Opinion
IP 99-0093 C T/G.
July 14, 2000.
ENTRY REGARDING MOTION FOR SUMMARY JUDGMENT
Defendant, Ball State University Board of Trustees ("Ball State"), filed a motion for summary judgment regarding Plaintiff Ann K. McKee's claim of retaliation under Title VII, pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56.1.
STATEMENT OF FACTS
Ms. McKee became employed with Ball State in the Fall of 1992 as an Assistant Professor in the College of Architecture. In Fall 1994, Dr. James Glass, Director of the Historic Preservation Department, began keeping files with respect to Ms. McKee's performance due to the student concerns about her teaching during the Fall 1994 semester. Also in 1994, Ms. McKee was notified that the Promotion and Tenure Committee, "the Committee," reviewed her performance and announced she was completing her second tenure-creditable year.
Ms. McKee was on the tenure track at Ball State for approximately seven years.
In January 1995, Ms. McKee was diagnosed with fibromyalgia. During 1995 and 1996, Ball State received both complaints and complimentary letters from students regarding Ms. McKee's teaching. On January 20, 1995, Ms. McKee submitted a written response to the student complaint letters.
Ms. McKee's symptoms relating to fibromyalgia include: numbness, tingling sensations, severe fatigue (effecting eyesight and reflexes), inability to sleep, inability to move, muscle pain, lack of concentration/focus and lack of endurance, all with an emphasis on her left side.
The students were aware that Ms. McKee was up for promotion and tenure consideration although it is a fact not normally communicated to students.
The Committee issued Ms. McKee an unfavorable performance review on February 8, 1995. The chairman of the Committee provided Ms. McKee with a written explanation regarding this determination and recommendations for improving her performance. On February 20, 1995, Ms. McKee submitted a written request for reconsideration of the Committee's performance review, arguing unfair treatment. The Committee denied her request for reconsideration. As a result, on March 22, 1995, Ms. McKee submitted a written appeal of the Committee's performance assessment. On April 28, 1995, the College Promotion and Tenure Hearing Appeal Panel ("the Panel") issued a five page memorandum upholding Ms. McKee's appeal by a vote of six to zero. The Panel believed that Ms. McKee was "treated unfairly in that the weight of the evidence available [did] not clearly support the warning letter which she received." (McKee Dep. Ex. 10.) The Panel also noted that though it did not believe that there was a "conscious effort" to treat Ms. McKee unfairly, "undue emphasis was placed on certain evidence rather than making full use of the evidence available." ( Id.) As a result, on May 5, 1995, the Committee announced that Ms. McKee's performance was satisfactory and that she was completing her third tenure-creditable year.
At the request of Professor Marvin Rosenman, Chair of the Department of Architecture, the Committee met and/or spoke with Dr. Glass in preparation for Ms. McKee's 1995 performance assessment. At no time prior to this communication with the Committee had Dr. Glass sat in or witnessed Ms. McKee's teaching. However, the report he gave to the Committee dealt with the student complaints he had received about Ms. McKee. (Glass Dep. at 100.) Though the Committee did not seek any additional input from Dr. Glass, Dr. Glass continued to maintain a file relative to Ms. McKee's evaluation.
Within this request for reconsideration, Ms. McKee did not allege discrimination and failed to specify the reason for the alleged "unfairness." In particular, Ms. McKee did not mention that she was treated unfairly due to her gender, disability, etc.
The recommended remedies included: a withdrawal of the February 8, 1995, letter to Provost Vander Hill, which outlined performance problems; that Ball State grant Ms. McKee a letter of satisfactory progress toward tenure; and a rewriting of the February 8, 1995, "Explanation of Warning Letter" as a "Strengths and Weaknesses" letter.
The factual statement provided by Ms. McKee referring to Ball State's failure to rewrite the February 8, 1995, letter is stricken from the record as argumentative per Ball State's objection. See L.R. 56.1(f).
