No. 02-2358 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT KATHY DURKIN, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee. __________________________________________ On Appeal from the United States District Court for the Northern District of Illinois (Chicago) The Honorable Elaine E. Bucklo __________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL __________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel DORI K. BERNSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 (202) 663-4734 TABLE OF CONTENTS page TABLE OF CONTENTS i TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 STATEMENT OF FACTS 1 DISTRICT COURT DECISION 6 ARGUMENT 8 I. THE DISTRICT COURT ERRED IN REJECTING DURKIN'S SEX DISCRIMINATION AND HARASSMENT CLAIMS BECAUSE THE CITY IS VICARIOUSLY LIABLE FOR SEXUAL HARASSMENT THAT EFFECTIVELY DENIED HER ADEQUATE FIREARMS TRAINING AND RESULTED IN HER DISCHARGE. 8 II. THE DISTRICT COURT ERRED IN REJECTING DURKIN'S RETALIATION CLAIM BECAUSE A JURY COULD FIND THAT ACADEMY OFFICIALS IGNORED HER STATE-CERTIFIED FIREARMS QUALIFICATION AND OTHERWISE ACTED TO UNDERMINE EFFORTS TO RESPOND TO HER COMPLAINTS OF HARASSMENT AND ABUSE. 15 CONCLUSION 19 RULE 32(a)(7)(C) CERTIFICATE OF COMPLIANCE 20 CERTIFICATE OF SERVICE 21 TABLE OF AUTHORITIES Page CASES Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) 15 Burlington Industries v. Ellerth, 524 U.S. 742 (1998) 1, 8, 9, 10, 11, 12 Collier v. Budd, 66 F.3d 886 (7th Cir. 1995) 18 Dey v. Colt Construction, 28 F.3d 1446 (7th Cir. 1994) 15, 16 EEOC v. St. Anne's Hospital of Chicago, 664 F.2d 128 (7th Cir. 1981) 15 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) 1, 8, 9, 10, 11, 12, 15 Furnco Constr. v. Waters, 438 U.S. 567 (1978) 17 Gawley v. Indiana Univ., 276 F.3d 301 (7th Cir. 2001) 11 Holland v. Jefferson Nat'l Life Ins., 883 F.2d 1307 (7th Cir. 1989) 16 Hall v. Bodine Elec., 276 F.3d 345 (7th Cir. 2002) 12 International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) 17 Markel v. Board of Regents of Univ. of Wisc. Sys., 276 F.3d 906 (7th Cir. 2002) 2 Marzano v. Computer Science, 91 F.3d 497 (3d Cir. 1996) 18 McDonnell Douglas v. Green, 411 U.S. 792 (1973) 17 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) 8 Molnar v. Booth, 229 F.3d 593 (7th Cir. 2000) 9 Pafford v. Herman, 148 F.3d 658 (7th Cir. 1998) 10 Rodgers v. Western-Southern Life Ins., 12 F.3d 668 (7th Cir. 1993) 8 Savino v. C.P. Hall, 199 F.3d 925 (7th Cir. 1999) 9 Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640 (7th Cir. 2002) 1, 16, 17 Swierkiewicz v. Sorema N.A., 122 S. Ct. 992 (2002) 17 Troupe v. May Dept. Stores, 20 F.3d 734 (7th Cir. 1994) 18 Wells v. Unisource Worldwide, 289 F.3d 1001 (7th Cir. 2002) 17 Wilson v. Chrysler Corp., 172 F.3d 500 (7th Cir. 1999) 15 Wilson v. DaimlerChrysler, 236 F.3d 827 (7th Cir. 2001) 14, 15 STATUTES AND RULES 42 U.S.C. § 1983 6 Title VII of the Civil Rights Act of 1964, 42 U.S.C.§§ 2000e et seq. 1 42 U.S.C. § 2000e-3(a) 15 Fed. R. App. P. 29(a) 1 STATEMENT OF INTEREST The Equal Employment Opportunity Commission (EEOC) is charged by Congress with the administration and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This case raises important questions about the proper application of the principles governing vicarious liability for sexual harassment, see Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and provides an opportunity for this Court to clarify its recent decision in Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640 (7th Cir. 2002), which announced a new framework to assess the evidentiary sufficiency of retaliation claims. Because proper resolution of these issues is critical to the EEOC's enforcement efforts, the EEOC offers its views to the Court. See Fed. R. App. P. 29(a). STATEMENT OF FACTS Kathy Durkin began her employment as a probationary police officer with the Chicago Police Department (CPD) in May 1999, and entered the training program for new recruits at the Chicago Police Academy. R.61 at 1.<1> Durkin “was a successful recruit in all areas ... except for firearms training.” Id. Pursuant to statute, all police officers in the state “must achieve a score of 70% or above” on the Illinois Mandatory Recruit Firearms Course of Fire. Id. Under Academy policy, recruits are given four opportunities to pass the firearms exam. Id. Just prior to Durkin's initial attempt to qualify on the firearms exam, range instructor Nick Pappas, who had sworn and yelled obscenities at her during training, kicked her leg to correct her stance while she was holding a loaded gun. Id. at 2. Durkin later mentioned this incident during an informal conversation with several female officers and a secretary, who informed range Sgt. Lopez of Durkin's complaint. See R.56, Vol.I, Ex.A at 235-37. Durkin failed her second attempt to qualify on August 6, 1999, and her third attempt on August 19. R.47 at 5 ¶17. In accordance with CPD policy, Durkin was scheduled for a mandatory firearms course before her fourth attempt. Id. at 5-6, ¶¶17-19; see R.47, Ex.A, ex.1 at 30. Officer James Peck, an Academy range instructor, was assigned to provide Durkin with 20 hours of one-on-one firearms instruction. R.61 at 2. According to Durkin, Peck daily subjected her to a continuous barrage of hostility and abuse designed to undermine rather than improve her ability to pass the firearms exam.