In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3568
M AETTA V ANCE,
Plaintiff-Appellant,
v.
B ALL S TATE U NIVERSITY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:06-cv-1452—Sarah Evans Barker, Judge.
A RGUED N OVEMBER 29, 2010—D ECIDED JUNE 3, 2011
Before B AUER, W OOD , and S YKES, Circuit Judges.
W OOD , Circuit Judge. Maetta Vance was the only African-
American working in her department at Ball State Uni-
versity (“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
2 No. 08-3568
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 dis-
crimination claims. The district court granted summary
judgment for the defendants and dismissed the case.
On appeal, Vance pursues only her hostile work environ-
ment 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 party. 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 engage-
No. 08-3568 3
ments, and sides and salads, for the catering depart-
ment’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 dis-
cussing a work-related duty when Davis became aggres-
sive, 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, 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 23,
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 cam-
pus. McVicker also boasted that her family had ties to
the Ku Klux Klan. On September 26, 2005, Vance com-
plained orally to her supervisor about McVicker’s state-
ments, and on October 17, 2005, she called University
Compliance to request a complaint form. While requesting
4 No. 08-3568
the document, Vance again complained about McVicker’s
racially offensive comments and, for the first time, in-
formed 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 re-
garding McVicker immediately. Once Vance spoke to
University Compliance on October 17, 2005, two super-
visors, Lisa Courtright and Kimes, met to discuss how
to handle the matter. Courtright sent Vance a letter to
inform her that they were investigating. In the mean-
time, 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 work-
place.” 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
No. 08-3568 5
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 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
6 No. 08-3568
and Vance to work on alternating days. Over a year
later, McVicker voluntarily transferred to another de-
partment.
In response to Vance’s complaint about the Septem-
ber 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 em-
ployees about respect in the workplace was the best
path to follow. Kimes spoke with Vance about how to
communicate respectfully in the workplace, but it is
unclear whether he had a similar conversation with
Davis. No one was disciplined for the incident. Around
this time, though the record is not clear about the date,
Davis made references to “Sambo” and “Buckwheat”
while having a conversation with another coworker in
Vance’s presence. Vance understood these words to be
used in a racially derogatory way and thus felt of-
fended by them, but she did not complain to Ball State
at that time.
Conditions were not improving for Vance, and on
December 22, 2005, she informed Kimes that she felt
threatened and intimidated by her coworkers. The fol-
lowing week Vance filed a charge with the EEOC
alleging race, gender, and age discrimination. Vance
also complained that, throughout this period, Davis and
McVicker gave her a hard time at work by glaring
No. 08-3568 7
at her, slamming pots and pans around her, and intimi-
dating her. In 2006, Vance filed a complaint identifying
a variety of other instances where she felt harassed,
including being “blocked” on the elevator by Davis who
“stood there with her cart smiling”; being left alone in
the kitchen with Davis, who smiled at her; and being
around Davis and McVicker, who gave her “weird”
looks. She also filed a complaint alleging that Karen
Adkins, a supervisor, “mean-mugged” her. Ball State
investigated these incidents but found no basis to take
disciplinary action.
On May 10, 2006, Vance filed a complaint with Ball
State against her supervisor, (still) Kimes, alleging that
he forced her to work through breaks. Ball State investi-
gated but found no factual basis for the allegation. In
August 2006, Vance filed a second complaint with the
EEOC alleging that Ball State retaliated against her by
assigning her diminished work duties, forcing her to
work through breaks, denying her the chance to work
overtime hours, and unequally disciplining her. She
filed this lawsuit on October 3, 2006.
While her case was pending before the district court,
Ball State promoted Vance to the position of a full-time
catering assistant. Still, the strife did not abate. In
April 2007, Vance filed a grievance against McVicker
for saying “payback” to her. Three supervisors, including
Kimes, investigated; McVicker countered that Vance
had said to her: “Just the beginning bitch—you better
watch your house.” Both women denied the allega-
tions against them, and Ball State did not discipline
8 No. 08-3568
anyone. In August 2007, Davis said to Vance, “are you
scared,” in a Southern accent. Ball State investigated and
warned Davis verbally not to engage in such behavior.
