Adam Locke v. Mya Haessig

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. § 1983

for 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 at

454–56 (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.