In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

Nos. 03-3637, 03-3653 & 04-1306
JOSEPH H. LEVENSTEIN,
                                          Plaintiff-Appellant,
                              v.

BERNARD SALAFSKY, PATRICIA A. GILL,
and DAVID C. BROSKI,
                                        Defendants-Appellees.
                        ____________
         Appeals from the United States District Court for
         the Northern District of Illinois, Eastern Division.
   Nos. 95 C 5524 and 97 C 3430—Blanche M. Manning, Judge.
                        ____________
   ARGUED SEPTEMBER 21, 2004—DECIDED JULY 11, 2005
                   ____________




  Before MANION, ROVNER, and WOOD, Circuit Judges.
   WOOD, Circuit Judge. In this case, we reach the
dénouement of the lawsuit that Dr. Joseph H. Levenstein
has been pursuing against three officials of the medical
school of the University of Illinois located in Rockford,
Illinois. When the case was last before this court, we
affirmed the district court’s interlocutory ruling that the
defendant university officials were not entitled to qualified
immunity. Levenstein v. Salafsky, 

(7th Cir.
1998) (Levenstein I). Eventually, the district court con-
2                          Nos. 03-3637, 03-3653 & 04-1306

ducted a bench trial, after which it found that Levenstein
had not shown that he had been constructively discharged,
nor had he established an equal protection violation.
The court accordingly entered judgment in favor of the
defendants. This time it is Levenstein who is appealing. Al-
though we have no trouble imagining how a trier of fact
might have ruled in his favor, that is not the proper stand-
ard of review at this stage of the litigation. The district
court’s findings of fact were not clearly erroneous, nor do we
find legal error in its opinion. We therefore affirm.


                              I
  Levenstein joined the medical school faculty of the
University of Illinois in Rockford in 1990, as a tenure-track
professor, after a distinguished career in South Africa that
we described in Levenstein 

. Before the
events giving rise to this lawsuit, he served as the head of
the Department of Family and Community Medicine (the
Department), first for the Rockford campus, and later for all
four University of Illinois campuses. He was granted tenure
in 1992. In 1994, Dean Bernard Salafsky, one of the
defendants and Levenstein’s immediate supervisor, rec-
ommended Levenstein for a Faculty of the Year Award and
nominated him for the Pugh Charitable Trust “Primary
Care Achievement Award.” In 1995, Levenstein became the
chair of the University of Illinois College of Medicine
Primary Care Institute.
  Starting around the middle of 1994, however, two events
began to unfold: first, Levenstein and Salafsky had a falling-
out over the financing and management of the University’s
Medical Service Plan (MSP), which was a fund designed to
cover various medical school operating expenses like faculty
salaries and maintenance; second, in the spring of 1995,
defendant Patricia A. Gill, the Deputy Chancellor of
Affirmative Action Programs (AAP), received an anonymous
Nos. 03-3637, 03-3653 & 04-1306                              3

letter from a medical student alleging that Levenstein had
sexually harassed her. Levenstein saw the University’s
response to the sexual harassment complaint as a veiled
effort to undermine his efforts to understand deficits in the
budgets of the MSP and the Department and to expose
financial mismanagement.
  Briefly, the financial dispute began when Salafsky’s office
revealed in mid-1994 that the MSP might be facing a
cumulative deficit of an amount significantly greater than
its operational losses of approximately $280,000 in 1993 and
$260,000 in 1994. Over Salafsky’s objection, Levenstein led
the formation of an executive committee to serve as a
“watchdog” over Salafsky’s administration. Later that year,
Salafsky proposed the construction of a new specialty clinic
to be called the East Side Clinic. Levenstein and the other
watchdog committee members agreed that such a clinic
would be desirable, but questioned whether the MSP could
afford it and whether it could be justified from an educa-
tional standpoint. As time went on, Levenstein asked more
and more questions about the $400,000 MSP deficit and the
projected $500,000 departmental deficit, but Salafsky was
unresponsive. On April 19, 1995, the two had a confronta-
tion at an executive committee meeting. Dr. Frank
Chmelik, Chair of the Rockford MSP, approached Salafsky
in an effort to resolve the problem. Ominously, Salafsky told
Chmelik that “there was a much larger problem than this
that would become more obvious over the ensuing weeks.”
  Salafsky was referring to the anonymous harassment
complaint, which Gill had received only two days earlier, on
April 17. On April 27, Gill forwarded a copy of the letter to
Levenstein and to Salafsky. She advised Levenstein that
there would be no investigation unless the anonymous com-
plainant came forward. On May 1, a physician at Rockford
who had worked with Levenstein contacted Gill to report
inappropriate conduct by Levenstein. She, too, did not
reveal her identity to Gill until later, but she did pass along
4                          Nos. 03-3637, 03-3653 & 04-1306