That same month, Vance complained that during a
routine day of work Kimes aggressively approached
her while repeatedly yelling the same question at her.
When Ball State investigated, the witness identified by
Vance did not corroborate her account of the incident.
Instead, the witness supported Kimes’s version of what
had occurred and added that it was common for Kimes
to repeat himself until he was sure the other person had
heard him. In September 2007, Davis complained that
Vance splattered gravy on her and slammed pots and
pans around her. Vance denied the allegation but, even
though no witnesses corroborated the event, Ball State
warned Vance about its policies.
Vance also complains that Ball State retaliated against
her for complaining about the racial harassment. Al-
though she was promoted in 2007, Vance argues that
Ball State reassigned her to menial tasks such as cutting
vegetables, washing fruit, and refilling condiment trays.
In her view, Ball State made her into a “glorified salad
girl” even though she possessed a range of advanced
skills that could have been better utilized baking or
cooking complete meals.
II
A
Before reaching the merits of Vance’s claim, we
must resolve an evidentiary issue. After all dispositive
No. 08-3568 9
motion deadlines had passed and both parties had sub-
mitted their summary judgment briefs, Vance sought
to supplement the record with evidence of two incidents
that took place in early 2008. The evidence included
two affidavits testifying to a verbally abusive encounter
with Davis’s daughter and husband. During that in-
cident, Davis’s kin insulted Vance and another coworker
with racial epithets and physically threatened them
on university property. The affidavits document this
episode and Kimes’s alleged failure to respond when
Vance complained. Vance also submitted two articles
published in an on-line Ball State forum that discussed
Vance’s discrimination claims against the university,
along with scores of “comments,” some racially of-
fensive, posted in response to the articles. One of the
articles was written by one of Vance’s coworkers.
Vance submitted the evidence on March 12, 2008, and
Ball State moved to strike. Ball State argued before the
district court that Vance was attempting “an end run”
around Federal Rule of Civil Procedure 15(d) by styling
her submission as a supplement to the summary judg-
ment record rather than a supplemental pleading. The
district court concluded that Vance’s supplemental evi-
dence fell within the purview of Rule 15(d), analyzed it
as if Vance had filed a Rule 15 motion, and granted Ball
State’s motion to strike. On appeal, Vance asserts that
the court should have permitted her to supplement the
record, while Ball State defends the district court’s ruling
on the ground that the contested evidence presents new
factual allegations against persons not party to this lawsuit.
10 No. 08-3568
In our view, these materials are best viewed as sup-
plemental to the summary judgment record rather than
as a disguised Rule 15(d) submission. When a plaintiff
initiates a hostile work environment lawsuit, as op-
posed to a suit claiming discrimination based on discrete
acts, she usually complains of an employer’s continuing
violation of Title VII “based on the cumulative effect
of individual acts.” See National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 115 (2002) (recognizing that
hostile environment claims by their very nature involve
repeated conduct). The continuing violation doctrine is
usually invoked to defeat a statute of limitations bar
for conduct that falls outside the relevant period, see
Dandy v. UPS, Inc., 388 F.3d 263, 270 (7th Cir. 2004), but
we think the general concept is instructive in this
context as well. That is, a Title VII hostile work environ-
ment claim is against the employer for the aggregate
conduct of one or more of its employees. By adding
more “individual acts” as evidence of a hostile work
environment claim, a plaintiff does no more than
strengthen her evidentiary record; this is not enough to
allege a discrete new claim. See Morgan, 536 U.S. at 115
(“Hostile environment claims are different in kind
from discrete acts.”).
Thus, Ball State misses the mark when it contends
that these materials implicate persons not named as
defendants in this lawsuit. Title VII regulates the conduct
of employers, not individual employees. See 42 U.S.C.
§ 2000e-2(a). If admitted, Vance’s supplemental evidence
might have cast some light on her hostile work environ-
ment claim against Ball State. Whether Ball State is
No. 08-3568 11
liable for the conduct of an employee’s family member
or statements in a university publication is a separate
question we need not resolve, because the district court
did not abuse its discretion in excluding the evidence.
