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

• 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, U.S. Court of Appeals — Seventh Circuit

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

Rep. 1050

Vivian J. SMART, Plaintiff-Appellant,

v.

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 cl.dry evidence or providing a nonretaliatory explanation. The university then moved for summary judgment. Because the district court's disposition of the disparate treatment allegations is not challenged on appeal, we need not list all of the allegations and responses here. A few illustrations, however, may be useful in understanding the nature of the present claims. For example, one of the unsafe practices Vivian alleges she faced was being denied a weight-lifting belt. Ball State explained that at the time Vivian first requested a weight-lifting belt, the university's health center was investigating which belts were the best ones to purchase for school employees. The belts did become available, and Vivian acknowledged receiving one. Vivian also claimed that she was subject to unsafe working conditions when she was instructed to tighten the knots of her climbing ropes before going up in a tree. DeWayne testified that Vivian was taught to tighten the knots before climbing for her own safety. She was told to do this so that, if she slipped while climbing and lost hold of the rope with her hands, something would prevent her from plummeting to the ground. No evidence was presented that Greg was instructed differently. Another example of improper conduct is that DeWayne instructed Vivian to use a chain saw with one hand, occasionally holding it over her head. The undisputed facts showed that, though this may have been risky, the risk was not imposed in a discriminatory manner. While reasonable people may differ on the wisdom of operating a chain saw with one hand, Vivian testified not only that she had been instructed to do so, but that Greg had done it that way, too. A last example of the disparate treatment claims was Vivian's allegation that Greg received more training than she did. This claim fell by the wayside when DeWayne produced his daily training log, which showed the number of hours of instruction each trainee received in different areas. The log demonstrated that there was no significant difference in the amount of training Greg and Vivian received, particularly

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given the fact that Greg had been in the program three months longer than Vivian.

In her response to the university's motion for summary judgment, Vivian made no attempt to refute the explanations and evidence presented by the university in response to the disparate treatment claims. The district court entered summary judgment on all of the claims initially raised. While no attempt was made to resuscitate the disparate treatment claims, the response to Ball State's motion for summary judgment did raise additional claims of retaliation. These new allegations centered on evaluations by Wayne and DeWayne of Vivian's performance and on claims of changed conditions of employment.

These claims are in many ways intertwined; the existence of certain methods of performance valuation is one of the changed conditions of employment Vivian complains of. After Vivian entered the program, Wayne and DeWayne were instructed to keep records of the trainees' progress...