her complaint to her immediate supervisor. On May 8, two
more similar complaints came in, this time from two of
Levenstein’s departmental support staff. Salafsky was told
about the later complaints.
  On May 11, Salafsky and the Associate Regional Dean,
Dr. Donald Wortmann, met with Levenstein to discuss the
sexual harassment complaints. They told him that if he did
not resign effective 5:00 pm that day, he would be sus-
pended with pay pending the outcome of an investigation.
As of the time of that meeting, no formal complaints had yet
been filed, although Salafsky knew both the identities of
some of the complainants and that they wished to pursue
formal charges. After hearing all of this, Levenstein
telephoned Gill to confirm what had been happening. At the
end of the day, Salafsky suspended Levenstein with pay as
promised.
   The next day, Salafsky called a meeting of the faculty at
which he announced Levenstein’s suspension and the cir-
cumstances that had prompted it. He said, inaccurately,
that Gill had received four letters in the last month; in fact,
she had received only the one anonymous letter. Formal
letters were not long in coming, however. On May 17, the
author of the anonymous letter came forward, wrote a new
letter, and signed a formal complaint. The two support staff
members did likewise, and on May 21, the three women
filed a joint “Request for Action” form. With this in hand,
Gill opened an investigation.
  On May 24, Gill informed Levenstein about the specifics
of the complaints and outlined the investigation process. He
was permitted to respond in writing to the allegations,
which he did, denying any sexually offensive conduct. Gill
completed her investigation on July 23. She submitted a
report concluding that Levenstein had violated the Univer-
sity’s sexual harassment policy to her supervisor, the head
of AAP. The supervisor agreed and made two recommen-
Nos. 03-3637, 03-3653 & 04-1306                            5

dations in the alternative: either Levenstein should be re-
stricted for three years from exercising authority over
female subordinates, with the exception of restrictions on
classroom instruction, lecturing, and patient treatment; or,
if it was not possible to create an arrangement that per-
mitted him to perform fully as a member of the faculty, he
should be terminated.
  Levenstein submitted an appeal from the AAP’s findings
and recommendations on August 9 to defendant David C.
Broski, the Chancellor of the University. Broski assembled
a three-person Faculty Appeal Panel with help from Gill to
handle the appeal. The panel conducted its own investi-
gation; it gave Levenstein the opportunity to comment on
various witness statements and to make a final statement.
Its report, issued on November 20, essentially agreed with
Gill’s initial conclusion that Levenstein had engaged in
offensive conduct. It made no recommendations for correc-
tive action, but it observed that the earlier recommendation
was contradictory and could not be carried out.
  On December 21, 1995, Broski recommended to the
president of the University, James J. Stukel, that
Levenstein’s tenure should be reviewed “with the intent
to revoke.” Broski also advised President Stukel that
Levenstein had been placed on paid leave pending the out-
come of the investigatory proceedings. At the same time,
Broski notified Levenstein that he was relieved of his duties
as department head and that Broski had recommended to
Stukel that dismissal proceedings be commenced.
  Stukel accepted that recommendation on January 6, 1996,
and concluded that Levenstein should remain suspended.
He communicated this to Levenstein, described the dis-
missal procedure, and indicated that he would seek the
advice of the Faculty Advisory Committee after he reviewed
the relevant materials. On February 7, 1996, he asked for
the Committee’s recommendation whether tenure revocation
6                         Nos. 03-3637, 03-3653 & 04-1306