In January 1996, the Committee informed Ms. McKee that they expected her to improve the quality of her performance as a faculty member in order to continue her progress toward tenure. Specifically, on January 31, 1996, the Committee indicated that she was completing her fourth tenure-creditable year and that her performance was in accordance with Ball State standards, but suggested that Ms. McKee take ". . . initiative to become more involved in service activities, both within the institution and in a professional capacity outside the institution." (McKee Dep. at 89; McKee Dep., Ex. 13, at 3.) On February 14, 1996, Ms. McKee was again admonished by Dean Kelly who complained that her "service work [was] thin" and that she was employed by a "college of volunteers." (McKee Dep. at 91-92; McKee Dep., Ex. 14.) Then, on May 6, 1996, Ms. McKee did not attend a post mortem due to an emergency dental appointment.
This letter was copied to Dr. Glass and Prof. Rosenman.
A post mortem is a meeting that allows students to discuss the school year after grades have been turned in for the semester.
In a letter dated May 21, 1996, Ms. McKee informed the Dean of her condition, fibromyalgia. The Dean responded by letter dated May 21, 1996, that if Ms. McKee needed any accommodations for her condition, she should contact the Equal Opportunity and Affirmative Action Office ("the Affirmative Action office"). Ms. McKee gave Ball State formal, written notice on December 2, 1996, that she requested an accommodation for her fibromyalgia. These accommodations included: flexibility in attending non-teaching events; no evening classes; and teaching obligations on only four days per week. At the time Ms. McKee requested these accommodations in December 1996, and during the Spring Semester 1997, Ms. McKee was not scheduled to teach more than four days a week, nor was she scheduled to teach any evening classes.
The Dean copied Prof. Rosenman as a recipient of the letter.
Ms. McKee followed the proper procedure of completing an "Invitation for Disabled Employees to Self Identity" and an "Employee Request for Accommodation-Disability." (McKee Dep., Exs. 29 and 30.)
Prof. Rosenman was aware that Ms. McKee had filed a request for accommodation with the Affirmative Action office. (Rosenman Aff. ¶ 9.)
Dr. Glass often made recommendations to Prof. Rosenman regarding teaching assignments in the Historic Preservation Program. The Historic Preservation Program had a limited number of faculty, and they possessed varying subject specializations. During November and December 1996, Dr. Glass asked Ms. McKee and other faculty members for advice regarding proposed scheduling for the 1997-98 academic year. Ms. McKee wrote to Dr. Glass in late November 1996, to request modification of the class schedule, including moving currently scheduled night classes to day times. On December 13, 1996, Dr. Glass circulated proposed schedules which incorporated changes or suggestions provided by Ms. McKee.
On January 7, 1997, Ms. McKee met with Dr. Glass to discuss the proposed schedule and other matters. At this time, Ms. McKee verbally repeated her requests for schedule changes. She also requested to teach a course in preservation law and planning during the 1997-98 academic year. This class was tentatively scheduled as an evening course. Ms. McKee requested that the class either be moved to the day, or that a day section be established. Dr. Glass refused to alter the tentative schedule. According to Ms. McKee, Dr. Glass indicated at the January 7th meeting that she would not be scheduled to teach such classes due to her request to not teach evening classes. Ms. McKee expressed the idea that by scheduling certain classes in the evening, Dr. Glass was essentially limiting Ms. McKee's ability to teach those classes. However, though Ms. McKee believed she was equally qualified, Dr. Glass had previously taught the course and decided it was in the students' best interests for him to continue as instructor.
For the Spring 1997 semester, Ms. McKee was assigned to teach two sections of Architecture 442. Without first obtaining departmental approval, she combined the lecture portions of the two sections with another section taught by a different professor, while keeping the discussion portion separate. The Department of Architecture opined that the course material should be covered in small sections, which is why they scheduled the course in smaller sections.
