source: Caselaw Access Project

author: POSNER, Circuit Judge. BAUER, Circuit Judge.

license: Public Domain

text:
    Sammy J. MOORE, Plaintiff-Appellant, v. Peter LISZEWSKI, et al., Defendants-Appellees.
    No. 14-3244
    United States Court of Appeals, Seventh Circuit.
    Submitted July 25, 2016
    Decided September 23, 2016

      Sammy J. Moore, Sumner, IL, Pro Se.
    Linda Boachie-Ansah, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appel-lees.
    Before BAUER, POSNER, and FLAUM, Circuit Judges.
   POSNER, Circuit Judge.

The plaintiff, an Illinois state prison inmate, brought this federal constitutional suit against a correctional officer (and other prison employees, but they unquestionably were properly dismissed by the district court) with whom he had had an altercation almost a decade ago. He claimed that the officer, Peter Liszewski, had used excessive force against him. Following our remand from the initial dismissal of his suit, see Moore v. Mahone, 652 F.3d 722 (7th Cir. 2011), the case was tried to a jury. The jury’s verdict determined that Liszewski had indeed used excessive force against the plaintiff, but awarded Moore only nominal damages-$l-on the ground (one of the options given the jury in the judge’s instructions) that the excessive force had not caused injury to the plaintiff and thus he had no entitlement to compensatory damages—there was nothing to compensate him for.

It’s a considerable mystery why nominal damages, which rarely exceed $2 and more commonly are as in this case only $1, are ever awarded. They have negligible value to the recipient, and doubtless impose a greater cost in the time and paperwork involved in the judge’s explaining nominal damages in the jury instructions and recording the award in the judgment. The explanation usually given for awarding nominal damages is that the award demonstrates that the plaintiff was victorious in the suit. But he wasn’t. The suit sought money, and yielded him a negligible amount. It would be simpler, cheaper, and faster if in a case like this the trial judge simply ordered the suit dismissed, explaining that the plaintiff (for whom the judge in this case had recruited a lawyer) had a valid claim of excessive force, but that not having been injured by it was not entitled to compensation but could have the satisfaction of knowing that he had been wronged, though harmlessly, by the defendant.

Dan N. Dobbs, in his book Law of Remedies § 3.3(2), pp. 295-96 (2d ed. 1993), offers two principal reasons for nominal damages. The first is that “some suits might be brought much as declaratory judgment suits are brought, to determine a right. A money recovery would not be the real object in such a suit.... Relatedly, a plaintiff might seek vindication of a right which is not economic in character and for which no substantial non-pecuniary award is available. A plaintiff might, for example, wish to establish a constitutional right, even if a large damage verdict is not possible.” This is not entirely satisfactory. A jury verdict awarding nominal damages is not a small rather than a large damages award; functionally it is no damages award at all. If the plaintiff goes around bragging that he won his suit, and is asked what exactly he won, and replies “$1 dollar,” he’ll be laughed at.

Professor Dobbs’s second explanation for nominal-damages awards is that such an award “is, realistically, a rescue operation. The plaintiff has established a cause of action but has no damages or has been unable to prove the damages she does have. If that led to a judgment for the defendant, the plaintiff would normally be required to pay the court costs. To avoid that and put the cost burden on the defendant, nominal damages are awarded.” This is fair enough but the straightforward alternative would be to skip the nominal damages and simply rule that if the plaintiff prevails on the merits but can’t prove any monetizable harm from the defendant’s wrongdoing, the defendant must pay the court costs.

There is a third explanation for nominal damages, though it’s similar to the second. Some federal statutes, such as the Civil Rights Fee Award Act, authorize awarding .the “prevailing” party attorneys’ fees as well as court costs. 42 U.S.C. § 1988(b). To prevail in litigation it’s not enough for a plaintiff to persuade a judge or jury that his rights were violated if he has no damages, Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987); Rhodes v. Stewart, 488 U.S. 1, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988), but the plaintiff may be deemed prevailing even if the only damages he obtains are nominal. Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Dobbs, supra, § 3.10. And finally some courts hold that while a plaintiff cannot be awarded punitive damages without obtaining actual damages, id. § 3.11(10), pp. 512-14, nominal damages are “actual'enough” to satisfy the actual-damages requirement and thus permit an award of punitive damages to the plaintiff. See, e.g., Carey v. After the Gold Rush, 715 P.2d 803 (Colo. App. 1986).

The alternative, which would make the life of the law a little more livable, would be a rule that a party that establishes a violation of his legal right is entitled to an award of court costs and/or attorneys’ fees, period—that is, without regard to whether he has obtained any damages. Such a rule would reduce paperwork and judge and jury time without disserving deserving plaintiffs. At present, however, the nominal-damages rule is entrenched. See F. Andrew Hessick, “Standing, Injury in Fact, and Private Rights,” 93 Cornell L. Rev. 275 (2011). The Supreme Court said in Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), that “By making the deprivation of such rights [procedural due process, in Carey] actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the .case of exemplary or punitive damages, to deter or punish malicious deprivations of rights. Because the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury” (citations omitted). Notice that this could be read as limiting nominal damages to cases in which the plaintiff had been deprived of a constitutional right though with no resulting harm to him, but no such limitation' can be found in the case law after Carey.

The plaintiff in our case of course wants more than just nominal damages. He argues that he was injured by Liszew-ski—that in the altercation Liszewski had struck him on the head twice with Lisz-ewki’s walkie-talkie. But there was contrary evidence as well, evidence that the injury was attributable to the plaintiffs having fallen and hit his head on a table, an accident not caused by Liszewski. The jury evidently agreed with that evidence, as it was entitled to do. There were a number of witnesses, both prison inmates and prison staff, to the altercation, and the cause of the injury could not be definitively determined. This allowed the jury to side with Liszewski to the extent of ruling that Moore had incurred no actual damages but entitling him to nominal damages and whatever increments,, such as court costs and attorneys’ fees, to which an award of nominal damages entitles the plaintiff. The judge awarded those costs and fees directly to the lawyer whom the judge had recruited for Moore, and that was proper because Moore had incurred neither expense.

The judgment of the district court is therefore

Affirmed. ■

BAUER, Circuit Judge.

I concur with the affirmance of the judgment of the district court.


author: SYKES, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Talon G. WRIGHT, Defendant-Appellant.
    No. 15-3109
    United States Court of Appeals, Seventh Circuit.
    Argued April 18, 2016
    Decided September 23, 2016

      Segev Phillips, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.
    Elisabeth R. Pollock, Attorney, Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant.
    Before EASTERBROOK and SYKES, Circuit Judges, and ADELMAN, District Judge.

       Of the Eastern District of Wisconsin, sitting by designation.

   SYKES, Circuit Judge.

A day after police responded to a domestic dispute between Talon Wright and Leslie Hamilton, an investigator returned to the couple’s apartment to follow up on suspicions that Wright was in possession of child pornography. With Hamilton’s consent, the investigator searched the apartment and conducted a forensic preview of a desktop computer found in the living room. The preview revealed images of child pornography on the hard drive. Wright was indicted on child-pornography and child-exploitation charges. He moved to suppress the evidence recovered from the warrantless search of his computer, arguing that Hamilton lacked authority to consent. The district judge denied the motion. Wright pleaded guilty but reserved his right to appeal the denial of suppression and now does so.

.We affirm. Although- Wright owned the desktop computer, Hamilton was a joint user who enjoyed virtually unlimited access to and control over it. The computer was located in the living room of the couple’s apartment, and everyone in the family, including Hamilton and her children, used it freely. These facts, which were conveyed to the investigator prior to the search and later confirmed through further investigation, establish Hamilton’s common authority over the computer.