proceedings should begin. He also ordered that Levenstein
be given other duties, without changing his compensation
(which had remained in place throughout this period).
Charles Lane Rice, the Vice Dean of the College of Medi-
cine, assigned Levenstein the menial task of reviewing and
evaluating medical videotapes for content and accuracy.
  In the meantime, Levenstein, frustrated by what he per-
ceived to be the slow pace of the proceedings, bias on the
part of decisionmakers, and the pretextual nature of the ac-
tions being taken against him, brought charges of academic
misconduct against Salafsky and other administrators at
the Rockford campus. The Faculty Advisory Committee
advised President Stukel that they would take up the ques-
tion of Levenstein’s termination after they had assessed
Levenstein’s charges against Salafsky.
  The Committee’s result was partially favorable, partially
unfavorable to Levenstein. Although it reported on April 15
that it found no merit in Levenstein’s charges against
Salafsky, the next day it recommended to Stukel that he
should not pursue termination of Levenstein’s tenure. In-
stead, the Committee thought, the less drastic measures of
reassignment and rehabilitation were appropriate. In com-
ing to this recommendation, the Committee said that it
perceived “no room for serious contention” that “several” of
the charges against Levenstein were valid; nonetheless, it
also indicated that some of the charges were “not particu-
larly persuasive,” some of the conduct was not necessarily
wrongful, and in some instances Levenstein’s actions “may
be subject to an innocent interpretation.” The Committee
reported its strong reservations on the question whether the
allegations proved that Levenstein’s future performance
would be “professionally substandard.” The Committee did
not copy Levenstein or any other administrators on its
recommendation to Stukel, nor did Stukel tell Levenstein
the gist of the Committee’s findings.
Nos. 03-3637, 03-3653 & 04-1306                            7

  Before Stukel had a chance to make a decision on the
case, Levenstein pretermitted the process by tendering his
resignation in a letter dated April 23, 1996. Stukel ac-
cepted. Had Levenstein not resigned, Stukel would have
been free to accept, reject, or modify the Committee’s recom-
mendation. If he had chosen to pursue tenure termination,
University statutes provided for a hearing at which
Levenstein would have had an opportunity to present his
case and for an appeals process.


                             II
  On September 27, 1995, while the University proceedings
we have just described were still underway, Levenstein filed
this lawsuit under 42 U.S.C. § 1983 against the Board of
Trustees of the University of Illinois, Salafsky, Gill, and
Broski. He later dropped his claims against the Board of
Trustees and filed an additional complaint in the district
court, but the cases were eventually consolidated both in
the district court and here, and so we treat them all as one.
  After this court affirmed the district court’s decision re-
jecting the defendants’ claim of qualified immunity in
Levenstein I, the case continued on to the merits. On
February 4, 2002, the district court issued a memorandum
and order in which it found that genuine issues of fact ex-
isted on three questions: whether Levenstein’s procedural
due process rights had been violated; whether his suspen-
sion was really the result of the defendants’ animus and the
procedures a sham; and whether he had been the victim of
selective enforcement in violation of his equal protection
rights. In the same memorandum, however, the court found
that the defendants were entitled to qualified immunity
insofar as these claims were brought against them in their
individual capacities. It did so on the ground that
Levenstein could not show under these circumstances that
the defendants should have known that their actions were
8                          Nos. 03-3637, 03-3653 & 04-1306

violating his rights. See Saucier v. Katz, 

, 201
(2001). It properly noted that this court’s opinion in
Levenstein I was premised on the fact that the defendants’
initial motion was based exclusively on the pleadings, and
thus did not preclude the district court from revisiting the
immunity issue on the basis of a fuller record. See Behrens
v. Pelletier, 

, 307 (1996).
  After making that ruling, the court went on to hold a
bench trial. Although it did not spell out what relief was
still possible, the only thing could have been the prospective
injunctive relief of reinstatement that Levenstein had
requested. Levenstein originally brought his suit against
the three University defendants in both their official and
personal capacities. The qualified immunity ruling spelled
the end of his personal capacity claims for damages. As offi-
cials of the University of Illinois, which is functionally the
State of Illinois for purposes of § 1983, the defendants were
not “persons” who could be sued in their official capacity for
damages. See Will v. Mich. Dep’t of State Police, 

, 71 (1989). Nevertheless, under the well-recognized
theory of Ex parte Young, 

(1908), Levenstein
was entitled to pursue injunctive relief against them for
actions they took in violation of his constitutional rights.
See Verizon Md., Inc. v. Pub. Serv. Comm. of Md., 

