Lisa DUNN, Plaintiff-Appellant, v. WASHINGTON COUNTY HOSPITAL and Thomas J. Coy, Defendants-Appellees, 429 F.3d 689

EASTERBROOK, Circuit Judge. For several years, Lisa Dunn worked as a nurse at Washington County Hospital in Nashville, Illinois. It is a small hospital, with only 59 beds, so members of the staff must be able to work well together; antagonists cannot be separated readily. Dunn contends in this suit under Title VII of the Civil Rights Act of 1964 (and other federal statutes) that Thomas J. Coy, the head of obstetric and emergency services, made life miserable for her and other women on the staff. Details do not matter for current purposes. The district court assumed that Dunn encountered discriminatory working conditions (men on the staff faced no similar problems) but granted

summary judgment for the Hospital anyway, because at the time Dr. Coy was not one of the Hospital’s employees. He had staff privileges, which he used to furnish medical services directly to patients. The Hospital therefore could not control his conduct, the judge ruled, and could not be liable for it. The district judge proceeded as if this were a tort suit. Coy was an independent contractor; the Hospital would not be liable on principles of respondeat superior for intentional torts he committed against the nurses; consequently, the judge thought, the Hospital could not be liable under Title VII either.

The proposition about the limits of vicarious liability is incontestable. See Berry v. Delta Air lines, Inc., 260 F.3d 803, 811-12 (7th Cir. 2001). It is also irrelevant, because liability under Title VII is direct rather than derivative. The Supreme Court held in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), that an employer is answerable under Title VII only for “its own” deeds — and this is so even if the person who takes supposedly discriminatory action is on its payroll.

An employer is responsible for every “tangible employment action” (hiring, firing, promotion or its absence, wage-setting, and the like) plus any other discriminatory term or condition of employment that the employer fails to take reasonable care to prevent or redress.

When a supervisor causes the objectionable conduct, proof of reasonable care is an affirmative defense; otherwise the plaintiff bears the burden of showing that the employer knew of the problem (usually though not always this requires the employee to show that a complaint was made) and that the employer did not act reasonably to equalize working conditions once it had knowledge. See, e.g., Faragher, 524 U.S. at 799-808, 118 S.Ct. 2275; EEOC v. Indiana Bell Telephone Co., 256 F.3d 516, 524-26 (7th Cir.2001) (en banc); Shafer v. Kal Kan Foods, Inc., 417 F.3d 663 (7th Cir.2005); Hostetler v.

Quality Dining, Inc., 218 F.3d 798, 809-11 (7th Cir.2000). Because liability is direct rather than derivative, it makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer. Ability to “control” the actor plays no role. Employees are not puppets on strings; employers have an arsenal of incentives and sanctions (including discharge) that can be applied to affect conduct. It is the use (or failure to use) these options that makes an employer responsible — and in this respect independent contractors are no different from employees.

Indeed, it makes no difference whether the actor is human. Suppose a patient kept a macaw in his room, that the bird bit and scratched women but not men, and that the Hospital did nothing. The Hospital would be responsible for the decision to expose women to the working conditions affected by the macaw, even though the bird (

a) was not an employee, and (

b) could not be controlled by reasoning or sanctions. It would be the Hospital’s responsibility to protect its female employees by excluding the offending bird from its premises. This is, by the way, the norm of direct liability in private law as well: a person “can be subject to liability for harm resulting from his conduct if he is negligent or reckless in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.” Restatement (2d) of Agency § 213(d).

Just so with an offending independent contractor, as Coy is alleged to be. The employer’s responsibility is to provide its employees with nondiscriminatory working conditions. The genesis of inequality matters not; what does matter is how the employer handles the problem. Accord, Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072-74 (10th Cir.1998) (collecting cases). Dunn alleges that the Hospital knew that Coy made life miserable for women (but not men) and did nothing in response. That states a claim of sex discrimination under Title VII.

The Hospital is mistaken in. saying that Dunn failed to plead the correct theory (or the right facts) in the district court: Pleadings need not contain either factual details or legal theories. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073 (7th Cir.1992). Nor does it matter whether Coy intended to injure women; the right question is whether the Hospital intentionally.created or tolerated unequal working conditions.

The district court therefore must decide on remand whether Coy’s conduct was severe enough (and the Hospital’s response feeble enough) to justify liability, and if material facts are in dispute a trial-must be held. Dunn’s other contentions, however, do not require additional proceedings. Coy was not a state actor,"so claims under the first amendment fail. Dunn’s equal-protection argument — that the Hospital favored Coy over her because he brought in more business — does not show intentional discrimination against women.