Though Ms. McKee had previously taught a combined course with another professor during her employment at Ball State, the class had originally been scheduled that way. (McKee Dep. at 150-51.) In this case, Ms. McKee supposedly did not believe she needed departmental approval before combining the two sections. ( Id.)
Prof. Rosenman, on his own initiative, called the Affirmative Action office on January 13, 1997. Then, on January 17, 1997, Prof. Rosenman and Ms. McKee had a telephone conversation, during which Ms. McKee requested "as much distance between him [Glass] and me as possible." (Rosenman Dep. at 266.) On January 20, 1997, Ms. McKee met with Professor Rosenman to discuss Dr. Glass' supervision of Ms. McKee, class scheduling, charges of harassment and other matters. During this meeting, Prof. Rosenman, as instructed by Dean Kelly, indicated that the Dean would accept Ms. McKee's resignation.
According to the Affirmative Action Office's log: "Marvin Rosenman called. Marsha told him she had faxed Ann McKee's schedule and was concerned there was a problem. Response: Spoke with Marsha, told her we were getting more information on this condition." (Rosenman Dep., Ex. 37, at 1.)
Also during this phone conversation, Prof. Rosenman told Ms. McKee that she would not be allowed to teach a course in conjunction with the other professor, as she had planned to do, and that she would be required to meet with him on January 20, 1997, that following Monday.
According to Ball State's statement of facts, the meeting occurred on January 21, 1997, but according to Ms. McKee it occurred on January 20, 1997.
Also on January 20, 1997, Ms. McKee called the Affirmative Action office and stated that she wanted to file a charge of harassment. She picked up the harassment papers and requested information regarding her rights to review her promotion and tenure file. While at the Affirmative Action office, Ms. McKee scheduled a meeting for January 22, 1997, to discuss her harassment complaints.
Professor Rosenman signed a three page letter, dated January 21, 1997, which was sent to Ms. McKee regarding her performance the preceding year. Within this letter, Prof. Rosenman outlined a list of seven expectations. (McKee Dep., Ex. 32, at 3.) A copy of this letter was placed in Ms. McKee's Promotion and Tenure file prior to the "current year tenure review." Though she was given the opportunity to reply to the letter, and have the reply also placed in her file, she did not elect to do so. In addition, the letter stated that if her performance improved, the letter and any reply would have been removed from the file. ( Id.)
In actuality, though Prof. Rosenman signed the letter, Dean Kelly drafted it. (Rosenman Dep. at 25-29; 262-63.) Prof. Rosenman had concerns about including portions of the letter, such as the material regarding lack of commitment and/or effort, and thought the letter was "harsh." ( Id. at 292-95, 307, 309.)
This list of expectations includes: teaching classes as scheduled; remaining honest with those Ms. McKee deals with in her official capacity; presence on campus most days; posting 8 office hours per week to allow student access; attendance at most college and departmental faculty meetings; cooperation with Dr. Glass, including attendance at all Historic Preservation Program meetings (allowing some room for illness-related excuses); participation in a reasonable number of extra-curricular college and departmental events. ( Id.) These expectations were not unique to Ms. McKee, but as the letter clarifies, these are expectations of all faculty members. ( Id.)
In fact, according to the letter, it was recommended to the Committee that it give Ms. McKee an extra week to reply before completing her performance review. ( Id.)
On January 22, 1997, Ms. McKee contacted Salli Falling, of the Affirmative Action office, to express her concerns regarding the January 21, 1997 letter. (Rosenman Dep., Ex. 37, at 2.) Ms. McKee inquired about the receipt and status of her accommodation request, and Ms. Falling verified receipt. Also on January 22, 1997, Ms. McKee met with Beverly Pitts, Associate Provost, to discuss Prof. Rosenman's January 21, 1997 letter, Ms. McKee's rights, Prof. Rosenman's treatment of Ms. McKee and what constituted an appropriate response.
