UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION

SHEDERICK WHIPPLE, D.M.A., )

)

Plaintiff, )

)

v. ) Cause No.: 3:13-CV-1177

)

TAYLOR UNIVERSITY, INC., )

)

Defendant. )

OPINION AND ORDER

This matter is before the court for resolution of several pending motions. The Defendant,

Taylor University, filed a motion for summary judgment and supporting memorandum (DE 41,

42). The Plaintiff, Shederick Whipple, filed a response and supporting memorandum in

opposition to the motion (DE 56, 57), and Taylor filed a reply brief (DE 62). After seeking leave

of court to do so, Whipple filed a sur-response (DE 73) and Taylor filed a sur-reply (DE 75). In

addition, Whipple filed two motions to strike (DE 58, 67) and Taylor filed one motion to strike

(DE 61). For the reasons discussed below, the Defendant’s motion for summary judgment (DE

41) is: DENIED as to the issue of the timeliness of the Plaintiff’s claims; GRANTED as to the

Plaintiff’s race discrimination claim; and DENIED as to the Plaintiff’s retaliation claim. The

Plaintiff’s first motion to strike (DE 58) is MOOT; the Defendant’s motion to strike (DE 61) is

GRANTED in part and DENIED in part; and the Plaintiff’s second motion to strike (DE 67) is

MOOT.
BACKGROUND1

Shederick Whipple began working at Taylor University in August 2006 as an Assistant

Professor of Music. Complaint (DE 1), p. 2, ¶ 9. Whipple’s professorship was a seven-year tenure

track position. Id. In his Complaint, Whipple, an African-American, alleges that he experienced “a

continuing pattern of severe and pervasive harassment on the basis of his race . . . .” Id., ¶ 11. For

example, Whipple claims that while he was visiting the campus in April 2006, another professor

told him that “the blacks who move here don’t get involved in the culture, they don’t like it and

they leave and it’s their fault.” Id., ¶ 12. During that same visit, Whipple claims, another faculty

member asked him “what would make you want to come here and be with all these white

people?” Id. Whipple also alleges that he “began experiencing problems with Dr. Patricia

Robertson, a colleague in the Music Department, during [Whipple’s] first semester with the

University.” Id., ¶ 13. Whipple states that he felt “underutilized” in his job and that Robertson told

him that the only reason he was hired by the University was because he was black. Id. Whipple

alleges that Robertson told students that the only reason Whipple was on the faculty was because

of his race. Id., ¶ 14. On October 15, 2010, Whipple applied for promotion from Assistant

Professor to Associate Professor. Id., ¶ 16. A few weeks later, “[o]n November 5, 2010, Dr.

Whipple filed a written complaint of race harassment against Dr. Robertson. Id., ¶ 17. On

February 21, 2011, his application for promotion was denied “citing issues of collegiality related

 Both parties challenge the admissibility of much of the evidence in this case. These 1

challenges, set forth in the parties’ respective motions to strike, are discussed below. The court’s

recitation of the background facts of this case–taken from Whipple’s Complaint–includes

mention of some facts that are based on challenged evidence. Those facts are included here for

purposes of completeness and context, although not all of that evidence will be considered when

the court addresses the merits of Taylor’s motion for summary judgment. 

2
to [his] complaints regarding race based issues with Dr. Robertson and others.” Id., ¶ 17. Whipple

“successfully appealed the denial of his promotion; however, he experienced retaliation and

continued race related issues throughout the year.” Id., ¶ 18. On October 7, 2011, Whipple filed a

charge of discrimination with the EEOC, “alleging race discrimination and retaliation based on

the foregoing acts.” Id., ¶ 19. Whipple claims that “on . . . January 17, 2012, Dr. [Albert]

Harrison, Music Department Chair, . . . noted that Dr. Whipple was entering the year in which his

tenure application process would occur. Dr. Harrison noted several issues that would need to be

addressed in the tenure review process[.]” and that “[a]mong the items to be addressed were Dr.

Whipple’s ‘feelings about Taylor related to racism[.]’” Id., ¶ 21. Whipple’s application for tenure

was denied on July 30, 2012, and he contends it was “because of his race and/or his previous

complaints of race discrimination.” Id., ¶ 22. It is undisputed that “[i]n conjunction with denial of

tenure, the University did not renew Dr. Whipple’s contract thereby ending his employment at the

conclusion of the 2012-2013 academic year.” Id., ¶ 23. Whipple brought this action alleging that

Taylor discriminated against him, in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seq., on the basis of his race and in retaliation for his complaints about

discrimination. Additional background facts will be discussed as they become relevant to the

court’s discussion and analysis. 

In its memorandum in support of its motion for summary judgment, Taylor contends that

“in the eyes of Taylor, Whipple failed to appropriately address his collegiality and student conflict

resolution issues by the time of his tenure application and as a result Taylor denied Whipple’s

tenure application. Taylor’s decisions with respect to Whipple’s employment were based on

legitimate, non-discriminatory reasons and were in response to Whipple’s history of conflicts with

3
students and colleagues, his refusal to humbly admit mistakes, and his failure to adhere to the

principles of Taylor’s Life Together Covenant, i.e., his lack of collegiality.” Defendant’s

2

Memorandum, p. 1. Taylor argues that it is entitled to summary judgment because 1) “[m]any of

the actions about which Whipple now complains are untimely . . .” and 2) Whipple fails to present

sufficient admissible evidence to establish a prima facie case of discrimination or retaliation. Id.,

generally.

STANDARD OF REVIEW

Summary judgment is appropriate when the record shows that there is “no genuine issue as

to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Fed.R.Civ.P. 56©; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning

material facts are genuine where the evidence is such that a reasonable jury could return a verdict

for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In

deciding whether genuine issues of material fact exist, the court construes all facts in a light most

favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving

party. See id. at 255. However, neither the “mere existence of some alleged factual dispute

between the parties,” id., 477 U.S. at 247, nor the existence of “some metaphysical doubt as to the

 The Life Together Covenant, essentially a canon of the University, is defined in Taylor’s 2

Faculty Handbook as “. . . a covenant community of Christians . . . intentionally joining together

for academic progress, personal development, and spiritual growth.” Defendant’s Response (DE

42-3, p. 17) (ellipses in original). The Faculty Handbook then states that “to maintain such an

environment, it is imperative that all faculty members demonstrate a cooperative spirit with

colleagues . . .” and that “Department chairs and School deans are responsible for ensuring a

spirit of collegiality in individual departments and schools.” Id. This matter of collegiality, and

its inclusion in Taylor’s LTC (to which all faculty members are expected to adhere), is an

important point in this case, since it is the nondiscriminatory reason that Taylor proffers to

explain its decision to deny Whipple tenure. 

4
material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), will

defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d

687, 692 (7th Cir. 2000).

Summary judgment is not a substitute for a trial on the merits nor is it a vehicle for

resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). 

Therefore, after drawing all reasonable inferences from the facts in favor of the non-movant, if

genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion,

summary judgment is inappropriate. See Shields Enterprises, Inc. v. First Chicago Corp., 975

F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). 

If it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish

his or her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S.

at 322; Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). 

Courts must also be mindful “that employment discrimination cases typically involve

questions of intent and credibility,” and resolution of those issues is the sole province of the jury.

Alexander v. Wisc. Dep’t of Health and Family Svcs., 263 F.3d 673, 681 (7th Cir. 2001).

Weighing evidence and making credibility decisions are jury functions, and it is not appropriate

for a judge to assume those functions when ruling on a motion for summary judgment. Anderson,

477 U.S. at 255. Accordingly, the court “‘appl[ies] the summary judgment standard with special

scrutiny to employment discrimination cases, which often turn on issues of intent and

credibility.’” Bob-Maunuel v. Chipotle Mexican Grill, Inc., 10 F. Supp. 3d 854, 873 (N.D. Ill.

2014) (quoting Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 875 (7th Cir. 2002)).

5
DISCUSSION

I. Motions to Strike.

A. Plaintiff’s first motion to strike (DE 58).

Before turning to the merits of Taylor’s motion for summary judgment, the court must

address the disputes raised in the three motions to strike, which are legion. In the first such

motion, Whipple seeks to exclude the following evidence submitted by Taylor:

1) paragraph three of the affidavit of Eugene Habecker, the President of Taylor University

(see Defendant’s Exhibit 1 (DE 42-3, p. 2 )), which Whipple argues contains irrelevant hearsay 3

evidence (and which contains a description of Taylor’s efforts over the years to increase diversity

at the University);

2) paragraph 4(a) of Habecker’s affidavit, which Whipple claims is irrelevant (and which

contains a summary of Habecker’s personal history of supporting diversity in academia);

3) paragraph 4(c) of Habecker’s affidavit on the grounds that it is inadmissible hearsay

(and which contains more about Habecker’s professional efforts to encourage diversity);

4) paragraph 1 of Defendant’s Exhibit 1(b) (DE 42-5, pp. 23-24), which Whipple claims is

irrelevant (and which is a portion of the Taylor Faculty Handbook section pertaining to tenure

procedures);

5) “[a]ny statements in the Defendant’s exhibits or brief, that repeat what Dr. [Stephen]

Bedi claims Pastor [Tom] Ballard told him . . .” because these statements are “inadmissible

 All page numbers cited by the court, whether referring to pages in briefs or pages in 3

exhibits, are the page numbers assigned by the court’s electronic docketing system at the time a

document is filed (and which appear in the upper right corner of each page). These page numbers

may not always coincide with the original ones appearing on each document.

