Vance v. Ball State University

646 F.3d 461, 2011 U.S. App. LEXIS 11195, 94 Empl. Prac. Dec. (CCH) 44,194, 112 Fair Empl. Prac. Cas. (BNA) 582, 2011 WL 2162900
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 3, 2011
Docket08-3568
StatusPublished
Cited by119 cases

This text of 646 F.3d 461 (Vance v. Ball State University) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Vance v. Ball State University, 646 F.3d 461, 2011 U.S. App. LEXIS 11195, 94 Empl. Prac. Dec. (CCH) 44,194, 112 Fair Empl. Prac. Cas. (BNA) 582, 2011 WL 2162900 (7th Cir. 2011).

Opinion

WOOD, Circuit Judge.

Maetta Vance was the only African-American working in her department at Ball State University (“Ball State”) when racially charged discord erupted. In 2005, Vance began filing complaints with Ball State about her coworkers’ offensive conduct, which included the use of racial epithets, references to the Ku Klux Klan, veiled threats of physical harm, and other unpleasantries. In 2006 she filed two complaints with the Equal Employment Opportunity Commission (“EEOC”) for race discrimination and, later, retaliation. After getting her right-to-sue letter, she filed this action in federal court alleging a range of federal and state discrimination claims. The district court granted summary judgment for the defendants and dismissed the case. On appeal, Vance pursues only her hostile work environment and retaliation claims against Ball State based on asserted violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Because she has not established a basis for employer liability on the hostile work environment claim or put forth sufficient facts to support her retaliation claim, we affirm.

I

Ball State prevailed on summary judgment, and so we recite the facts in the light most favorable to Vance, the non-moving. Vance began working for Ball State in 1989 as a substitute server in the Banquet and Catering Department of University Dining Services. In 1991, Ball State promoted Vance to a part-time catering assistant position, and in January 2007 Vance applied and was selected for a position as a full-time catering assistant. Between 1991 and 2007, Vance gained expertise as a baker and enjoyed the challenge of baking items from scratch. After she began work as a full-time employee, a position that included a modest raise and a significant increase in benefits, her assignments changed. Her new work consisted of preparing food, including dinners for formal events, boxed lunches for casual engagements, and sides and salads, for the catering department’s clients.

For many years things progressed uneventfully. But in 2001, Saundra Davis, a coworker, hit Vance on the back of the head without provocation. The two were discussing a work-related duty when Davis became aggressive, shouted at Vance, and slapped Vance as she turned away. Vance orally complained to her supervisors, but because Davis soon transferred to another department Vance did not pursue the matter. Also around that time, Bill Kimes became Vance’s supervisor. According to Vance, Kimes gave her the cold shoulder, *466 made her feel unwelcome at work, and treated other employees to lunch when she was not around. He refused to shake her hand when they first met in 2001, and he routinely used a gruff tone of voice with her.

Things took a turn for the worse in 2005. Davis returned to Vance’s department, and on September 28, 2005, the two had an altercation in the elevator. Davis stood in Vance’s way as she tried to get off the elevator and said, “I’ll do it again,” which Vance took to be a reference to the slap in 2001. A few days later, Vance heard from a fellow employee that another coworker, Connie McVicker, used the racial epithet “nigger” to refer to Vance and African-American students on campus. McVicker also boasted that her family had ties to the Ku Klux Klan. On September 26, 2005, Vance complained orally to her supervisor about McVicker’s statements, and on October 17, 2005, she called University Compliance to request a complaint form. While requesting the document, Vance again complained about McVicker’s racially offensive comments and, for the first time, informed Ball State that Davis had slapped her four years earlier. In early November, Vance submitted a written complaint detailing McVicker’s comments and the elevator incident with Davis.

Ball State began investigating Vance’s complaint regarding McVicker immediately. Once Vance spoke to University Compliance on October 17, 2005, two supervisors, Lisa Courtright and Kimes, met to discuss how to handle the matter. Court-l-ight sent Vance a letter to inform her that they were investigating. In the meantime, several people from Employee Relations became involved. Kimes’s investigation corroborated Vance’s account of what McVicker said, although the witnesses could not recall whether McVicker used the epithet generally or directed it at Vance. The Assistant Director of Employee Relations sent an email to the Director, stating: “I know we don’t have the specifics on exactly what and when these utterances were ... but we need to make a strong statement that we will NOT tolerate this kind of language or resulting actions in the workplace.” Ball State used a four-step process to handle employee discipline, starting with a verbal warning for the first infraction, followed by a written warning for the second, with escalating consequences for further violations. Within this context, the Assistant Director concluded, “I think we can justify going beyond our limited prior past history and issue a written warning ... we should also strongly advise her verbally when we issue this that it must stop NOW and if the words/behavior are repeated, we will move on to more serious discipline up to an[d] including discharge.”

Following this recommendation, Kimes gave McVicker a written warning on November 11, 2005, for “conduct inconsistent with proper behavior.” The warning explained that McVicker was being disciplined for using offensive racial epithets, discussing her family’s relationship with the KKK, and also “looking intently” and “staring for prolonged periods at coworkers.” Kimes advised McVicker that additional violations would lead to further disciplinary action. Days later, Courtright met with McVicker to discuss the warning; Courtright reiterated that racially offensive comments would not be tolerated. She also suggested that McVicker should consider avoiding Vance and transferring to another department.

That same day, Vance complained to Courtright that McVicker referred to her as a “porch monkey.” Courtright advised Vance to tell Kimes, which Vance did. Kimes investigated by speaking to another coworker whom Vance said witnessed the *467 incident, but that coworker did not corroborate Vance’s allegation. In turn, Kimes told Vance that without any witnesses he could not discipline McVicker, who denied making the comment. Kimes said that further action on this issue would devolve into a “she said-she said” exchange. Kimes did not discipline McVicker for the “monkey” comment, nor does the record suggest that Courtright mentioned it when she spoke to McVicker later that week. Kimes did, however, try unsuccessfully to schedule McVicker and Vance to work on alternating days. Over a year later, McVicker voluntarily transferred to another department.

In response to Vance’s complaint about the September 23, 2005, elevator incident with Davis, Ball State investigated but found conflicting accounts of what had happened. Before Vance filed her written complaint on November 7, 2005, Davis had filed a complaint alleging that Vance said to Davis: “Move, bitch ... you are an evil f------bitch.” Kimes discussed the situation with his supervisor, and they decided that counseling both employees about respect in the workplace was the best path to follow.

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646 F.3d 461, 2011 U.S. App. LEXIS 11195, 94 Empl. Prac. Dec. (CCH) 44,194, 112 Fair Empl. Prac. Cas. (BNA) 582, 2011 WL 2162900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vance-v-ball-state-university-ca7-2011.