I. Background

On July 31, 2014, police officers in Urba-na, Illinois, responded to a domestic dispute between Wright and Hamilton. In their incident report, the responding officers noted that Hamilton called Wright a “pedophile” during the altercation. Apparently no arrests were made that day.

The following morning Urbana Police Investigator Tim McNaught, who specializes in handling crimes against children, reviewed the officers’ report as a matter of course. Concerned about Hamilton’s use of the word “pedophile,” Investigator McNaught contacted her and requested a meeting. Hamilton arrived at the police station that same morning. In this initial interview, Investigator McNaught sought Hamilton’s permission to search the couple’s apartment and computers for evidence of child pornography. Hamilton agreed and took McNaught to the apartment.

During the search, McNaught seized a desktop computer he found in the living room; forensic analysis revealed images of child pornography on the hard drive. Wright was charged with one count of possessing child pornography, 18 U.S.C. § 2252A, and two counts of sexually exploiting a minor, id. § 2251. He moved to suppress the evidence recovered from the desktop computer, arguing that Hamilton lacked authority to consent to the warrant-less search.

At the evidentiary hearing that followed, Investigator McNaught testified about three different encounters with Hamilton on the day of the search: (1) the initial interview conducted prior to the search; (2) a discussion that occurred during the search itself; and (3) a lengthier post-search interview.

First, Investigator McNaught described the brief interview with Hamilton that took place at the Urbana police station before the search of the apartment and computer. In that interview McNaught asked Hamilton why she called Wright a pedophile. Hamilton responded that Wright had used his cellphone to visit a website called “Jail-bait.” Investigator McNaught recognized “Jailbait” as a site that features pornographic images of underage girls. Hamilton also mentioned seeing a video with a disturbing title on the family’s home computer. Based on this information, McNaught asked Hamilton for permission to search the couple’s apartment and computers for evidence of child pornography, and Hamilton agreed.

Next, Investigator McNaught testified about'the search itself. He explained that Hamilton took him to! the apartment that she shared with Wright and' let him in using her key. Once inside McNaught spotted a desktop computer on the living-room floor. The computer wasn’t attached to a keyboard or traditional monitor, but it was connected to a flat-screen TV. According to Investigator’ McNaught, Hamilton described the computer as “kind of a family computer” and said that “[a]nytime she or her kids wanted to use it, they did.” She explained that they used the computer to watch movies, play games, check the children’s grades, and store work-related documents. However, since- the apartment’s wireless Internet service had been discontinued about a month earlier, they could only access the Internet when Wright was around to use his cellphone as a wireless hotspot. Hamilton also pointed out her own laptop computer; she told the investigator that with the exception of her personal laptop, Wright owned the rest of the computer equipment in the apartment.

Investigator McNaught then “previewed”' the desktop computer’s hard drive by connecting it to his own laptop, á standard forensic procedure that allows investigators to view the drive’s contents without altering it. This preview revealed images of child pornography, so McNaught asked Hamilton for permission to seize the computer along with the rest of the electronic devices'in the apartment for further investigation. She agreed. Off-site forensic analysis of the computer revealed additional pornographic images as well; as video and' still images of Wright engaging in sexually explicit conduct with a minor;

" Finally, Investigator McNaught testified about a second interview that he conducted with Hamilton after he completed his search of the apartment. During this longer follow-up interview, Hamilton described the living,arrangements at-the apartment, which :was leased in her name. She explained that she and Wright had been in a tumultuous, “on-and-off’ relationship for the last two years and had broken up several days earlier. Prior to the breakup, the couple had been living together in the apartment along with their six-month old son, three of Hamilton’s children from another relationship, and two of Wright’s children from another relationship. Since the breakup Wright and his two daughters were temporarily staying with his mother while Hamilton and her children prepared to move out of the apartment permanently.

Hamilton also talked about the desktop computer during the second interview. She mentioned a long password that her children knew but she-did not. She suggested that the password was somehow associated with the computer but was unable to say if it-was required to gain access to the computer itself or only to access the Internet via the apartment’s wireless connection. Hamilton also reiterated that she and her children regularly used the computer to watch movies, play games, and access the Internet. The forensic analysis of the computer did not. reveal any sign of password protection, but it did confirm that Hamilton and her children had used the computer recently: The browser history revealed frequent visits to kid-friendly websites, online videos relating to women’s and mothers’ issues, and the homepage for the children’s school.

Based on Investigator McNaught’s testimony, the judge concluded that Hamilton exercised common authority over the desktop computer and'could give valid consent to the warrantless search. Accordingly, the judge denied Wright’s motion to suppress. Wright pleaded guilty to one count of sexual exploitation of a minor and one count of possessing child pornography but reserved his right to appeal the ruling on his suppression motion.

II. Discussion

Wright challenges the district court’s denial of suppression. We review the judge’s legal conclusions de novo and factual findings for clear error. United States v. James, 571 F.3d 707, 713 (7th Cir. 2009). Wright’s challenge is limited to the search of the desktop computer, which was conducted without a warrant but with Hamilton’s consent.

The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST, amend. IV. A war-rantless search of property is per se unreasonable unless an established exception applies. United States v. Henderson, 536 F.3d 776, 779 (7th Cir. 2008) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Searches conducted with consent are one such exception. Fernandez v. California, — U.S. -, 134 S.Ct. 1126, 1132, 188 L.Ed.2d 25 (2014); see also James, 571 F.3d at 713 (“Because a person may voluntarily waive his Fourth Amendment rights, no warrant is required where the defendant consents to a search.”).

Consent may be obtained either from the defendant or from a third party who exercises common authority over the property to be searched. United States v. Matlock, 415 U.S. 164, 170-71, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Common authority does not require the existence of an ownership interest in the- property; it “rests rather on mutual use of the property by persons generally having joint access or control for most purposes.” Id. at 171 n.7, 94 S.Ct. 988. The premise of this rule is that a defendant who permits another person.to use his property assumes the risk that that person will allow others to access the property in his absence. Id. -, see also United States v. Jackson, 598 F.3d 340, 347 (7th Cir. 2010). And because “the ultimate touchstone of the Fourth Amendment is reasonableness,” Fernandez, 134 S.Ct. at 1132 (quotation marks omitted), either actual authority or apparent authority is enough to- support third-party consent. Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); see also James, 571 F.3d at 714. The government bears the burden of proving authority to consent, whether actual or apparent, by a preponderance of evidence. James, 571 F.3d at 714.

A. Actual Authority.

Wright concedes that Hamilton exercised common authority over the couple’s apartment, but it doesn’t necessarily follow that her authority extended to the desktop computer found inside. “The key to consent is actual or apparent authority over the area to be searched.” United States v. Basinski, 226 F.3d 829, 834 (7th Cir. 2000) (emphasis added). As several of our sister circuits have observed, in this context computers are akin to closed containers: The information that they “contain” is usually not readily observable without some further investigation. See United States v. Andrus, 483 F.3d 711, 718 (10th Cir. 2007); United States v. Buckner, 473 F.3d 551, 564 (4th Cir. 2007); cf. United States v. Rodriguez, 888 F.2d 519, 523 (7th Cir. 1989) (“Many a closed container is accessible; opening it requires justifica-tion_”). So Hamilton’s authority over the computer turns on whether- she enjoyed mutual use of, access to, and control over the computer itself.

It’s clear that she did. The desktop computer belonged to Wright, not Hamilton, but it functioned as a family computer. According to Hamilton, she and her children freely used it to watch movies, play games, check the children’s grades, and store work-related documents. Forensic analysis bolstered this claim: Investigator McNaught testified that he found “a lot of Internet history” showing recently viewed children’s movies and games as well as the login page for Urbana Middle School’s website. Moreover, Wright left the computer in the apartment when he went to stay with his mother, leaving Hamilton with unrestricted access to and control over it in his absence. These facts easily establish that Hamilton exercised common authority over the computer. Cf. Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (holding that the defendant’s cousin had common authority over a duffel bag that the cousin was allowed to keep at his house and use to store his belongings).