6
double hearsay[]” (which statements concern an incident that occurred off campus on September

13, 2011, during which Whipple allegedly threatened a female student);

6) the Defendant’s document 42-5, p. 350, which Whipple contends is inadmissible

hearsay (and which contains an unsigned, undated statement claiming that several other professors

allegedly had conflicts with Robertson due to her “overbearing nature”); and,

7) paragraphs three, 16 and 17 of the affidavit of Stephen Bedi, Professor of Higher

Education and Provost Emeritus of Taylor University, which Whipple claims contain inadmissible

hearsay (and which summarize those third-party statements made to Bedi regarding the incident

between Whipple and the student).

Plaintiff’s motion to strike, pp. 1-4.

All of the evidence Whipple seeks to exclude by way of this motion is evidence related to

the racial make-up of Taylor’s student body and faculty, evidence of Taylor’s purported efforts to

increase that diversity, and statements made about Whipple that pertain to his alleged lack of

collegiality (such as the statements memorialized in Bedi’s affidavit and report). According to

Taylor, the evidence at issue was submitted–and is admissible–because it demonstrates that the

University had no racial animus when it denied Whipple’s tenure application and refused to renew

his contract. Taylor also opposes Whipple’s motion by arguing that many of the statements he

seeks to exclude are not hearsay because they are not being offered to prove the truth of the matter

asserted. For example, with regard to the statements about the off-campus confrontation, Taylor

points out that Pastor Ballard reported the allegations to Habecker, who instructed Bedi to

investigate. See Bedi Affidavit (DE 42-7), ¶ 16. Taylor contends that the fact that Ballard reported

the allegations, thereby triggering an investigation and report, is not being offered to prove the

7
truth of those allegations, but rather as evidence of Taylor’s “state of mind” when it made

employment related decisions concerning Whipple. Defendant’s Response (DE 59), p. 5. This is

just one example of the many, very specific items of evidence that the parties are battling over in

their motions to strike. 

As to items 1-3 above, Whipple argued in his brief in opposition to the motion for

summary judgment that “[t]here is evidence that the Defendant’s decision to deny Whipple tenure

was part of an ongoing discriminatory pattern and practice at the Upland, Indiana campus. During

Dr. Whipple’s employment, the University employed an extremely low percentage of blacks

compared to non-black/non-African American individuals.” Plaintiff’s Response, p 10. Taylor

retorts by presenting the statistical evidence that Whipple seeks to preclude. Defendant’s Reply,

pp. 1-2. Taylor states that “[t]he racial make-up of Upland, Indiana, is 1.6% Black[.]” and that

during the “2012-13 academic year: Taylor’s employees and academic faculty were 2.2% Black

and 5.2% minority[.]” Id., p. 1. Taylor then presents the additional statistical and anecdotal

evidence in Habecker’s affidavit to demonstrate Habecker’s efforts over the years, at Taylor and

other institutions, to increase diversity. Habecker Aff., generally. Finally, Whipple argues that the

evidence Taylor submitted to refute Whipple’s allegation that there was a pattern and practice of

racial animus at Taylor should be stricken because it “fails to distinguish or even address whether

this increase involved increased enrollment by people within Dr. Whipple’s racial category

(Black/African-American) as opposed to only members of other racial minorities that historically

have not been discriminated against as severely or as for as long as [sic] African-Americans in

this country.” Plaintiff’s First Motion to Strike, p. 1. In further support of his argument to strike

Taylor’s rebuttal evidence on this issue, Whipple provides a commentary about the history of

8
racial discrimination in America. Whipple states as follows:

The Civil War, for example, was not fought in part to free Hispanics or Asians

from slavery, but Black/African-Americans. Jim Crow laws, for example, were

enacted to limit and minimize the rights of primarily Black/African-Americans,

not Hispanics or Asians. Even as recently as the 50s [sic], it was not Asians and

Hispanics that had to protest being required to ride on the back of busses, but

Blacks/African-Americans. The uncorroborated and unverifiable statistical

reference by Habecker should therefore be stricken from the record.

Id., pp. 1-2. It is at this point that the argument over the racial make-up of Taylor’s student body

and faculty flies off the rails. Obviously, Whipple is implying that the low percentage of black

students and faculty members at Taylor supports his race claim, since it reveals what he concludes

is a pattern of racial animus towards blacks. Whipple claims the statistical data presented by

Taylor in response to his allegations about the racial make-up of the University, is

“uncorroborated and unverifiable” and should be stricken for those reasons. He supports his own

argument not with corroborated, verified statistical evidence of his own, but rather with the above

one-paragraph history lesson about the Civil Rights movement in the United States. In short,

Whipple observes that the number of African-American students and faculty members at Taylor is

low, which he apparently believes forms a basis on which the court can draw an inference of

discriminatory intent. Then, when Taylor responds by presenting evidence of its efforts (and

Habecker’s) to increase diversity, Whipple wants the court to ignore it. Unfortunately, the issues

raised in Whipple’s motion to strike are taking us down a dirt road when we should be on the

interstate. 

Evidence of the racial make-up of a defendant employer is generally only relevant (and, in

fact, is part of a prima facie case) in disparate treatment cases. See, e.g., Armstrong v. City of

Milwaukee, 2005 WL 3088445, at *4 (E.D.Wis. 2005) (“In a pattern and practice disparate

9
treatment case, statistical evidence constitutes the core of a plaintiff’s prima facie case.”) (citing

Bell v. E.P.A., 232 F.3d 546, 553 (7th Cir. 2000)). That said, statistical evidence can also be used

in harassment cases as evidence of pretext, which is the reason Whipple is attempting to use such

evidence. See id., 2005 WL 3088445, at *4 (“evidence of ‘systemic disparate treatment is relevant

to and probative of the issue of pretext even when it is insufficient to support a pattern and

practice disparate treatment case.’”) (quoting Bell, 232 F.3d at 553). The plaintiff in Armstrong

did the same thing, presenting statistical evidence demonstrating that there was a low percentage

of African-Americans employed by the defendant, and alleging that this fact was “clear evidence

of discriminatory practices, conscious or unconscious, and of disparate impact against African

Americans.” Id. The court rejected Armstrong’s attempt to use such evidence, explaining as

follows:

Somewhat analogous evidence was discussed in Millbrook v. IBP, Inc., 280 F.3d

1169, 1177 (7th Cir. 2002). In Millbrook, a failure-to-promote case that went to

trial, the court of appeals discussed the plaintiff’s attempt to establish pretext by

pointing out that no African Americans were hired during a two-year time frame.

280 F.3d at 1177. The court stated that such evidence was “at best anecdotal,” and

it had held that it could not find discrimination on such a “thin basis.” Id. (quoting

Kuhn v. Ball State Univ., 78 F.3d 330, 332 (7th Cir. 1996)). The court stated that

its “opinions emphasize the need to get beyond a few comparison cases” and that

“what a plaintiff . . . in [such a] position has to do is subject all of the employer’s

decisions to statistical analysis to find out whether race makes a difference.” Id.

Here, Armstrong has not presented a statistical analysis or proffered expert

analysis of statistics. Rather, he simply identifies the percentage of African

American [employees] working [for the Defendant] at a given time. Absent

context, these percentages and numbers have little import. . . .The percentages of

African American [employees], absent more, fails to create a reasonable inference

that [the Defendant’s] reasons for promoting other candidates are fabricated or

pretextual. See Id.

Id. The court in Armstrong went on to explain that when presenting statistical evidence to support

10
allegations of discrimination (or to raise an issue about pretext), “the plaintiff must establish a

causal connection between the employment practice and the statistical disparity, offering

‘statistical evidence of a kind and degree sufficient to show that the practice in question has

caused the exclusion of applicants for jobs or promotion because of their membership in a

protected group.’” Id., n.4 (quoting Vitug v. Multistate Tax Com’n, 88 F.3d 506, 513 (7th Cir.

1996)). Whipple’s attempt to raise the specter of systemic discrimination at Taylor based on

anecdotal evidence about the percentage of African-American professors and students fails for

two reasons. First, since the court concludes that Whipple fails to establish a prima facie case of 

hostile environment race discrimination, the issue of pretext need not even be addressed. Second,

Whipple does not present his “statistical” evidence in any proper context, which means it has little

to no probative value. Since the court need not reach the pretext issue in this case, and since the

anecdotal and statistical evidence submitted by either party is not probative and will not be

considered by the court in assessing the pending summary judgment motion, Whipple’s motion to

strike Taylor’s statistical evidence is moot.

As to item four above, Whipple objects to Taylor’s inclusion of a specific paragraph

contained in the Taylor Faculty Handbook, because, he says, that particular paragraph

“address[es] faculty tenure, but only those hired [sic] before February 10, 1989. The Plaintiff was

not hired by the Defendant until 2006. This portion of Defendant’s document, therefore, is

irrelevant.” Plaintiff’s First Motion to Strike, p. 3. Taylor readily concedes, however, that the

“Faculty Tenure process/standard for faculty hired after February 1, 1989[,] applies to Plaintiff[,]”

and that “Taylor included the entire . . . Faculty Handbook under the rule of completeness so as to

not mislead the Court. Therefore, it is admissible.” Defendant’s Response to Plaintiff’s First

11
Motion to Strike, p. 5. This matter is not an issue at all and it is unfortunate that the court must

spend time addressing it. The paragraph Whipple seeks to strike is the first paragraph under

Section 9 of the Taylor Faculty Handbook, which section is titled “Faculty Tenure.” (DE 42-3, p.