Vance moved to supplement the record after the dead-
lines for discovery and dispositive motions had “long
passed.” We regularly affirm a district court’s decision
to exclude supplemental evidence in the interest of
keeping cases moving forward. See, e.g., Pfeil v. Rogers,
757 F.2d 850, 858 (7th Cir. 1985).
B
Turning to the merits, we apply the well-known
de novo standard of review to Vance’s case. See Chaney
v. Plainfield Healthcare Center, 612 F.3d 908, 912 (7th Cir.
2010). Vance argues that the facts she has alleged and
supported are sufficient to get her case before a jury,
which would then determine whether her hostile work
environment and retaliation claims are meritorious.
We examine each of her arguments in turn.
Title VII prohibits employers from discriminating
against a person with respect to her “compensation,
terms, conditions, or privileges of employment, because
of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1).
Ball State, however, is not liable to Vance under Title VII
for a hostile work environment unless Vance can prove
(1) that her work environment was both objectively and
subjectively offensive; (2) that the harassment was based
on her race; (3) that the conduct was either severe
or pervasive; and (4) that there is a basis for employer
12 No. 08-3568
liability. See Dear v. Shinseki, 578 F.3d 605 (7th Cir. 2009);
Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1045
(7th Cir. 2002) (“Cerros I”). We emphasize, as we have
before, that the third element of the plaintiff’s prima facie
case is in the disjunctive—the conduct must be either
severe or pervasive. See Cerros v. Steel Technologies, Inc.,
398 F.3d 944, 950 (7th Cir. 2005) (“Cerros II”). The ques-
tion whether there is a basis for employer liability
depends on whether the alleged harassment was perpe-
trated by supervisors or coworkers. See Williams v. Waste
Mgmt. of Ill., 361 F.3d 1021, 1029 (7th Cir. 2004); see gener-
ally Faragher v. City of Boca Raton, 524 U.S. 775, 807-08
(1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
764-65 (1998). Employers are “strictly liable” for harass-
ment inflicted by supervisors, but they can assert an
affirmative defense when the harassment does not result
in a tangible employment action. 361 F.3d at 1039 (citing
Ellerth, 524 U.S. at 756 and Faragher, 524 U.S. at 807-08).
If only coworkers were culpable for making a work envi-
ronment hostile, the plaintiff must show that the
employer has “been negligent either in discovering
or remedying the harassment.” Id. (internal citations
omitted).
Vance argues that three supervisors, Kimes, Adkins, and
Davis, harassed her on account of her race. To begin,
Vance argues that there are disputed facts regarding
whether Davis was her supervisor, making summary
judgment inappropriate on this issue. We find no such
ambiguity. Under Title VII, “[a] supervisor is some-
one with power to directly affect the terms and conditions
of the plaintiff’s employment.” Rhodes v. Ill. Dep’t of
No. 08-3568 13
Transp., 359 F.3d 498, 506 (7th Cir. 2004). That authority
“primarily consists of the power to hire, fire, demote,
promote, transfer, or discipline an employee.” Hall v.
Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002) (internal
quotation marks and citations omitted). We have not
joined other circuits in holding that the authority to
direct an employee’s daily activities establishes super-
visory status under Title VII. See Rhodes, 359 F.3d at 509
(Rovner, J., concurring) (arguing for a broader standard
of supervisor liability based on EEOC guidelines). We
conclude that Vance has not revealed a factual dispute
regarding Davis’s status by asserting that Davis had
the authority to tell her what to do or that she did not
clock-in like other hourly employees. This means that
we must evaluate her claim against Davis under the
framework for coworker conduct.
We can also summarily dispose of Vance’s allegations
against supervisor Adkins. Vance’s brief says little
about what Adkins may have done to make her work
environment hostile. Before the district court, Vance
argued that Adkins “mean-mugged” her and stared at
her when they were in the kitchen together. Making an
ugly face at someone and staring, while not the most
mature things to do, fall short of the kind of conduct
that might support a hostile work environment claim.
Vance’s complaints about Kimes require a closer look,
but this reveals that she has failed to establish that
Kimes’s conduct had a racial “character or purpose.” See
Luckie v. Ameritech Corp., 389 F.3d 708, 713 (7th Cir. 2004).