Wright’s arguments to the contrary are unpersuasive. First, he makes much of the fact that, he and Hamilton had ended their relationship shortly before the search occurred. He emphasizes that Hamilton was in the process of moving out of the apartment and that she was not planning to take the desktop computer with her when she left. He argues that any authority over the computer Hamilton once had was .revoked when she started packing up her things to move out. But the end of a romantic relationship doesn’t automatically mean that common authority over shared property has' been revoked. See United States v. Ryerson, 545 F.3d 483, 488 (7th Cir. 2008). If the ex-partner “continue[s] to access, use, dr control the property,” as Hamilton did, she continues to exercise authority regardless of the relationship’s status. Id.

Second, Wright points out that the desktop computer had a password associated with it—one that Hamilton admitted she didn’t know. He argues that this admission necessarily means that Hamilton lacked common authority over the' computer. It’s true that ignorance of a computer password may demonstrate a lack of authority under some circumstances. Like a lock on a briefcase or storage trunk, password protection on a computer demonstrates the owner’s affirmative intent to limit access to its contents. See, e.g., Andrus, 483 F.3d at 718; Buckner, 473 F.3d at 554; Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001). In other words, a defendant who password-protects his computer does not assume the risk that third parties not privy to the password will permit others to access the computer’s contents in his absence. See Buckner, 473 F.3d at 554. Accordingly, third parties from whom a password has been withheld lack common, authority over a computer.

But Hamilton is not in that situation. As an initial matter, there’s some ambiguity about whether the desktop computer was actually password-protected. Hamilton was unable to specify whether the long password she mentioned was required to access the computer itself or simply to connect to the apartment’s wireless network. Investigator McNaught, on the other hand, testified unequivocally that forensic analysis of the computer revealed no sign of password protection. Given these facts, we think it unlikely that the computer itself was password-protected.

That said, we agree with the district judge that Hamilton exercised common authority over the computer even assuming it was password-protected. Hamilton didn’t know the password but her children did, which strongly suggests that Wright made no attempt to keep it from her. Cf. United States v. Richards, 741 F.3d 843, 850 (7th Cir. 2014) (“[The defendant] had an expectation of privacy in the west bedroom because ... he alone had access to the room if it was locked.”) (emphasis added). Indeed, there’s no indication that Wright made any effort to prevent Hamilton from using the computer despite knowing that she and her children did so frequently. In contrast Wright did take steps to prevent Hamilton from accessing his cellphone: Hamilton told Investigator McNaught that she rarely even got a look at the phone because Wright was constantly changing its passcode. In this context Hamilton’s ignorance of whatever password may have been associated with the desktop computer doesn’t undercut the common authority that she exercised by virtue of being able to use the computer whenever she wanted. See James, 571 F.3d at 714 (holding that the defendant’s mother exercised common authority over a safe left in her possession absent “evidence that [the defendant] attempted to limit or restrict her control over the safe”). Her consent to the war-rantless search of the computer’s hard drive was therefore valid, and the judge properly denied Wright’s motion to suppress on this basis.

B. Apparent Authority

Although the district judge considered only Hamilton’s actual authority over the desktop computer, the record establishes that Hamilton also exercised apparent authority, which provides an alternative basis for denying Wright’s suppression motion. See United States v. Reaves, 796 F.3d 738, 741-42 (7th Cir. 2015) (“[W]e may affirm the judgment of the district court on any ground supported in the record.”). Apparent authority exists if “the facts available to an officer at the time of a search would allow a person of reasonable caution to believe that the consenting party had authority” over the property to be searched. Ryerson, 545 F.3d at 489 (citing Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793); see also United States v. Groves, 470 F.3d 311, 319 (7th Cir. 2006) (“Facts that , came to light after the search began cannot reasonably have influenced the officers’ beliefs regarding whether [a third party] possessed apparent authority.”).

Of course “mere possession of [a closed] container by a third party does not necessarily give rise to a reasonable belief that the third party has authority to consent to a search of its contents.” Basin-ski, 226 F.3d at 834. Rather “one must look for indicia of actual authority” over the container known to the officer at the time of the search. United States v. Rosario, 962 F.2d 733, 737 (7th Cir. 1992) (quotation marks omitted); see also Basinski, 226 F.3d at 834 (“[A]pparent authority turns on the government’s knowledge of the third party’s use of, control over, and access to the container to be searched, because these characteristics are particularly probative of whether the individual has authority over the ■ property.”). Typically this analysis entails considering the nature of the container and its outward appearance, including the presence of any. sort of locking mechanism. Basinski, 226 F.3d at 835. When the container at issue is a computer, a key consideration is “whether law enforcement knows or should reasonably suspect because of surrounding circumstances that the computer is password protected.” Andrus, 483 F.3d at 719.

The judge found that before Investigator McNaught searched the desktop computer, Hamilton informed him that it was a family computer that she and her children could use any time. What McNaught observed at the apartment was consistent with this claim. The computer was located on the living-room floor, which was scattered with women’s clothes and children’s toys, and was also apparently where Hamilton and Wright slept. Although the computer had no keyboard attached to it, it was connected to a flat-screen TV, consistent with Hamilton’s earlier claim that she and her children used the computer to watch family movies. Moreover, Hamilton made no mention that the computer might be password-protected until her second interview with Investigator McNaught, which took place after the search.

Given this information, it would have been entirely reasonable for Investigator McNaught to conclude that Hamilton exercised common authority over the desktop computer. See, e.g., Andrus, 488 F.3d at 719 (“Third party apparent authority to consent to a search has generally been upheld when the computer' is located in a common area of the home that is accessible to other family members under circumstances indicating the other family members were not excluded from using the computer.”); cf. Basinski, 226 F.3d at 836 (holding that the defendant’s friend lacked apparent authority over a briefcase because the officers “knew that [the defendant] never gave [his friend] the-combination to the lock”). Hamilton’s apparent authority provides an additional basis for concluding that her consent was valid and that Wright’s suppression motion was properly denied.

AFFIRMED,

      . Wright notes that the only way to access the Internet from the desktop computer was to use his cellphone as a wireless hotspot. This, he claims, demonstrates that Hamilton’s use of the computer was restricted because she could only get online in his presence and with his' permission. His claim is only half true. The apartment’s wireless Internet service was discontinued about a month before the search because the couple had failed to pay their bill. However, forensic analysis uncovered an Internet history consistent with Hamilton’s testimony dating back more than two ■ months before the search occurred. So Hamilton had at least one month of unlimited Internet access before the search. Moreover, online browsing is just one of several ways in which Hamilton claimed that she used the desktop computer. The other uses that she described— watching downloaded movies and storing work-related documents—only required access to the computer itself, not the Internet.

      . At oral argument Wright’s counsel suggested that Hamilton first told Investigator McNaught about her use of the desktop computer during the second interview, which occurred after the search. The judge’s factual ■findings, which he set forth chronologically in the order denying the motion to suppress, are to the contrary. The judge found that Hamilton told McNaught the entire family used the computer to download and watch family movies during the first, pre-search interview. The judge also found that while Investigator McNaught was searching the apartment, Hamilton again indicated that any time she or her children wanted to use the computer, they did. Wright points to nothing in the record that contradicts these findings, and we see no basis to conclude that they are clearly erroneous.


author: HAMILTON, Circuit Judge.

text:
    Jerome COLE, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF NORTHERN ILLINOIS UNIVERSITY, et al., Defendants-Appellees.
    No. 15-2305
    United States Court of Appeals, Seventh Circuit.
    Argued April 14, 2016
    Decided September 27, 2016

      Fabian John Rosati, Attorney, Law Office of Fabian J. Rosati, Chicago, IL, for Plaintiff-Appellant.
    Mary Ellen Welsh, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, Defendants-Appellees.
    Before POSNER, KANNE, and HAMILTON, Circuit Judges.

