Opinion
CAUSE NO. IP99-0093-C-T/G.
February 23, 2001.
ENTRY REGARDING DEFENDANT'S SECOND MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION TO RECONSIDER
Though this entry is being made available to the public on the court's web site, it is not intended for publication either electronically or in paper form. Under the law of the case doctrine, it is presumed that the ruling or rulings in this entry will govern throughout the litigation before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). It should be noted, however, that this district judge's decision has no precedential authority and, therefore, is not binding on other courts, other judges in this district, or even other cases before this district judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); Old Republic Ins. Co. v. Chuhak Tecson, P.C., 84 F.3d 998, 1003 (7th Cir. 1996) ("decisions by district judges do not have the force of precedent"); Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995) ("District court decisions have no weight as precedents, no authority.").
The Plaintiff, Ann K. McKee, brings claims against the Defendant, Ball State University Board of Trustees ("Ball State"), alleging that the Defendant failed to accommodate her disability, engaged in disability discrimination, and retaliated against her in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et. seq., and retaliated against her in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et. seq. The court dismissed with prejudice the Plaintiff's ADA claims, following the parties' filing of a joint stipulation of dismissal of those claims. The Defendant filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56.1, which resulted in limiting the Plaintiff's Title VII claims to two adverse actions discussed below. The Defendant filed a second motion for summary judgment regarding the Plaintiff's limited claims of retaliation, which the Plaintiff opposes.
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 nonmoving 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).
The court, having considered the Motion and the submissions of both parties, decides as follows.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
Additional background information may be found in the court's Entry Regarding Defendant's Motion for Summary Judgment of July 14, 2000. The facts herein are undisputed unless otherwise noted. Disputed facts are taken in the light most favorable to the Plaintiff, Ms. McKee.
Ms. McKee was employed as an Assistant Professor with Ball State in the Department of Architecture. During the relevant period, she spent the majority of her time in the Historic Preservation Program (the "Program"), directed by Dr. James Glass. Although she reported to Professor Marvin Rosenman, Chair of the Department of architecture, Ms. McKee responded to requests from Dr. Glass regarding Program courses. The Chair reported to Eric Kelly, Dean of the College of Architecture and Planning. Ms. McKee was on the tenure track and therefore subject to annual review by the Promotion and Tenure Committee ("the Committee").
The members of the Committee are faculty members changed annually based upon election. In evaluating faculty, the Committee uses a annual review notebook which the reviewed member provides, student evaluations, and the Instructor and Course Evaluation System ("ICES") produced and administered by the University of Illinois.
In January 1996, the Committee reviewed Ms. McKee's performance as a faculty member. The Committee notified her of needed improvement in the quality of her performance in order to progress toward tenure. Specifically, the Committee commented that Ms. McKee's performance met Ball State minimum standards but suggested increased involvement in service activities. The review process includes independent and anonymous scoring of the faculty member on a scale of 0 (low) to 6 (high) in the areas of teaching, scholarship and research, and service. Ms. McKee received a 2.6 for teaching, 4. for scholarship and research, and 2.6 for service. (McKee Dep. Ex. 13.)4 In February 1996, Dean Kelly warned Ms. McKee of her continued "thin" service activities. (McKee Dep. Ex. 14.)
Although faculty are expected to meet expectations in each category, they must further exhibit "demonstrated excellence" in at least one category. (Laseau Aff. ¶ 8.)
In May 1996, Ms. McKee informed Dean Kelly of her medical condition. He referred her to the Equal Opportunity and Affirmative Action office (the "Affirmative Action office") should she need a reasonable accommodation. In December 1996, Ms. McKee requested and received accommodations from the Affirmative Action office for her condition. The accommodations consisted of flexibility in attending non-teaching events, no evening classes, and teaching obligations only four days a week.
Beginning in December 1996, Dr. Glass circulated tentative class schedules for the Program for the Spring 1997 semester. Although Dr. Glass adopted a couple of Ms. McKee's suggested changes, he refused to make the preservation law course a day class and assign her as instructor. Dr. Glass assigned Ms. McKee two sections of Architecture 442. Without administrative approval, Ms. McKee combined the two lecture portions of the class sections while keeping the discussion groups separate.
