Holman, Steven L. v. State of Indiana

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1355

Steven J. Holman and Karen L. Holman,

Plaintiffs-Appellants,

v.

State of Indiana and Indiana Department

of Transportation,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 97 C 178--William C. Lee, Chief Judge.

Argued November 4, 1999--Decided May 1, 2000

Before Manion, Kanne, and Evans, Circuit Judges.

Manion, Circuit Judge. In their Title VII suit

filed in federal court, Steven and Karen Holman

alleged that their supervisor at the Indiana

Department of Transportation had sexually

harassed each of them individually and on

separate occasions, and because they had rejected

his sexual solicitations the supervisor

retaliated against each of them with certain

deprivations. The district court held that the

Holmans’ complaint of an "equal opportunity

harasser" failed to state a claim of sex

discrimination under Title VII. See Holman v.

State of Indiana, 24 F. Supp.2d 909, 915 (N.D.

Ind. 1998) (denying plaintiffs’ motion for

reconsideration). Because the complaint

specifically and unequivocally claimed that the

same supervisor had been sexually harassing the

male and female plaintiffs by soliciting sex from

each on separate occasions and then had

retaliated against each, we affirm the district

court.

I. Background

Steven and Karen Holman are married and both

work in the maintenance department at the Indiana

Department of Transportation (IDOT). On May 21,

1997, they filed this action against the State of

Indiana and the IDOT under Title VII of the Civil

Rights Act of 1964 (as amended), 42 U.S.C. sec.

2000e et seq., and the Equal Pay Act (EPA), 29

U.S.C. sec. 206(d)./1 In paragraph 4(b) of the

complaint, Karen alleged that "[s]ince December

of 1995," her male shop foreman, Gale Uhrich,

"began sexually harassing [her] by touching her

body, standing too closely to [her], asking her

to go to bed with him and making sexist comments

and otherwise making [her] work in a sexually

hostile work environment." Holman, 24 F. Supp.2d

at 911. In paragraphs 4(c) and 4(d), she also

alleged that when she rebuffed and protested

Uhrich’s "sexual propositions," he retaliated

against her, and that she "has been denied equal

pay for equal work." Id. In paragraph 6(b) of the

complaint, Steven similarly alleged that "since

August of 1995" Uhrich, who was also his foreman,

"had sexually harassed [him] by grabbing his head

while asking for sexual favors which requests

were refused." Id. And in paragraph 6(c), Steven,

too, alleged that Uhrich retaliated against him

both for "refusing to ’give-in’ to [Uhrich’s]

request for sexual favors" and "as a result of

his affiliation with his wife, Karen L. Holman,

who filed [internal] sexual harassment charges

against Uhrich." Id. In paragraphs 5 and 7, both

Karen and Steven sought compensatory damages

under Title VII for the lost income, mental

anguish, and stress they had suffered as a result

of Uhrich’s "sexual harassment and retaliation."

(Karen also sought damages under the EPA for

being paid "less money than similarly situated

males." Complaint, para.5.)

The IDOT moved to dismiss the Holmans’ Title VII

sexual harassment claims under Fed. R. Civ. P.

12(b)(6). On September 8, 1997, the district

court granted the motion, holding that "because

both plaintiffs were alleging sexual harassment

by the same supervisor, they both, as a matter of

law, could not prove that the harassment occurred

’because of sex.’" Holman, 24 F. Supp.2d at 910.

The Holmans moved the district court to

reconsider its order in light of Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75

(1998). See Holman, 24 F. Supp.2d at 910. The

court denied the "motion for reconsideration with

respect to the argument that Oncale altered [its]

prior ruling," but it took its prior order under

advisement and ordered supplemental briefing so

the parties could address cases "which contained

language" that supported the Holmans’ argument

that they both "could maintain a cause of action

for sexual harassment." Id. After thoroughly

surveying the applicable law, the district court

denied the Holmans’ motion for reconsideration

and reinstated its order dismissing their sexual

harassment claims. Id. at 916. Because the

Holmans’ retaliation and equal pay claims

remained, the court certified its dismissal of

their harassment claims pursuant to Fed. R. Civ.

P. 54(b). See Granack v. Continental Cas. Co.,

977 F.2d 1143, 1144-45 (7th Cir. 1992)./2 The

Holmans appeal the dismissal of this claim, and

we have jurisdiction over it under 28 U.S.C. sec.