On February 6, 1997, Ms. McKee's counsel wrote a letter to Ball State and requested a stay of any obligation for Ms. McKee's response to the January 21, 1997, letter. The letter also advised Ball State of Ms. McKee's claims of disability discrimination, gender discrimination and hostile work environment. Additionally, Ball State was advised of Ms. McKee's inability to "continue her duties at this time" due to the alleged hostile work environment. The letter stated that "Professor McKee will not return to the University to work after Friday, 7 February 1997." (McKee Dep., Ex. 34, at 2.) In response, Dean Kelly issued a letter on February 11, 1997, demanding Ms. McKee return to work "no later than 12:00 noon on Monday, February 24, 1997, prepared to teach your regular course assignment and participate fully in departmental activities." (McKee Dep., Ex. 35.)
At the time of this letter, the final schedule for the 1997-98 academic year was not complete. Also at this time, Ms. McKee was a tenure track faculty member with teaching responsibilities that included graduate students in the Historic Preservation Program.
The letter even stated that Ms. McKee, "intend[ed] to pick up her personal items in her office . . . [, would] leave all University property . . . [and would] return all keys, cards, etc. upon completion of this task." ( Id. at 3.)
On February 14, 1997, before the deadline for Ms. McKee to return to work, the Committee recommended Ms. McKee's termination at the close of the Spring 1998 semester. Prof. Rosenman dissented from this recommendation and insisted that the Committee issue a warning letter in lieu of termination, which was the past routine of the University. This recommendation was mailed to Ms. McKee and forwarded to Dean Kelly. However, a "second version" of this document exists where the Committee unanimously recommended Ms. McKee's termination. Ms. McKee could have initiated a second appeal process regarding this recommendation. However, she did not.
Since Ball State was unwilling to accept anything but a unanimous recommendation, Prof. Rosenman was requested to reconsider his dissent since it was not legally necessary to give Ms. McKee a warning, and Ball State had "had enough of this situation." (Rosenman Dep. at 319-327.)
On February 21, 1997, Ms. McKee submitted her resignation citing the alleged hostile work environment as the reason. She took her course materials that were on reserve with the school library and made no arrangements for Ball State to copy them. She also did not meet with any of her classes to wrap things up before she left campus, nor did she meet with any faculty members to assist in a transition for her courses.
Ms. McKee filed a Charge of Discrimination alleging sex and disability discrimination on June 4, 1997.
It is noted that the charge does not allege retaliation. Though Ball State moves to strike Ms. McKee's factual statement 133 (claiming the charge alleges retaliation), it does not seek summary judgment on the basis of the rule that the scope of the EEOC charge limits the scope of the plaintiff's Title VII complaint. See, e.g., Cheek v. Peabody Coal Co., 97 F.3d 200, 202 (7th Cir. 1996). Moreover, Ball State did not assert the failure to exhaust administrative remedies as an affirmative defense to the complaint. ( See Answer at 4-5.) The rule regarding the limitation placed on the scope of a complaint is not a jurisdictional rule. See Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985) (ruling that the scope of the EEOC charge limits the scope of a subsequent complaint is analogous to timely filing requirements and thus is not a jurisdictional rule); see also Gibson v. West, 201 F.3d 990, 993 (7th Cir. 2000) ("[A] failure to exhaust administrative remedies is not a jurisdictional flaw.") As a result, Ball State has waived this challenge by not raising it.
LEGAL STANDARD
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper if "the pleadings, depositions, answers to interrogatories and, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An entry of summary judgment is mandated if, after adequate time for discovery, a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To oppose a motion for summary judgment, "there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In determining whether a genuine issue of material fact exists, all facts are construed in the light most favorable to the non-moving party (Ms. McKee) and all reasonable inferences are drawn in favor of that party. See Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000) (citing Anderson, 477 U.S. at 255).Here, the moving party, Ball State, does not bear the burden of proof at trial. In Celotex, the Supreme Court held that the burden on a moving party like Ball State "may be discharged by `showing' . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. Since the motion asserts that Ms. McKee lacks proof to establish a requisite element of its case for harassment, Ball State must show the absence of facts to support Ms. McKee's claims.