<2> See R.56, Vol.II, Ex.Q at 4-6. For example, Peck used a taped box on the floor of the firing range as a punitive device. See R.61 at 2. The box was designed as a safety measure to ensure recruits did not walk around on the range while guns were being fired. See R.56, Vol.I, Ex.A at 310. Recruits were required, upon entering the range, to stand at attention in the box until recognized by a superior officer, R.61 at 2, which normally occurred within a few moments. See R.56, Vol.II, Ex.M at 26; Vol.III, Ex.CC at 110-11; Ex.Y at 32; Ex.Z at 61. Peck often forced Durkin to stand in the box for prolonged periods of up to 40 minutes, R.61 at 2, a practice other instructors stated served no legitimate purpose. See R.56, Vol.II, Ex.M at 26; Vol.III, Ex.Y at 32; Ex.Z at 48-49, 61. Peck frequently swore at Durkin, referring to women as “broads,” “fucking broads,” “cunts,” and “whores,” and calling Durkin “bitch” and “fucking bitch.” See R.61 at 2; R.56, Vol.I, Ex.A at 221-223. Peck also said more than once that “broads or women should not be police officers.” Id. at 741. Durkin's account was corroborated by other testimony that Peck was bitter toward women generally, had a grudge against women, and was overheard making offensive or derogatory remarks to or about female officers. See R.56, Vol.II, Ex.E at 228-31, 291-92, 295-300. In addition to his remarks generally denigrating women, Peck directly insulted Durkin's intellect and abilities and often let her know he did not think she could qualify as a police officer. He told her she would never pass the firearms test, R.56, Vol.I, Ex.A at 738, could never make it as a cop, id. at 225-26, and that she had a tiny brain. Id. at 87, 294; R.61 at 2-3. He asked her husband, Patrick, if she is “that stupid at home,” and commented that he had a “real blond on [his] hands.” R.61 at 3. When Durkin shot a passing score in a practice round, Peck said he “could teach a fucking monkey to shoot.” Id. Along with his verbal abuse, Peck used training methods that Durkin felt were designed deliberately to degrade her shooting skills. For example, Peck required Durkin to do pushups on her fingertips just before shooting a practice course, so that she lacked the strength to shoot well. R.56, Vol.I, Ex.A at 239-41. Several instructors, including Peck, agreed that making a recruit do pushups immediately before shooting would likely decrease her strength and accuracy. R.56, Vol.II, Ex.E at 288-89; Ex.I at 135; Ex.M at 57; Vol.III, Ex.Z at 87; Ex.AA at 34-35. Peck also at one point refused to give any verbal instruction to Durkin, see R.61 at 2, although verbal direction is necessary to administer a course of fire. See R.47, Ex.B at 161-62. When Durkin protested that she was “‘entitled to that,'” Peck replied, “‘You want everything special.'” R.56, Vol.I, Ex.A at 326-27. Peck's training methods were “very inconsistent,”<3> id. at 241, and whenever Durkin's skills began to improve, he “would intervene and change something, tilt her head, raise her arm, change her stance, something that would again alter her shooting style.” R.56, Vol.II, Ex.O at 4. When Durkin asked if she should adopt a technique that was helping her to shoot better, Peck yelled at her “not to question him and not to think.” Id. In response to his wife's reports of mistreatment on the firing range, Patrick Durkin, a CPD officer, called Supt. Hillard to complain about her treatment and its effect on her ability to shoot. R.56, Vol.II, Ex.N at 26. In response to this complaint, Assistant Deputy Supt. Charles Roberts ordered Officer Raul Gutierrez, a former range instructor, to work with Durkin over the upcoming weekend and assess her shooting ability. R.58, Ex.O at 81-82. The Academy range masters, Sgts. Ferraro and Gulliford, told Gutierrez that they resented his intervention and that he would be wasting his time trying to train Durkin to shoot. R.56, Vol.II, Ex.E at 181-83. Gutierrez worked with Durkin for one day and concluded that she should have no problem qualifying, since she “knew the course of fire” and passed all her practice rounds that day. Id. at 217, 221; R.56, Vol.II, Ex.DD at 4. He told Roberts that she would pass if she was not put under stress, and specifically recommended that it would be better for her if Peck were not present when she took the qualifying exam. R.56, Vol.II, Ex.E at 232. Roberts directed Gutierrez to be at the range for Durkin's fourth qualification attempt. Id. at 232, 236, 240. When Gutierrez arrived at the range, however, Sgt. Ferraro and Lt. Samuel Christian, commanding officer of recruit training at the Academy, let him know they resented his presence and the