, 645 (2002); Kentucky v. Graham, 

, 167
n.14 (1985). On September 5, 2003, the court ruled that
Levenstein had not demonstrated that he had been con-
structively discharged and that he had not met his burden
of showing a “class of one” equal protection violation.
  On appeal, Levenstein first attacks the district court’s
conclusion that he failed to prove that the defendants were
“out to get him” and that the process they used was a sham.
He also argues that the court erred by failing to find that
his forced idleness, coupled with the sham procedures,
amounted to a constructive discharge, and by rejecting his
Nos. 03-3637, 03-3653 & 04-1306                             9

equal protection claim. Finally, he cursorily takes issue
with the court’s decision with respect to the defendants’
qualified immunity.


                             III
                             A
   We begin with the qualified immunity argument, since
Levenstein’s chances of any damages relief against the
individual defendants are dependent on this point. The
district court’s explanation of why it was conferring quali-
fied immunity was regrettably brief. Unfortunately, so was
Levenstein’s treatment of this point in his brief on appeal.
Indeed, it was so abbreviated that we are tempted to say
that he has forfeited the right to pursue this argument.
  We have no need to explore the forfeiture issue, however,
for a straightforward reason. In the end, as the defendants
point out, it makes no difference to this case whether the
district court’s immunity ruling was correct or not. A proper
treatment of the qualified immunity issue requires the
court first to decide whether the officer’s conduct violated a
constitutional right, taking the facts in the light most
favorable to the party asserting the injury. 

. If and only if so, then the court must determine
whether the right was clearly established in the light of the
specific context of the case. 

court went on and
conducted a full bench trial for purposes of deciding
whether the defendants violated any of Levenstein’s
constitutional rights. It concluded, as we have already
noted, that they did not. If this decision was correct, then
there is nothing left of any potential damages claim in any
event. We therefore have no need to decide how clearly the
right to be free of sham proceedings and trumped-up
charges was as of 1995 and 1996. Levenstein’s case rises or
falls on the soundness of the district court’s analysis of the
merits.
10                         Nos. 03-3637, 03-3653 & 04-1306

                              B
  We begin our consideration of the merits with a reminder
about the standard of review, which is the biggest hurdle
that Levenstein must surmount. After a full bench trial, the
district court’s findings of fact may not be set aside unless
they are clearly erroneous. Cerros v. Steel Techs., Inc., 

, 1044 (7th Cir. 2002). This, as we have often
vividly reminded parties, is a highly deferential standard.
We review questions of law de novo; mixed questions of law
or fact that do not involve constitutional rights are normally
reviewed for clear error. See Thomas v. General Motors
Acceptance Corp., 

, 307 (7th Cir. 2002).
  Levenstein’s first argument applies, as he recognizes, to
both his due process and his equal protection claims. He
takes issue with the proposition that the defendants were
proceeding against him in good faith. It is true that the
district court made some findings that might be read as a
finding that the investigation was unobjectionable. It noted,
for instance, that the University was aware of a history of
informal sexual harassment complaints against Levenstein,
even though none of those complaints had resulted in
formal proceedings. (Findings of Fact ¶¶ 26-30.) It found
that the Faculty Appeal Panel (which did not include any of
the defendants) “consistently found Levenstein’s version of
events to be less credible than the complainants [sic].” (Id.
¶ 53.) Furthermore, and closer to the point, the court found
that the University provided many procedures that
Levenstein chose not to use (id. ¶ 77), and that Levenstein
was aware of those procedures. (Id. ¶ 78.) In the end, how-
ever, the court never came to any final conclusion about the
underlying motivations for the investigation.
  Instead, the court found that in the final analysis, it was
not the University that deprived Levenstein of any property
right protected by the Constitution. It was he who chose to
submit his resignation just before President Stukel was
Nos. 03-3637, 03-3653 & 04-1306                           11

about to decide how to proceed. He elected to forgo num-
erous procedures before entities including the University’s
Committee on Academic Freedom and Tenure and the
Board of Trustees. Levenstein offers no reason for us to
think that the Board, which had the ultimate responsibility
to decide what to do, was biased, or that either the Commit-
tee or the Board would have refused to listen to his argu-
ments about pretext and sham.
  The district court observed that Levenstein was not
bringing an independent claim based on his suspension.
The fact that he was receiving full pay throughout the
period of the University’s investigation may explain this
decision. No matter. Upsetting and unpleasant though it
surely would be to be the victim of false accusations of
sexual misconduct from someone whose secret agenda was
eliminating a critic, those accusations had not yet led the
University to terminate Levenstein’s position. The only
question remaining with respect to the due process part of
the case, to which we now turn, is whether the district court
was mistaken to reject the constructive discharge argu-
ment.