      . Cole testified that Richards also called some of his African-American students "worthless.” We discuss below why this remark, as cruel and ill-founded as we assume it was, does not constitute evidence of race discrimination.

   HAMILTON, Circuit Judge.

Plaintiff Jerome Cole has worked for Northern Illinois University in the Building Services Department since 1998. He is African-American, and he alleges that beginning in 2009, he experienced race discrimination, retaliation, and a hostile work environment, including the discovery of a hangman’s noose in his newly assigned workspace. He sued the university’s board of trustees and eleven individual university employees asserting violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, -3, and the Equal Protection Clause of the Fourteenth Amendment. The district court granted summary judgment to the defendants.

We affirm. The hostile work environment claim presents the closest question, but Cole has not shown a basis for employer liability - for the alleged harassment. Cole also has not offered evidence that would allow a reasonable trier of fact to find that he was subjected to disparate treatment based on his race. His retaliation claim fails because he has not offered evidence that he engaged in protected activity.

I. Factual and Procedural Background ’

Plaintiff Cole began working for the Building Services Department at Northern Illinois University in 1998. In 2009, he became a sub-foreman, a non-union position. In 2011, Cole says, he was promoted to foreman. (Defendants dispute the point, saying that Cole was actually an acting sub-foreman who was improperly paid foreman-level wages, but for purposes of summary judgment we accept Cole’s version of the facts.) At all relevant times, Cole was the only African-American foreman or sub-foreman in the department.

A. Alleged Discriminatory Treatment

Cole’s promotion to sub-foreman marked the start of what he terms a “laundry list of events” amounting to unfair and discriminatory treatment. It began with his own privileges as a sub-foreman. As far as Cole knew, he did not have a budget to order supplies for his assigned work areas, and unlike other foremen, he did not have the authority to place commodity orders. He also believed that friends and family of supervisors in the department were making more money than they should have. He spoke about those concerns repeatedly with Brian Hart, the assistant superintendent for the department, and with Steven Wilhelm, a Building Services supervisor, and with Jesse Perez, the university’s director of administration and labor relations.

In addition to these more general, ongoing complaints, Cole points to some specific events that he argues showed race discrimination. For example, Cole complains that on one occasion, some of his student-athlete workers were required to load scrap metal from areas outside of Cole’s responsibility onto salvage, trucks. He was concerned that he might be accused of wrongdoing after overhearing that some of the profits from the scrap metal might be missing. He notified Perez of the incident. He also spoke to Sara Cliffe, who was the assistant director of compliance at the university. In another incident, Cole learned of a substantial paper towel purchase made in his name. Concerned that someone might have been using his name without his permission, he reported the incident to Wilhelm and Hart. They assured him they would take care of it. (As far as we can tell, no further trouble ever resulted from either of these incidents.)

On several occasions after 2009, Cole was accused of unauthorized key possession by a number of Building Services supervisors, including Wilhelm, Rhonda Richards, Charlotte Marx, and Tammie Pulak. Cole testified that he never actually had the keys he was accused of possessing, though once he was required to search for á key in the snow when he says Richards knew it was already accounted for. Eventually, Bill Nicklasi who was the acting superintendent of the department until he took over as vice president of public safety and community relations in November 2012, advised Cole not to go to key control because Marx had threatened to call the police on him. Cole also testified that he had been told that Pulak instructed the university police to watch him for no legitimate reason. He reported the surveillance to Hart. Afterward he arrived at work one day to find that his door had been kicked in, his office cleaned out, and his supplies placed on a cart, all without his knowledge or approval. Cole complained about the incident to Perez and Cliffe.

In August 2012, Cole filed an ethics complaint with the university about an array of alleged unethical practices. According to Cliffe, who conducted the investigation, Cole complained that:

• Employees with connections to supervisors were being paid more than the standard salaries.
• Employees were supervising their own children.
• Supplies had been ordered under Cole’s name without his knowledge or authorization.
• Cameras had been recording Cole and his crew.
• Police had called on Cole due to past complaints.
• A retired university employee still pos.~ sessed and used his university cell phone.
• There were recording devices in foremen’s offices.

Cliffe investigated, and she substantiated three of Cole’s complaints: supervisors had supervised their own children, employees’ friends and family received special consideration for assignment to special projects, and the retired employee did indeed still have his university cell phone. She found that the rest of Cole’s allegations were unfounded.

B. Demotion and Later Discipline.

In addition to the specific complaints outlined above, Cole was demoted in 2012. In August of that year, Nicklas became the acting superintendent of the Building Services Department. He learned that a hiring freeze was in place. He also became aware that Cole and Ruth Stone, an acting sub-foreman in the same department, had been promoted without attention to proper procedures. Because Cole and Stone were in an unusual situation, Nicklas testified, he tried to ensure proper procedures going forward while being as “fair as possible” to those who would be affected by the changes. For Cole and Stone, this meant placing them on the hiring register regardless of their test scores but requiring them to interview for sub-foreman positions along with other candidates. Cole and Stone completed the hiring process as modified. Both accepted jobs as sub-foremen beginning November 1, 2012. They received the sub-foreman pay rate and were subject to the normal six-month probationary period. Since this case is before us on appeal from summary judgment, we assume this hiring process constituted a demotion. It is undisputed, however, that Stone, a white woman, was demoted at the same time Cole was, and on the same grounds.

Following his six-month probationary period, Cole was disciplined twice. On July 25, 2013, he received a written warning for non-compliance with, instructions and “borderline insubordination” based on his failure to follow directives and poor job performance. On September 17, 2013, Cole received a recommendation for a three-day suspension for disruptive behavior in the workplace, failing to obtain- supervisors’ approval when he could not work a scheduled shift, and “using improper -employee evaluation protocol.” Cole has not presented additional evidence relating to those disciplinary actions or provided details to put into dispute the reasons the defendants have offered for the discipline.

C. Noose Incidents

The most troubling incident Cole describes occurred in mid-November 2012, when he discovered a hangman’s noose in his new work area. Cole threw the noose away, ■ but inexplicably, the next day he discovered the same or possibly a second noose outside the building..A department sub-foreman, John Holmes, told Cole that Holmes, Richards, and non-defendant Rich Carter had found the noose earlier in an office on the other side of Cole’s new work area. Holmes was inconsistent about what had happened to the noose after that earlier discovery. He first said he had left the noose with Richards and Carter but later claimed he had thrown it out.

Cole called two police officers he knew for advice. Both advised him to “keep his cool” to try to “smoke out” the perpetrator. Cole took the noose to the university police department. He later e-mailed Richards and told her that he had discovered a noose and taken it to the police. The e-mail followed the advice Cole had received from his acquaintances. He told Richards that he thought nothing of the incident; that he assumed Fred Warning, a former employee, had left the noose in his workspace and was just “being silly;” that he was not offended; and that he hoped nothing came of it because to him it was “no big deal.” Because we must resolve factual disputes in Cole’s favor at this point, we- accept his testimony that- he was privately offended by the noose and that he was maintaining a nonchalant facade in the hope of leading the perpetrator to identify-himself. ■ ,

On November 20, Colé spoke with Richards about the noose. Cole stuck to his plan, telling Richards that he was not upset. Richards, however, was upset. She asked Cole why he had not gotten rid of the noose after he found it the first time. Cole was offended. that she appeared to blame him for finding the noose at all. Cole later spoke to Cliffe about the matter. He told her that he was not offended by the noose but that Richards had offended him by her reaction. For her part, Richards took Cole’s e-mail to the police station and turned it in to Nicklas along with her own handwritten notes on the incident. She also spoke to Perez and Daurer about the incident. Perez in turn told Cliffe, prompting the conversation she eventually had with Cole.