implied criticism of Peck's methods in training Durkin. See id. at 240-43. Ferraro said he would quit his job if any action were taken against Peck, id. at 240-41, and Christian repeatedly ordered Gutierrez to go into the range office and stay away from Durkin. Id. at 241, 246-47. Peck was on the firing range when Durkin arrived for her final qualifying exam. Id. at 241-42, 246-47. Before shooting the firearms exam on September 7, Durkin “requested permission from Lt. Christian ... to fire a practice round.” R.61 at 4. Christian denied her request, and Durkin shot a passing score of 72. Id. “Christian then told her that it was only a practice round and did not count.” Id. When Durkin shot again, she “failed to qualify on her fourth try,” and Roberts recommended her termination. Id. The next day, Patrick Durkin sent a six-page letter to Supt. Hillard, recounting Kathy Durkin's experience in firearms training at the Academy and describing Peck's sessions with her as “twenty hours of psychological and mental torture and intimidation of this woman.” R.56, Vol.II, Ex.O at 3. Hillard forwarded the letter to Deputy Supt. Jeanne Clark. R.56, Vol.II, Ex.G at 32. When Clark received Roberts' recommendation to terminate Durkin, she conducted an exit interview on September 9, 1999. Id. at 38-39. Durkin “complained about her training with Peck” and “told Clark about two of Peck's more egregious comments,” and Clark initiated an internal investigation of sexual harassment. R.61 at 4. Clark also decided not to approve Durkin's discharge and offered to enroll her in a 40-hour firearms course at a training facility operated by the State Police in Mattoon, Illinois. Id.; see R.47, Ex.G, ex.1. Clark explained that she recommended “going ... outside of the [CPD] to get firearms training” for Durkin “to make sure that there was no problem with the training that she was getting” at the Academy, and as “a way of actually divorcing the issues and making sure that there was not any kind of personality conflict or anything else, that it was completely outside the [CPD] and it would be just a matter of instruction and skill.” R.56, Vol.II, Ex.G at 37-38. Durkin understood that if she passed at Mattoon, she would be qualified. R.61 at 5; R.56, Vol.I, Ex.A at 185-86. At Mattoon, Durkin completed “the basic 40-hour course” of mandatory firearms training required of all armed officers by the Illinois Police Training and Standards Board. R.56, Vol.I, Ex.C at 9-10. She shot two passing scores on the firearms qualifying exam and scored 98% on the written test. Id. at 15-16, 19; R.56, Vol.II, Ex.P. When Durkin reported her certified results to Lt. Christian, however, he said she had to retake the test, without advance notice, at the Academy firing range. R.61 at 5. Durkin did not pass and was fired. R.47 at 9 ¶34. Durkin filed a timely EEOC charge on December 29, 1999, and subsequently sued the City for sex discrimination, sexual harassment, and retaliation in violation of Title VII and 42 U.S.C. § 1983. R.56, Vol.III, Ex.S. Durkin claimed she had endured a sexually hostile work environment at the Academy, id. at 2-3; was “denied an equal opportunity” to qualify as a police officer and “denied the standard 20 hours of support” training because of sex, id. at 3-4; and “suffered adverse actions,” including termination, “almost immediately after [she] complained” to superiors about discriminatory treatment and abusive comments. Id. at 5. DISTRICT COURT DECISION The district court granted the City's motion for summary judgment. R.61. The court ruled that Durkin's sex discrimination claim “stumbles on the absence of evidence that similarly situated male employees were treated more favorably than she was,” because the CPD showed “that termination for failure to pass the firearm qualification was even-handed; in five years, it discharged five male recruits and five female recruits, including Durkin.” Id. at 10-11. The court rejected Durkin's argument “that other male recruits were treated more favorably because they were not subjected to harassment,” explaining that her “harassment claim” would be “addressed separately” from her claims that she was denied appropriate training and ultimately terminated because of sex. Id. at 10. The court acknowledged that “[a] jury might reasonably believe that the first round that Durkin shot for Lt. Christian on September 7, 1999, was a qualification round rather than a practice round, and that she really did pass” the firearms exam. Id. at 12. In the court's view, however, evidence Durkin “was cheated out of a passing score in her fourth attempt ... shows only that she was treated less favorably and that she is a woman.” Id. at 12-13. The court speculated that “any number of reasons,” including “personal spite,” could explain “why Durkin was treated differently.” Id. at 13. Durkin “must at least raise an inference that she was treated less favorably because she is a woman,” the court held, and, absent “other circumstantial evidence of