Dr. Glass assigned himself instructor, having taught the course in previous semesters.
Apparently as a result of growing tension between Ms. McKee and Dr. Glass over scheduling conflicts, a telephone conversation between Ms. McKee and Chair Rosenman occurred on January 17, 1997. In this conversation, Ms. McKee requested "as much distance between him [Glass] and me [McKee] as possible." (Rosenman Dep. at 266.) Chair Rosenman informed Ms. McKee that she was not authorized to combine the two Architecture 442 lectures and further requested her to meet with him on January 20, 1997 regarding supervision by Dr. Glass.
Ms. McKee contacted the Affirmative Action office on January 17, 1997, and spoke with Philann Lewis, the secretary to Affirmative Action Officer Sali Falling. Ms. Falling was unavailable to take Ms. McKee's call. While speaking with Ms. Lewis, Ms. McKee "expressed [her] concerns" regarding Chair Rosenman and Dr. Glass' treatment of her, and inquired into "what constituted `unfair treatment.'" (McKee Aff. ¶¶ 6-7.) In response, Ms. Lewis read Ms. McKee the Ball State anti-harassment policy.
The parties dispute the date of this phone call, and the court takes as true the date offered by Ms. McKee.
Ms. McKee used "unfair treatment" apparently believing it to be the formal language for disputes within the University, this belief originating from an appeal by her of a 1995 Committee decision. (McKee Dep. at 80.)
Under the policy, harassment is defined "as any actions, threats, gestures, and/or fighting words directed toward another person which have the purpose to or which tend to incite a breach of the peace or cause physical injury or emotional distress to that person because of the humiliating, degrading, intimidating, insulting, coercive, ridiculing, and/or alarming nature of the conduct." (Falling Aff. ¶ 11.)
Ms. McKee, at Ms. Lewis' request, called the Affirmative Action office before her meeting on January 20. Ms. Lewis again advised that Ms. Falling was unavailable, and Ms. McKee proceeded to the meeting with Chair Rosenman. The two discussed Dr. Glass' supervision, class scheduling, communications with Ball State officials, and other performance problems. Based upon her continuous performance problems throughout the year and at the direction of Dean Kelly, Chair Rosenman indicated the Dean would accept Ms. McKee's resignation.
After the meeting, Ms. McKee again contacted the Affirmative Action office and spoke with Ms. Lewis. Ms. McKee complained of "unfair treatment" by Chair Rosenman and Dr. Glass, and asked whether "certain actions" by the professors were "out of line." (Id. at ¶ 14.) Ms. Lewis informed Ms. McKee of her right to file a harassment charge pursuant to the anti-harassment policy. Ms. McKee set up a meeting with Ms. Falling for January 22.
On January 21, Chair Rosenman issued a letter to Ms. McKee in "an attempt to communicate with her about issues that have accumulated over the past several months or weeks." (Pl. Ex. 29.) Signed by Chair Rosenman, Dean Kelly played a large role in the drafting and language of the letter. The letter drew attention to Ms. McKee's service deficiencies, the unauthorized merger of class lectures, failure to respond to requests from Dr. Glass, and untruthful statements made by Ms. McKee during the January 20 meeting regarding communications with the Affirmative Action office and the Provost's office. Chair Rosenman noted that the letter would be placed in her tenure file subject to removal upon performance improvements. Finally, the letter outlined seven expectations for improvement. Ms. McKee met with Ms. Beverly Pitts, Associate Provost, on January 22, 1997, to discuss the Rosenman letter and Ms. McKee's rights. In addition, Ms. McKee met with Ms. Falling to discuss the letter and the possible filing of a harassment charge.
The expectations included teaching the classes as scheduled, honesty, regular presence at Ball State, maintaining office hours, attending meetings, cooperation with Dr. Glass, and participation in service activities.
On January 23, the Committee first met to review Ms. McKee's performance. The Committee allowed Ms. McKee until February 6 to respond to the letter by Chair Rosenman.
The 1997 Committee was comprised of Chairman Paul Laseau, and members Andy Seager, Bob Fisher, Rod Underwood, and Andrea Swartz. Department Chair Rosenman sits as a non-voting ex officio of the Committee. (Rosenman Aff. ¶ 10.)