23.) The next line under that heading reads: “(Applies to faculty hired before February 10, 1989).”

Id. (parentheses in original, quotation marks added). That notation is followed by the paragraph

that Whipple argues is irrelevant and should be stricken. Then, immediately following the

challenged paragraph, there is a second notation that indicates that the remainder of the section

“(Applies to faculty hired after February 10, 1989).” Id. In other words, the paragraph Whipple

challenges is not even in the game here, as Taylor readily concedes. Whipple could just as easily

have objected to the first paragraph of page 17 of the exhibit, which discusses Taylor’s faculty

orientation program, and which has no relevance at all to this case; or, he could have raised the

same relevance objection to a paragraph on the next page that summarizes the requirements for

class field trips. The point is, the vast majority of the Faculty Handbook has no relevance to this

case. In any event, the court did not consider the challenged text and neither party disputes the

tenure procedure that applied to Whipple, so this argument is also moot.4

As to items five and seven above, Whipple’s argument that the court should strike any

statements or comments made by Pastor Ballard or others to Bedi while Bedi was investigating

allegations that Whipple had a physical confrontation with a student off campus is also moot. Yes,

the statements are hearsay and, yes, Taylor might still be able to present it to a jury based on a

hearsay exception argument. If determined to be admissible, these statements could serve as

 What the court means is that there is no dispute about the tenure provisions in effect at 4

the time of Whipple’s tenure review process. The parties do, however, argue about whether those

provisions were properly applied during Whipple’s review, an issue that is addressed below. 

12
evidence supporting Taylor’s proffered, nondiscriminatory explanation for denying tenure (i.e., it

is evidence of Whipple’s alleged “collegiality” problems). But once again, none of this evidence

was relevant to the court’s assessment of Taylor’s motion for summary judgment, as will become

clear when the court is finally able to get to that assessment. Whipple’s motion to strike this

evidence is moot.

Finally, there is item six on Whipple’s list. Whipple objects to the inclusion of an undated,

unsigned statement wherein the author claims that several other professors in the music

department experienced difficulties working with Robertson. Whipple argues that “[t]here is no

evidence the document is based upon the firsthand knowledge of the author, and therefore it is

inadmissible hearsay[.]” Plaintiff’s Reply in Support of First Motion to Strike, p. 4. The dirt road

metaphor doesn’t even apply here–this is more akin to a footpath. It turns out, as Taylor points

out, that the document in question was apparently written by none other than Whipple himself.

The document was presented as an exhibit during Whipple’s deposition and, as Taylor explains, it

“finds its foundation and basis in personal knowledge in . . . deposition testimony by Plaintiff . . .

.” Defendant’s Sur-Reply (DE 77), p. 1. Whipple testified that he wrote at least the portion of the

document that appears as Defendant’s exhibit (the rest of it was apparently redacted). Whipple

Deposition (DE 42-5), pp. 136-137. In light of this, Whipple’s objection to the document on the

grounds that it is inadmissible hearsay and not based on the personal knowledge of the author is

absurd and yet another example of the sloppy briefing and argument in this case. In any event, this

document is not relevant to the court’s ruling on the motion for summary judgment, and the

debate about its admissibility is moot.

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B. Defendant’s motion to strike (DE 61).

The battle gets even messier with the Defendant’s motion to strike. In that motion, Taylor

seeks to exclude countless statements presented by Whipple (maybe even several dozen–the court

lost count while reading the motion). Defendant’s Motion to Strike (DE 61), generally. Taylor’s

motion is 21 pages long and seeks to strike statements included in Whipple’s briefs, statements

made during Whipple’s deposition, affidavits submitted by Whipple in opposition to summary

judgment, and even specific words or phrases contained within specific sentences in specific

paragraphs in Whipple’s pleadings. For example, in his Statement of Genuine Issues Whipple

includes the following statement: “Whipple protested being denied tenure, which he identifies as

being the result of Dr. Harrison’s and Dr. Jones’ use of their influence to retaliate against Whipple

for his prior grievance against Robertson for racially motivated harassment[.]” Plaintiff’s

Statement of Genuine Issues (DE 56-1), p. 12. In its motion to strike, Taylor placed the words “he

identifies” in boldface italics and then argued that “[t]he emphasized text above stands as

inadmissible conclusory declarations by Whipple[]” and therefore is inadmissible. Defendant’s

Motion to Strike, pp. 16-17 (boldface and italics in original, apparently so as to drive home the

point). Actually, it is unclear (not surprisingly) whether Taylor is seeking to strike just the words

“he identifies,” or if it is arguing that the entire paragraph should be stricken due to its conclusory

nature. In another part of its motion to strike, Taylor quotes a passage, again from Whipple’s

Statement of Genuine Issues, and imbeds within that passage bracketed phrases pointing out why

portions of the paragraph should be stricken because they are “inadmissible conclusory

declaration[s]” or “inadmissible hearsay statement[s]” or “inadmissible hearsay evidence” or

“unsupported conclusion[s]” or “inadmissible conclusory declaration[s].” Id., pp. 15-16. With

14
regard to that single paragraph from Whipple’s Statement of Genuine Issues, Taylor raises nine

objections. 

It gets better. Taylor also seeks to strike “[a]ll references to Plaintiff’s Complaint . . .

because the same does not stand as admissible evidence. In opposing a motion for summary

judgment, the non-moving party ‘may not rest upon the mere allegations or denials of his

pleading, but . . . must set forth facts showing that there is a genuine issue for trial.’” Id., p. 18

(quoting Anderson v. Liberty Lobby, 477 U.S. at 248). Taylor’s theory here appears to be that

since Whipple’s Complaint contains some self-serving allegations and conclusory statements (are

there Complaints that don’t?), any reference to that Complaint in Whipple’s briefs should be

stricken and not considered by the court. This argument would have some legitimacy if Whipple

was in fact relying solely “upon the mere allegations or denials of his pleading[s]” to oppose

Taylor’s motion for summary judgment. But he isn’t–he presents evidence in support of his

opposition (even if Taylor believes that all of that evidence should be stricken). Taylor’s

reasoning here is flawed. Taylor characterizes Whipple’s Complaint as nothing more than a

compilation of unfounded allegations and conclusory statements, quotes part of the holding from

Anderson, and then argues that Whipple cannot survive the motion for summary judgment

because he is relying solely on “mere allegations” to oppose it. When litigants take the “kitchen

sink” approach to pleading, their briefs are bound to include red herrings, whether intentional or

unintentional. The court will revisit Taylor’s motion to strike shortly.

C. Plaintiff’s second motion to strike (DE 67).

Finally, there is Whipple’s second motion to strike. In this motion the Plaintiff asks the

court to strike “Defendant’s Exhibit 1, ‘Second Affidavit of Thomas Jones,’ with attachments A15
L.” This affidavit and its attachments were filed with Taylor’s reply brief in support of its motion

for summary judgment, and Whipple argues that they are thus untimely “because the Defendant

failed to file them with the Defendant’s by [sic] its dispositive motion deadline or with its motion

for summary judgement [sic].” Plaintiff’s Second Motion to Strike, p. 1. Taylor opposes this

motion because, it argues, it “found itself compelled to file the 2 [sic] Jones Aff. [sic] because nd

Dr. Muchiri continues to be confused regarding her tenure review process.” Defendant’s Response

to Plaintiff’s Second Motion to Strike, p. 1. Dr. [Mary] Muchiri’s affidavit, submitted by

Whipple, is one of the items Taylor seeks to exclude by way of its own motion to strike (see DE

61, pp. 20-21). That notwithstanding, Taylor filed a second affidavit from Jones, along with

attachments, not “to gain a tactical or procedural advantage . . .” but rather “to clarify the record”

with regard to statements made by Dr. Muchiri in her affidavit. Id., p. 2. Without going into

unnecessary detail at this point, Whipple argues that his tenure review process was irregular in

structure (in that he was subjected to four interviews with the Faculty Personnel Committee as

opposed to the standard one interview). He presents the affidavit of Muchiri, another AfricanAmerican professor at Taylor, who states that she was denied tenure twice, in 2006 and 2007,

before being granted tenure after her third application in 2009. (DE 56-46.) Muchiri doesn’t

explain why she was denied tenure on her first two attempts, but she does state that “[t]he

individuals who were in the group reviewing my tenure application each time were all

Caucasian.” Id., ¶ 8. The implication, of course, is that African-American professors were treated

less favorably than professors who were not members of that protected class. It was in response to

Muchiri’s affidavit that Taylor presented the second Jones affidavit, in which the dean claims that

Muchiri was mistaken about the tenure process. Jones states that “Muchiri’s confusion is that she

16
does not realize or understand that an application for tenure is not a formal application until it

goes to the Faculty Personnel Committee[.]” and that Muchiri’s first two applications never made

it that far, meaning that she “did not formally apply for tenure with the FPC until January 2009.”

