89 F.3d 437 (7th Cir. 1996), 95-3106, Smart v. Ball State University

Docket Nº:95-3106.
Citation:89 F.3d 437
Party Name:Rep. 1050 Vivian J. SMART, Plaintiff-Appellant, v. BALL STATE UNIVERSITY, Defendant-Appellee.
Case Date:July 15, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 437

89 F.3d 437 (7th Cir. 1996)

Rep. 1050

Vivian J. SMART, Plaintiff-Appellant,


BALL STATE UNIVERSITY, Defendant-Appellee.

No. 95-3106.

United States Court of Appeals, Seventh Circuit

July 15, 1996

Argued April 4, 1996.

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Kenneth E. Lauter (argued), Haskin, Lauter & Cohen, Indianapolis, IN, for Vivian J. Smart.

Scott E. Shockley (argued), Defur, Voran, Hanley, Radcliff & Reed, Muncie, IN, for Ball State University.

Before POSNER, Chief Judge, and KANNE and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

Vivian Smart is a tree surgeon. Before assuming that position she was in a three-year tree surgeon training program. In this suit she claims that early in the training program she was subjected to retaliation by her employer, Ball State University, in response to a sex discrimination charge she previously filed with the EEOC. She lost the suit on summary judgment in the district court, and we now consider her appeal.

Vivian (considering others we will meet in this case, particularly Wayne and DeWayne Hammons, our opinion will be an easier read if we use first names) worked at Ball State for several years before she applied for a position as a tree surgeon trainee. In accordance with university policy, the names of the candidates for the trainee position were presented to a selection committee composed of management and union representatives. Committee members ranked the seven candidates for the program in order of preference, and the rankings were tallied up. Vivian, with a total of 26 points, placed second. The position went to a man named Greg Drown, who scored a 28. After coming up short, Vivian filed a sex discrimination charge with the EEOC, alleging that she lost the trainee position competition, because of her sex, to a less qualified male.

In commendably swift action--about three months--the EEOC brokered a settlement of the claim between Vivian and Ball State. The two entered into an agreement whereby Ball State, without admitting wrongdoing, agreed to create an additional trainee position for Vivian. She started the new job in February of 1993 and received back pay and seniority based on Greg's date of hire in November of 1992.

Less than six months later, Vivian filed a second charge with the EEOC, claiming that Ball State was retaliating against her for having filed the first charge. Title VII of the

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Civil Rights Act, of course, prohibits an employer from retaliating against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).

In September of 1993, Vivian initiated this suit in the Southern District of Indiana. The initial complaint focused on charges of disparate treatment, claiming that Vivian received less training than Greg; that she received inadequate training; that she was subject to unsafe conditions to which Greg was not exposed; that DeWayne, her immediate supervisor, intentionally gave her incorrect instructions so she would fail; and that Wayne (DeWayne's father and Ball State's assistant supervisor of grounds) and DeWayne recorded her mistakes but never told her how to correct them. These claims were supported by a number of specific instances of allegedly discriminatory conduct. Many of these allegations would be quite serious if true, particularly given Vivian's status as an inexperienced trainee, for tree surgery is rather hazardous work. It involves climbing up trees, using heavy and dangerous power tools and equipment, and chopping down tree limbs in a way that allows them to fall to the ground without doing damage. Purposefully poor training and deliberately inadequate supervision could result in serious injury.

In order to prevail on a claim of retaliation, a plaintiff must either offer direct evidence of discrimination, or proceed under the burden-shifting method set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas the plaintiff must first prove, by a preponderance of the evidence, a prima facie case of retaliation. The burden then shifts to the employer to provide a nonretaliatory explanation for its actions. Once the employer has offered a neutral reason for its actions, the burden shifts back to the employee to demonstrate that the employer's stated reason is merely a pretext for covering up discriminatory conduct.

The initial claims in this case were based on allegations of disparate treatment. Ball State responded to each allegation in the complaint by producing...

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