In response, the burden on Ms. McKee is to demonstrate the existence of a genuine dispute. Under Rule 56(e), "an adverse party may not rest upon mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Thus, Ms. McKee must introduce specific facts, which would permit a rational trier of fact to find in her favor. See Celotex Corp., 477 U.S. at 323-24; Anderson, 477 U.S. at 248. She must demonstrate that a genuine issue exists as to each element of the claims. If the factual allegations relied upon by the non-moving party, Ms. McKee would not lead a rational trier of fact to return a verdict in her favor, no genuine issue of fact exists and summary judgment should be granted. See Matushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Seventh Circuit has determined that "the summary judgment standard is applied with special scrutiny to employment discrimination cases, which often turn on the issues of intent and credibility." Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000) (citing Bellaver, 200 F.3d at 491; Geier v. Medtronic, Inc., 99 F.3d 238, 240 (7th Cir. 1996)). However, neither "the mere existence of some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, nor the existence of "some metaphysical doubt as to the material facts," Matsushita Elec., 475 U.S. at 586, will defeat a motion for summary judgment.
ANALYSIS
Ms. McKee alleges that Ball State retaliated against her in violation of Title VII following her complaints of discrimination to the Affirmative Action office. The elements of a retaliation claim under Title VII are: Ms. McKee engaged in a statutorily protected activity; she suffered an adverse action; and a causal link exists between the protected activity and the adverse action. See Johnson v. Univ. of Wisconsin-Eau Claire, 70 F.3d 469, 479 (7th Cir. 1995). Thus, to survive summary judgment, Ms. McKee has to demonstrate a genuine issue of fact as to each of these three elements. Provided a prima facie case of retaliation can be made, Ball State than may proffer legitimate non-discriminatory reasons for its actions. See Talanda v. KFC Nat'l Management, Co., 140 F.3d 1090, 1096 (7th Cir. 1998). If reasons are offered, to survive summary judgment, Ms. McKee must demonstrate that there is a genuine issue of fact as to whether these reasons are pretextual. See Russell v. Acme-Evans Co., 51 F.3d 64, 67 (7th Cir. 1995) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
Ms. McKee is correct that making the complaint to the Affirmative Action office is a protected activity, however, it is unclear exactly what Ms. McKee alleges was the adverse action taken by Ball State. First of all, any action by way of conversation, composed letters placed in her tenure file, or other performance evaluation that took place prior to the discrimination complaint is not considered retaliatory. Rather, by the definition of a "retaliatory" act, the complaint must precede the adverse action, leading to the conclusion that the adverse action was only taken as a consequence of the complaint.
Title VII makes it "an unlawful employment practice for an employer to discriminate against any of his employees . . . 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). Though Ms. McKee alleges retaliation for the filing of a request for accommodations, such a retaliation claim falls under the Americans with Disabilities Act, and that count of the complaint was withdrawn. In addition, though the issue of unfair treatment came up in Ms. McKee's challenge to the 1995 performance evaluation, not only was that matter resolved, but there would be no causal connection between that activity and the alleged adverse actions, as is discussed later.
Even though the facts surrounding Ms. McKee's request to teach the course in preservation law during the 1997-98 academic year happened after she filed a complaint with the Affirmative Action office on January 20, 1997, and then called the Affirmative Action office on January 22, 1997, to discuss the letter from Prof. Rosenman, the denial of this request was not an adverse action. Ball State did not assign her unfavorable classes, rather Ms. McKee viewed "the lack of being able to teach some of the other [courses as being] unfavorable." (McKee Dep. at 131.) Though many college professors are at times frustrated with their teaching assignments, "not everything that makes an employee unhappy is an actionable adverse action." Ribando v. United Airlines, Inc., 200 F.3d 507, 511 (7th Cir. 1999) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)). In order for an action to be "adverse," the action "must be `materially' adverse, meaning more than a `mere inconvenience or an alteration of job responsibilities'." Id. at 510 (quoting Crady v. Liberty Nat'l Bank Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993)). Though Ms. McKee's teaching assignment may not have been her optimal choice, it did not change the fundamental terms or conditions of her employment to make it a materially adverse action.