By February 2013, the university police had begun an investigation. Detective Dan Mojica interviewed Holmes, who repeated his story about how he, Richards, and Carter had found the noose in October 2012. Holmes also, told Mojica that nooses had been found-in the work area for years. After the interview, Holmes told Richards that he had spoken to police. Richards and then-department head Daurer were upset that they had not been informed of the impending interview before it actually happened.

During his investigation, Detective Moji-ca also spoke to Cole, who once again said that the noose had not upset him. Mojica would have continued his investigation, but for reasons he did not know, his supervisor eventually directed him to stop the investigation. The person who left the noose in the break room was never identified. It is unclear what became of the noose. Around the same time that Mojica was told to halt his investigation, he learned that the noose was “gone.”

The police investigation, which ultimately proved fruitless, was the only substantial step the university took after the noose incident. As noted, Richards told Nicklas of the incident, and she notified Perez and Daurer-about it. But she never conducted any meetings with Building Services workers to discuss the incident or how inappropriate it was to bring a noose on the premises, nor did she ask Pulak to hold a seminar about hate crimes or race discrimination. In fact, it is undisputed that once the police began their investigation, Richards and Daurer did nothing further to investigate or remedy the incident at all, leaving it in law enforcement’s hands. Cliffe, too, let the matter drop after interviewing Cole because he had said he was not offended.

Nothing in the record suggests that the noose incident has been repeated. In fact, there is no evidence of subsequent racial tension in the Building Services Department in this record, with one exception. Cole testified that at some point, one of his crew members told him that he had discovered a sign reading “No blacks allowed past this point.” Cole did not explain where or when the sign was discovóred, nor did he ever see it firsthand. We have no further details on this incident.

D. District Court Proceedings

Cole brought claims for race discrimination in violation of Title VII and the Equal Protection Clause of the Fourteenth Amendment alleging a hostile work environment, disparate treatment, and retaliation. The district court granted defendants’ motion for summary judgment. The court rejected the hostile work environment claim, holding that (1) most of the hostile events were not based on Cole’s race; (2) Cole had not produced evidence that the noose was intentionally left for him to find; and (3) Cole had not shown a basis for employer liability. On the Title VII claim of disparate treatment, the court held that Cole had failed to present direct or circumstantial evidence permitting a reasonable jury to infer discriminatory intent. Nor had he presented evidence of a similarly situated employee outside his protected class who was treated more favorably, undermining his ability to prove his claim by circumstantial evidence. On the retaliation claim, the court held that Cole had not engaged in activity protected by Title VII because he,, had not complained of racial discrimination.

The district court then turned to Cole’s equal protection claims under 42 U.S.C. § 1983. With the exception of Nicklas, none of the individual defendants was personally involved in causing any alleged violations of Cole’s constitutional rights, as required to collect damages from an individual under § 1983. See Matz v. Klotka, 769 F.3d 517, 528 (7th Cir. 2014). Cole’s claim against Nicklas failed for the same reasons that his Title VTI claims failed against the university. See Smith v. Bray, 681 F.3d 888, 899 (7th Cir. 2012). Cole has appealed. We have jurisdiction under 28 U.S.C. § 1291.

II. Analysis

We review de novo the district court’s decision to grant summary judgment. Boston v. U.S. Steel Corp., 816 F.3d 455, 462 (7th Cir. 2016). The question on summary judgment is- whether defendants showed that there is no “genuine dispute as to any material fact” and they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In our analysis, we construe all factual disputes and draw all reasonable inferences in favor of Cole, the non-moving party. Woods v. City of Berwyn, 803 F.3d 865, 869 (7th Cir. 2015).

Cole has asserted claims of racially disparate treatment, retaliation, and hostile work environment, in violation of Title VII of the Civil Rights Act of 1964. He has also brought a claim for race discrimination against each of the individual defendants pursuant to 42 U.S.C. § 1983, invoking the Equal Protection Clause of the Fourteenth Amendment since the university and its employees are state actors. We address his theories in turn, beginning with the hostile environment theory to which he devotes most of his attention.

A. Hostile Work Environment

Harassment sufficiently severe or pervasive to alter the terms and conditions of employment is actionable under Title VII as a■ claim of hostile work environment. Porter v. Erie Foods Int'l, Inc., 576 F.3d 629, 634 (7th Cir. 2009), citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). To prove a claim for hostile work environment based on race, an employee must show that: “(1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was severe or pervasive so as to alter the conditions of the employee’s work environment by creating a hostile or abusive situation; and (4) there- is a basis for eim ployer liability.” Id. (footnote omitted), quoting Williams v. Waste Management of Illinois, Inc., 361 F.3d 1021, 1029 (7th Cir. 2004).

The crux of Cole’s claim is his discovery of the noose in November 2012. The first and second prongs of the analysis are easily met. The noose undoubtedly qualifies as “unwelcome harassment.” Given its disturbing history and status as a symbol of racial terror, we have no difficulty assuming that the harassment could be treated as based on race, Erie Foods, 576 F.3d at 635-36; see also Dobbey v. Illinois Dep’t of Corrections, 574 F.3d 443, 445 (7th Cir. 2009) (in Eighth Amendment context, recognizing “the ugly resonance of the noose” and referring to its display as “racial harassment”).

Before turning to the third and fourth' prongs of the analysis, we briefly address an important nuance of the requirement that the harassment be based upon race. It was on that basis that the district court pared down Cole’s hostile work environment claim to encompass only the discovery of the noose, finding insufficient evidence that the other incidents were racially, motivated. Although a connection between the harassment and the plaintiffs protected class need not be explicit, “there must be some connection, for ‘not every perceived unfairness in the workplace may be ascribed to discriminatory motivation merely because the complaining employee belongs to a racial minority.’ ” Zayas v. Rockford Memorial Hospital, 740 F.3d 1154, 1159 (7th Cir. 2014), quoting Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 863 (7th Cir. 2005).

Nevertheless, forms of harassment that might seem neutral in terms of race (or sex or other protected status) can contribute to a hostile work environment claim if other evidence supports a reasonable inference tying the harassment to the plaintiffs protected status. See Landrau-Romero v. Banco Popular de Puerto Rico, 212 F.3d 607, 614 (1st Cir. 2000) (“Alleged conduct that is not explicitly racial in nature may, in appropriate circumstances, be considered along with more overtly discriminatory conduct in assessing a Title VII harassment claim’.”); Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345 (7th Cir. 1999) (“[W]e underscore that [the co-worker’s] conduct need not have been' explicitly sexual or racial in order to create a hostile environment.... The complained of 'conduct must have either a sexual or racial character or purpose to support a Title VII claim,”) (emphasis in original). Evidence that a workplace is tainted by overt racial hostility can support an inference that other harassment that at first seems race-neutral also has an undercurrent of racial animus. See, e.g., Henderson v. Irving Materials, Inc., 329 F.Supp.2d 1002, 1010 (S.D. Ind. 2004). A harasser’s actions or remarks that do not seem based on unlawful animus may be “sufficiently intertwined” with discriminatory remarks to conclude that discriminatory animus motivated all of them. Shanoff v. Illinois Dep’t of Human Services, 258 F.3d 696, 705 (7th Cir. 2001). Whether the inference is appropriate depends on the circumstances of the case; if so, the superficially neutral events are properly considered as part of “the entire context of the workplace.” Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1046 (7th Cir. 2002).

