issue of material fact regarding Cross' sexual harassment claim
that would preclude summary judgment for the Board.
Title VII prohibits retaliation against an employee who has
engaged in activity protected by the Act. 42 U.S.C. § 2000e-3(a);
Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027,
1038 (7th Cir. 1998). To demonstrate a prima facie case of
retaliation, Cross must establish that: "(1) the plaintiff
engaged in statutorily protected activity; (2) he suffered an
adverse action; and (3) there is a causal link between the
protected activity and the adverse action." Filipovic, 176 F.3d
at 398. If Cross can establish these elements, the Board has the
burden to produce a legitimate, nondiscriminatory reason for its
actions. Id. at 1038-39. If the Board meets its burden of
production, Cross can survive summary judgment only if he can
prove that the Board's reason is pretextual. Id. at 1039.
Cross alleged, in his EEOC charge, that he was subjected to
adverse action because, in 1995, he told Vietzen that he did not
want to have a personal relationship with him. Specifically,
Cross claims that, on April 3, 1995, Vietzen falsely accused him
of drug use in front of his students and other faculty members
and that, on June 25, 1995, he was given a negative performance
evaluation.*fn1 Because these alleged retaliatory acts occurred
outside of the 300-day statute of limitations period, his claim
based on these acts is time-barred. 42 U.S.C. § 2000e-5(e)(1).
The only additional potentially retaliatory action, which was
not specified in the charge but did take place within the
limitations period, is Doubrawa's oral and written reprimand
regarding his excessive absences. Such a reprimand does not
constitute adverse action. Sweeney v. West, 149 F.3d 550 (7th
Cir. 1998) (negative performance evaluations, standing alone,
cannot constitute an adverse employment action). Even if the
reprimand did rise to the level of an adverse action, the
reprimand was issued because of a legitimate, nondiscriminatory
reason, i.e., excessive absences that Cross does not contest.
Therefore, we grant summary judgment for the Board on Cross'
IV. Constructive Discharge*fn2
Cross also alleges that he was forced to resign because of the
alleged sexual harassment he was forced to endure. (R. 1, Compl.
¶ 25.) An employee is generally expected to remain employed while
seeking redress for the discrimination. Drake v. Minnesota
Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998). But,
"[t]hrough constructive discharge, `a plaintiff who is forced out
by discriminatory conduct may bring a successful Title VII claim
even though the plaintiff was never officially dismissed by the
defendant.'" Bragg v. Navistar Int'l Transp. Corp.,
164 F.3d 373, 377 (7th Cir. 1998) (quoting Vitug v. Multistate Tax
Comm'n, 88 F.3d 506, 517 (7th Cir. 1996)). A constructive
discharge claim requires a plaintiff to establish that "(1) the
conditions at work were so intolerable that a reasonable person
would have been compelled to resign; and (2) the working
conditions were intolerable in a discriminatory way." Id.
Harriston v. Chicago Trib. Co., 992 F.2d 697, 705 (7th Cir.
1993)); see Washington v. Jenny Craig Weight Loss Centres,
3 F. Supp.2d 941, 951 (N.D.Ill. 1998) (plaintiff bears burden of
showing that working conditions were so intolerable that any
reasonable person would be compelled to resign). The standard is
hard to meet. See Drake, 134 F.3d at 886 ("More than ordinary
discrimination is necessary to establish a constructive discharge
claim; in the `ordinary' case, an employee is expected to remain
employed while seeking redress.").
Cross does not meet his burden. The record before the Court
contains only sparse information regarding the allegedly
intolerable conditions. As support for his claim, Cross cites
being shown "an extremely offensive photograph" and being
subjected to "grossly offensive conduct and commentary." (R.21,
Pl.'s Resp. at 10.) Cross does not give the dates of the alleged
incidents, the specific nature of the conduct, or the
pervasiveness of the acts. A single offensive photograph and
wholly unspecified "offensive conduct and commentary" cannot, as
a matter of law, establish the basis of a constructive discharge
claim. We conclude that Cross has failed to present sufficient
evidence to show that the conditions were so intolerable that a
reasonable person would have had no choice but to resign.
V. Vicarious Liability of the Board
Finally, Cross argues that the Board is vicariously liable
under the doctrine of respondeat superior because it knew or
should have known of Vietzen's harassment and failed to
investigate. To aid our analysis of the Board's vicarious
liability, we must look to agency principles. Burlington Indus.
v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2265, 141 L.Ed.2d 633
(1998) (Congress has directed federal courts to interpret Title
VII based on agency principles). The Restatement (Second) of
Agency provides "a useful beginning point for a discussion of
general agency principles." Burlington, 118 S.Ct. at 2266.
Under the Restatement, "[a] master is subject to liability for
the torts of his servants committed while acting in the scope of
their employment." Restatement § 219(1). Logic dictates that
liability of the servant is a precondition to finding the master
vicariously liable. Because we have found that Cross has not
demonstrated sufficient facts for a jury to reasonably infer that
the servant (Vietzen) sexually harassed or retaliated against
him, we cannot find the Board vicariously liable.
Moreover, when no tangible adverse employment action is taken,
an employer can raise an affirmative defense to any liability or
damages under Ellerth by showing that: (1) it exercised
reasonable care to prevent or correct promptly any sexually
harassing behavior, and (2) that the plaintiff employee
unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer. Ellerth, 118
S.Ct. at 2270. The facts in this case establish that Cross was
aware of how to complain but inexplicably never complained about
any alleged sexual harassment until he filed his EEOC charge.
Thus, even if Cross could establish vicarious liability under
Ellerth, his damages claim would fail entirely because he never
gave the Board an opportunity to address these allegations.
Because Cross has not produced any evidence from which a
reasonable jury could find in his favor, we grant summary
judgment in favor of the Board and against Cross. (R. 18-1.) We
instruct the Clerk of Court to enter judgment accordingly
pursuant to Federal Rule of Civil Procedure 58.