Although there is some indication in the record that
14 No. 08-3568
Kimes was generally difficult to work with, we assume,
favorably to Vance, that he picked on her. Still, even in
that light, Vance’s allegations do not establish that
Kimes’s unkind or aggressive conduct was motivated
by Vance’s race. Although a plaintiff does not need to
identify an explicitly racial dimension of the challenged
conduct to sustain a Title VII claim, she must be able to
attribute a racial “character or purpose” to it. See Hardin
v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345 (7th Cir.
1999). Vance has not put forth any facts to establish that
any of Kimes’s conduct was motivated by, or had any-
thing to do with, race. To the contrary, in her deposition
Vance conceded that she never heard Kimes say any-
thing suggesting ill will towards her because of her
race, nor did any other employee report to Vance that
Kimes had uttered racially derogatory comments. The
undisputed facts establish that there are no grounds
for employer liability for violation of Title VII based on
the conduct of Vance’s supervisors.
This leaves Vance’s treatment at the hands of her two
coworkers, Davis and McVicker. When evaluating a
hostile work environment claim, we consider “the entire
context of the workplace,” see Cerros I, 288 F.3d at 1046,
not the discrete acts of individual employees. The district
court analyzed Vance’s allegations against Davis and
McVicker separately, finding that summary judgment
was proper based on the conduct of each woman inde-
pendently. We stress that a hostile work environment
claim requires a consideration of all the circumstances,
because in the end it is the employer’s liability that is
at issue, not liability of particular employees. Thus, for
No. 08-3568 15
example, if we had found that Vance’s supervisors had
contributed to a racially hostile work environment, that
conduct would form part of the context for Vance’s
claim against Ball State, just as the actions of her co-
workers would. The only reason we have divided
our analysis between the conduct of supervisors and
employees is to ensure that we are respecting the
standards for vicarious liability that apply. See Williams,
361 F.3d at 1029.
Assuming without deciding that Vance’s allegations
against her coworkers satisfy the first three elements of
a Title VII hostile work environment claim, we conclude
nonetheless that Vance cannot prevail because there is
no basis for employer liability. See Tutman v. WBBM-TV,
Inc./CBS, Inc., 209 F.3d 1044, 1048-49 (7th Cir. 2000)
(“We do not decide whether a hostile work environment
existed because the question whether [the employer]
took prompt and effective action is dispositive here.”).
For Ball State to be liable, Vance must put forth suf-
ficient facts to establish that it was negligent in failing
to “take reasonable steps to discover and remedy the
harassment.” Cerros II, 398 F.3d at 953. Once aware of
workplace harassment, “the employer can avoid liability
for its employees’ harassment if it takes prompt and ap-
propriate corrective action reasonably likely to prevent
the harassment from recurring.” Wyninger v. New Venture
Gear, Inc., 361 F.3d 965, 978 (7th Cir. 2004) (internal cita-
tions omitted). While it is unfortunate that Ball State’s
remedial measures did not persuade Davis or McVicker
to treat Vance with respect, and we have nothing but
condemnation for the type of conduct Vance has alleged,
16 No. 08-3568
we find that Ball State satisfied its obligation under Title
VII by promptly investigating each of Vance’s complaints
and taking disciplinary action when appropriate. See
Porter v. Erie Foods Int’l Inc., 579 F.3d 629, 636 (7th Cir.
2009) (“Our focus, therefore, is on whether [the em-
ployer] responded promptly and effectively to the inci-
dent.”).
Between October 2005 and October 2007, Vance filed
numerous complaints about her troublesome encounters
with Davis and McVicker. Ball State took reasonable
corrective action as Vance lodged each complaint. In
response to Vance’s complaint that McVicker used the
racial epithet “nigger” and bragged about her family
connections with the Ku Klux Klan, Ball State
promptly investigated, involved the appropriate super-
visory personnel, and issued a written reprimand to
McVicker. According to Ball State policy, McVicker
technically should have received a stage-one oral
warning because she had no prior complaints on her
record, yet the university concluded that a more
serious measure was in order. The written warning con-
veyed to McVicker that her racially offensive language
would not be tolerated, and two supervisors met
with McVicker separately to discuss the matter. Mean-
while, a supervisor remained in contact with Vance and
assured her that they were investigating her complaint.
