St. Louis, MO, for Defendant–Appellee.

Before RIPPLE and ROVNER, Circuit Judges, and FEINERMAN, District Judge.^*

FEINERMAN, District Judge.

Samuel Milligan, then a freshman at Southern Illinois University (“SIU”), had three uncomfortable encounters with Dr. Cal Meyers—a professor emeritus at, and substantial donor to, SIU—in which Meyers touched Milligan inappropriately and complimented him on what Meyers believed to be his feminine features. Milligan sued SIU under Title VII and Title IX for creating a hostile work and educational environment and also for retaliating against him for complaining about Meyers' harassment. The district court granted summary judgment to SIU, Milligan appealed, and we affirm.

I. Background

The procedural posture requires us to state the facts as favorably to Milligan as the record permits. See O'Leary v. Accretive Health, Inc., 657 F.3d 625, 631 (7th Cir.2011). We emphasize that no endorsement of any fact regarding Meyers—who, as a non-party, has had no occasion in this case to dispute Milligan's accusations—is intended.

Milligan enrolled at SIU in Fall 2007 as a chemistry major. He decided to participate in SIU's student employment program and was hired by Chris Kraft to work in the chemical stockrooms at Neckers Hall, the home of the Chemistry Department. Meyers was a seventy-nine-year-old professor emeritus and Director of the eponymous Meyers Institute for Interdisciplinary Research in Organic and Medicinal Chemistry, which had been established in 2000 with a $2.5 million donation from Meyers. Meyers no longer taught students and had no supervisory or other authority over Milligan.

On October 4, 2007, when Milligan was working in the first floor stockroom, which was directly across the hall from Meyers' office, Milligan encountered Meyers in the hallway. Meyers told Milligan that his hair would make him “a very sexy lady,” and then giggled and squeezed Milligan's buttocks. The encounter lasted four to five seconds. Milligan reported the incident to Kraft, his supervisor, who said that this sounded like something Meyers would do. Kraft asked Milligan if he wanted to talk to someone about the incident and offered to accompany Milligan if he did. Milligan declined. At that time, SIU's sexual harassment policy required any supervisor who received a written or oral complaint to “take necessary action to resolve the complaint promptly” and to consult the Affirmative Action Office to determine the appropriate course of action.

On October 11, 2007, Meyers approached Milligan in the stockroom and asked where he could rent hair like Milligan's because it would look “pretty sexy on a lady.” Meyers said that he would date Milligan if he were a woman, laughed, and then left. The encounter lasted about twenty to thirty seconds. After learning of this encounter, Milligan's mother called the Chemistry Department and arranged to meet the next day with Dr. Gary Kinsel, the Department Chair. Prior to the meeting, Kinsel notified Dr. John Koropchak—the Vice Chancellor for Research and Graduate Dean, and the individual responsible for supervising the Meyers Institute—of the situation.

At his meeting with the Milligans, Kinsel said that Meyers was an old man with a compromised mental state who could not be held accountable for his actions, that he had once been a greatly admired scientist and an asset to the university, and that he had no family and that SIU was his life. Kinsel added that while he had no disciplinary authority over Meyers, Koropchak did have that authority and would meet with the Milligans as soon as he could. Kinsel reviewed SIU's sexual harassment policy with the Milligans. Kinsel was not familiar with the policy before the meeting and incorrectly believed that sexual harassment complaints must be submitted in writing. Milligan found Kinsel to be receptive to his complaint and did not believe that Kinsel was brushing him off.

Milligan's mother then contacted Marcia Phelps from SIU's Affirmative Action and Equal Employment Opportunity Office. Phelps encouraged Milligan's mother to meet with Koropchak and to tell him that they wished to proceed with a formal complaint. Phelps also asked Milligan's mother to call back after the meeting with Koropchak.

In the meantime, Kinsel and Kraft assigned Milligan to the second floor stockroom, where he had worked prior to the first incident with Meyers and where he would be less likely to encounter Meyers. Milligan did not object to the assignment and worked the same number of hours. On October 16, 2007, however, Milligan encountered Meyers on the stairs between the first and second floors. Meyers giggled and told Milligan that he would “look sexy as a girl” because of his hair. Meyers also grabbed Milligan near the belt line with his index finger and thumb; because Milligan wore his jeans low, the grab “was very close to [his] genital area” and made him “very uncomfortable.” The encounter lasted about six seconds.