                             C
  The Supreme Court recently had occasion to address the
topic of constructive discharge in the context of a Title VII
hostile-environment claim. See Pennsylvania State Police v.
Suders, 

, 2347 (2004). The question whether
the plaintiff had suffered a constructive discharge was
important because it determined whether the employer was
entitled to raise an affirmative defense to the charge.
Suders held that in order to establish a constructive
discharge, such a plaintiff had to prove both harassing
behavior sufficiently severe or pervasive to alter the condi-
tions of her employment, and that “the abusive working
environment became so intolerable that her resignation
12                         Nos. 03-3637, 03-3653 & 04-1306

qualified as a fitting response.” 

Although
Levenstein’s case relies on the due process clause rather
than Title VII, the general approach to constructive dis-
charge outlined in Suders is equally applicable here. For
him, the central issue is whether, as he asserts, it was the
University that deprived him of his protected property
interest in his tenured position on the faculty, or if, as the
district court concluded, he chose to leave.
  Levenstein relies on this court’s decision in Parrett v. City
of Connersville, 

, 694 (7th Cir. 1984), in which
we held that an employee is constructively discharged if
“his working conditions were made so miserable that he was
forced to quit.” In Parrett, we found that standard met when
a police detective was literally forced to sit in a windowless
room that was formerly a broom closet and spend his entire
shift with nothing to do. In Levenstein’s view, his situation
was identical in all material respects: he was put in a state
of enforced idleness for almost a year, he was physically
barred from campus, he was humiliated by Salafsky’s
statements and his removal as department head, and he
was given the demeaning task of reviewing dusty old
medical videotapes. He concludes that all of this, coupled
with the alleged sham investigative procedures, amounted
to a constructive discharge.
  We put to one side the investigative procedures, which we
have already found had not run their course and thus
cannot be labeled as “sham” taken as a whole. We see a
subtle but important difference in the way that the Su-
preme Court phrased the test for a constructive discharge
in Suders and the phrase Levenstein has taken from our
Parrett opinion. One could read the excerpt from Parrett as
establishing a purely subjective test for constructive
discharge, because only the employee would know how
miserable the working conditions made her feel. The Suders
test, in contrast, is an objective one, as the Supreme Court
made clear:
Nos. 03-3637, 03-3653 & 04-1306                           13

      Under the constructive discharge doctrine, an em-
    ployee’s reasonable decision to resign because of unen-
    durable working conditions is assimilated to a formal
    discharge for remedial purposes. . . . The inquiry is
    objective: Did working conditions become so intolerable
    that a reasonable person in the employee’s position
    would have felt compelled to 

(citation omitted).
   A number of facts lead us to answer that question in the
negative. First, even Levenstein concedes that the allega-
tions had been made against him, and that investigations
were proceeding. Once such a process starts, for whatever
reason, it is incumbent on the University to decide whether
the complaints have merit, and if so, to decide what remedy
is appropriate. If the complaints were made in bad faith or
cannot be supported by the facts, the accused professor will
be exonerated, which is the best that can be done even if he
might have wished that the process had never begun in the
first place. Second, unlike the policeman in Parrett,
Levenstein’s reassignment was explicitly temporary, pend-
ing the outcome of the investigation. Third, while eleven and
a half months may have seemed like an eternity to
Levenstein, in the real world it was not so long that his
resignation could be called reasonable. The Supreme Court
has acknowledged that at some point a delay in the ter-
mination process might become a constitutional violation.
See Cleveland Bd. of Educ. v. Loudermill, 

