The opinion of the court was delivered by: J. Phil Gilbert U.S. District Judge
This matter comes before the Court on the motion for summary judgment filed by defendant Board of Trustees of Southern Illinois University ("SIU Board") (Doc. 36). Plaintiff Samuel Milligan has responded to the motion (Doc. 40), and the SIU Board has replied to that response (Doc. 42).
I. Summary Judgment Standard
Summary judgment is appropriate where "the pleadings, the discovery and disclosed materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. The standard is applied with special scrutiny in cases, such as discrimination cases, that often turn on issues of intent and credibility. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Michas, 209 F.3d at 692. Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252; accord Michas, 209 F.3d at 692.
Viewed in Milligan's favor, the evidence in this case*fn1 establishes the following relevant facts. Milligan enrolled as a freshman at SIU in August 2007. Milligan was 18 years old at the time. When he enrolled, he intended to major in chemistry and follow a pre-med course of study to prepare him to attend medical school upon graduation.
At the time, SIU had a sexual harassment policy that required a supervisor, department head or vice chancellor who received a written or oral complaint of sexual harassment to "take necessary action to resolve the complaint promptly." The policy states that, upon learning of a complaint, he or she should consult the Affirmative Action Office to determine the appropriate course of action. He or she must submit a written report to the associate chancellor for diversity about the corrective action taken and any recommendations for formal disciplinary action.
Shortly after enrolling at SIU, Milligan was hired by Chris Kraft as a student worker in the chemistry department stockrooms in Neckers Hall, the building housing the chemistry department. Immediately across the hall from the first floor stockroom was the office of Dr. Cal Y. Meyers, an emeritus professor. Meyers was no longer employed by SIU but was the director of the Cal Meyers Institute, a research institute founded using a $2.5 million donation from Meyers to SIU. The Cal Meyers Institute was housed in Neckers Hall. As an emeritus professor, Meyers was permitted to use SIU's facilities. Meyers was 79 years old at the time and of slight build. He had no authority over student workers like Milligan and did not teach Milligan in any class.
Milligan's problems with Meyers began on October 4, 2007, when he passed Meyers in a hallway of Neckers Hall on his way to the first floor stockroom. Meyers told Milligan that with his hair, he would make a very sexy lady. Meyers then giggled, grabbed Milligan's buttocks, squeezed it and walked away. Milligan was angry and confused, and he told Kraft about the encounter. Kraft told him it sounded like something Meyers would do. He asked Milligan if he wanted to talk to someone about it and offered to accompany him, but Milligan declined. Kraft did not tell Milligan about SIU's sexual harassment policy and did not report the incident to anyone because he thought Milligan would be embarrassed. At some point, he advised Milligan to avoid Meyers if possible.
A week later, on October 11, 2007, Meyers approached Milligan while he was working at a desk in the first floor stockroom and asked Milligan if he knew where he could rent some hair like his because it would look pretty sexy on a lady. Meyers added that if Milligan were a lady, Meyers would surely date him. Meyers then laughed and left the stockroom.
The next day, October 12, 2007, Milligan and his mother, Kim Milligan ("Mrs. Milligan") met with Dr. Gary Kinsel, chair of the chemistry department, about Meyers' behavior. He explained that Meyers had been a greatly admired scientist and researcher and had been an asset to SIU. He told Milligan and Mrs. Milligan that he was aware that Meyers had done other inappropriate things and that he was a problem, but that SIU could not really hold him accountable because he was in need of medical help. He advised Milligan to avoid Meyers if possible. Kinsel further explained that he did not have authority over Meyers because Meyers was not employed in the chemistry department but that Dr. John Koropchak, a vice-chancellor who oversaw institutional research, did. Kinsel had already notified Koropchak, who was out of town at the time, of Milligan's complaints and had arranged for a meeting between Milligan and Koropchak to take place on October 17, 2007, after Koropchak returned from his travel. Kinsel also reviewed SIU's sexual harassment policy with Milligan and Mrs. Milligan. Kinsel was not familiar with the policy before this meeting and misunderstood parts of it, namely, whether a written, as opposed to an oral, complaint was necessary for a supervisor to take action.
In the meantime, having no authority to remove Meyers from the situation, Kinsel and Kraft decided to temporarily assigned Milligan to the second floor stockroom to reduce his chances of encountering Meyers. Milligan was able to work the same number of hours in his new assignment and did not mind the change. Nevertheless, on October 16, 2007, Milligan encountered Meyers in a stairwell in Neckers Hall. Meyers told Milligan he would look sexy as a girl, giggled and pinched him in his lower abdomen right above his low-rise jeans waistline close to his genital area. Meyers continued laughing and walked away. He saw Meyers many other times on the second floor despite his new work assignment.