Koropchak's meeting with the Milligans took place a day later. At the outset, Koropchak told them about Meyers' great stature at SIU and the $2.5 million donation. After Milligan detailed Meyers' inappropriate behavior, Koropchak asked whether there were any witnesses, and Milligan responded that there were none. Koropchak told Milligan that it would be his word against Meyers' and asked Milligan four or five times whether he was sure that he wanted to proceed with a formal complaint. The Milligans felt that Koropchak's statements and questions implied that he was disinterested, did not believe them, and wanted them to drop the complaint. But Milligan insisted on pursuing a complaint, and Koropchak said that he would begin an investigation and advised Milligan to avoid Meyers in the interim.

Shortly after the meeting, Koropchak met with Meyers and told him that a student had complained and that his behavior would be monitored. On October 26, the Milligans contacted Lynn Connley, an SIU ombudsman, to inquire about the investigation. Connley checked in with Koropchak, but before Connley could call the Milligans back, Koropchak contacted the Milligans to give them an update.

During his investigation, Koropchak learned that Meyers had previously harassed a female Chemistry Department employee. The employee said that Meyers “constantly comment[ed] about [her] clothing” and touched her in an “inappropriate” manner several times, including grabbing her by the waist, rubbing his head against her body, and poking her breast. The employee, however, had declined to pursue a formal complaint against Meyers.

At the conclusion of his investigation of Milligan's complaint, Koropchak concluded that Meyers had violated SIU's sexual harassment policy and, on November 8, 2007, issued a letter of reprimand. The letter directed Meyers to cease all contact with student workers and to attend sexual harassment training by December 1, 2007. The letter warned Meyers that future violations or failure to comply with the letter could result in his termination as Director of the Meyers Institute and revocation of his university privileges.

Meyers then commenced efforts to determine who had reported him. He offered money to Kraft, but Kraft refused to tell. On January 28, 2008, Meyers asked Milligan whether he had complained; Milligan mumbled and excused himself. The next day, Milligan's mother told SIU about that encounter. SIU also discovered that Meyers had not completed the sexual harassment training. (While Meyers may have attempted to negotiate away the training requirement, there is no evidence that SIU relieved him of that obligation.) In a letter dated January 31, 2008, SIU Chancellor Fernando Treviño banned Meyers from campus pending completion of a new investigation and warned that he would be subject to arrest for trespassing if he appeared on university property. Milligan saw Meyers on campus over twenty times after the ban was imposed. SIU's public safety personnel escorted Meyers off campus each time they became aware of his presence but, on instructions from the Director of Public Safety, he was not arrested.

In February or March 2008, Milligan decided to change his major from chemistry to creative writing. One motivating factor was his desire to get out of Neckers Hall, where he continued to see Meyers. In April 2008, Kraft informed Milligan that he could not continue to work in the chemical stockrooms come Fall 2008. Kraft testified that his decision was prompted by Milligan's waning interest in the job and poor work performance. Milligan had requested fewer hours to allow him to study more, leaving him with only one working day per week. Making matters worse, Milligan had called in sick two times and missed one day without notifying Kraft, and also had an accident with a liquid nitrogen canister. Milligan was able to gain university employment in Fall 2008 with the Graduate School's admissions office and the university's ticket office.

The foregoing events gave rise to two lawsuits. In August 2008, Meyers brought suit against SIU and Koropchak, alleging violations of federal and state law related to the sexual harassment investigation and Meyers' expulsion from campus. See Meyers v. S. Ill. Univ., No. 3:08–cv–556–MJR–CJP (S.D.Ill.). The district court dismissed Meyers' suit, see Meyers v. S. Ill. Univ., 2009 WL 3719392 (S.D.Ill. Nov. 5, 2009); Meyers v. S. Ill. Univ., 2009 WL 2046061 (S.D.Ill. July 10, 2009), and an appeal of...