1291 as a final decision. See King v. Gibbs, 876

F.2d 1275, 1277 (7th Cir. 1989). The Equal

Employment Opportunity Commission (EEOC) appears

as amicus curiae in support of the Holmans.

II. Discussion

We review de novo a dismissal of a claim under

Rule 12(b)(6), accepting as true all facts

alleged in the complaint and drawing all

reasonable inferences from them in the

plaintiff’s favor. Ledford v. Sullivan, 105 F.3d

354, 356 (7th Cir. 1997). "We will affirm the

dismissal of a complaint if ’it is clear that no

relief could be granted under any set of facts

that could be proved consistent with the allegations.’"

Id. (quoting Hishon v. King & Spalding, 467 U.S.

69, 73 (1984)).

A. Title VII’s Requirement of

Discrimination and the "Equal Opportunity

Harasser"

Title VII of the Civil Rights Act of 1964, as

amended, prohibits discrimination on the basis of

sex: "It shall be an unlawful employment practice

for an employer to fail or refuse to hire or to

discharge any individual or to otherwise

discriminate against any individual with respect

to his compensation, terms, conditions, or

privileges of employment, because of such

individual’s . . . sex." 42 U.S.C. sec. 2000e-

2(a)(1). The purpose of this provision is to

prevent "’disparate treatment of men and women in

employment,’" regardless of its form. Oncale, 523

U.S. at 78 (quoting Meritor Savings Bank, FSB v.

Vinson, 477 U.S. 57, 64 (1986)). Whenever,

therefore, "’the workplace is permeated with

discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter

the conditions of the victim’s employment and

create an abusive working environment, Title VII

is violated.’" Id. (emphasis added) (quoting

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993)).

In Oncale, the Supreme Court reiterated that

"Title VII’s prohibition of discrimination

’because of . . . sex’ protects men as well as

women," id., and it held that this prohibition

applies to the same-sex harasser, whether or not

that harasser is motivated by sexual desire. See

id. at 79-80 ("If our precedents leave any doubt

on the question, we hold today that nothing in

Title VII necessarily bars a claim of

discrimination ’because of . . . sex’ merely

because the plaintiff and the defendant . . . are

of the same sex."). In doing so, it underscored

that the touchstone of Title VII is, of course,

discrimination or disparate treatment. Oncale--

although a unanimous decision, only a few pages

long--said so no less than four times, id. at 79-

81 and more than once with emphasis. See id. at

80 ("Title VII does not prohibit all verbal or

physical harassment in the workplace; it is

directed only at ’discrimina[tion] . . . because

of . . . sex.’") (emphasis added). Indeed,

Justice Thomas specifically (and pointedly, quite

briefly) concurred to highlight that premise: "I

concur because the Court stresses that in every

sexual harassment case, the plaintiff must plead

and ultimately prove Title VII’s statutory

requirement that there be discrimination ’because

of . . . sex.’" Id. at 82.

The Court explicated what it meant by

"discrimination" in sexual harassment cases; it

is to be determined on a gender-comparative

basis: "The critical issue, Title VII’s text

indicates, is whether members of one sex are

exposed to disadvantageous terms or conditions of

employment to which members of the other sex are

not exposed." Id. at 80 (emphasis added) (quoting

Harris, 510 U.S. at 25 (Ginsburg, J.,

concurring)). This inquiry applies to both same-

and opposite-sex harassment. Id. at 80-81 ("A

same-sex harassment plaintiff may also, of

course, offer direct comparative evidence about

how the alleged harasser treated members of both

sexes . . . ."). "Whatever evidentiary route the

plaintiff chooses to follow, he or she must

always prove that the conduct at issue . . .

actually constituted ’discrimina[tion] . . .

because of . . . sex.’" Id. at 81 (emphasis in

original). Thus a violation of Title VII only

occurs because of sex discrimination.

Both before and after Oncale, we have noted that

because Title VII is premised on eliminating

discrimination, inappropriate conduct that is

inflicted on both sexes, or is inflicted

regardless of sex, is outside the statute’s

ambit. Title VII does not cover the "equal

opportunity" or "bisexual" harasser, then,

because such a person is not discriminating on

the basis of sex. He is not treating one sex

better (or worse) than the other; he is treating

both sexes the same (albeit badly). See Pasqua v.