This meeting had been scheduled since November, 1996.
Chair Rosenman had issued a memo to Committee Chair Laseau, requesting "an extra week before completing her review so that she will have adequate time to reply to the letter." (Pl. Supp. Ex. B.) (Emphasis in original.)
On February 6, 1997, Ms. McKee's counsel requested by letter that the Committee stay any obligation to respond to Rosenman's letter pending an investigation. Counsel's letter further advised Ball State that Ms. McKee held claims of disability discrimination, gender discrimination and a hostile working environment. The letter stated that Ms. McKee could not continue her duties in the present environment and would not return to work after February 7.
Neither Ms. McKee nor her counsel ever responded to the letter.
On February 11, Dean Kelly wrote to Ms. McKee demanding she return to work no later than February 24, "prepared to teach your regular course assignment and participate fully in departmental activities." (McKee Dep. Ex. 35.)
On February 14, 1997, the Committee voted unanimously that Ms. McKee was not making satisfactory progress toward tenure. Ms. McKee received a 2.3 for teaching, 2.3 for scholarship and research, and 2.2 for service as a cumulative score from the Committee. (Laseau Aff. Ex. C.) All scores were less than that of the previous year, and Ms. McKee's area of demonstrated excellence, scholarship and research, suffered a two point reduction. The Committee recommended Ms. McKee's termination at the close of the Spring 1998 semester.
The policy of Ball State is to allow faculty who have put in several years of service to be given an additional year after notice of termination.
As part of the promotion and tenure process, the Dean and Department Chair are to forward their comments on the Committee's recommendation to the Provost. Both Dean Kelly and Chair Rosenman initially disagreed with the recommendation of termination by the Committee, suggesting a warning letter was more appropriate. However, Dean Kelly and Chair Rosenman eventually agreed to the recommendation. Dean Kelly convinced Chair Rosenman to agree to the termination to perfect unanimity in management's decision.
The parties dispute the reason for Dean Kelly's change in stance. Ms. McKee alleges without evidentiary support that the change was motivated by retaliation. Dean Kelly's affidavit state's that the change was a result of Ms. McKee's refusal to return to work, and a need to terminate her in order to procure another teacher for her abandoned classes. An unsupported allegation by a party is insufficient to create a genuine issue of material fact. See Chapple v. Nat'l Starch Chem. Co. Oil, 178 F.3d 501, 507 (7th Cir. 1999); Nat'l Soffit Escutcheons, Inc. v. Superior Sys., Inc., 98 F.3d 262, 266 (7th Cir. 1996). Thus, the court finds that Dean Kelly changed his stance in order to expedite the filling of the vacancy because of Ms. McKee's refusal to return to work for the remainder of the semester.
Prior to the Provost considering the recommendation, Ms. McKee resigned on February 21, 1997. She then filed a charge of discrimination on June 4, 1997, with the Equal Employment Opportunity Commission ("EEOC") alleging sex and disability discrimination. On December 17, 1998, Ms. McKee filed a complaint in state court alleging disability discrimination and retaliation under the ADA and retaliation under Title VII. Ball State denied all claims, and further affirmatively defended that Ms. McKee failed to mitigate her damages, Ball State accommodated Ms. McKee's disability, and Ms. McKee failed to state a claim for which relief may be granted.
After removal to this court and an amended answer by Ball State, the ADA claims were dismissed with prejudice by the court upon joint stipulation of the parties. Ball State moved for summary judgment as to Ms. McKee's Title VII claims on November 1, 1999. After denying Ball State's Motion, the court granted Ball State's Motion to Reconsider so that the question of whether the January 21 letter and the Committee's decision to terminate the Plaintiff could constitute retaliation. Ball State filed a second motion for summary judgment on September 1, 2000, which the court now reaches after a full round of briefing by counsel.