When Milligan and Mrs. Milligan met with Koropchak on October 17, 2007, Koropchak asked Milligan four or five times if he was sure he wanted to file a complaint against Meyers and initiate an investigation. Undeterred by Koropchak's not-so-subtle efforts to discourage him, Milligan repeatedly confirmed that he did. Koropchak told them he would begin an investigation of Meyers' behavior and advised Milligan to avoid Meyers if possible. Milligan continued to see Meyers around campus, but Meyers exhibited no more harassing conduct toward Milligan. Milligan would have to go out of his way to avoid him on a number of occasions, once even being late for class, and felt uncomfortable and distracted.
After meeting with Milligan and Mrs. Milligan, Koropchak told Meyers that allegations of sexual harassment has been made against him and that his behavior would be monitored. In his investigation of Milligan's allegations, Koropchak learned that Meyers had exhibited harassing behavior to others, including Terry Christian, a female SIU employee. Koropchak concluded that Meyers had violated SIU's sexual harassment policy and, on November 8, 2007, issued him a letter of reprimand. The letter directed Meyers to cease all contact with student workers in the chemistry department and to complete SIU's sexual harassment training no later than December 1, 2007. The letter warned Meyers that if he committed any further violations or failed to comply with the conditions in the letter, he could be terminated as director of the Cal Y. Meyers Institute and lose his privileges at SIU.
Meyers did not comply with either directive in Koropchak's letter of reprimand. He did not attend the required sexual harassment training by the deadline (and attempted to negotiate with SIU's chancellor to be relieved from that requirement), and he began questioning Kraft and student workers about who had accused him of sexual harassment. He even went so far as to offer Kraft money to compensate for any trouble he might get into for revealing the source of the complaint. Kraft refused to reveal Milligan as Meyers' accuser despite Meyers' repeated requests for that information. On January 22, 2008, after Milligan had returned to working in the first floor stockroom, Meyers asked Milligan if he knew who had accused him of sexually offensive behavior and if it was him. Milligan mumbled a response and left the area.
After SIU found out about this contact from Mrs. Milligan on January 29, 2008, and noted that Meyers had not completed the required sexual harassment training, SIU Chancellor Fernando Treviño sent Meyers a letter dated January 31, 2008, immediately banning him from the campus pending completion of Koropchak's investigation and warning him that he was subject to arrest for trespassing if he was found on SIU property. SIU legal and public safety personnel delivered the letter to Meyers. The ban was based on Milligan's reports and other instances of alleged sexual harassment discovered during the investigation of Milligan's complaint. The ban was still in place as of March 2010.
Meyers did not comply with the ban and returned to campus a number of times. Milligan saw Meyers on campus more than 20 times after he was banned. Each time SIU public safety personnel became aware that Meyers was on campus -- at least three times in March 2008 -- pursuant to a standing directive of the director of public safety, they escorted him from campus but did not arrest him. Prior to the order banning Meyers, SIU public safety officers had arrested others who had violated orders banning them from campus.
Milligan realized that he would have to encounter Meyers in Neckers Hall if he remained a chemistry major. This realization, in combination with a newly-discovered interest in writing, caused him to change his major from chemistry to creative writing in February or March of 2008.
While all this was going on in the spring of 2008, Kraft began to believe Milligan was not taking his job as seriously as he had when he had first started working. In the fall of 2007, Kraft thought Milligan had been a reliable worker in the chemistry stockroom, but in February 2008, Milligan asked to forego two work hours so he could have more time to study, leaving only one working day a week. Milligan also called in sick two days, missed one day of work without explanation and had an accident with a liquid nitrogen tank. In April 2008, toward the end of the semester, Kraft decided not to give Milligan any work in the fall 2008 semester and instead to reassign his hours to more dependable employees. Milligan found work in another SIU department in the fall of 2008, the next time he was available for work at SIU.
Milligan filed this timely lawsuit on April 24, 2007, charging the SIU Board with sexual harassment and retaliation in violation of Title IX of the Education Amendment Act of 1972 ("Title IX"), 20 U.S.C. § 1681, et seq. (Count I) and of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (Count II). The SIU Board has filed a motion for summary judgment on Milligan's sexual harassment claims on the grounds that Meyers did not harass Milligan because of his sex, that the harassment was not severe or pervasive enough to be actionable and that SIU acted reasonably and without deliberate indifference in response to Milligan's complaints. It also asks for summary judgment on Milligan's retaliation claims on the grounds that there is no evidence of a connection between Milligan's complaints an any material adverse employment action or educational experience. Milligan contends that a reasonable jury could find in his favor on his sexual harassment and retaliation claims.