Even assuming the denial of the request to teach the course of her choice amounted to a materially adverse action, Ball State has stated and documented that the decision denying Ms. McKee the opportunity to teach this particular class was made in order to have a qualified instructor who had previously taught the course in that role. Ms. McKee offers no proof to contradict this explanation. Without evidence to demonstrate that the proffered reason was pretextual, Ms. McKee would be unable to prevail on a summary judgment motion regarding this particular "adverse action."
Ms. McKee has failed to show that the proffered reason was pretextual-either that "a discriminatory reason more likely motivated the employer or [by showing] that the employer's proffered explanation is unworthy of credence." Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1143 (7th Cir. 1997). Besides stating that this defense only applies to part of the whole alleged range of retaliation, she offers nothing to support an allegation of pretext.
A second possible adverse action suggested by Ms. McKee is the January 21, 1997, letter from Prof. Rosenman, which was placed in her tenure file. This action should be considered materially adverse given that the Committee was conducting its annual evaluation of Ms. McKee's performance. Since this letter was placed in Ms. McKee's tenure file a day after she filed her complaint with the Affirmative Action office, Ms. McKee has demonstrated a genuine issue of material fact regarding whether Ball State's actions were motivated by an "impermissible retaliatory or discriminatory animus." Rice v. Sunrise Express, 209 F.3d 1008, 1017 (7th Cir. 2000).
The record does not indicate that the letter was considered by the Committee in its review process, however, it is reasonable to infer that the Committee reviewed Ms. McKee's tenure file when making its decision. This is suggested by the January 21, 1997, letter when it says, ". . . this letter is going into your tenure file. . . . If you are willing to do those things and in fact substantially accomplish them for the rest of the spring semester, I will be willing to remove this letter from your file, along with any reply that you may file. In the meantime, you may wish to respond to it, because it will be in the file during the current year tenure review. To give you the opportunity to reply to this letter I will recommend to the Committee that they give you an additional week before completing your review." (McKee Dep., Ex. 32, at 3.) In addition, a reasonable inference can be made that the letter was considered by the Committee since they ultimately decided to recommend Ms. McKee's termination.
The length of time between Ms. McKee's protected activity and any adverse action is significant because a telling temporal sequence can provide the requisite causal link. See Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1315 (7th Cir. 1989) ("telling" temporal sequence between protected action and alleged retaliation can demonstrate causal link for Title VII prima facie case). A "substantial time lapse between the protected activity and the adverse employment action `is counter-evidence of any causal connection.'" Johnson, 70 F.3d at 480. Though the court has stated that a temporal sequence is telling only when an adverse action follows "fairly soon" after the protected expression, Sweeney v. West, 149 F.3d 550, 557 (7th Cir. 1998), it has not clarified what constitutes "fairly soon." Rather, the court has stated that causation was established when only a day or a week passes between the protected expression and the adverse action, See McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 797 (7th Cir. 1997), but has also expressed concern that a gap of a month between the two events would not alone support a prima facie case. See Eiland v. Trinity Hosp., 150 F.3d 747, 753 (7th Cir. 1998); see also Filiprovic v. K R Express Sys., Inc., 176 F.3d 390, 399 (7th Cir. 1999) (four month gap severed causation); Johnson v. Zema Sys. Corp., 170 F.3d 734, 746 (7th Cir. 1999) (a gap of three years severed causation); Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1038 (7th Cir. 1998) (three months between complaint and lay off is insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (four month gap severed causation); Juarez v. Ameritech Mobile Comm., Inc., 957 F.2d 317, 321 (7th Cir. 1992) (five to six month gap severs causation).