ANALYSIS
Ms. McKee alleges Ball State retaliated against her in violation of Title VII following her comments of "unfair treatment" to the Affirmative Action office. The elements of the prima facie claim of retaliation under Title VII are: Ms. McKee engaged in statutorily protected activity; she suffered an adverse action; and a causal link exists between the protected activity and the adverse action. Johnson v. Univ. of Wis. — Eau Claire, 70 F.3d 469, 479 (7th Cir. 1995). To survive Ball State's motion for summary judgment, Ms. McKee must demonstrate a genuine issue of fact exists as to each element of the prima facie case. Upon establishing a prima facie case, the burden then shifts to Ball State to proffer legitimate, non-discriminatory reasons for its actions. Talanda v. KFC Nat'l Mgmt., Co., 140 F.3d 1090, 1096 (7th Cir. 1998). If Ball State successfully proffers reasons, then Ms. McKee must demonstrate that genuine issues of fact exist as to whether these reasons are a pretext for discrimination. Russell v. Acme-Evans Co., 51 F.3d 64, 67 (7th Cir. 1995) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
Under § 704(a) of Title VII, it is "an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a).
Ball State moves for summary judgment as to Ms. McKee's retaliation claims on several grounds. First, Ball State argues that Ms. McKee's failure to aver retaliation on her charge of discrimination with the EEOC bars her subsequent suit under the scope of charge doctrine. Second, Ball State argues that Ms. McKee is unable to create a genuine issue as to her prima facie case of retaliation with respect to the Rosenman letter. Next, Ball State raises a legitimate, non-discriminatory reason for the letter to which Ms. McKee cannot create an issue of pretext. Finally, as to the Committee decision, while conceding a prima facie case, Ball State argues Ms. McKee cannot create an issue of pretext as to the proffered legitimate, non-discriminatory business reason for that decision.
As an initial matter, Ms. McKee alleges that the comments made on January 17 and 20, 1997, to the Affirmative Action office regarding "unfair treatment" constitute protected activity within the meaning of Title VII. For the purposes of resolving this dispute, it is unnecessary to revisit this issue. Ms. McKee complains of two adverse actions: Chair Rosenman's letter of January 21, 1997; and the Committee vote to recommend termination of Ms. McKee's employment. As previously decided, both actions by Ball State constitute adverse actions. Finally, given the temporal proximity of the actions to the protected activities, Ms. McKee creates a genuine issue of fact regarding the third element of the prima facie case. Therefore, Ms. McKee has created a genuine issue of fact as to her prima facie case of retaliation.
The first entry by this court on July 14, 2000, stated that Ms. McKee's complaints to the office were considered protected activity. Upon further and more detailed briefing by the parties as to the facts, Ms. McKee's general comments of "unfair treatment" would not likely be sufficiently precise to invoke the statutory protection against retaliation under Title VII. See Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d Cir. 1995) ("general complaint of unfair treatment" is not protected activity); Gautney v. Amerigas Propane, Inc., 107 F. Supp.2d 634, 645 (E.D. Pa. 2000) ("merely complaining generally about unfair treatment does not constitute a protected activity"). Language such as "unfair treatment" may be proper for invoking Ball State administrative review, but probably insufficient to invoke the statutory protections. Because Ms. McKee's claim based upon the letter of January 21, 1997, fails for reasons stated ante, it is unnecessary to address this issue.
See Entry Regarding Motion for Summary Judgment, July 14, 2000.
The burden thus shifts to Ball State to articulate legitimate, non-discriminatory reasons for the Rosenman letter and for the Committee's recommendation. "At this stage, the employer need not prove that it was actually motivated by the proffered reason. Rather, an employer `need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.'" Contreras v. Suncast Corp., Nos. 00-1977, 00-2493, 2001 WL 8434, at *3 (7th Cir. 2001) (quoting Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 257 (1981)). Ball State successfully produced evidence, undisputed by Ms. McKee, that her performance suffered from service deficiencies, an unauthorized merger of lectures, lack of responsiveness to Dr. Glass' requests, and misstatements regarding meetings with Ball State officials. These were the reasons for the letter of January 21, 1997, as stated in the letter itself, and undisputed by the parties. As to the Committee's decision to terminate, the admissible evidence offered by Ball State and undisputed by Ms. McKee is that her performance continued to suffer from deficiencies. Ms. McKee does not deny that faculty evaluations and ICES were both low. Therefore, Ball State successfully proffered evidence of legitimate, non-discriminatory business reasons for the adverse actions at issue.