discrimination,” she “must show this by pointing to similarly situated male recruits who were treated more favorably, and she cannot meet her burden by pointing to an absence of any similarly situated male recruits.” Id. The court relied on similar reasoning to reject Durkin's retaliation claim. Id. at 13-16. Evidence that Durkin complained to various CPD superiors about Peck's harassment and other mistreatment on the firing range, that Roberts and Christian “‘expressed their displeasure with [her] complaints and her suggestions to modify the training procedure,'” and that she was fired, the court determined, “falls short of ‘direct evidence'” of retaliation. Id. at 14. Absent direct evidence, the court stated, Durkin “must show that other recruits who did not engage in protected activity, but were otherwise similarly situated, were treated more favorably than she.” Id. at 15. Because Durkin presented no evidence of “any recruits ... who did not complain and failed” to qualify, “but were nevertheless retained,” the court held, she could not establish a prima facie claim of retaliation. Id. at 16. Finally, the court ruled as a matter of law that the City was not liable for the sexual harassment Durkin encountered during her Academy training because “none of Durkin's alleged harassers were supervisors for the purposes of Title VII,” id. at 19, and the City was not negligent in responding to her various complaints. Id. at 20-25. ARGUMENT I. THE DISTRICT COURT ERRED IN REJECTING DURKIN'S SEX DISCRIMINATION AND HARASSMENT CLAIMS BECAUSE THE CITY IS VICARIOUSLY LIABLE FOR SEXUAL HARASSMENT THAT EFFECTIVELY DENIED HER ADEQUATE FIREARMS TRAINING AND RESULTED IN HER DISCHARGE. Title VII prohibits sexual harassment that “creates a hostile or offensive working environment,” and “‘affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult.'” Rodgers v. Western-Southern Life Ins., 12 F.3d 668, 673 (7th Cir. 1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). The Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998), held that an “employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” The Court crafted an “affirmative defense to liability or damages,” but ruled that an employer may assert this defense only when “no tangible employment action” has been taken against the victim. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 808. “A tangible employment action,” the Court stated, “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761. This Court has recognized that a “tangible employment action has to cause a substantial detriment to the plaintiff's employment relationship,” Savino v. C.P. Hall, 199 F.3d 925, 932 n.8 (7th Cir. 1999), but need not have direct financial consequences to impose vicarious liability under Ellerth and Faragher. See Molnar v. Booth, 229 F.3d 593, 600-01 (7th Cir. 2000) (principal's confiscation of plaintiff teacher's art supplies and negative evaluation, later rescinded, were both tangible employment actions). Durkin claims that Academy personnel, particularly range instructor Peck, engaged in sex-based harassment and abuse that: denied her appropriate training to which she was entitled as a CPD recruit; deprived her of an equal opportunity to qualify as a police officer; and culminated in her discharge for failing to pass the firearms exam on the Academy range. Under the principles announced in Ellerth and Faragher, the City can be held vicariously liable for these tangible consequences of the sexually hostile environment Durkin endured at the Academy firing range. Because sexual harassment was both the means by which Peck deprived Durkin of training and direct evidence of his discriminatory motivation, the district court erred in refusing to consider evidence of his gender-based hostility and abuse of Durkin during firearms training in connection with her claims of sex discrimination against the CPD. See R.61 at 10. This Court recognizes that a discriminatory denial of job-related training is an actionable adverse employment action under Title VII. See Pafford v. Herman, 148 F.3d 658, 667 & n.7 (7th Cir. 1998). “[T]o make out a prima facie case of discriminatory failure to train, [plaintiff] must demonstrate: (1) that she is a member of a protected group; (2) that the [employer] provided training to its employees; (3) that she was eligible for training; and (4) that she was not provided training under circumstances giving rise to an inference of discrimination, i.e., that she was denied training given to other similarly situated employees who were not members of the protected group.” Id. at 667. The Court in Pafford held the plaintiff was not required to show, in addition, “that any training the [employer] failed to provide her was material to further promotion,” because “[w]hether the training is material to [plaintiff's] further promotion is irrelevant to whether the [employer] denied [her] training for a discriminatory reason.” Id. This Court thus acknowledged that the discriminatory denial