Vance lodged two additional complaints against
McVicker during this period, one in November 5, 2005,
for referring to her as a “porch monkey” and one in
April 2007 for saying “payback.” In response to the 2005
No. 08-3568 17
complaint, Ball State again promptly investigated, but a
witness identified by Vance could not corroborate that
McVicker used the offensive term to refer to Vance.
Similarly, Ball State uncovered competing versions of
what took place in connection with Vance’s 2007 “pay-
back” complaint. When Ball State questioned McVicker
about the incident, she counter-complained that Vance
said: “Just the beginning bitch—you better watch your
house.”
Again, we are taking the view of these facts that favors
Vance; we express no opinion about what “really” hap-
pened. From that perspective, we assume that McVicker
made the alleged statements. On the issue of employer
liability, however, we must look at the employer’s
response in light of the facts it found in its investigation.
See Porter, 579 F.3d at 636 (observing that, “taken as a
whole,” the employer “took appropriate steps to bring
the harassment to an end”). It may be commonplace that
an employee accused of verbally abusing or intimidating
a coworker denies the allegation. But Ball State did what
it could and did not stop by accepting a simple denial.
Moreover, the record does not reflect a situation in
which all ties went to the discriminator; if it did, we
would be inclined to send this case to a jury. Ball State,
however, calibrated its responses depending on the
situation. Sometimes when it was unsure who was at
fault it counseled both employees; sometimes it warned
alleged wrongdoers to take care or desist.
Vance complained to her supervisors several times
about Davis’s conduct. The two most serious allegations
18 No. 08-3568
relate to the elevator incident in 2005 and the “are you
scared” comment in 2007. We note that Vance conceded
at her deposition that she did not complain to Ball State
about Davis’s use of the terms “Sambo” and “Buckwheat.”
We take Vance at her word that, in context, the terms
“Sambo” and “Buckwheat” were used as explicit racial
slurs that would require remedial measures from an
employer under Title VII. See Daniels v. Essex Group, Inc.,
937 F.2d 1264, 1266 (7th Cir. 1991) (noting “Buckwheat” is
a racial taunt); Boyd v. State Farm Ins. Co., 158 F.3d 326 n.1
(5th Cir. 1998) (“[I]n the context of employment discrim-
ination law, the term ‘Buckwheat’ is generally considered
to be a racial slur or epithet.”). Under Title VII, however,
an employer’s liability for coworker harassment is not
triggered unless the employee notifies the employer
about an instance of racial harassment.
Ball State first learned of the September 23, 2005, alter-
cation from Davis, when she filed a complaint against
Vance for saying, “Move, bitch . . . you are an evil f------
bitch.” Later, Vance complained that Davis had said, “I’ll
do it again,” referring to, according to Vance, the time
in 2001 when Davis slapped her. Ball State investigated,
but both women stuck to their stories and denied saying
anything offensive to the other. Ball State’s response to
this altercation was reasonable. We have said that Title VII
is “ ‘not . . . a general civility code’ and we will not
find liability based on the ‘sporadic use of abusive lan-
guage.’ ” Ford v. Minteq Shapes and Services, Inc., 587 F.3d
845, 848 (7th Cir. 2009) (quoting Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998)). Faced with competing
complaints, the first of which was lodged against Vance,
No. 08-3568 19
Ball State pursued a reasonable course of action by coun-
seling both employees about civility in the workplace.
Finally, after Vance complained that Davis said “are
you scared” to her in a Southern accent, Ball State again
investigated. Although Davis denied making the state-
ment, Ball State again formally warned Davis orally to
refrain from such actions. This response was reasonable
in light of the circumstances.
The catering department was undoubtedly an unpleasant
place for Vance between 2005 and 2007. Yet the record
reflects that Ball State promptly investigated each com-
plaint that she filed, calibrating its response to the
results of the investigation and the severity of the
alleged conduct. As we have said before, prompt investi-
gation is the “hallmark of reasonable corrective action.”