The burden returns to Ms. McKee to establish that a genuine issue of fact exists that Ball State's proffered reasons are merely a pretext for unlawful retaliation. The Seventh Circuit "has consistently emphasized that it will not `sit as a super personnel department to review an employer's business decision." Ritter v. Hill `N Dale Farm, Inc., 231 F.3d 1039, 1044 (7th Cir. 2000) (quoting Ransom v. CSC Consulting, Inc., 217 F.3d 467, 471 (7th Cir. 2000)). However, "[i]ndirect evidence of pretext showing that an employer's proffered reasons are not credible can include evidence that the reasons are without basis in fact, did not actually motivate the challenged action, or were insufficient to motivate the [action]." Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374, 379 (7th Cir. 2000). Ms. McKee may demonstrate pretext by showing Ball State "offered a phony reason," not by merely "demonstrating that [Ball State] erred or exercised poor business judgment." Ritter, 217 F.3d at 1044. Ms. McKee argues that evidence exists which suggests that the Rosenman letter and the Committee's decision are pretextual.
Ms. McKee first challenges the letter's motive based upon the "covert action" of Chair Rosenman and Dean Kelly in the conspiratorial drafting of the letter. The assistance of a direct supervisor in the drafting of a disciplinary letter does not rise to the level of a conspiracy. Ms. McKee never alleged unfair treatment by Dean Kelly, only Chair Rosenman and Dr. Glass. Chair Rosenman's decision to involve Dean Kelly in the drafting falls well within the sound purview of management. For the court to allow the suggestion of pretext on this basis contravenes the Seventh Circuit admonishment for the court to not sit as a "super personnel department."
Ms. McKee also suggests that the "tone" of the letter overshadows "any notion of true performance concerns" with its "legalistic approach." This argument is unsupported by any evidence in the record, and the court is unconvinced that a jury would find the letter's tone as demonstrating pretext. Ms. McKee does not challenge the letter as excessive discipline, instead arguing that the "suspicious" circumstances of the letter raises an issue of pretext. Yet, Dean Kelly is in fact an attorney whose assistance in drafting no doubt led to a more "legalistic" tone. An effort by management to draft with careful choice of words a formal disciplinary letter is simply a legitimate business decision which cannot be perverted into an argument that such care evidences pretext.
In addition, Ms. McKee argues that the Rosenman letter was "an attempt to communicate with her about issues that have accumulated over the past several months or weeks." She then attempts to show pretext by arguing that contacts with the Affirmative Action office on January 17, 20, and 22 are "issues" within the meaning of the letter. Despite the fact that the letter was issued on January 21, thus logically excluding the January 22 contact, Ms. McKee's argument is pure speculation without any evidentiary support to show that Chair Rosenman intended to include the January 17 and 20 phone contacts in his use of the word "issues." This specious allegation fails to demonstrate a genuine issue as to pretext.
Chair Rosenman asserted that the letter was written concerning the adequacy of Ms. McKee's "efforts in her position." (Rosenman Aff. (10/27/1999) ¶ 8); (Rosenman Aff. (8/31/2000) ¶ 6.)
Finally, Ms. McKee argues that the Committee's failure to provide adequate response time demonstrates the letter's pretext. Although it is unclear how the subsequent action of the Committee reflects the pretextual nature of Rosenman's letter, the argument fails more simply on the fact that the Committee did provide additional time in which Ms. McKee was to respond. As detailed in the facts, the Committee initially met on January 23, but delayed action, instead allowing Ms. McKee time to respond to the letter by February 6. Even after passage of the deadline, the Committee did not vote to terminate in haste, instead waiting until February 14. Ms. McKee's challenge is simply without merit. Ms. McKee freely admits that she did not take advantage of the time provided by the Committee. Based on the foregoing, Ms. McKee has failed to create a genuine issue of fact upon which a jury could find Ball State's proffered reasons pretextual.