In the present case the gap in time between Ms. McKee's initial complaints and the issuance of the letter from Prof. Rosenman was very short, only a day or two. As a result, since the amount of time was so short, an inference of a causal nexus exists. Since Ball State has not offered a legitimate, nondiscriminatory reason for the letter and its placement in Ms. McKee's tenure file, Ms. McKee does not have the burden of showing pretext for this adverse action. Thus, there is a genuine issue of fact regarding whether Ms. McKee's complaint of discrimination was the cause of a subsequent adverse action.
Ball State only offers nondiscriminatory reasons for their course scheduling action.
In addition, though it is not clear from her brief, the court understands Ms. McKee to contend that the Committee's termination recommendation is an adverse action. It could be argued that this recommendation did not amount to an adverse action because Ms. McKee had already advised Ball State that she would not be returning to work. Such an argument, however, would fail. First, Ms. McKee did not actually submit her resignation until February 21, 1997, which was after the Committee made its recommendation. Moreover, even if the letter sent by Ms. McKee's attorney, dated February 6, 1997, was considered a resignation letter, former employees are protected by Title VII's anti-retaliation provision. See Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (holding unfavorable reference by former employer can constitute a retaliatory act under Title VII). The Seventh Circuit has held that former employees have the right to sue former employers under Title VII for an act of retaliation that "impinges on their future employment prospects or otherwise has a nexus to employment. . . ." Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 (7th Cir. 1996). The Committee's termination recommendation clearly has a connection to Ms. McKee's employment and, very likely would impinge on her future employment prospects. Following Robinson and Veprinsky, the court concludes the Committee's termination recommendation constitutes an adverse action.
Ms. McKee has also raised an issue of fact as to the causal link between the protected activity and the Committee's termination recommendation. Since Ms. McKee filed her complaint with the Affirmative Action office on January 20, 1997, and the Committee recommended her termination on February 14, 1997, less than a month had passed between the two events. Such a relatively short period of time in combination with the evidence that Prof. Rosenman was a member of the Committee, participated in the decision to recommend Ms. McKee's termination, and was aware that Ms. McKee had filed a complaint with the Affirmative Action office, establish an issue of fact regarding a causal nexus between her complaint and the Committee's recommendation. See Sweeney, 149 F.3d at 557 ("telling" temporal sequence is when an adverse action follows "fairly soon" after the protected expression); Dey v. Colt Const. Dev. Co., 28 F.3d 1446, 1459 (7th Cir. 1994) ("Summary judgment generally is improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action.")
In addition, a reasonable trier of fact could also be suspicious of the following circumstances: Ball State's break from tradition by making the termination recommendation without first issuing a warning letter, (Rosenman Dep., Ex. 40); and there was a "second version" of the February 14, 1997, document showing a unanimous vote after Ball State asked Prof. Rosenman to reconsider his earlier dissent so that there would be a unanimous decision, (Rosenman Dep., Ex. 39).
Ball State has not articulated a legitimate, non-discriminatory reason for the Committee's recommendation. Rather, it simply argues that the decision was made after Ms. McKee gave notice of her intent not to return to work. Though Ball State could probably have come forward with a legitimate, non-discriminatory reason, it failed to do so in either its statement of material facts, memorandum or reply, and also pointed to no evidentiary submissions that might support such a reason. As a result, Ms. McKee does not have to show pretext.
CONCLUSION
Since Ms. McKee has come forward with evidence demonstrating a prima facie case for retaliation under Title VII, and Ball State has not offered nondiscriminatory reasons for certain adverse actions, Ball State's Motion for Summary Judgment is DENIED. However, the only actions of Ball State which could be the basis of a verdict in favor of Ms. McKee on her restitution claim are the January 21, 1997, letter signed by Prof. Rosenman and the February 14, 1997, letter from the Committee recommending Ms. McKee's termination.