of training offered as a term or condition of employment is itself a tangible adverse action, regardless of whether the failure to train results in any further limitation of employment opportunities or benefits. The district court therefore erred in restricting its analysis of Durkin's discrimination claim to her ultimate discharge rather than evaluating the discriminatory denial of adequate training as a tangible action in and of itself. The district court may have failed to appreciate the tangible nature of the deficient training provided to Durkin in part because it found, as a matter of law, that Officer Peck was not Durkin's supervisor for purposes of imposing vicarious liability under Faragher and Ellerth. See R.61 at 19. This conclusion is factually and legally incorrect. The CPD Training Division Rules and Regulations state: “It will be understood by all trainees attending the Chicago Police Education and Training Division that they are under the direct supervision of ALL instructional personnel assigned to the Education and Training Division,” and instructors “will be afforded the same reporting and recognition considerations as Sergeants and above.” R.56, Vol.III, Ex.BB at 2. Durkin confirmed in her testimony that she and her fellow recruits understood that “[a]ll of your instructors are your supervisors. They are all your superiors.” R.56, Vol.I, Ex.A at 41-42. In a recent sexual harassment case, this Court recognized that the “paramilitary hierarchy” of a police department, in which “subordinate officers were obliged to obey the commands of all superior officers,” weighs in favor of finding supervisory authority for purposes of applying the principles of Ellerth and Faragher. See Gawley v. Indiana Univ., 276 F.3d 301, 310-11 (7th Cir. 2001). Although the harassing officer in Gawley was not the plaintiff's “immediately or successively higher supervisor” and lacked authority to hire or fire her, this Court was “reluctant to find that [he] was not, as a matter of law, aided in the commission of the harassment by his supervisory position,” as required to impose vicarious liability on the employer. Id. Furthermore, because the CPD delegated to Peck the authority to provide recruits with mandatory job-related training, a material employment benefit, he is by definition acting in a supervisory capacity sufficient to impose vicarious liability under the principles of Ellerth and Faragher when exercising his authority as a firearms instructor to confer (or to deny) the benefit of adequate training to a subordinate recruit. “Whatever the exact contours of the aided in the agency relation standard” for imposing vicarious employer liability, the Supreme Court explained, “its requirements will always be met when a supervisor takes a tangible employment action against a subordinate.” Ellerth, 524 U.S. at 761; see also Gawley, 276 F.3d at 309 (“when a supervisor takes a tangible employment action against a subordinate, the standard” for imposing vicarious liability “will be met because the supervisor is clearly aided by the agency relationship in the commission of the harassment”). Thus, if a jury credits Durkin's evidence that Peck used his delegated authority as a firearms instructor to engage in harassment that effectively denied her the benefits of training to which she was entitled as a term or condition of employment with the CPD, his conduct meets the legal standard announced in Ellerth and Faragher for imposing on the City vicarious liability for supervisory harassment.<4> The record evidence, viewed most favorably to Durkin, amply supports her sexual harassment and gender discrimination claims against the City. Upon failing her third firearms qualification attempt, the CPD Recruit Training Manual required Durkin to enroll in a 20-hour Mandatory Firearms Training course at the Academy. R.47, Ex.A, ex.1 at 30. The CPD assigned range instructor Peck to provide this mandatory training. Rather than give Durkin the requisite instruction, however, Peck used their training sessions to engage in harassment and abuse designed to undermine, rather than enhance, her skills and confidence. Much of Peck's verbal abuse was explicitly gender-based or sexually demeaning, and there was other evidence he harbored hostility toward women. See R.56, Vol.II, Ex.E at 228-31, 291-92, 295-300. Academy instructors and CPD officials testified that Peck's remarks and conduct, as alleged by Durkin, were not appropriate training techniques, and that some of these methods could adversely affect her ability to shoot. Academy director Roberts acknowledged that several of the demeaning and offensive remarks Peck allegedly made to Durkin were not “appropriate” and would “probably” violate the CPD's policy against sexual harassment. R.56, Vol.III, Ex.U at 31, 34, 37, 39. Similarly, Lt. Christian and CPD instructor Teddy Ochocki could think of no legitimate reason for a range instructor to make such comments while training a recruit. R.56 Vol.II, Ex.J at 