That said, we agree with the district court that the record in this case does not support a reasonable inference that most of the hostility Cole encountered was connected to his race. There is almost no evidence of racial animus in the record: no hostile or ambiguous remarks, no racial slurs, nothing beyond the notable exception of the noose itself and the later secondhand report of a racist sign posted somewhere, at some unknown time by some ünknown person. The other events on Cole’s list—the paper towel order, the scrap metal, and so on—are connected to race only insofar as they happened to Cole and Cole alone, and he was the only African-American foreman on staff. As Zagas and Beamon suggest, that by itself is not enough to raise a genuine factual dispute as to whether those events constitute race-based harassment. The same is true of the remarks Richards made about Cole’s student workers. Calling them “worthless” may have been reprehensible but without more did not amount to race discrimination solely because they were African-American. Zagas, 740 F.3d at 1159.

The hostile environment claim thus depends on the discovery of the noose and the ineffectual investigation. The absence of further instances does not necessarily defeat Cole’s claim. “One instance of conduct that is sufficiently severe may be enough.” Jackson v. Countg of Racine, 474 F.3d 493, 499 (7th Cir. 2007). An assault, for example, may create an objectively hostile environment even if it is an isolated occurrence. Lapka v. Chertoff, 517 F.3d 974, 983 (7th Cir. 2008). In addition to the questions of severity and pervasiveness, in determining whether an environment is sufficiently abusive to be actionable, we are guided by factors such as whether conduct is “physically threatening or humiliating or merely offensive, and whether it unreasonably interferes with an employee’s work performance.” Porter v. City of Chicago, 700 F.3d 944, 956 (7th Cir. 2012), quoting Scruggs v. Garst Seed Co., 587 F.3d 832, 840 (7th Cir. 2009).

The district court concluded that the environment was not actionable because Cole could not produce evidence that the noose had been displayed or intentionally left for him to find. We hesitate to conclude that a single factor like this is dis-positive, particularly because the evaluation of hostile work environment claims depends so much on the facts and circumstances of a particular- case. Lapka, 517 F.3d at 982 (citation omitted). Given the status of the hangman’s noose as “a visceral symbol of the deaths of thousands of African-Americans at the hand of lynch mobs,” Erie Foods, 576 F.3d at 636, we do not flatly reject as “insufficiently severe” an entire set of cases involving such claims. On the other hand, evidence that a noose was displayed or directed toward a particular person or group could certainly prove relevant. A noose on display is generally likely to have more of an impact on employees than one hidden away in a coworker’s desk. Likewise, a noose directed at a particular employee or group would fall more toward the “physically threatening” end of the scale than the “merely offensive” end and is thus more likely to be actionable.

These cautions.aside, we need not and do not lay down here firm rules for when a noose in the workplace is or is not severe enough to be actionable. Cole failed to present evidence to support the fourth element of his claim: a basis for employer liability. Employers are strictly liable for supervisor harassment, Williams, 361 F.3d at 1029, but when a plaintiff claims that co-workers are responsible for the harassment, “he must show that his employer has ‘been negligent either in discovering or remedying the harassment,’ ” id., quoting Mason v. Southern Illinois University, 233 F.3d 1036, 1043 (7th Cir. 2000). There is no evidence that a supervisor was involved in leaving the noose, so Cole must, instead present evidence allowing a reasonable jury to find that the university was negligent—which means in this context that it failed to take “prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring,” Erie Foods, 576 F.3d at 636, quoting Tutman v. WBBM-TV, Inc/CBS, Inc., 209 F.3d 1044, 1048 (7th Cir. 2000).

A prompt investigation is the first step toward a reasonable corrective action. See Erie Foods, 576 F.3d at 636, citing Lapka, 517 F.3d at 984. The undisputed facts here show that once Cole notified Richards of the discovery of the noose, she spoke to him about it (albeit insensitively, we must assume) and delivered her own notes on the incident to the university police. She also reported the incident to Nicklas, then vice president of public safety and community relations, as well as Perez and Daurer. She did nothing more after that, but in these circumstances it was reasonable for the administration, having involved the university police, to leave the investigation to them.

To be clear, we do not hold that an employer necessarily fulfills its responsibility to take appropriate corrective action if it has reported an incident to some other party. The question is whether the employer took corrective action “reasonably likely” to prevent harassment from recurring. In some cases—perhaps many cases— turning a matter over to someone else and taking no further action may not be enough. But under the circumstances shown by undisputed facts here, the university was not negligent. When Cole informed Richards that he had discovered the noose, he also told her that he had taken it to the police; that he believed it was intended as a joke by an employee who had since retired; that he was not offended; and that he hoped nothing would come of the matter. When Cliffe investigated the matter, Cole told her the same thing. Under those circumstances—faced with an incident that lacked any other threatening overtones and that Cole himself characterized as a joke by someone no longer employed in the department—it was reasonable for Richards to leave the matter to university police once she had reported it and to forgo additional action within the Building Services Department.

Cole suggests that this holding would undermine an employee’s ability to recover for a hostile work environment if the employee downplays the effects of that environment on himself. We do not endorse such a rule. An employer may be negligent in failing to take reasonable measures to prevent additional harassment even if the victim feigns unconcern about an incident or asks the employer not to pursue it. Such requests could come out of fear of retaliation or escalation. The employer’s responsibility is to protect its employees from hostile, abusive situations, regardless of how distraught (or not) an employee may appear about a given incident. We hold only that under these circumstances, the university was not negligent when it allowed the university police to handle the investigation. That Richards reacted badly when Holmes was questioned, that the investigation ended without identifying the perpetrator, and that the noose was later lost have no bearing on that conclusion. Those facts have no effect on whether the steps taken ■ to prevent future harm were reasonable. Erie Foods, 576 F.3d at 637. To the extent Cole means to suggest a conspiracy to protect the perpetrator, we see no evidence of that in this record.

Cole also points out that, according to Detective Mojica, Holmes said during his interview that Richards had been present in October when the noose was first discovered and that nooses were “not uncommon” in the department. But there was no follow-up by Cole. How “common” is “not uncommon”? What if anything did Richards do if she was in fact present when the noose was discovered in October 2012? A reasonable jury could not find that the university was negligent by failing to do more to prevent the later discovery of the noose based solely on that vague testimony. The same is true of the “No blacks allowed” sign. We know nothing about where it was, when it was discovered, who put it there, and what steps if any were taken in response.

Bad “joke” or not, the presence of a hangman’s noose in the workplace is not acceptable. But based on the circumstances here, including Cole’s reaction and the fact that the Building Services Department turned the matter over to the police for investigation—a reasonable maneuver, instigated by Cole himself—we see no basis for employer liability in this case. Accordingly, the district court correctly granted summary judgment on Cole’s hostile work environment claim.

B. Disparate Treatment

Cole next contends that he was subjected to disparate treatment based on his race in violation of Title VII and the Equal Protection Clause when he was demoted from foreman to sub-foreman in 2012, with his pay reduced accordingly. See 42 U.S.C. § 2000e-2(a)(l). The same requirements for proving race discrimination apply to claims under Title VII and the Equal Protection Clause, so we consider them together. Swearnigen-El v. Cook County Sheriffs Dep’t, 602 F.3d 852, 860 n.6 (7th Cir. 2010); see also Lavalais v. Village of Melrose Park, 734 F.3d 629, 635 (7th Cir. 2013) (analyzing constitutional race discrimination claim under same standards as Title VII claim).