Dunn’s own characterization of events implies that the Hospital tolerated Coy despite, rather than because of, his puerile behavior, and thus did not intentionally discriminate. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (“Discriminatory purpose .... implies more than intent as volition or intent as awareness of consequences.

It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.”) (internal footnote, citation, and quotation marks omitted). Dunn does not contend that the Hospital acted as it did because it shared Coy’s prejudices. Public employers must avoid sex discrimination in their own acts (including the acts of their employees) but are not obliged to root out discrimination by private actors — and, as an independent contractor, Coy was a private actor.

If the Hospital protected men but not women from depredations by third parties, it would transgress the original sense of equal protection, but Dunn does not contend that the Hospital protected anyone from Coy. The Constitution by and large establishes negative liberties; it does not require the state to prevent or redress the misconduct of private actors. See, e.g., DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); Leeke v. Timmerman, 454 U.S. 83, 102 S.Ct. 69, 70 L.Ed.2d 65 (1981).

This is an important respect in which Title VII provides public employees with rights in addition to the Constitution’s requirements. Dunn’s contention that the Hospital retaliated against her for complaining about Coy’s misconduct is doubly incorrect: first because “the Hospital” did nothing at all (Coy is responsible for all of the supposedly retaliatory acts), and second because what Coy did would not create a legal problem even if imputed to the Hospital. Almost all of what Dunn characterizes as “retaliation” is verbal requests from Coy to withdraw her complaint of sexual harassment.

We assume (as we must at this juncture) that Coy spoke in a nasty and uncivil tone. “[Playbacks are hell,” one of his statements to Dunn, implied that he would do what he could to impede her career. Yet his statements did not cause Dunn any injury (that is to say, no adverse employment action occurred). See Hottenroth v. Slinger, 388 F.3d 1015, 1030 (7th Cir.2004) (“It is well established that unfulfilled threats that result in no material harm cannot be considered an adverse employment action under Title VII.”).

Talk is cheap; unless Dunn knew that Coy had sabotaged the career of other nurses, his statements would not have dissuaded reasonable persons from protecting their own rights under the statute and thus cannot violate Title VII. See Wash ington v. Illinois Department of Revenue, 420 F.3d 658, 661-62 (7th Cir.2005). Dunn did not offer evidence that Coy had damaged other nurses’ careers; instead the record shows that she stood up to a windbag.

The one supposedly retaliatory act that cannot be characterized as cajolery or dark hints of future adverse employment action occurred during late April 2002 when Coy pushed Dunn against a cabinet in the coffee room and, while he had her pinned, tapped her on the cheek with a closed fist. Dunn complained to the Hospital’s management on May 2 about this assault and battery (which implied the possibility of a more serious physical attack in the future), and she never came to work again, sending a letter of resignation on May 6.

Coy’s assault and battery may be actionable under state tort law, but they cannot be imputed to the Hospital — not only because Coy was not its employee but also because Dunn did not give management time to respond. Only a variant of absolute liability would deem the Hospital responsible for Coy’s misbehavior, and Title VII is not an absolute-liability regime. Trying to pin the label “constructive discharge” on Coy’s threat of violence is unhelpful. One threat of this kind does not meet the standard of constructive discharge, see Pennsylvania State Police v.

Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004), and it would not matter if it did — for only employers can “discharge” workers, and Coy was not Dunn’s employer. A final comment about the proceedings that lie ahead. Some of the discovery rulings were shaped by the district court’s view that the Hospital could not be responsible for the acts of a non-employee; these must be reexamined on remand.

For his part, Coy contends that much of the evidence that Dunn proposes to use is privileged under Illinois law, either because it concerns the relation between Coy and his patients or because it arises from a “peer review” proceeding (the process by which hospitals determine the suitability of physicians to serve on their medical staffs). See 225 ILCS 60/45, 735 ILCS 5/8-2101. Coy does not explain, however, why these privileges matter to cases under the federal-question jurisdiction.

Only in diversity litigation do state evidentiary privileges apply directly, see Fed.R.Evid. 501, and Coy does not contend that the privileges he asserts are recognized as a matter of federal common law. Cf. University of Pennsylvania v. EEOC, 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). We need not decide whether they should be so recognized, as Coy failed to make these arguments in the district court and has forfeited them.

The judgment is affirmed except as follows: To the extent that it concerns sex discrimination under Title VII, the judgment is reversed, and the case is remanded for proceedings consistent with the opinion. To the extent that it dismisses the state-law claims, the judgment is vacated and the case is remanded for their reinstatement and resolution under the supplemental jurisdiction.