, 547
(1985). There, however, the Court found that a nine-month
adjudicatory period was not per se unconstitutionally long,
and it noted that the delay appeared to stem in part from
the thoroughness of the procedures. The latter can also be
said about Levenstein’s case, and we do not see a difference
of constitutional magnitude between nine months and
twelve months, in the context of the elaborate procedural
protections enjoyed by tenured university professors.
14                         Nos. 03-3637, 03-3653 & 04-1306

  We conclude that a person who is on leave with pay, with
a temporary (though unsatisfying) reassignment pending an
investigation of serious job misconduct, who resigns rather
than waits for the conclusion of reasonable prescribed due
process procedures of the institution, has not from an
objective standpoint been constructively discharged. Indeed,
to treat any reasonable pre-termination suspension with pay
as a constructive discharge would create considerable
tension with Supreme Court decisions like Loudermill, 

(expressly stating that a suspension with pay
prior to a pre-termination hearing is a valid option for a
state employer). See also Gilbert v. Homar, 

,
929 (1997) (holding that suspensions without pay are also
possible under some circumstances). However distasteful
his temporary situation was, Levenstein’s working con-
ditions had not become so intolerable that a reasonable
employee in his position would have felt compelled to re-
sign. There is an inherent tension for any employee who is
undergoing the kind of investigation that follows complaints
of sexual harassment or other inappropriate conduct.
Nothing in Suders equates this kind of tension with the in-
tolerable working conditions that give rise to a constructive
discharge or undermines the general Loudermill rule.
  We therefore agree with the district court’s conclusion
that Levenstein was not constructively discharged from the
University. He voluntarily resigned, and thus the defen-
dants acting in their official capacities did not deprive him
of any protected property interest.


                             D
  Levenstein’s final theory relies on the “class of one” equal
protection cases. See Village of Willowbrook v. Olech, 

(2000). Olech recognizes that a plaintiff states an
equal protection claim where she “has been intentionally
treated differently from others similarly situated and . . .
Nos. 03-3637, 03-3653 & 04-1306                           15

there is no rational basis for the difference in treatment.”
Albiero v. City of Kankakee, 

, 932 (7th Cir.
2001) (citing 

). We have recognized
that a person may also state a claim under a “class of one”
theory by showing that “the government is treating un-
equally those individuals who are prima facie identical in
all relevant respects, and that the cause of the differential
treatment is a ‘totally illegitimate animus toward the
plaintiff by the defendant.’ ” See Nevel v. Village of
Schaumberg, 

, 681 (7th Cir. 2002); 

; Esmail v. Macrane, 

, 180 (7th Cir.
1995).
   The district court rejected this theory because Levenstein
failed to identify another similarly situated individual who
was treated differently. He asserts that there is no need to
point to such an individual if one is proceeding under the
“illegitimate animus” approach. This, however, mistakes
what we said in Albiero, and (worse) is inconsistent with
the Supreme Court’s description of the theory in Olech.
Olech requires a showing of how the other similarly situ-
ated individuals have been treated. Albiero follows that
guidance by requiring the plaintiff to demonstrate how he
was unfavorably treated as compared with others who are
otherwise identical to him. After the plaintiff shows the
differential treatment, he must then prove that it flows
from an illegitimate animus, not from inadvertence or some
kind of permissible governmental classification.
  Even if we credited Levenstein’s testimony that numerous
other individuals who were accused of sexual harassment
were not suspended pending an investigation or were not
investigated at all, that would not be enough to prove this
claim. First, this is far from a showing that these other
individuals were identical to him in all relevant respects.
See, e.g., Grayson v. O’Neill, 

, 819 (7th Cir.
2002). Second, the district court found that the University
had ample reason to investigate him apart from any
16                        Nos. 03-3637, 03-3653 & 04-1306

illegitimate animus, in the form of the oral and written
complaints it had received, both in the spring of 1995 and
earlier. He has not convinced us that the district court
clearly erred in finding those facts.


                            IV
  When all is said and done, both Levenstein and the
defendant university officials had their day in court. With
all the evidence before it, the court concluded that
Levenstein was not constructively discharged, and thus that
no action of the University deprived him of a protected
property right. It also concluded that Levenstein had not
proven that he was singled out for unfavorable disparate
treatment in violation of his equal protection rights. We
therefore AFFIRM the judgment of the district court. We also
DENY the defendants’ motion to strike Levenstein’s brief as
unnecessary.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-11-05