77-79; Vol.III, Ex.Z at 59-60, 67-68. Several instructors testified that they would not make a recruit do push-ups before shooting because the exercise could weaken her arms and reduce shooting accuracy, see R.56, Vol.II, Ex.E at 289; Ex.M at 57; Vol.III, Ex.Z at 87; Ex.AA at 34-35, and Durkin confirmed that “[n]o other instructor told me to do that ever.” Vol.I, Ex.A at 241. Experienced instructors also agreed that there was no legitimate reason to make a recruit stand at attention in the taped box for more than a few moments before being recognized, see R.56, Vol.II, Ex.M at 26; Vol.III, Ex.Y at 32; Ex.Z at 48-49, 61, and Officer Gutierrez criticized the practice because prolonged periods of standing at attention can reduce proper blood circulation and cause lightheadedness or fainting. Vol.II, Ex.E at 325. According to Officer Ochocki, the methods Durkin alleged Peck used “are just way off base” for “a professional instructor,” and would “[a]bsolutely” be out of line. R.56, Vol.III, Ex.Z at 68. The evidence demonstrates, moreover, that Peck's harassment and abuse adversely affected Durkin's ability to qualify on the Academy firing range. While Roberts could recall few specifics about the substance of Durkin's complaints, he was aware “that she was being yelled at and made to feel nervous while on the range,”and “deduced ... from what she was saying” that she believed her treatment at the range was affecting her performance. See R.58, Ex.O at 26-28. Durkin's shooting record substantiates her belief, and reflects that her skills declined during the period she trained with Peck, from August 23 through September 2, 1999. R.56, Vol.III, Ex.DD at 3-4. On August 23, Durkin shot a passing score in a practice round of the State firing course, and passed one out of four practice rounds on August 24. Id. at 3. On August 25, she passed two of four practice rounds, shot three passing scores on August 26, and passed one of three rounds on August 27. Id. After that date, the number of passing scores Durkin shot under Peck's instruction dramatically declined. She passed only one of six practice rounds on August 31, and failed all six rounds on September 1 and 2. Id. at 3-4. When Durkin worked with Gutierrez on September 4, however, she shot a passing score on each of seven practice rounds. Id. at 4. Gutierrez recognized the adverse effects of Peck's conduct on Durkin's shooting ability and told Roberts that Durkin “would pass everything if there was no stress placed on her,” but warned that if Peck were “hanging around” the range during her qualification “and she sees him, she's going to freeze, and I don't guarantee that she's going to make it.” R.56, Vol.II, Ex.E at 232. Despite this warning, Peck was on the firing range on September 7 when Durkin shot her fourth qualification attempt. Although Durkin shot a passing 72% on her initial round, she subsequently failed when Lt. Christian insisted that her first round was only practice and she would have to shoot again. Durkin shot two passing scores on the identical mandatory firearms exam at the State-run Mattoon training facility, see R.56, Vol.II, Ex.P, but again failed to qualify when Christian refused to accept her State-certified qualification and required her immediately to requalify, without advance notice, on the Academy firing range. From this evidence, a jury could reasonably conclude that Durkin met the Illinois State firearms qualification requirements, but was unable to shoot a passing score at the Academy range, and was consequently discharged by the CPD, because of the hostile environment she encountered there during her firearms training. Because Durkin can demonstrate a causal nexus between the sexual harassment she suffered and tangible employment consequences, the City can be held vicariously liable for the harassment and its effects. See Wilson v. DaimlerChrysler, 236 F.3d 827, 830 (7th Cir. 2001) (plaintiff would be entitled to compensatory damages if she proved sexual harassment contributed to disabling symptoms of schizophrenia which caused discharge); Wilson v. Chrysler Corp., 172 F.3d 500, 511 (7th Cir. 1999) (same). II. THE DISTRICT COURT ERRED IN REJECTING DURKIN'S RETALIATION CLAIM BECAUSE A JURY COULD FIND THAT ACADEMY OFFICIALS IGNORED HER STATE-CERTIFIED FIREARMS QUALIFICATION AND OTHERWISE ACTED TO UNDERMINE EFFORTS TO RESPOND TO HER COMPLAINTS OF HARASSMENT AND ABUSE. Title VII makes it unlawful for an employer to punish an employee for complaining about discriminatory treatment in the workplace. See 42 U.S.C. § 2000e-3(a). The Supreme Court has emphasized that internal complaints of harassment are critical to achieve the “primary objective” of Title VII “to avoid harm,” Faragher, 524 U.S. at 806, by inducing employers “to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible,” the effects of discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). For obvious reasons, the prohibition against retaliation plays a crucial role in furthering this “clear statutory