(DE 62-1, p. 1, ¶¶ 4, 6.) Other than noting that the people who reviewed her tenure application

were all Caucasian, Muchiri does not expressly state that her tenure review process was tainted by

racial animus. Still, Whipple presents her affidavit in an attempt to show that he and Muchiri were

treated differently during the tenure review process. While conceding that “‘[E]vidence of a

defendant’s behavior toward . . . other employees in the [same] protected group as the plaintiff’s is

relevant circumstantial evidence[,]’” Taylor argues that Muchiri’s affidavit “is irrelevant and

inadmissible ‘me too’ evidence. Although Muchiri takes issue with her tenure review and

promotion processes, she fails to articulate any facts that her treatment was because of race or that

she was racially harassed or retaliated against because of her race.” Defendant’s Motion to Strike,

pp. 20-21 (quoting Jones v. National Council of YMCA of U.S., 48 F.Supp.3d 1054, 1102-03

(N.D.Ill. 2004)). Once again, however, this issue is moot. Even if Muchiri’s affidavit is

considered as part of the mosaic of evidence Whipple is attempting to present to support his race

claim, it does not change the court’s conclusion regarding the merits of that claim, which is that

Whipple’s evidence falls woefully short of establishing a prima facie case of a racially hostile

work environment claim. The second Jones affidavit doesn’t change any of this. Even accepting

the fact that Whipple and Muchiri, both African-Americans, were subjected to a tenure review

process that differed from the norm (a disputed fact, at least as to Muchiri, but not a material one),

this piece of Whipple’s factual mosaic does not save his race claim, and so the motion to strike

17
Jones’s second affidavit is moot.

5

Taylor claims it submitted the second Jones affidavit in order to “to clarify the record”–an

ironic assertion. It is too late for either party to “clarity the record” at this point–they have both

muddied the waters with poorly constructed and, to an unfortunate degree, poorly reasoned

motions to strike. Whipple seeks to exclude almost every bit of evidence Taylor presents that

raises questions about his conduct (i.e., his collegiality) while employed at the University, and

Taylor seeks to exclude seemingly every statement Whipple makes in any of his pleadings,

including his Complaint, and the majority of other evidence (such as affidavits) that he filed in

opposition to the motion for summary judgment. Mindful of the fact that both sides expended a

great deal of effort to turn these evidentiary disputes into a needlessly over-complicated bucket of

worms (although Taylor wins the gold star in that regard for its brief in support of its motion to

strike), the court will endeavor to clear some of the trees so the forest once again becomes visible. 

 Taylor readily concedes that Whipple’s tenure review process was not typical in that he 5

was required to participate in four meetings during the process rather than the usual single

interview. Music Department Chair Harrison stated that “]i]n preparing for the review of

Whipple’s tenure application . . . I determined that it would be best to devote a series of four (4)

meetings for the review[.]” Harrison Aff., (DE 42-6, p. 9, ¶ 20.) Taylor also insists that it

imposed this multiple-meeting format so as to give both sides ample opportunity to discuss

Whipple’s concerns about race issues, which of course he had complained about, formally and

informally, for several years. As Harrison stated it, the topic of Whipple’s concerns about race

was “added as a potential topic to be discussed in Whipple’s tenure review because Whipple

explicitly presented this issue in his Annual Professional Growth Form.” Id., ¶ 18 (emphasis in

original, of course). Harrison also noted, however, that “at Whipple’s request, I removed the item

related to ‘feelings of alleged racism’ from my response to Whipple’s Annual Report and the

same was not considered during Whipple’s tenure review process.” Id., ¶ 19. It is not for the

court to determine the veracity of these statements, which, in any event, go to the issue of

pretext–an issue the court need not reach in this case. 

18
There is really a single overriding theme presented in the motions to strike, to wit: neither

side wants the court to consider what it characterizes as hearsay, or statements that are

“conclusory,” “self-serving,” or “irrelevant.” That is fair enough, on its face. The problem is that

the parties use those terms so loosely and apply them so broadly that they end up essentially

challenging every bit of evidence the other side has submitted. Fortunately, there is a simple way

out of this quagmire. The parties’ premise is correct in that “[a]dmissibility is the threshold

question because a court may consider only admissible evidence in assessing a motion for

summary judgment.” Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (citing Haywood v.

Lucent Technologies, Inc., 323 F.3d 524, 533 (7th Cir. 2003) (inadmissible evidence will not

overcome a motion for summary judgment)). It is also true, however, that “[t]here is of course

nothing wrong with relying on self-serving statements to defeat summary judgment[,]” as long as

those statements are based on admissible evidence. Thomas v. City of Michigan City, 2015 WL

9239828, at *3 (N.D. Ind. Dec. 16, 2015) (citations omitted). The parties fail to acknowledge this

distinction, which admittedly can be a fine one, and that failure renders many of their arguments

toothless. Again, this is especially true of Taylor’s motion to strike. Granted, there are many

instances in the record, as in Whipple’s Complaint and his pleadings in opposition to summary

judgment, where he makes obvious conclusory, speculative, or self-serving statements (the one

mentioned above, where “he identifies” retaliation as a motivating factor in his termination, is just

one example). But Taylor’s unnecessarily complicated and messy motion to strike doesn’t

accomplish what should be its goal–to assist the court in identifying those specific, material

admissibility issues that must be resolved before the merits of the motion for summary judgment

can be addressed. Instead, it paints with such a broad brush that it ends up challenging almost

19
every statement Whipple makes, as illustrated by Taylor’s nine objections to a single paragraph of

Whipple’s opposing materials.

The kicker in all this is that the court has no intention of considering inadmissible

evidence, be it hearsay or conclusory statements or those scary sounding “inadmissible conclusory

declaration and hearsay statements” (Defendant’s Motion to Strike, p. 15). The court will do its

best to assess the merits of Taylor’s motion for summary judgment according to the proper

standard, which includes considering all relevant evidence submitted by both sides, drawing all

reasonable inferences in favor of Whipple as the nonmovant, and determining whether Taylor is

entitled to judgment in its favor or whether Whipple has presented sufficient evidence

demonstrating that there are genuine material issues that can only be resolved by a jury.

All of this is not to say that the parties don’t have some legitimate beefs tucked away in

the morass of arguments they present in their motions to strike (as opposed “kitchen sink” issues

that are inconsequential or irrelevant–and there are a lot of those). But addressing every one of the

evidentiary “issues” presented on an item by item or line by line basis, which the motions to strike

(especially Taylor’s) invite the court to do, would be extremely inefficient and, more importantly,

distract from the ultimate task at hand–determining whether Whipple has presented sufficient

admissible evidence to survive summary judgment. It is sufficient to hold that Taylor’s motion to

strike is granted in part, to the extent that it raises valid and relevant evidentiary issues, and denied

in part, to the extent that many (probably most) of the issues are irrelevant or immaterial. 

II. Motion for Summary Judgment.

A. Timeliness of the Plaintiff’s Claims.

Taylor argues that “[m]any of the actions about which Whipple now complains are

20
untimely[.]” Defendant’s Memorandum, p. 3. (What Taylor means, of course, is that Whipple’s

complaints were untimely.) Taylor correctly states that an individual alleging discrimination under

Title VII “must file a Charge [of Discrimination] with the EEOC within 180 days of the

complained-of employment action . . . .” Id. (citing 42 U.S.C. § 2000e-5(e)). Taylor also concedes

that Indiana is a “deferral” state, meaning that if an individual files his charge of discrimination

with a state or local agency (such as the Indiana Civil Rights Commission, for example), “‘the

time limit for filing with the EEOC is extended to 300 days.’” Id. (quoting EEOC v. Commercial

Office Prods. Co., 486 U.S. 107, 110 (1988)). Since it is undisputed that Whipple did not file his

first charge of discrimination with a state or local agency before he filed it with the EEOC, Taylor

contends that the 180-day limitations period applies in this case. Accordingly, “Whipple’s claims

in this lawsuit are limited to alleged incidents which occurred after April 10, 2011, as Charge 1

was file-stamped by the EEOC on October 7, 2011.” Id. Taylor argues that “[p]ursuant to the 6

180-day statute of limitations, the following incidents about which Whipple complains are timebarred under Title VII: (1) the 2006/2007 recommendation from the University that he pursue

singing lessons; (2) the 2006 alleged comment by Robertson that Taylor hired Whipple because of

his race; and, (3) all other incidents prior to April 10, 2011.” Id., pp. 3-4.

Whipple claims that Taylor “is wrong in its claim that it cannot be held liable under Title

VII for discriminatory actions that occurred more than 180 days prior to the filing [of] either of

Dr. Whipple’s Charges, because they ignore current Indiana law.” Plaintiff’s Response, pp. 2-3.

 Whipple’s second charge, filed on November 9, 2012, expressly states that it was filed 6

with the EEOC and the ICRC. See Plaintiff’s Exhibit C (DE 56-4), p. 3. It is only his first charge

that is at issue here and, as stated, it is undisputed that the first charge was filed only with the

EEOC. 

21
Whipple maintains that under Indiana law, a complainant can file a charge of discrimination with

either the EEOC or a state or local agency, and that the 300-day limitations period applies in either

instance. Id. (citing Allen v. International Truck and Engine Corp., 2013 WL 1332071, *1

(S.D.Ind. March 29, 2013)). Whipple states that because the State of Indiana has “a work sharing 7

agreement” with the EEOC, aggrieved individuals can file complaints with either the EEOC or a

state agency and the 300-day limitation period applies to those complaints. Id. (citing Koch v.

CGM Group, Inc., 2001 WL 392523 (S.D.Ind. Apr. 3, 2001)). Therefore, claims Whipple, his

complaints about “unlawful discriminatory and retaliatory actions taking place as far back as

December 10, 2010[,] are actionable.” Id., p. 4.