We look past the “ossified direct/indirect paradigm,” see Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 737 (7th Cir. 2013), to address the critical question, which is simply “whether a reasonable jury could infer prohibited discrimination,” Perez v. Thorntons, Inc., 731 F.3d 699, 703 (7th Cir. 2013) (collecting cases); see also Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016) (“Evidence, must be considered as a whole, rather than, asking whether any particular piece of evidence proves the case by itself—or whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence.”). Cole offers no direct evidence of racial motivation in any adverse employment actions. He points to the “laundry list” of events he experienced—the scrap metal incident, the repeated accusations of unauthorized key possession, et cetera— and the discovery of the noose in his workspace. But none of these events, with the notable exception of - the noose, has even an arguable connection to Cole’s race. There is no evidence that' Nicklas, the decision-maker in the demotion, had anything to do with the noose incident. There simply is no direct evidence that racial animus motivated Cole’s demotion. See Darchak v. City of Chicago Board of Education, 580 F.3d 622, 631 (7th Cir. 2009) (direct evidence is essentially an “admission by the decisionmaker that the adverse employment action was motivated by discriminatory animus” and is “understandably rare”); Lim v. Trustees of Indiana University, 297 F.3d 575, 580 (7th Cir. 2002) ' (direct evidence' of discrimination “should ‘prove the particular fact in question without reliance upon inference or presumption’” (emphasis removed), quoting Market v. Board of Regents of the University of Wisconsin System, 276 F.3d 906( 910 (7th Cir. 2002)).

Cole also offers no circumstantial evidence of racially discriminatory animus. He has not pointed to any ambiguous statements, suspicious timing, or evidence that the reason given for his demotion was pretextual. See Good v. University of Chicago Medical Center, 673 F.3d 670, 675 (7th Cir. 2012) (listing typical categories of circumstantial evidence), overruled in part on other grounds, Ortiz, 834 F.3d at 764. He suggests that the fact that his demotion and the discovery of the noose followed close on the heels of his ethics complaint constitutes suspicious timing, but that would be relevant to his retaliation diaim, if at all. '

Cole argues that only he had the “laundry list” of negative experiences and that he was the only African-American foreman in the department, which he suggests should be enough to show that people outside his protected class “received systematically better treatment.” Different treatment can be circumstantial evidence of discrimination, but the experiences Cole has identified do not “point directly to a discriminatory ■ reason for the employer’s action” in demoting or: suspending him, Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003). Simply being a member of a protected class, without something more to links that status to the action in question, is not enough to raise a reasonable inference of discriminatory animus. Cf. Beamon, 411 F.3d at 863 (for purposes of evaluating a hostile work environment claim, “not every perceived unfairness in the workplace may be ascribed to discriminatory motivation merely because the complaining employee belongs to a racial minority”).

In fact, Cole was demoted at the same time and for the same reason as a white employee, Ruth Stone. Nicklas’s affidavit is unrebutted: when he became acting superintendent of the Building Services Department, he learned of irregularities in the way some employees had been promoted, including Cole and Stone. As a compromise remedy, Nicklas allowed both to interview for sub-foreman positions without regard to their test scores, and both Cole and Stone accepted positions as sub-foremen beginning November 1, 2012. The undisputed facts show that Cole was treated exactly the same as a similarly situated employee outside his protected class. (We have few details regarding the 2013 disciplinary incidents, but Cole has not cited anything about these incidents that suggests he was treated less favorably than other non-African-American workers in his position.)

Cole argues that Stone was not in fact similarly situated because she did not endure the “laundry list of events” that he did. The argument is not persuasive. First, even if Stone were not a proper compara- . tor, that fact could not remedy Cole’s own lack of evidence of discriminatory motive. As plaintiff,' Cole has the burden to respond ■ to a proper- motion for summary judgment by offering enough evidence to allow a reasonable-jury to find in his favor on the issues raised. His argument also fails on the merits. We have often said that similarly situated employees need to be directly comparable only “in all material aspects,” not “identical in every conceivable way.” Langenbach v. Wal-Mart Stores, Inc., 761 F.3d 792, 802 (7th Cir. 2014), quoting Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012). To assess whether Cole’s demotion was motivated by race, it is hard to imagine a better comparator than Stone. She was demoted at the same time by the same person with the same offered justification. Cole also argues that he and Stone did not have the same supervisor, a fact that can frequently though not always undermine an argument that two employees are similarly situated. But here the decision-maker was the same, so the fact that Cole and Stone had different immediate supervisors at some point does not undercut the comparison. E.g., Good, 673 F.3d at 676 (employees with different immediate supervisors were still meaningful comparators where “a common decision-maker decided to demote them”).

Without direct or circumstantial evidence of disparate treatment based on race, no reasonable jury could find that Cole was demoted or disciplined because of his race. The district court properly granted summary judgment- on these claims.

C. Retaliation

Finally, Cole contends that the university retaliated'against him for filing the ethics complaint in August 2012. Title VII prohibits discriminating against an employee “because he has opposed any practice made an unlawful employment practice by” Title VII. 42 U.S.C. § 2000e-3(a). To succeed on such a claim, Cple must show that he engaged in a statutorily protected activity. Orton-Bell v. Indiana, 759 F.3d 768, 776 n.6 (7th Cir. 2014). This requires more than simply a complaint about some situation at work, no matter how valid the complaint might be. To be protected under Title VII, his complaint must have indicated “the discrimination occurred because of sex, race, national origin, or some other protected class.... Merely complaining in general terms of discrimination or harassment, without indicating a connection to a protected class or providing facts sufficient to create that inference, is insufficient.” Id. at 776, quoting Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006).

Nothing in Cole’s ethics complaint suggested that he was complaining of race discrimination. The grievances he listed had no overt connection to race. He raised allegations of incorrect pay, employees’ supervision of their -own children, commodity orders under his name, improper use of university supplies, the break-in at his office, the scrap metal incident, and unjustified police surveillance. He did not mention race or race discrimination in his complaint at all. His argument is that he was implicitly complaining of race discrimination because he was the only African-American foreman or sub-foreman in the department and the only subject of the conduct of which he complained. But his membership in a protected class, without anything more, is not enough to transform his general complaint about improper workplace practices into a complaint opposing race discrimination. See, e.g., Tomanovich, 457 F.3d at 664 (complaint of pay discrimination was not protected activity where employee “did not claim that the discrimination resulted from his national origin or his membership in another protected class”); Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1147 (7th Cir. 1997) (complaints about “management style, in general terms” were not protected activity under Title VII). The district court correctly granted defendants summary judgment on the retaliation claim.

The judgment of the district court is AFFIRMED.

      . There is some dispute over Nicklas’s exact title, but it is immaterial. There is no doubt . that Nicklas eventually began supervising the university police.

      . Nicklas also testified that Cole and Stone were receiving unjustified salaries, paid at the foreman level for non-foreman work. For summary judgment purposes, we must assume that Cole actually was promoted to foreman and that foreman-level pay was justified.

      . Cole may offer Ais statement for the truth of the matter asserted as the statement of the agent of a party opponent. See Fed. R. Evid. 801(d)(2),

      . Cole had also asserted claims under 42 U.S.C. § 1981, but the district court correctly held that § 1981 does not create a private right of action against state actors. See Campbell v. Forest Preserve District, 752 F.3d 665, 671 (7th Cir. 2014). Cole has not pursued the § 1981 claims on appeal.