Metropolitan Life Ins. Co., 101 F.3d 514, 517

(7th Cir. 1996) ("Harassment that is inflicted

without regard to gender, that is, where males

and females in the same setting do not receive

disparate treatment, is not actionable because

the harassment is not based on sex."); Shepherd

v. Slater Steels Corp., 168 F.3d 998, 1011 (7th

Cir. 1999) ("Although we readily acknowledge that

the factfinder could infer from such evidence

that Jemison’s harassment was bisexual and

therefore beyond the reach of Title VII . . .

."); see also Henson v. City of Dundee, 682 F.2d

897, 904 (11th Cir. 1982) ("There may be cases in

which a supervisor makes sexual overtures to

workers of both sexes or where the conduct

complained of is equally offensive to male and

female workers. In such cases, sexual harassment

would not be based on sex because men and women

are accorded like treatment . . . . [and] the

plaintiff would have no remedy under Title

VII."). As a result, the unfortunate objects of

such harassment may be limited to state law for a

remedy. See Johnson v. Hondo, Inc., 125 F.3d 408,

410 (7th Cir. 1997) (besides Title VII sexual

harassment claim, plaintiff alleged five state

law causes of action, including assault, battery,

and intentional infliction of emotional

distress); Henson, 682 F.2d at 904.

The Holmans do not really address Oncale’s

emphasis on the statutory requirement of

discrimination. And amicus EEOC candidly admits

that under Pasqua and Shepherd, this circuit does

not recognize Title VII sexual harassment claims

in the case of the "equal opportunity" harasser.

Instead, both say that exempting the "equal

opportunity" harasser from Title VII would be an

anomalous result and bad policy (it would, they

argue, encourage harassers to manufacture a

second harassment of a different sex so they

could insulate themselves from Title VII

liability). They cite pre-Oncale decisions,

including one vacated by the Supreme Court, Doe

by Doe v. City of Belleville, Ill., 119 F.3d 563

(7th Cir. 1997), vacated and remanded in light of

Oncale, 523 U.S. 1001 (1998). Those cases recite

or suggest the same policy complaint. See

McDonnell v. Cisneros, 84 F.3d 256, 260 (7th Cir.

1996) ("It would be exceedingly perverse if a

male worker could buy his supervisors and his

company immunity from Title VII liability by

taking care to harass sexually an occasional male

worker, though his preferred targets were

female.").

We do not think, however, that it is anomalous

for a Title VII remedy to be precluded when both

sexes are treated badly. Title VII is predicated

on discrimination. Given this premise, requiring

disparate treatment is consistent with the

statute’s purpose of preventing such treatment.

Oncale, 523 U.S. at 78 (congressional intent is

to prevent "disparate treatment of men and women

in employment."). It is likewise consistent with

the statute’s plain language. See 42 U.S.C. sec.

2000e-2(a)(1) ("It shall be an unlawful

employment practice . . . to otherwise

discriminate . . . ."). If anything, it would be

anomalous not to require proof of disparate

treatment for claims of sex discrimination (of

which sexual harassment is a subset), yet that is

essentially what the Holmans urge. To do so would

change Title VII into a code of workplace

civility, and the Supreme Court has already

rejected such an interpretation of Title VII. In

Oncale, the Court in fact explained that one way

to ensure that Title VII does not mutate from a

prohibition on sexual discrimination to a general

prohibition on harassment is to be faithful to

the statute’s plain language, and by that it

meant requiring a demonstration that there be

different treatment of the sexes.

But that risk . . . is adequately met by careful

attention to the requirements of the statute.

Title VII does not prohibit all verbal or

physical harassment in the workplace; it is

directed only at "discriminat[ion] . . . because

of . . . sex." . . . "The critical issue, Title

VII’s text indicates, is whether members of one

sex are exposed to disadvantageous terms or

conditions of employment to which members of the

other sex are not exposed."

523 U.S. at 80 (emphasis in original) (quoting

Harris, supra)./3

Furthermore, the Holmans’ theory that sexual

harassers will attempt to insulate themselves and

their employers from liability by purposely

harassing members of both sexes in order to

disguise their real intent seems unrealistic. It

is hard to imagine that would-be harassers will

know the intricacies of sexual harassment law and

will manufacture additional harassments to

attempt to avoid Title VII liability,

particularly when doing so will increase their

risk of being fired, sued under state law, and

ostracized. Surely attorneys will not advise

their employer-clients to instruct their

employees to harass still more people--to commit,

in most cases, state law torts--which could

subject their clients to lawsuits and themselves

to claims of malpractice and charges of

professional misconduct. Moreover, if attorneys

were actually to dispense such incredible advice,

and their clients were to follow it, the clients

would still be subject to Title VII liability. In

such cases the harasser is not a bona-fide "equal

opportunity" harasser; he is manufacturing

another harassment to avoid Title VII

liability./4

These extreme hypotheticals aside, the Holmans

and the EEOC still express public policy concerns

that "authentic" bisexual or equal-opportunity

harassers are not covered by Title VII. But it is

for Congress to decide whether to address bad

workplace behavior that cannot be labeled

discriminatory. It is not the province of federal

courts to expand the language of a statute that

is clearly limited. Title VII covers only sex

discrimination.