Cerros II, 398 F.3d at 954. This is not a case where the
employer began to ignore an employee’s complaints as
time went on. Ball State investigated Vance’s complaint
against Davis in 2007 with the same vigor as it did
her complaint in 2005. Of course, the ideal result of an
employee’s complaint would be that the harassment
ceases. But Title VII does not require an employer’s
response to “successfully prevent[] subsequent harass-
ment,” though it should be reasonably calculated to do
so. Cerros II, 398 F.3d at 954 (quoting Savino v. C.P. Hall
Co., 199 F.3d 925, 933 (7th Cir. 1999)). In this case, we
conclude that the undisputed facts demonstrate that
there is no basis for employer liability.
20 No. 08-3568
C
Vance also alleges that Ball State retaliated against
her for complaining about the racial harassment by reas-
signing her to menial tasks, denying her overtime hours,
and unequally disciplining her. Employers may not
punish employees for complaining about workplace
conduct that even arguably violates Title VII. 42 U.S.C.
§ 2000e-3(a); Sitar v. Indiana Dep’t of Transp., 344
F.3d 720, 727 (7th Cir. 2003). To establish a prima facie
case of retaliation, a plaintiff may use either the direct or
indirect method of proof. Vance is proceeding only
under the indirect method, which requires her to show
that (1) she engaged in a statutorily protected activity;
(2) she performed her job according to the employer’s
expectations; (3) she suffered an adverse employment
action; and (4) she was treated less favorably than a
similarly situated employee. Stephens v. Erickson, 569 F.3d
777, 787 (7th Cir. 2009). Once the plaintiff establishes her
prima facie case, the burden shifts to the defendant to
establish a non-invidious reason for the action. The
burden then shifts back to the plaintiff to show that
the defendant’s reason was pretextual. Id. Ball State
concedes that Vance engaged in a protected activity and
does not claim Vance’s work performance was sub-par.
Our focus is thus on the final two elements of Vance’s
prima facie case.
It is possible for a plaintiff to establish a claim of re-
taliation based on a change of work responsibilities,
“depend[ing] on how much of a change, and how disad-
vantageous a change, took place.” Sitar, 344 F.3d at 727; see
No. 08-3568 21
also Herrnreiter v. Chi. Hous. Auth., 315 F.3d 742, 744-45 (7th
Cir. 2002) (listing cases). In order to succeed, “ ‘a plaintiff
must show that a reasonable employee would have
found the challenged action materially adverse.’ ” Lapka v.
Chertoff, 517 F.3d 974, 985 (7th Cir. 2008) (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006)). Generally, if the challenged action would dis-
courage other employees from complaining about em-
ployer conduct that violates Title VII, it constitutes an
adverse employment action. See Burlington, 548 U.S. at
57, 68.
Vance’s strongest argument depicts an unusual in-
stance of retaliation, in which Ball State simultaneously
promoted her and assigned her to diminished work
duties in 2007. The district court observed that whether
Vance suffered a materially adverse employment action
was a close call, but it concluded that a jury could
conclude that her reassignment was materially adverse.
Still, the district court concluded that Vance’s theory
fails because she did not establish that she was treated
less favorably than a similarly situated employee. We
agree with the district court, and conclude in addition
that Vance cannot show that she suffered a materially
adverse employment action.
Vance concedes that her promotion included a modest
pay raise and a significant increase in benefits. She
argues, however, that once promoted she was assigned
to more menial tasks. In particular, she asserts that Ball
State assigned her to cut vegetables and refill condiments,
while entrusting her coworker, Brad Hutson, with more
22 No. 08-3568
complicated tasks such as preparing complete meals.
We recognize that it is possible for an employer to
retaliate clandestinely against an employee while
formally promoting her, but the record cannot be
stretched to support such a theory here. Vance personally
sought out the new full-time position; it was her choice
to leave the part-time position where she baked often
and was generally content with her work assignments.
Her new job included some of the tasks about which she
is complaining, but it also included a range of other
tasks including preparing more complicated dishes.
While Vance may have been disappointed with her new
assignments, considering the entire context of her promo-
tion we conclude that no rational jury could find that
she experienced a materially adverse employment action.