Whipple goes even farther, contending that “[t]he temporal scope of actionable events

covered by Dr. Whipple’s Complaint extends back even past December 10, 2010, to cover

unlawful discrimination that occurred as far back as 2006, under the continuing violation

doctrine.” Id. (citing Lee v. Aaron’s Sales & Leasing, 2009 WL 3111357 *6 (N.D. Ind. Sept. 24,

2009)) (“in some circumstances, the continuing violation theory may apply to allow plaintiffs to

recover for discriminatory acts that would otherwise be barred by the applicable statute of

limitations.”). Whipple points out that “as noted on both of his Charges, the discrimination and

unlawful retaliation was part of an ongoing continuing action.” Id., p. 5. In addition to checking

the box on both of his Charge forms indicating that he was complaining of “continuing action”

 The Plaintiff’s brief cites to “Allen v. International Truck & Engine Corp., Cause No. 7

1:02-cv-902-RLY-TAB, *2-3 (S.D. Ind. 3-29-2013).” Plaintiff’s Response, p. 3. The Plaintiff

apparently intended to cite to 2013 WL 1332071 (S.D.Ind. March 29, 2013) (which carries the

district court’s internal cause number of 1:02-CV-902), and the portion of the holding he

references appears on page one of that case, not pages 2-3. The Plaintiff’s briefs are replete with

improper citation form and the court has endeavored to use the correct form in this order. 

22
violations, his “2011 Charge also stated ‘[Complaining Party] alleges a pattern of continuing

conduct related to race discrimination,’ and ‘the problems began in October 2006.’” Id., p. 6;

see Charge of Discrimination, Oct. 7, 2011, (DE 56-4) Plaintiff’s Exhibit C, pp. 1-2, and Charge

of Discrimination, Nov. 9, 2012, Id., p. 3. Whipple argues, then, that “[t]hese facts, added to the

nature of Dr. Whipple’s allegations pertaining to his hostile working environment claim,

demonstrate that he has asserted a continuing violation by the Defendant, which extends the

Defendant’s liability for any racially harassing and discriminatory actions back in time by more

than five (5) years prior to the filing of his first Charge of Discrimination.” Id.

In its reply brief, Taylor cites Helm v. Ancilla Domini College, 2012 WL 33018 (N.D. Ind.

Jan. 5, 2012), and argues that it is Whipple who is misinterpreting the law. Defendant’s Reply, pp.

3-4. In Helm, this court (Judge DeGuilio), addressing the issue of a 180-day limitation period

versus a 300-day period, stated as follows:

Our circuit’s case law on the Title VII filing deadline is in conflict. See, e.g.,

Chaudhry v. Nucor Steel–Indiana, 546 F.3d 832, 836 (7th Cir. 2008) (“[An

EEOC] charge must be filed within 300 days after the alleged unlawful

employment practice occurred or else the employee may not challenge the practice

in court”); but see Williamson v. Indiana University, 345 F.3d 459, 463 (7th Cir.

2003) (“A claimant may file a charge of discrimination with the EEOC within a

180-day window permitted under Title VII”). The statute itself reads:

A charge under this section shall be filed within one hundred and eighty

days after the alleged unlawful employment practice occurred and notice of

the charge (including the date, place and circumstances of the alleged

unlawful employment practice) shall be served upon the person against

whom such charge is made within ten days thereafter, except that in a case

of an unlawful employment practice with respect to which the person

aggrieved has initially instituted proceedings with a State or local agency

with authority to grant or seek relief from such practice or to institute

criminal proceedings with respect thereto upon receiving notice thereof,

such charge shall be filed by or on behalf of the person aggrieved within

three hundred days after the alleged unlawful employment practice

23
occurred, or within thirty days after receiving notice that the State or local

agency has terminated the proceedings under the State or local law,

whichever is earlier, and a copy of such charge shall be filed by the

Commission with the State or local agency.

42 U.S.C. § 2000e–5(e)(1). A plain reading indicates that more is required to

trigger the extended 300–day limitations period than the bare fact that this suit

arose in a “deferral state.” Under the terms of the statute, it seems that a plaintiff

must actually file with the Indiana Civil Rights Commission (“ICRC”) in order to

extend her EEOC filing deadline.

Helm v. Ancilla Domini College, 2012 WL 33018, at *10, n. 7 (N.D. Ind. Jan. 5, 2012). It is an

unsettled question in this circuit whether a complainant must file with a state or local agency first

(or simultaneously with the EEOC) to trigger the 300-day period. Again, Whipple cites several

cases that he claims hold the opposite–that the 300-day period applies even if a complainant does

not initiate his charge with a state agency. Plaintiff’s Response, pp. 3-4. These include the

aforementioned Allen, 2013 WL 1332071, *1 (complainant exhausts administrative remedies

“by filing a charge of discrimination with the . . . EEOC, or comparable cooperating state agency,

within 300 days of the alleged discriminatory conduct.”) (italics added); and Koch, 2001 WL

392523, *4 (employee did not file charge with both EEOC and state agency, but 300-day

limitation period applied). The cases cited by Whipple imply that the 300-day period applies in

Indiana regardless of whether a claim is initiated with a state agency or the EEOC, although only

the Koch case arguably makes that express holding. On the other hand, Judge DeGuilio’s

discussion of this issue–which he includes in a footnote–is dicta, since he concluded that the

issue was not a dispositive one in that case. Neither party provides, nor was the court able to find,

any conclusive precedent on this issue. This court, however, need not resolve this issue in this

8

 This issue of the applicable filing period was discussed at length in the case of Gul-E- 8

Rana Mirza v. The Neiman Marcus Group, Inc., 649 F.Supp.2d 837, 849-52 (N.D. Ill. 2009).

24
case, since Whipple’s “continuing violation” argument carries the day anyway. 

The Seventh Circuit recently addressed the applicability of the continuing violation

doctrine, writing as follows:

The limitations period for a Title VII claim runs from the date the unlawful

employment practice occurred, and the Supreme Court has held that for claims

based on “discrete acts” of retaliation or discrimination, the “discrete retaliatory or

discriminatory act ‘occurred’ on the day that it ‘happened.’” Nat'l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 110, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

This rule applies even if an old, unchallenged discriminatory act has a present

effect on an employee’s status in a seniority system, a progressive discipline

system, or some other dynamic employment scheme. “A discriminatory act which

is not made the basis for a timely charge . . . is merely an unfortunate event in

history which has no present legal consequences.” United Air Lines, Inc. v. Evans,

431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) (emphasis added). So

the “discrete act” that starts the Title VII limitations clock is the discriminatory

decision itself, not the “consequences of the act[ ]” that may materialize down the

road. Del. State Coll. v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431

(1980) (citation omitted).

There is an exception to this general rule. Under the “continuing violation”

doctrine, a Title VII plaintiff may recover for otherwise time-barred conduct that

is part of a single, ongoing unlawful employment practice if at least one related

act occurs during the limitations period. See Morgan, 536 U.S. at 116–18, 122

S.Ct. 2061. As the Supreme Court clarified in Morgan, however, this doctrine is

limited to claims of hostile work environment. “Hostile environment claims are

different in kind from discrete acts. Their very nature involves repeated conduct.”

Id. at 115, 122 S.Ct. 2061. “[T]he theory is that ‘[a] hostile work environment

claim is composed of a series of separate acts that collectively constitute one

‘unlawful employment practice.’” Swanson v. Village of Flossmoor, 794 F.3d

820, 826 (7th Cir. 2015) (quoting Morgan, 536 U.S. at 117, 122 S.Ct. 2061). As

such, a Title VII claim for hostile work environment is timely “as long as ‘any act

falls within the statutory time period,’ even if the [claim] encompasses events

occurring prior to the statutory time period.” Adams v. City of Indianapolis, 742

F.3d 720, 730 (7th Cir. 2014) (quoting Morgan, 536 U.S. at 120, 122 S.Ct. 2061).

Barrett v. Illinois Dept. of Corrections, 803 F.3d 893, 898-99 (7th Cir. 2015). As another district

While the court discussed the issue in the context of its application in Illinois, the discussion

presented in that case illustrates the continuing uncertainty and confusion that exists on this

point. 

25
court recently explained: 

Claims of hostile work environment are different in kind from discrimination

because they involve repeated conduct that does not fully manifest itself on any

particular day. Therefore, a hostile work environment claim is timely so long as

one of the acts contributing to the hostile work environment occurred within the

300-day filing period. Morgan, 536 U.S. at 116–117. The continuing violations

doctrine, therefore, links a time-barred act with an act that occurred within the

300-day limitations period by treating the separate claims as one continuous act.

See Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

Harris v. Board of Education of City of Chicago, 2015 WL 5693523, at *9 (N.D.Ill. Sept. 28,

2015). Under the doctrine, “a plaintiff can ‘delay suing until a series of wrongful acts blossoms

into an injury on which suit can be brought.’” Slaughter v. Winston & Strawn LLP, 2015 WL

7077331, at *2 (N.D.Ill. Nov. 13, 2015) (quoting Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d

835, 839 (7th Cir. 2014)). A “continuing violation is one that could not reasonably have been

expected to be made the subject of a lawsuit when it first occurred because its character as a

violation did not become clear until it was repeated during the limitations period.” Dasgupta v.

Univ. of Wisconsin Bd. of Regents, 121 F.3d 1138, 1139 (7th Cir. 1997). 