B. The Holmans’ Sexual Harassment Claims

The district court dismissed the Holmans’ sexual

harassment claims, concluding that the Holmans

could not claim discrimination because they had

alleged that their supervisor had been sexually

harassing both of them by soliciting sex from

each of them. Thus, applying Oncale, the district

court reasoned that "neither was subjected to

disadvantageous terms or conditions of employment

to which members of the other sex were not

exposed." Holman, 24 F. Supp.2d at 915. We agree.

The Holmans seem to assert that even if Title

VII does not cover the "equal opportunity"

harasser, the district court erred in dismissing

their sexual harassment claims because it is

possible, under some set of facts, for at least

one of them to maintain a claim for sexual

harassment. They do not explain, however, how one

of them could do so under the present allegations

that Uhrich had been sexually harassing both of

them by sexually propositioning each of them, and

thus was not discriminating against either of

them. We accept the complaint at its face value

and will not speculate over how it could have

some other meaning. See Liu v. T&H Machine, Inc.,

191 F.3d 790, 795 (7th Cir. 1999) ("we are not

obligated to guess at a party’s meaning, however,

and arguments insufficiently developed on appeal

are waived.")./5

The Holmans contend that under Rule 12(b)(6),

their sexual harassment claims cannot be

dismissed unless it is impossible to establish a

claim under any set of facts. But the Holmans

only have it half right. While their claims may

not be dismissed under Rule 12(b)(6) unless they

cannot prove a claim under any set of facts,

those facts must be consistent with the

allegations of the complaint. Hishon, 467 U.S. at

73. Thus, while the Holmans can allege

(hypothesize) new facts on appeal, such facts are

irrelevant if not consistent with the complaint.

Stevens v. Umsted, 131 F.3d 697, 705 (7th Cir.

1997) ("This court has held that when reviewing

Rule 12(b)(6) motions, we will consider new

factual allegations raised for the first time on

appeal provided they are consistent with the

complaint."). Accord American Inter-Fidelity

Exchange v. American Re-Insurance Co., 17 F.3d

1018, 1022 (7th Cir. 1994); Dawson v. General

Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992).

Because the complaint clearly pleaded that Uhrich

had been separately sexually harassing both Karen

and Steven by propositioning them, it is

inconsistent (and thus improper) for the Holmans

now essentially to propose that he did not./6

Similarly, every new scenario amicus EEOC

proposes contradicts the Holmans’ allegations and

assumes that Uhrich did not really sexually

harass either Steven or Karen. For example, the

EEOC argues that the facts could show that Uhrich

harassed Karen out of spite because he was

jealous of her relationship with her husband

(with whom Uhrich really wanted to have sexual

relations) and thus was not really an "equal

opportunity" harasser. But speculating that

Uhrich propositioned and accosted Karen Holman

because she was married or loyal to her husband,

is inconsistent with the complaint, which alleges

that Uhrich "sexually harassed" her "in violation

of Title VII," which, by definition, simply means

that he harassed her because she was a woman. See

42 U.S.C. sec. 2000e-2(a)(1); see also Sweeney v.

West, 149 F.3d 550, 555 (7th Cir. 1998); Scusa v.

Nestle U.S.A. Co., Inc., 181 F.3d 958, 965 (8th

Cir. 1999). The EEOC cannot essentially "amend

the complaint on appeal to state a new claim . .

. ." American Inter-Fidelity Exchange, 17 F.3d at

1022; see also Dawson, 977 F.2d at 372-373 ("Of

course, a plaintiff may not argue on appeal that

a contract consisted of Y when the complaint

alleged that the contract consisted of X.")./7

Additional discovery, then, would not save the

Holmans’ sexual harassment claims. Their problem

is that the allegations in their complaint are

very precise; the complaint simply and clearly

says that their supervisor was sexually harassing

each of them by asking for sexual favors. As a

matter of law, then, neither of them has a claim

for discrimination under Title VII. Northern

Trust Co. v. Peters, 69 F.3d 123, 129 (7th Cir.