policy” of encouraging employees to complain about harassment so that employers can promptly discover, prevent, and remedy unlawful discrimination. See Faragher, 524 U.S. at 806. “Section 704(a) was specifically designed to encourage employees to act to protect Title VII rights,” EEOC v. St. Anne's Hospital of Chicago, 664 F.2d 128, 133 (7th Cir. 1981), and thus protects an employee who complains to her superiors about harassment she reasonably believes is unlawful, “even if the challenged practice does not actually violate Title VII.” Dey v. Colt Construction, 28 F.3d 1446, 1457-58 (7th Cir. 1994). Until recently, this Court had long applied a prima facie formula universally recognized for retaliation claims, which requires a plaintiff to show that “(1) she engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) there is a causal link between the protected expression and the adverse action.” Holland v. Jefferson Nat'l Life Ins., 883 F.2d 1307, 1313 (7th Cir. 1989); Dey, 28 F.3d at 1457. Durkin's evidence met this well-settled standard. She and her husband complained repeatedly to CPD superiors about harassment and abuse during her firearms training. In response to these complaints, Roberts directed Gutierrez to work with Durkin, assess her shooting skills, and attend her fourth qualification attempt; Deputy Supt. Clark initiated an internal investigation of sexual harassment, refused to approve the initial recommendation to discharge Durkin, and arranged for her to train and qualify at the Mattoon firing range. Academy personnel resented, resisted, and effectively sabotaged these efforts to address Durkin's complaints. From this evidence, a jury could find that Lt. Christian and other range officers retaliated against Durkin by doing everything possible to make sure she failed to qualify at the Academy, and then recommending her discharge for that failure. In Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002), this Court “create[d] a new rule for the adjudication of retaliation cases” that requires a plaintiff who lacks “direct evidence ... that he engaged in protected activity ... and as a result suffered [an] adverse employment action” to show that after engaging in protected conduct “only he, and not any similarly situated employee who did not file a charge, was subjected to an adverse employment action even though he was performing his job in a satisfactory manner.” The district court ruled Durkin's retaliation claim legally insufficient because she could not show the City had retained similarly situated recruits who failed the firearms qualification but had not complained of discrimination. See R.61 at 14-15. The court apparently read the decision in Stone to require every plaintiff who lacks direct evidence of retaliatory motive to present comparative evidence of the employer's treatment of similarly situated employees as an essential component of her prima facie case. This Court should clarify that its decision in Stone “did not purport to create an inflexible formulation” of evidence required to establish a prima facie retaliation claim. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 (1977).<5> The Supreme Court has repeatedly cautioned against rigid adherence to a particular “specification of the discrete elements of proof” to establish a prima facie case, and emphasized instead “the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.” Id.; see also Furnco Constr. v. Waters, 438 U.S. 567, 575 (1978) (elements of prima facie case were “not intended to be an inflexible rule”); McDonnell Douglas v. Green, 411 U.S. 792, 802 n.13 (1973) (“[t]he facts necessarily will vary in Title VII cases, and the specification ... of the prima facie proof required from [the plaintiff] is not necessarily applicable in every respect to differing factual situations”). The Court recently reaffirmed that “the precise requirements of a prima facie case can vary depending on the context and were ‘never intended to be rigid, mechanized, or ritualistic.” Swierkiewicz v. Sorema N.A., 122 S. Ct. 992, 995 (2002) (quoting Furnco, 438 U.S. at 567). While evidence that an employer treated a plaintiff who complained about discrimination worse than similarly situated employees who did not complain is certainly one way to raise an inference of retaliatory intent, such proof is not essential to every circumstantial retaliation claim. In some cases, a plaintiff may not be able to identify other employees who are similarly situated in every respect other than participation in protected activity, but may have other circumstantial evidence sufficient to raise an inference of retaliatory motive. See Troupe v. May Dept. Stores, 20 F.3d 734, 736 (7th Cir. 1994) (identifying “[d]ifferent kinds and combinations of evidence [that] can create a triable issue of intentional discrimination”); cf. Marzano v. Computer Science, 91 F.3d 497, 510-11 (3d Cir. 1996) (rejecting argument that the uniqueness of an employee's position created an extra burden on the