In his Complaint, Whipple makes clear that he “alleges a continuing pattern of severe and

pervasive harassment on the basis of his race that created a hostile work environment and

affected the terms and conditions of his continued employment at [Taylor].” Complaint, ¶ 11. He

asserts that this racially based harassment manifested itself in myriad ways throughout his

employment with Taylor. Id., generally. By way of example, Whipple makes the following

contentions:

1) In April 2006 while he was visiting the Taylor campus, two other faculty members

allegedly made remarks to Whipple that the environment at the University was not one in which

26
an African-American professor would feel comfortable. (Id., ¶ 12);

2) Beginning in his first semester of employment, Whipple felt “underutilized” and “had

very little input into what he was doing.” He met with Robertson to discuss his concerns and

during one such meeting he claims she told him that the only reason he was hired was “because

you are black.” (Id., ¶ 13);

3) During the 2010-11 academic year, Whipple became eligible for promotion from

assistant professor to associate professor, and applied for this promotion on October 15, 2010. He

claims that “[i]n the Fall of 2010, Dr. Robertson began to talk to [him] about other jobs. On the

day before Dr. Whipple’s promotion hearing, Dr. Robertson entered Dr. Whipple’s classroom

between classes and wrote ‘Samford University’ on the board and suggested to Dr. Whipple that

he apply there.” (Id., ¶ 15);

4) On November 5, 2010, Whipple filed a complaint with the University in which he

complained about what he perceived as “race harassment by Dr. Robertson.” University Provost

Bedi instructed Whipple and Robertson to meet with “a specialist in racial conciliation.” (Id., ¶

17);

5) “On February 21, 2011, Dr. Whipple’s application for promotion was denied citing

issues of collegiality related to Dr. Whipple’s complaints regarding race based issues with Dr.

Robertson and others.” (Id., ¶ 17); 

6) Whipple successfully appealed the denial of his promotion but alleges that “he

experienced retaliation and continued race related issues throughout the year.” These issues,

according to Whipple, included an increased workload “without a corresponding increase in

compensation and . . . lower levels of administrative support.” (Id., ¶ 18);

27
7) Whipple became eligible for tenure in 2012. During Whipple’s tenure application

process, Harrison noted that there were “several issues that would need to be addressed in the

tenure review process[.]” and that “[a]mong the items to be addressed were Dr. Whipple’s

‘feelings about Taylor related to racism[.]’” (Id., ¶ 21);

8) Whipple’s application for tenure was denied on July 30, 2012, and “[i]n conjunction

with denial of tenure, the University did not renew Dr. Whipple’s contract thereby ending his

employment at the conclusion of the 2012-2013 academic year.” (Id., ¶¶ 22-23). 

Whipple filed his first charge of discrimination on Oct. 7, 2011. (DE 56-4, pp. 1-2.) In

that charge, Whipple made the following pertinent statements and allegations:

1) He indicates that he is filing the charge based on race discrimination and retaliation.

(Id., p. 1);

2) He claims the alleged discriminatory conduct took place between “8/2006 to present.”

Id.);

3) He “alleges a pattern of continuing conduct related to race discrimination.” (Id.);

4) He states that “[t]he problems began in October 2006[.]” (Id.);

5) He recounts incidents of alleged harassment and retaliation (most all of which are set

forth above) that he says occurred between 2006 and 2011. (Id.)

Whipple filed his second charge of discrimination on Nov. 9, 2012. (DE 56-4; Plaintiff’s

Exhibit C, p. 3.) In that charge, Whipple made the following pertinent statements and

allegations:

1) He indicates that he is filing the charge based on race discrimination and retaliation.

(Id.);

28
2) He states that the alleged discriminatory conduct described in the charge took place

between “10-03-2011 and 10-16-2012.” (Id.)

3) He charges that the discriminatory acts of which he complains are a “continuing

action.” (Id.);

4) He recounts incidents of alleged racially based harassment and retaliation (including

the denial of his tenure application and the termination of his contract). (Id.)

Based on all of the above, Whipple contends that he has pleaded a hostile environment claim, is

entitled to invoke the continuing violation doctrine due to the recurring nature of the

discrimination he alleges he suffered, and the debate about a 180-day limitation period versus a

300-day period is therefore much ado about nothing. The court agrees. The allegations included

in Whipple’s charges of discrimination and in his Complaint make it clear that he has pled a

hostile environment claim against Taylor and invoked the continuing violation doctrine. 

Taylor, however, argues that the doctrine is not applicable in this case. Defendant’s

Reply, p. 4. Taylor devotes only one page of its reply brief to this issue. The University claims

that a plaintiff invoking the doctrine must show that: 1) he is complaining about a pattern of

conduct; and 2) that he “‘was reasonable not to perceive working conditions as intolerable until

the acts of harassment had, through repetition or [accumulation], reached the requisite level of

severity.’” Id., p. 5 (quoting Russell v. Bd. of Trustees of the Univ. of Ill. at Chicago, 243 F.3d

336, 343 (7th Cir. 2001)). Taylor then argues that “Whipple asserts that Taylor subjected him to

discrimination, retaliation and harassment since 2006 and that he constantly complained to Dr.

Harrison, starting in 2008. . . . According to Whipple’s own summary of the facts, there exists no

reason for Whipple’s delayed filing of the charges. Therefore, any claims pre-April 10, 2011,

29
stand time-barred.” Id., p. 5. It is true that a plaintiff cannot invoke the continuing violation

doctrine in order to excuse the tardy filing of charges of discrimination. See, e.g., Evans v.

Gloucester Township, —F.Supp.3d– , 2015 WL 5012593, at *7 (D.N.J. Aug. 1, 2015) (“the

doctrine does not permit . . . the aggregation of discrete discriminatory acts for the purpose of

reviving an untimely act of discrimination that the victim knew or should have known was

actionable.”). Taylor says that Whipple obviously believed that illegal discrimination was afoot

as early as 2008, when he began complaining to Dr. Harrison about alleged racial harassment, but

he failed to file his first charge until October 2011. Accordingly, argues Taylor, he cannot invoke

the continuing violation doctrine in order to base claims on, or even present evidence about, any

act that took place before April 10, 2011.

The resolution of this issue turns on the reasonableness of Whipple’s delay in filing his

first charge of discrimination. Put another way, were the acts of alleged harassment to which

Whipple claims he was subjected sufficiently severe or intolerable that he should have filed a

charge of discrimination before October 2011 (Taylor says yes, and therefore the continuing

violation doctrine does not apply) or was he justified in filing when he did (since, after all, a

plaintiff is within his rights to “‘delay suing until a series of wrongful acts blossoms into an

injury on which suit can be brought.’” Slaughter, 2015 WL 7077331, at *2)? If a plaintiff’s delay

in filing a charge is reasonable, based on the ongoing nature of the events giving rise to it, then a

Title VII claim for hostile work environment is timely “as long as ‘any act falls within the

statutory time period,’ even if the [claim] encompasses events occurring prior to the statutory

time period.” Adams v. City of Indianapolis, 742 F.3d at 730 (quoting Morgan, 536 U.S. at 120).

30
The court concludes that Whipple has demonstrated that his decision to file his first

charge with the EEOC in October 2011 was reasonable under the facts of this case and,

consequently, that the continuing violation doctrine applies. From the time he filed his first

EEOC charge Whipple maintained that he was subjected to continuing incidents of

discriminatory treatment and that “[t]he problems began in October 2006[.]” (First Charge of

Discrimination, DE 56-4, p. 1.) In that first charge, he recounts his problems with Robertson

beginning in the 2006-2007 academic year; Provost Stephen Bedi’s December 15, 2010, written

directive that Whipple and Robertson engage in a “racial reconciliation” session; the denial of his

promotion in February 2011 and his successful appeal of that denial; and, an alleged incident on

April 13, 2011, during which he claims Robertson “verbally attacked” him while they were

attending the reconciliation session–an incident he claims went unaddressed by the

administration after he reported it. Id., pp. 1-2. Obviously, several of these “acts” occurred within

300 days, and even 180 days from the date of Whipple’s first charge, even though the charge

“encompasses events occurring prior” to either limitation period. For these reasons, the court

rejects Taylor’s argument that Whipple’s claims, in part, are time-barred and summary judgment

on that issue is denied. 

B. Plaintiff’s Prima Facie Case of Race Discrimination.

Whipple’s victory on the issue of the continuing violation doctrine is pyrrhic, since the

court concludes that he fails to adduce sufficient admissible evidence to establish a prima

facie case of race discrimination, even if all of his factual assertions are considered. 

A plaintiff alleging employment discrimination can establish a prima facie case by

utilizing either the direct or indirect method of proof. Bisluk v. Hamer, 800 F.3d 928, 934 (7th

31
Cir. 2015). Under the direct method, a plaintiff must show that his employer made an adverse

employment decision “on an impermissible discriminatory basis.” Andrews v. CBOCS West, Inc.,

743 F.3d 230, 234 (7th Cir. 2014). Under the indirect method of proof, a plaintiff meets his

initial burden by showing that: (1) he is a member of a protected class; (2) he was meeting his

employer’s legitimate expectations; (3) he was subject to an adverse employment action; and (4)

similarly situated employees who were not members of the protected class were treated more

favorably. Id. (citing Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir. 2006)). If a

plaintiff establishes a prima facie case of discrimination, the employer must “articulate a

legitimate, nondiscriminatory reason for the adverse employment action, at which point the

burden shifts back to the plaintiff to submit evidence that the employer’s explanation is

pretextual.” Id.

However, as the Seventh Circuit has explained, the terms “direct” and “indirect” are

“somewhat misleading,” and “[t]he distinction between the two avenues of proof is ‘vague.’”