1995) ("More is not necessarily better under the

Federal Rules; a party ’can plead himself out of

court by . . . alleging facts which . . .

demonstrate that he has no legal claim.’")

(quoting Trevino v. Union Pacific R.R. Co., 916

F.2d 1230, 1234 (7th Cir. 1990)).

Recognizing the difficulty in which their

complaint has placed them, the Holmans hopefully

contend that they have pleaded in the

alternative--that they really have alleged that

Uhrich harassed either Karen or Steven, but not

both of them. See Fed. R. Civ. P. 8(e)(2). It

should be noted that this argument is at odds

with what they told us earlier in oral

argument/8 and in their briefs./9 Moreover, the

Holmans did not make this argument in their

initial appellate brief (in fact, they did not

make it until rebuttal at oral argument) and thus

it is waived. See Lear, 2000 WL 291376, at *2.

But assuming this argument were properly

presented, it is not possible, even by generously

reading the complaint, to construe it as pleading

the Holmans’ sexual harassment claims in the

alternative. Schott Motorcycle Supply, Inc. v.

American Honda Motor Co., Inc., 976 F.2d 58, 62

(1st Cir. 1992) (Rule 8(e)(2) allows alternative

and hypothetical pleading. "Plaintiff’s

assertion, however, . . . was not made in the

context of an alternative or hypothetical

pleading."). While the Holmans need not use

particular words to plead in the alternative,

they must use a formulation from which it can be

reasonably inferred that this is what they were

doing. See id. (citing 5 Wright & Miller, Federal

Practice and Procedure sec. 1282 at 525 (2d ed.

1990) (generally an alternative claim is drafted

in the form of "either-or" and a hypothetical

claim is in the form of "if-then")). The "liberal

construction accorded a pleading under Rule 8(f)

does not require the courts to fabricate a claim

that a plaintiff has not spelled out in his

pleadings." 5 Wright & Miller, Federal Practice

and Procedure, sec. 1286 at 558 (2d ed. 1990),

quoted in Schott, 976 F.2d at 62. And while we

must draw reasonable inferences in the Holmans’

favor, we should not draw inferences that while

theoretically plausible are inconsistent with the

pleadings. Ledford, 105 F.3d at 356. Here, the

Holmans did not attempt to plead in the

alternative; they clearly pleaded in tandem. Both

claimed, without equivocation, that Uhrich

sexually harassed (and then retaliated against)

each of them, and we cannot change that alleged

fact. City Nat’l Bank of Fla. v. Checker, Simon &

Rosner, 32 F.3d 277, 281 (7th Cir. 1994).

III. Conclusion

For the foregoing reasons, the order of the

district court dismissing the plaintiffs’ sexual

harassment claims is

AFFIRMED.

/1 Although not raised by the parties, we assume the

IDOT, and not the State of Indiana generally, has

"actual hiring and firing responsibility" as to

the Holmans and is thus their "employer" for

purposes of Title VII. Hearne v. Board of Educ.

of City of Chicago, 185 F.3d 770, 777 (7th Cir.

1999) ("Title VII actions must be brought against

the ’employer.’ In suits against state entities,

that term is understood to mean the particular

agency or part of the state apparatus that has

actual hiring and firing responsibility."). As a

result, the Holmans cannot maintain Title VII

claims against the State of Indiana. Id. (holding

that because "[n]either the Governor’s office,

the State of Illinois as a whole, nor the IELRB

is the ’employer’ for Title VII purposes . . .

the case against these defendants [is at an

end].").

/2 The Eleventh Amendment does not bar the Holmans’

Title VII claims. See Fitzpatrick v. Bitzer, 427

U.S. 445, 448-449, 456 (1976); Velasquez v.

Frapwell, 160 F.3d 389, 395 (7th Cir. 1998),

vacated in part on other grounds, 165 F.3d 593,

594 (7th Cir. 1999). Although not before us, we

note that the viability of Karen Holman’s EPA

claim, however, is now questionable in light of

Kimel v. Florida Bd. of Regents, 120 S. Ct. 631,

639, 650 (2000) (holding that the ADEA did not

validly abrogate states’ Eleventh Amendment

immunity). See Varner v. Illinois State Univ.,

150 F.3d 706, 717 (7th Cir. 1998) (holding that

EPA abrogated Eleventh Amendment immunity),

vacated and remanded in light of Kimel, 120 S.