Ms. McKee's challenge of the Committee's decision likewise fails for want of a genuine issue of fact. Initially, Ms. McKee suggests that Chair Rosenman utilized the Committee as his alter ego in retaliating against her. The argument flows that Chair Rosenman, as a non-voting participant in the Committee, was able to taint the decision making process to further his retaliation. However, Ms. McKee then attempts to demonstrate the pretextual nature of the decision with evidence that Chair Rosenman initially dissented from the Committee's termination decision because he felt a warning letter was more appropriate. Disparate treatment may be evidence of pretext, Johnson v. West, 218 F.3d 725, 733 (7th Cir. 2000), and the court may impute retaliatory motive from a non-decision maker to the decision maker in certain situations, Paluck v. Gooding Rubber, 221 F.3d 1003, 1010-1011 (7th Cir. 2000); Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1459 (7th Cir. 1994) (listing cases imputing motive). However, the Seventh Circuit decision in Dey referenced cases where the non-decision maker with the motive supported the decision maker's adverse action. In this case, Ms. McKee's argument places the actor with the retaliatory motive as opposing the decision maker's allegedly retaliatory adverse action. Chair Rosenman, the actor who harbors the alleged unlawful motive, initially dissented from the Committee's decision to terminate Ms. McKee because he felt a warning letter was more appropriate. Although a non-decision maker may taint the decision maker by providing input which is filtered with a retaliatory motivation, in this case Chair Rosenman, the non-decision maker, opposed the decision ultimately made. Cf. Plair v. E.J. Brach Sons, Inc., 105 F.3d 343, 348 (7th Cir. 1997) (plaintiff unable to show pretext when decision maker with alleged unlawful motive declined to terminate plaintiff for previous misconduct as recommended by supervisor).
As Ms. McKee admits and in fact argues, Chair Rosenman only changed his mind after pressure from Dean Kelly to have unanimity in management.
Next, Ms. McKee argues that statements made by Dean Kelly indicate the untruthfulness of the Committee's decision. It must be noted, Dean Kelly was not a member of the Committee and no suggestion has been made by Ms. McKee that he influenced the Committee's decision. Ms. McKee argues that Dean Kelly also initially dissented from the Committee's decision, but changed his mind after Ms. McKee declined to return to work after February 6. Yet, Dean Kelly issued a letter demanding that Ms. McKee return to work and complete her duties as a faculty member for the semester. Ms. McKee argues that these are somehow inconsistent positions demonstrating "false testimony" by Dean Kelly. This allegation is without merit and admissible evidence to support it. Although Dean Kelly may have been forced to recognize that Ms. McKee needed to be terminated by her abandonment of her classes, he was attempting to have her return to work in order that students would not suffer from the loss of their professor. Notwithstanding, there is absolutely no evidence that Dean Kelly exercised any control over the Committee's decision.
In addition, Ms. McKee alleges that the Committee's failure to follow a Ball State "policy" or "practice" of issuing a warning letter a year prior to the termination demonstrates pretext by disparate treatment. Chair Rosenman admitted that the usual practice is to issue such letters, and that other faculty members have received such letters. Ball State acknowledges that warning letters may be issued on occasion, but that this is not explicit policy. The Seventh Circuit recently commented "Reeves makes it clear, however, that pretext means a dishonest explanation, a lie rather than an oddity or an error." Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000) (construing Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000)). As the court went on to note, mistakes in employer procedures "does more to illustrate the stochastic quality of human activity, however, than to show that someone must be covering up an unlawful motive." Id. Ms. McKee provides the court with no evidence of untruthfulness, i.e. she does not challenge the validity of her low evaluation with admissible evidence. She relies on the failure by Ball State to follow an occasional practice of issuing a warning letter in lieu of termination. This oddity or error simply does not raise an issue of pretext.