Luks v. Baxter Healthcare Corp., 467 F.3d 1049, 1052 (7th Cir. 2006) (quoting Sylvester v. SOS

Children’s Villages Ill., Inc., 453 F.3d 900, 902–03 (7th Cir. 2006)). In Atanus v. Perry, 520 F.3d

662, 672 (7th Cir. 2008), the court, discussing the two methods of proof, wrote as follows:

The nomenclature is misleading because the phrase “direct method” tends to

imply that an employee only may proceed under the direct method with “direct

evidence.” See Sylvester, 453 F.3d at 902-03. We recently have explained,

however, that this is not the case. “[D]irect” proof of discrimination is not limited

to near-admissions by the employer that its decisions were based on a proscribed

criterion (e.g., “You’re too old to work here.”), but also includes circumstantial

evidence which suggests discrimination through a longer chain of inferences.

Luks, 467 F.3d at 1053 (emphasis supplied).

The focus of the direct method of proof thus is not whether the evidence offered is

“direct” or “circumstantial” but rather whether the evidence “points directly” to a

32
discriminatory reason for the employer’s action. Burks v. Wisconsin Dep’t of

Transp., 464 F.3d 744, 751 n. 3 (7th Cir. 2006) (noting that the “‘direct method’ .

. . requires the plaintiff to put forth evidence that demonstrates that she was a

member of a protected class and ‘as a result suffered the adverse employment

action of which [s]he complains’” (quoting Sylvester, 453 F.3d at 902)).

Whether a plaintiff utilizes the direct method or the indirect method of proof, “[t]he

ultimate question under both methods . . . is ‘whether a reasonable jury could find prohibited

discrimination.’” Hooper v. Proctor Health Care Inc., 804 F.3d 846, 853 (7th Cir. 2015)

(quoting Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 840 (7th Cir. 2014)).

In this case, Taylor contends that Whipple cannot establish a prima facie case of race

discrimination under either the direct or indirect method of proof. Defendant’s Memorandum, pp.

6-9. According to Taylor, Whipple fails to establish that he suffered an adverse employment

action (Id., p. 4-6); fails to establish that he was meeting Taylor’s legitimate performance

expectations (Id., pp. 10-12); fails to establish that Taylor treated non-African-American

employees more favorably (Id., p. 12); and fails to refute Taylor’s proffered, nondiscriminatory

reason for denying him tenure and terminating his contract (Id., pp. 13-14). 

Whipple’s allegations and the evidence he presents to support them do not suffice to

establish a prima facie case of race discrimination based on a hostile work environment theory.

When inadmissible evidence, such as conclusory statements and hearsay, are removed from

Whipple’s pleadings, he is left with the following evidence to support his hostile environment

claim:

1) the alleged statement by Robertson that Whipple was hired only because of his race

and Whipple’s allegation that he experienced frequent “professional disagreements” with

33
Robertson during his time at Taylor;

2) the fact that his promotion application was initially denied;9

3) the fact that he was never disciplined or sanctioned for his alleged collegiality

problems, which Taylor claims were the basis for its decision to deny tenure;

4) his allegation that similarly situated, non-African-American professors were treated

more favorably during the tenure review process; and,

5) the denial of his tenure application and the termination of his contract.10

 It is not entirely clear whether Whipple is including the initial denial of his promotion 9

application as a fact that supports his race claim or only his retaliation claim. In his Complaint,

he expressly states that the denial of promotion (even though it was later reversed) is evidence

that he was retaliated against. Complaint, p. 6, ¶ 29. Taylor contends that because the promotion

decision was reversed, the entire matter is irrelevant to either a race claim or a retaliation claim

since it does not constitute an adverse employment action. Defendant’s Brief, p. 6. Taylor argues

that “initially being denied but ultimately being granted a promotion without any loss of pay,

benefits or prestige at Taylor fail[s] to constitute [an] actionable adverse employment action[].”

Id. The court will address this issue below in the context of Whipple’s retaliation claim.

However, even if the initial denial of Whipple’s promotion application is considered an adverse

action, it does not tip the scales in his favor with regard to his hostile environment race claim.

 Whipple included additional allegations in his EEOC charges and his Complaint, but at 10

least some of those have fallen by the wayside. For example, Whipple contended that shortly

after be began working at Taylor, he was told he needed to take voice lessons, a request he

apparently felt was somehow racially motivated. First Charge of Discrimination, p. 1. However,

in his response brief, Whipple “concedes there is no case law stating that being asked to obtain

voice lessons by an employer is an actionable adverse job action actionable in a race

discrimination/retaliation claim under Title VII.” Plaintiff’s Response, p. 6, n. 3. He also states

that he “will not proceed forward on claims that being told to obtain singing lessons was in itself

racial discrimination.” Id. He also states that “[Dr.] Harrison’s plan to add extra work to the

professor’s workload the last year Whipple was at the University, was changed. . . . It

consequently was not an instance of actionable retaliation under Title VII.” Id., p. 15, n. 4. (This

is distinct from Whipple’s allegation that Dr. Jones wrongfully imposed “extra job duties” on

him in 2010, a fact that Whipple still contends supports his retaliation claim. This allegation is

also addressed below in the context of that claim.)

34
Whipple argues that based on this evidence, a reasonable jury could find that he was subjected to

a racially hostile work environment. The court disagrees for several reasons.

The Seventh Circuit has held that to avoid summary judgment on a hostile work

environment claim, “‘a plaintiff must provide sufficient evidence to create a genuine issue of

material fact as to four elements: (1) the work environment must have been both subjectively and

objectively offensive; (2) [his] race or protected activity must have been the cause of the

harassment; (3) the conduct must have been severe or pervasive; and (4) there must be a basis for

employer liability.’” Hopkins v. Bd. of Educ. of City of Chicago, 73 F.Supp.3d 974, 984 (N.D.Ill.,

2014) (quoting Chaib v. Indiana, 744 F.3d 974, 985 (7th Cir. 2014)). Whipple’s contentions and

the admissible evidence he presents to support them are insufficient to establish a prima

facie case. Even assuming that the problems Whipple experienced while at Taylor (i.e.,

Robertson’s alleged expressions of racial bias, Dean Jones’ imposition of increased duties, and

an allegedly unfair tenure review process) rise to the level of “harassment,” they wholly fail in

establishing “that the harassment was severe or pervasive so as to alter the conditions of his work

environment by creating a hostile or abusive situation.” This is true even when all reasonable

inferences are drawn in favor of Whipple. In determining whether alleged harassment was

hostile, courts consider “the totality of the circumstances including such factors as the severity of

the alleged harassing conduct, its frequency, whether it was physically threatening or humiliating

or merely offensive, and whether it unreasonably interfered with the plaintiff’s performance.”

Porter v. City of Chicago, 700 F.3d 944, 955-56 (7th Cir. 2012); see also, Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 23 (1993). Whipple’s claim gets a failing grade on this test. 

35
Taylor argues that “rather than presenting a compelling mosaic of the evidence,

[Whipple] attempts the prototypical ‘spaghetti against the wall’ litigation tactic, serving up a

bevy of inadmissible self-serving statements and conclusions with the hope that one or two

strands stick long enough to survive summary judgment.” Defendant’s Reply, p. 1. Putting aside

the irony of this statement in light of the court’s assessment of Taylor’s motion to strike, the

conclusion is correct. Whipple’s evidence in support of his race claim consists of a recitation of

events largely innocuous on their face, but which he concludes were really a continuous thread of

racially offensive acts by Taylor.

As Taylor correctly points out, “‘not everything that makes an employee unhappy is an

actionable adverse action.’” Defendant’s Memorandum, pp. 5-6 (quoting Nichols v. Southern

Illinois University-Edwardsville, 510 F.3d 772, 780 (7th Cir. 2007)). Title VII is not a code of

civility; instead, it only makes harassment actionable when “the workplace is permeated with

discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working environment.” Cole v.

Board of Trustees of Northern Ill. Univ., 38 F.Supp.3d 925, 932 (N.D.Ill. 2014) (quoting Cerros

v. Steel Techs., Inc., 288 F.3d 1040, 1045–46 (7th Cir. 2002)). Also, as the Seventh Circuit has

explained, “[a] materially adverse employment action is something ‘more disruptive than a mere

inconvenience or an alteration of job responsibilities.’” Rhodes v. Illinois Dept. of Transp., 359

F.3d 498, 504 (7th Cir. 2004) (quoting Crady v. Liberty Nat'l Bank & Trust Co. of Ind., 993 F.2d

132, 136 (7th Cir. 1993)). “While adverse employment actions extend beyond readily

quantifiable losses, not everything that makes an employee unhappy is an actionable adverse

action. . . . Otherwise, minor and even trivial employment actions that an irritable, chip-on-the36
shoulder employee did not like would form the basis of a discrimination suit.” O'Neal v. City of

Chicago, 392 F.3d 909, 911 (7th Cir. 2004) (internal quotation marks and citations omitted). 

