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, 

, 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." 

. 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." 

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." 

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." 

s 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.’" 

.
The Holmans moved the district court to
reconsider its order in light of Oncale v.
Sundowner Offshore Services, Inc., 

(1998). See 

. 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." 

surveying the applicable law, the district court
denied the Holmans’ motion for reconsideration
and reinstated its order dismissing their sexual
harassment claims. 

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.,

, 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, 

, 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, 

, 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.’"

v. King & Spalding, 

, 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. 

(quoting Meritor Savings Bank, FSB v.
Vinson, 

, 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.’" 

(quoting
Harris v. Forklift Systems, Inc., 

, 21
(1993)).

  In Oncale, the Supreme Court reiterated that
"Title VII’s prohibition of discrimination
’because of . . . sex’ protects men as well as
women," 

held that this prohibition
applies to the same-sex harasser, whether or not
that harasser is motivated by sexual desire. See

("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, 

81 and more than once with emphasis. See 

("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.’" 

  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." 

(emphasis added) (quoting

(Ginsburg, J.,
concurring)). This inquiry applies to both same-
and opposite-sex harassment. 

-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.’" 

(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., 

, 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., 

, 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, 

, 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., 

,
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); 

.

  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., 

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

(1998). Those cases recite
or suggest the same policy complaint. See
McDonnell v. Cisneros, 

, 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.

(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 

(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." 

. 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.,

, 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. 

. Thus, while the Holmans can allege
(hypothesize) new facts on appeal, such facts are
irrelevant if not consistent with the complaint.
Stevens v. Umsted, 

, 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., 

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

, 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, 

, 555 (7th Cir. 1998); Scusa v.
Nestle U.S.A. Co., Inc., 

, 965 (8th
Cir. 1999). The EEOC cannot essentially "amend
the complaint on appeal to state a new claim . .
. ." American Inter-Fidelity 

; see also 

("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, 

, 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., 

, 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, 

, 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., 

, 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 

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 

. 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. 

. 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, 

, 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, 

, 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. 

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, 

, 448-449, 456 (1976); Velasquez v.
Frapwell, 

, 395 (7th Cir. 1998),
vacated in part on other grounds, 

,
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, 

,
639, 650 (2000) (holding that the ADEA did not
validly abrogate states’ Eleventh Amendment
immunity). See Varner v. Illinois State Univ.,

, 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." 

.

/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, 

, 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,

, 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

(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 

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., 

, 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., 

(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.