Ct. 928 (2000).

/3 The other "requirement that prevents Title VII

from expanding into a general civility code" is

interpreting the statute not to "reach genuine

but innocuous differences in the ways men and

women routinely interact . . . [I]t forbids only

behavior so objectively offensive as to alter the

’conditions’ of the victim’s employment." Id. at

81.

/4 In this case, as we shall see, the Holmans are

precluded from making such an argument because

they have alleged that Gale Uhrich sexually

harassed each of them.

/5 The closest the Holmans come is asserting in

their reply brief that had they "been permitted

to do discovery, it may be unearthed that one

Appellant may have been the victim of sexual

harassment while the other is a victim of

retaliation." This argument was not properly

presented. United States v. Turner, 203 F.3d

1010, 1019 (7th Cir. 2000) (arguments not raised

until reply brief are waived). But assuming it

were, the Holmans would be hypothesizing about

facts that are inconsistent with the complaint

(discussed infra): the Holmans specifically

pleaded that their supervisor sexually harassed

both of them and retaliated against both of them.

Similarly, they assert at oral argument for the

first time that the evidence could show that the

harassment of Mr. Holman was not sufficiently

severe or pervasive. Lear v. Cowan, No. 99-2564,

2000 WL 291376, at *2 (7th Cir. March 21, 2000)

(arguments raised for the first time at oral

argument are waived). But this, too, is

inconsistent with the complaint: by pleading that

he was sexually harassed in violation of Title

VII, Steven is alleging, by definition, that the

harassment was severe or pervasive. It is also

inconsistent with what the Holmans told us at

oral argument: "Now we are arguing today that

both of them, at least at this stage, suffered

the type of harassment which is actionable and

pervasive . . . ."

/6 This case is thus different from Shepherd, where

the plaintiff did not plead that the supervisor

had been sexually harassing both a man and a

woman. 168 F.3d at 1011 (question as to whether

the plaintiff had a viable Title VII sexual

harassment claim was raised by evidence that the

coworker may have harassed both men and women).

/7 The EEOC also argues that the Holmans’ sexual

harassment claims should not be dismissed because

the evidence could show that Uhrich sexually

harassed them in ways unique to their sex

(evidently, meaning in terms of their different

body parts). Given the (obvious) differences in

male and female anatomy, that Uhrich would do so

hardly seems remarkable. More to the point, under

this theory either Uhrich sexually harassed both

the Holmans (as they alleged), in which case he

would not be discriminating against either of

them (and we would be back to where we started),

or he did not sexually harass one of them, which

would be a scenario inconsistent with the

complaint.

/8 "Mr. and Mrs. Holman worked for the State of

Indiana. They were sexually harassed by the same

supervisor. They filed a complaint in court by

which each of them alleged sexual harassment by

the same supervisor."

/9 "At this stage, Plaintiffs have alleged in their

complaint that Mr. Uhrich’s intended targets were

both Steven and Karen Holman." Initial Brief at

14 (emphasis added); see also id. (emphasis in

original) ("Both Steven and Karen Holman should

be able to pursue their respective harassment

claims because they were both harassed ’because

of’ their gender.").

EVANS, Circuit Judge, concurring. As Judge

Manion correctly points out, our cases indicate

that the equal opportunity harasser may often not

be discriminating against either sex and, as we

know, discrimination is the essence of Title VII.

We also have indicated that it might be possible

for a plaintiff to show an exception: that the

equal opportunity harasser engaged in such sex

specific and derogatory behavior as to reveal an

"antipathy to persons of the plaintiff’s gender,"

thus allowing for the possibility that a

plaintiff could prove that an equal opportunity

harasser was not harassing so equally after all

and was, in fact, discriminating against one sex

or the other. See Shepherd v. Slater Steels

Corp., 168 F.3d 998, 1008 (7th Cir. 1999). I

write separately only to note that the

recognition of that possibility eliminates what

otherwise seems to be a troubling clash with

Oncale v. Sundowner Offshore Services, Inc., 118

S. Ct. 998 (1998). The workplace in Oncale had

eight employees, all male. Nevertheless, the

court concluded that it would be possible to find

harassment-- that it would be possible,

therefore, to find discrimination. If

"discrimination" is possible in a single-sex

workplace, it might also be possible in some

circumstances in which we find an equal

opportunity harasser. Because this case comes to

us on a complaint full of facts which reveal

Uhrich to be a true equal opportunity harasser, I

join the opinion.