Put another way, we find that a reasonable person
would not be dissuaded from complaining about race
discrimination by witnessing the treatment Vance
received: a promotion to a full-time position with ac-
companying benefits, a raise in pay, and—taking all of
Vance’s allegations as true—a change in work assign-
ments that included basic salad preparation. This case
does not present the problem we encountered in Washing-
ton v. Illinois Dep’t of Revenue, 420 F.3d 658 (7th Cir.
2005), where we reversed a grant of summary judgment
based on the notion that a change in work schedule
that did not affect salary or duties could not constitute
an adverse employment action. In Washington, we
observed that while a reassignment that does not
affect pay or opportunities for promotion will “by and
large” not be actionable for a retaliation claim under Title
No. 08-3568 23
VII, “ ‘by and large’ differs from ‘never.’ ” Id. at 662. When,
as in that case, the employer exploits a known vulnerability
of an employee—the plaintiff there relied on her
previously established flex-time schedule so she could
care for her son, who had Down syndrome—an altered
work schedule can constitute an adverse work action.
Id. Even though a change in assignments, like an altered
work schedule, conceivably might amount to an adverse
employment action, Vance must allege more than a
dislike for her new assignments or a preference for her
old ones for her case to go forward.
Approaching the issue as the district court did, by
asking whether there was a similarly situated employee,
leads to the same result. Only two employees held the
position of a full-time catering assistant at the time of
this dispute, Vance and Hutson. Both employees were
promoted to that position on the same day, and for
the most part both were assigned to the same range of
duties. We accept Vance’s allegation that their work
assignments were not identical, but the record reflects
that they were assigned to a substantially similar set
of tasks. Thus, even if Vance had established that Ball
State subjected her to a materially adverse action, her
claim would fail because she has not satisfied the final
element of the prima facie analysis.
Vance also alleges that Ball State retaliated by offering
her fewer opportunities to work overtime hours. We
said in Lewis v. City of Chicago, 496 F.3d 645, 654 (7th Cir.
2007), that the loss of opportunity to work overtime
can amount to an adverse employment action. The
24 No. 08-3568
parties agree that Vance worked fewer overtime hours
than Brad Hutson in 2007. Ball State defends by arguing
that Hutson is not similarly situated to Vance because
he worked significantly more regular hours than her,
which, as a consequence, made him available to work
more overtime hours. This is in part because Ball State
has a “work continuation” policy, which mandates that
the employee who began a task that is unfinished at
the end of a shift must stay and get the task completed.
The record indicates that Vance often took FMLA
leave, called in sick unexpectedly, and left work early
for health reasons. Vance does not dispute that she
worked fewer regular hours than Hutson. Instead, she
argues that, because she was the more senior employee,
she should have been offered more opportunities to
work overtime. She adds, without citation or support,
that the work continuation policy Ball State relies on is
“void.” Neither of these arguments is availing. Even if
Vance had seniority over Hutson, the undisputed facts
establish that they did not work a comparable number
of regular hours. Thus, the two are not similarly situated
for the purpose of this analysis. Vance’s assertion that
the work continuation policy is void, without citing
evidence in the record, is unhelpful. We have repeatedly
said that a “nonmoving party cannot defeat a motion
for summary judgment with bare allegations.” de la Rama
v. Illinois Dep’t of Human Services, 541 F.3d 681, 685 (7th
Cir. 2008).
Finally, Vance argues that Ball State retaliated against
her by issuing her a verbal warning for allegedly splat-
No. 08-3568 25
tering gravy on Davis and slamming pots and pans on
the counter. Although we give the concept of an ad-
verse employment action a generous construction, it is
not this broad. Vance appears to concede as much, al-
tering her argument slightly on appeal to claim that Ball
State’s warning to Vance amounts to taking the side of
those who harassed her, which she sees as retaliation
through the creation of a more hostile work environ-
ment. No reasonable jury could find that the delivery of
a verbal warning, based on a complaint from a coworker,
constitutes an adverse employment action or creates
an objectively hostile work environment.
The judgment of the district court is A FFIRMED.
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