Ms. McKee further suggests that the decision to terminate was made prior to her January 23 meeting with the Committee, and therefore suggests pretext. She argues that "the backdrop" of the decision "leads to questions" as to whether the Committee reached a decision before the meeting. Ms. McKee points out that she received her Fall 1996 evaluations shortly before the meeting, that the Committee decision fails to reference her annual review notebook, and that Chair Rosenman discounted her statistical concerns regarding evaluations. Because the Committee does not render a decision in the manner that Ms. McKee wishes it to be made does not suggest untruthfulness, and therefore pretext. The ICES system of evaluation is an independent and accepted evaluation system of academia. Ms. McKee's belief that the system may have been skewed because of a low sampling pool fails to raise an issue as to the truthfulness of the Committee's reliance on the evaluations. The question Ms. McKee raises is whether the Committee should have relied on the evaluations, but the question under the law is whether the Committee did rely on the evaluations instead of unlawful retaliatory animus. Moreover, Ms. McKee does not even go so far as to suggest, let alone provide admissible evidence, that receiving evaluations shortly before the meeting or that failure to reference her annual review notebook is unusual. The Seventh Circuit continually admonishes courts not to seek out mistakes in decisionmaking as evidence of pretext, but to seek out evidence suggesting that the reasons given for the decision are a pretext. Bell v. Env'tl Protection Agency, 232 F.3d 546, 550 (7th Cir. 2000) (pretext fails when evidence shows employer "honestly believed in the nondiscriminatory reasons it offered, even if the reasons are foolish or trivial or even baseless); Ritter, 231 F.3d at 1044 ("Pretext is not shown merely by demonstrating that [the employer] erred or exercised poor business judgment. . . .").
Again, Ms. McKee provides no evidence to the court that places any doubt on the legitimate, non-discriminatory reason proffered by Ball State.
Finally, Ms. McKee's challenges the Committee's decision to terminate because the termination was to become effective in the spring of 1998. The undisputed testimony is that Ball State policy usually provides for an additional year of employment upon the decision to terminate. The willingness of Ball State to continue Ms. McKee's employment for an additional year further undermines her argument that Ball State acted with swift retaliation in response to her protected activity.
The burden rests with Ms. McKee to demonstrate that a genuine issue of fact exists as to the pretextual nature of the adverse actions. A genuine issue is created by admissible evidence — not that Ball State erred in business judgment — but that the reasons for the actions were untruthful. The deficiencies in Ms. McKee's performance are not disputed by the parties and are the proffered basis for each action. Ms. McKee relies on mere general allegations of suspicion as to the decisionmaking process of Ball State, but fails to provide evidence suggesting untruthfulness of the proffered reasons, that the reasons did not motivate the actions, or that the actions were excessive. Therefore, Ms. McKee has failed to carry her burden as the non-movant in raising genuine issues as to Ball State's motives for the challenged adverse actions.
On December 8, 2000, Ball State filed a motion for leave to file a second amended answer. In the Second Amended Answer and Second Motion for Summary Judgment, Ball State pleads that Ms. McKee failed to exhaust administrative remedies as a condition precedent to suit under Title VII. Specifically, Ball State contends that because Ms. McKee failed to identify retaliation as one of the complained unlawful actions by Ball State on her EEOC charge, her subsequent suit in this court is barred by the scope of charge doctrine. Ms. McKee responded to Ball State's argument by filing her Motion to Reconsider. In this Motion, Ms. McKee asks the court to reconsider the leave granted to Ball State allowing amendment of its pleadings to include the affirmative defense. It should be noted that the court acted so quickly in granting the motion for leave to amend that Ms. McKee did not have an opportunity to file her objection prior to the ruling. In addition, Ms. McKee argues in opposition to summary judgment that the law of the case doctrine requires this court to reject the amendment because the court previously decided that Ball State waived the argument in the entry of July 14, 2000. Finally, Ms. McKee claims that Ball State waived the affirmative defense at issue here because it is raised after two years of litigation. The court's reasoning for granting the Second Motion for Summary Judgment does not require consideration of these issues or Ms. McKee's Motion to Reconsider. Therefore, these arguments are not addressed and the Motion to Reconsider will be denied as moot.
CONCLUSION
Since Ball State has proffered legitimate, non-discriminatory reasons for the challenged business actions, and Ms. McKee has failed to raise a genuine issue as to the pretextual nature of those reasons, Ball State's Second Motion for Summary Judgment is GRANTED.Because all remaining claims for relief have been disposed of through Ball State's Second Motion for Summary Judgment without reliance on the failure to exhaust administrative remedies affirmative defense, Ms. McKee's Motion to Reconsider is DENIED as moot.
ALL OF WHICH IS ORDERED this 23rd day of February 2001.