      . We have sometimes phrased the test differently, replacing' the first prong—that the employee was subject to unwelcome harassment—with the requirement that the work environment was “both subjectively and objectively offensive,” Yancick v. Hanna Steel Corp., 653 F.3d 532, 544 (7th Cir. 2011). In the Erie 'Foods phrasing, however, that question is subsumed by the question whether the harassment was severe or pervasive enough to rise to the level of a hostile work environment. See, e.g., Turner v. The Saloon, Ltd., 595 F.3d 679, 685 (7th Cir. 2010). In the end, the inquiry is the same.


author: POSNER, Circuit Judge.

text:
    EXODUS REFUGEE IMMIGRATION, INC., Plaintiff-Appellee, v. Michael R. PENCE, in his official capacity as Governor of Indiana, et al., Defendants-Appellants.
    No. 16-1509
    United States Court of Appeals, Seventh Circuit.
    Argued September 14, 2016
    Decided October 3, 2016
    Kenneth J. Falk, Attorney, Indiana Civil Liberties Union, Indianapolis, IN, Gavin M. Rose, Attorney, ACLU of Indiana, Indianapolis, IN, Omar C. Jadwat, Attorney, American Civil Liberties Union Foundation, Immigrants’ Rights Project, New York, NY, Jan Peter Kubicki-Mensz, Attorney, ACLU of Indiana, Indianapolis, IN, for Plaintiff-Appellee.
    Thomas M. Fisher, Attorney, Office of the Attorney General, Indianapolis, IN, for Michael R. Pence, Defendant-Appellant.
    David Austin Robert Nimocks, Esq., Attorney, Office of the Attorney General, Austin, TX, Adam Samuel Lurie, Attorney, Linklaters LLP, Washington, DC, Efrat F. Fish, Charles T. Poliak, Linklaters, New York, NY, Marc D. Stern, Attorney, American Jewish Congress, New York, NY, Daniel Tenny, Attorney, Department of Justice, Civil Division, Washington, DC, for Amicus Curiae.

      Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
   POSNER, Circuit Judge.

The State of Indiana appeals from the grant of a preliminary injunction to a private agency named Exodus that assists refugees, some of whom are Syrian refugees, the state’s target.

The regulation of immigration to the United States, including by refugees (people who have fled their homeland, and unable to return because of threat of persecution seek to relocate in a country in which they’ll be safe), is a federal responsibility codified in the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq. That Act has been amended by the Refugee Act of 1980, which authorizes the President to determine, on the basis of “humanitarian concerns or .., the national interest,” how many refugees to admit each year. 8 U.S.C. § 1157(a)(2). The President fixed the number at 85,000 for fiscal year 2016, of whom at least 10,000 were to be persons coming to the United States from Syria, in recognition of the horrendous conditions in Syria resulting from that nation’s civil war, now entering its sixth year.

Because of fear of terrorist infiltration— apart from the massive 9/11 terrorist attacks, Boston, New York, and San Bernar-dino (California) have been targets of terrorist attacks since 2001 by persons not born in the United States—all persons seeking to enter the United States as refugees are required to undergo multiple layers of screening by the federal government, following screening by the United Nations High Commissioner for Refugees, before they can be admitted to the United States. The process can take up to two years. Of course there can be no certainty that no terrorist will ever slip through the screen, elaborate though it is; for there has been terrorist infiltration of this country since 9/11 and there is a specific concern about Syrian refugees: many of them were born elsewhere, moved at some point to Syria, became caught up in the civil war there, sought to escape from that embattled nation in which hundreds of thousands of civilians have been killed, and are difficult to screen because little may be known about their life either in Syria or in their country of origin if different from Syria. (We’ll refer to all of them as “Syrians,” though many of them were only transitory residents of Syria.) The governor of Indiana believes, though without evidence, that some of these persons were sent to Syria by ISIS to engage in terrorism and now wish to infiltrate the United States in order to commit terrorist acts here. No evidence of this belief has been presented, however; it is nightmare speculation.

A portion of the Refugee Act codified at 8 U.S.C. § 1522 and entitled “Authorization for programs for domestic resettlement of and assistance to refugees” allows the federal government to give states money to assist refugees to become integrated into American society. The particular, aims of the statute are to “(i) make: available sufficient resources for employment training and placement in order to achieve economic self-sufficiency among refugees as quickly as possible, [and] (ii) provide refugees with the opportunity to acquire sufficient English language training to enable them to become effectively resettled as quickly as possible.” 8 U.S.C. § 1522(a)(1)(A). .

To receive the federal money a state must submit to the federal Office of Refugee Resettlement a plan for using the money to assist refugees to achieve economic self-sufficiency. 8 U.S.C. § 1522(a)(6). Indiana has submitted such a plan and it’s been approved. Under the plan the state contracts with private resettlement agencies for the provision of social services to refugees, and the agencies are reimbursed by the state for the cost.

Another section of the Refugee Act provides that “services funded under this section shall be provided to refugees without regard to race, religion, nationality, sex, dr political opinion.” 8 U.S.C. § 1522(a)(5). But the governor of Indiana has refused to pay for providing these services to any refugee whose “ 'country of origin’ denominated' on refugee documents” is Syria. (A refugée’s country of origin is deemed his nationality unless he’s 'stateless, in which event it’s the nation in which he last resided. 8 U.S.C. § 1101(a)(42)(A).) Fearing that Syrian immigrants may be potential terrorists, the governor wants to minimize their number in Indiana. Acknowledging that he can’t close Indiana’s borders to them, he has shifted focus to the plaintiff in this !case—Exodus, a private nonprofit resettlement agency in Indiana that seeks to’ help refugees, including Syrian refugees, adjust to life in Indiana. -Exodus has a contract with the state that entitles the agency to be reimbursed for providing social services to resettled refugees, but the governor has forbidden Exodus or any other resettlement agency to be reimbursed for the costs of providing social services to Syrian refugees.

In fiscal year 2015 Exodus received roughly $1 million from the state for provision of social services and used the money to help 892 refugees, none of them Syrian. It expected to get a hundred or more Syrian refugees the next year, which would be this year, but we don’t know how many it’s gotten so far. We know that 174 Syrian refugees came to Indiana in the last fiscal year, but not how many of them are being helped by Exodus. But we do know for certain that Exodus will receive nothing from the state for Syrian refugees this year unless we affirm the preliminary injunction. Without the injunction, Exodus, if unable (as it fears) to obtain the necessary funds from another source, will be unable to provide essential assistance to the refugees. Most of them may therefore decide to resettle in other states—exactly what the governor of Indiana wants—in the face of the statutory provision we cited that forbids a state in distributing funds received from the federal government under 8 U.S.C. § 1522(a)(5) to discriminate on the basis of “race, religion, nationality, sex, or political opinion” (emphasis added).

The governor’s brief asserts “the State’s compelling interest in protecting its residents from the well-documented threat of terrorists posing as refugees to gain entry into Western countries.” But the brief provides no evidence that Syrian terrorists are posing as refugees or that Syrian refugees have ever committed acts of terrorism in the United States. Indeed, as far as can be determined from public sources, no Syrian- refugees have been arrested or prosecuted for terrorist acts or attempts in the United States. And if Syrian refugees do pose a terrorist threat, implementation of the governor’s policy would simply increase the risk of terrorism in whatever states Syrian refugees were shunted to. Federal law does not allow a governor to deport to other states immigrants he deems dangerous; rather he .should communicate his fears to the Office of Refugee Resettlement.

He argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana. But that’s the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality.

A final oddity about the governor’s position is how isolated it is. There are after all fifty states, and nothing to suggest that Indiana is a magnet for Syrians. Although in the fall of 2015 a number of state governors issued statements opposing the resettlement of Syrian in their domains, their opposition petered out. Since then Syrian refugees have been resettled in 40 states (Indiana of course is one of them), and there is no indication that their absence from the other 10 is attributable to actions by state governments. Indiana is free, to withdraw from the refugee assistance program, as other states have done; yet withdrawal might not interrupt the flow of Syrian refugees to the state because in states that choose not to participate in the refugee assistance program the federal government has been authorized to establish an alternative program, called Wilson/Fish, that distributes federal aid to refugees in a state without the involvement of the state government. 8 U.S.C. § 1522(e)(7); 45 C.F.R. § 400.69.

The district judge granted a preliminary injunction in favor of Exodus because she believed it likely to prevail in the trial on the merits that is the usual next stage of litigation after the issuance of such an injunction. She was right, and therefore the preliminary injunction is

AFFIRMED.