plaintiff to prove discrimination). The district court's insistence on comparative evidence as essential to raise an inference of retaliatory motive is inconsistent with this Court's flexible approach toward proving discrimination circumstantially. See Collier v. Budd, 66 F.3d 886, 890 (7th Cir. 1995) (“The prima facie case ... is a flexible standard that is not intended to be rigidly applied. ... The exact content of the fourth prong may vary from case to case to take differing circumstances into account.”) (internal quotation marks and citation omitted). Here, for example, the City maintained that Durkin was not similar to any of her fellow recruits because she was the only one who received additional training at Mattoon and a fifth opportunity to qualify at the Academy. See R.47, Ex.A at 5 ¶18; Ex.D at 3 ¶¶ 9-10. Yet the “special treatment” was ordered by CPD officials in direct response to Durkin's harassment complaints, and the resentment of these efforts expressed by Academy personnel permits an inference of retaliatory motive. Viewed most favorably to Durkin, the evidence supports a finding that she had met all the requisite qualifications to work as a police officer, including the State's firearms qualification standard, but that Academy supervisors “cheated [her] out of a passing score in her fourth attempt” to qualify at the Academy on September 7, see R.61 at 12, ignored her State-certified qualification at Mattoon, required her to requalify without advance notice at the Academy range on September 27, and terminated her for failing to pass the test in an environment that had been poisoned by harassment and abuse. Evidence that Academy supervisors resented and resisted efforts by CPD officials to respond to Durkin's complaints of sex-based mistreatment by CPD instructors suggests a retaliatory motive. Because this evidence is sufficient to raise an inference of unlawful retaliation, the district court erred in holding that Durkin failed to present a prima facie case. CONCLUSION Durkin presented sufficient evidence to prevail on her claims of sexual harassment, sex discrimination, and retaliation against the City. The EEOC therefore urges this Court to reverse the summary judgment against her and remand for trial on the merits. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ______________________________ DORI K. BERNSTEIN Attorney RULE 32(a)(7)(C) CERTIFICATE OF COMPLIANCE I certify that this brief contains 6,036 words. The brief was prepared in the WordPerfect 9 word-processing system, using 12-point proportionally spaced type. ______________________________ Dori K. Bernstein Attorney CERTIFICATE OF SERVICE I, Carolyn L. Wheeler, certify that I served two copies of this brief, and one copy of the brief on digital media, this 26th day of August, 2002, by first-class mail, postage pre-paid, on the following counsel of record: Keith L. Hunt Hunt & Associates Three First National Plaza Suite 2100 Chicago, Illinois 60602 Mara S. Georges Office of the Corporation Counsel Appeals Division 30 N. LaSalle Street Chicago, Illinois 60602 ______________________________ CAROLYN L. WHEELER Assistant General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 1 Record references correspond to numbered entries on the district court docket sheet and are designated “R.__.” 2 While much of Durkin's evidence of harassment at the Academy “is disputed by the City,” the district court properly recognized it was required to “draw all reasonable inferences in favor of Durkin on the City's motion for summary judgment,” and to “assume for the purposes of this motion that she could prove that events unfolded as she describes them.” R.61 at 8 n.1 (citing Markel v. Board of Regents of Univ. of Wisc. Sys., 276 F.3d 906, 910 (7th Cir. 2002)). 3 The CPD Academy Instructor's Manual states that “Education and Training Division staff must understand that this program can be successful only when staff personnel are consistent in their training methods. ... Inconsistency among Education and Training Division staff will undermine the goals of training.” R.56, Vol.III, Ex.W at 2. 4 On summary judgment, the City did not dispute that Durkin's evidence, if credited by a jury, was sufficient to show she was “‘subjected to unwelcome sexual harassment,'” based on her sex, that “‘had the effect of unreasonably interfering with [her] work performance in creating an intimidating, hostile, or offensive working environment that affected seriously [her] psychological well-being.'” See R.61 at 16 (quoting Hall v. Bodine Elec., 276 F.3d 345, 354-55 (7th Cir. 2002)). 5 In a case decided after Stone, this Court applied its previous formulation of a prima facie retaliation case and required the plaintiff to establish that “1) she engaged in a statutorily protected activity; 2) she suffered an adverse employment action; and 3) there is a causal link between the protected activity and the adverse action.” Wells v. Unisource Worldwide, 289 F.3d 1001, 1008 (7th Cir. 2002).