To prove a hostile environment claim, a plaintiff must show that the alleged harassment was

“sufficiently connected to race so as to satisfy the second element of the hostile environment

analysis” and . . . the “conduct at issue must have a racial character or purpose to support a

hostile work environment claim.” Anderson v. Office of Chief Judge of Cook County, Ill., 66

F.Supp.3d 1054, 1066 (N.D.Ill. 2014) (quoting Luckie v. Ameritech Corp., 389 F.3d 708, 713–14

(7th Cir. 2004)). In order to reach the level of severe or persuasive, so as to support a hostile

environment claim, the harassment about which a plaintiff complains must be so extreme that a

reasonable person would find that it rendered the workplace intolerable for the plaintiff. See, e.g.,

Harris v. FedEx Freight, Inc., 110 F.Supp.3d 805 (N.D.Ill. 2015) (supervisor asked AfricanAmerican plaintiff “how many ‘baby mamas’” he had; said he hoped the company “brought

enough chicken and watermelon” to company picnic for plaintiff and his family); Fulmore v. M

& M Transport Services, Inc., 2012 WL 5331229, at *7-9 (S.D.Ind. Oct. 29, 2012) (court denied

summary judgment because the supervisors had made at least three racial epithets, calling the

employee the n-word and a “black motherfucker” and remarking that “it was a cold day in hell on

President Obama’s inauguration day.”); but cf., Baskerville v. Culligan Int'l Co., 50 F.3d 428,

430 (7th Cir. 1995) (“occasional vulgar banter, tinged with sexual innuendo of coarse or boorish

workers” generally does not create a work environment that a reasonable person would find

intolerable and was insufficient to maintain hostile work environment sex harassment claim).

In the present case, Whipple bases his hostile work environment claim on a few incidents

that, when examined objectively, do not rise anywhere near the level necessary to sustain such a

37
claim. He alleges that Robertson told him he was hired only because of his race; he claims that 11

Robertson verbally berated him during their counseling session and that he had many

“professional disagreements” with her while he was at Taylor (although he does not allege that

these disagreements included even a single reference to race, let alone the use of racial epithets);

he alleges that he was subjected to an unfair tenure review process that improperly considered his

complaints about the racial atmosphere at Taylor (although the University refutes this–see

footnote five above); and he claims that the decision to deny his tenure application and terminate

his contract was racially motivated (a conclusion on his part, since he presents no direct

evidence, and insufficient circumstantial evidence, to support this contention). The court has no

reason to doubt that Whipple subjectively perceived these events as a string of offensive acts,

especially since “[a]ll Plaintiff has to establish is that he perceived the environment to be hostile

or abusive.” Harris v. FedEx Freight, 110 F.Supp.3d at 816. But in a hostile work environment

claim “[t]he workplace that is actionable is the one that is ‘hellish.’” Logan v. Kautex Textron

North America, 259 F.3d 635, 641 (7th Cir. 2001) (quoting Perry v. Harris Chernin, Inc., 126

F.3d 1010, 1013 (7th Cir. 1997)). When considered objectively, in accordance with the legal

standard, Whipple’s allegations are insufficient to support an inference that he was subjected to a

racially hostile work environment. He has failed to adduce sufficient admissible evidence to

show that he was subjected to “severe and pervasive” racial harassment, thereby failing to

establish his prima facie case, and Taylor is entitled to summary judgment on that claim for this

 Even if the court were to consider Whipple’s allegations that Robertson told students 11

not to take his classes (evidence that is clearly hearsay, as Taylor maintains), it doesn’t change

the calculus. “‘Through the grapevine’ or ‘second-hand’ conduct, is not sufficiently severe or

pervasive to create a hostile work environment.” Wheeler v. Brady Corp., 712 F.Supp.2d 801,

821 (E.D.Wis. 2010) (citing Mason v. S. Ill. Univ., 233 F.3d 1036, 1046 n. 9 (7th Cir. 2000)).

38
reason.

C. Plaintiff’s Prima Facie Case of Retaliation.

Taylor seeks summary judgment on Whipple’s retaliation claim, arguing again that

“[s]imilar to Whipple’s race discrimination claim, Whipple cannot successfully prove a prima

facie case of retaliation under Title VII.” Defendant’s Memorandum, p. 15. First, Taylor argues

that the only adverse employment action that can form the basis for Whipple’s retaliation claim is

the denial of his tenure application and consequent termination of his contract. Id. As Taylor

correctly notes, Whipple “asserts that Taylor took the following actions in retaliation for his

harassment complaint against Robertson or the filing of Charge 1: (1) denial of tenure; (2) Julie

Barber . . . replacing Robertson in her role with Taylor’s opera program; (3) Dean Thomas Jones’

. . . adding of job duties; and, (4) Harrison’s attempts to add job duties.” Id. Whipple admits that

the last contention is not actionable. He concedes that “[Dr.] Harrison’s plan to add extra work to

the professor’s workload the last year Whipple was at the University, was changed. . . . It

consequently was not an instance of actionable retaliation under Title VII.” Plaintiff’s Response,

p. 15, n. 4.

Taylor does not list the initial denial of Whipple’s promotion as one of the facts

supporting his retaliation claim. That is because, as the court noted above, Taylor insists that the

denial does not meet the legal definition of an “adverse employment action.” Defendant’s

Memorandum, p. 5. Taylor concedes that the denial of a promotion can be actionable, but only if

it “resulted in a material harm that alters the ‘terms, conditions, or privileges of [the plaintiff’s]

employment.’” Id. (quoting 42 U.S.C. § 2000e-2(a)(1)). Since the initial promotion denial was

overturned, and since it is undisputed that Whipple did not suffer any loss of pay or benefits,

39
Taylor insists that Whipple cannot rely on this event to support his retaliation claim. For this part,

Whipple merely includes the fact of the initial denial in his discussion of his retaliation claim.

Plaintiff’s Response, pp. 14 and 17. He does not, however, offer any authority at all to support

his apparent contention that the denial of promotion constituted an adverse employment action

even though it had no effect on the terms of his employment, his salary, or his benefits. Whipple

appears to be arguing (or so the court infers, since he doesn’t explain otherwise) that the mere

fact that the denial occurred is sufficient to confer the title of “adverse employment action” upon

it. The court is dubious of this argument, but like so many other issues in this case, this one is not

relevant to the court’s analysis or conclusion. Whipple’s retaliation claim survives the motion for

summary judgment whether the promotion denial is considered part of his evidentiary mosaic or

not. 

Turning to Whipple’s contentions that Taylor retaliated against him by replacing

Robertson with the allegedly less experienced Barber in the opera program and when Jones

allegedly added to Whipple’s job duties, these allegations, even when all reasonable inferences

are drawn in favor of Whipple, do not constitute adverse employment actions and therefore

cannot be the basis for a retaliation claim (or race claim, for that matter). Whipple claims that

“[i]n response to the November 2010 grievance [against Robertson], the decision was made to

remove Robertson from her role in the Opera program, and replace her with a[] less qualified and

less experienced assistant . . . that was not available or present to assist for at least or a [sic] three

to four weeks’ [sic] worth of classes during a semester in which Whipple needed someone to

assist in covering the duties left uncovered by Dr. Robertson’s [exit] from the opera production.”

Plaintiff’s Response, p. 15. Whipple argues that based on this, “a reasonable trier of fact could

40
conclude that the Defendant’s replacement of Robertson by Barber increased Whipple’s work

load enough for it to have created a materially adverse job action.” Id. The court disagrees. While

the fact that Robertson was replaced in the opera program by an allegedly less experienced and

less qualified professor may indeed have increased Whipple’s workload or created some degree

of hardship in the performance of his duties with regard to the program, such an action clearly

does not rise to the level of an adverse job action. As stated above, “[a] materially adverse

employment action is something ‘more disruptive than a mere inconvenience or an alteration of

job responsibilities.’” Crady v. Liberty Nat'l Bank & Trust, 993 F.2d at136.

Similarly, Whipple contends that “[t]he extra job duties imposed upon Dr. Whipple by

the dean[,] Dr. Jones, was [sic] also sufficient of burden [sic] to be actionable action [sic] under a

Title VII retaliation claim.” Plaintiff’s Response, p. 15. Whipple’s allegation about these extra

duties is very vague. For example, in his deposition, he stated that he could not remember if

Jones imposed extra duties on him “during either the promotion or the tenure process[.]” (DE 42-

5, p. 118.) He then testified that “[a]fter the grievance was filed, there was a list of things [Jones]

wanted me to do.” Id., pp.118-19. In his Statement of Genuine Issues, Whipple states that “Dr.

Jones assigned Dr. Whipple extra work above and beyond Dr. Whipple’s normal duties. At the

time of Dr. Jones’ extra assignment, it was already the ‘busy season’ of the Opera program and

the additional work created needless hardship on Dr. Whipple, because of his responsibilities in

connection to the upcoming performance of the opera The Majic Flute . . . .” (DE 56-1, p. 25.)

Nowhere in these pleadings does Whipple explain just what these extra duties entailed. Instead,

he merely asserts that Jones imposed some manner of extra work on him, apparently during a

busy time when Whipple was working on the opera presentation. It is unclear if these extra duties

41
flowed from the removal of Robertson from the production and her replacement by Barber, or

whether these alleged additional duties were something else entirely. Either way, in support of

this contention, Whipple states as follows:

The extra work assignment from Jones was a materially adverse job action

because of its timing, because it imposed an undue burden on Dr. Whipple in the

same way that adding 5 pounds to a 200 pound box of rocks would be an undue

burden to someone carrying the box, even though adding the same weight to a 10

pound box of rocks might not create any burden at all.

Id., pp. 15-16. Whipple’s argument would be more convincing if it was supported by case law

rather than by a colorful metaphor. But as it stands, this argument is about as valuable as a box of

rocks. Not only does Whipple not explain what these additional duties were, but he presents no

evidence that they amounted to more than “a mere inconvenience or an alteration of job

responsibilities.” Whipple presents only a vague assertion that Jones imposed extra duties that

Whipple found burdensome, but fails to show how those duties rise to the level of an actionable

adverse action, other than his claim that they imposed a “weighty” burden on him. This is

insufficient to give rise to an inference of retaliatory motive.

So, Whipple is left with the denial of tenure (and the concomitant termination of his

contract) as the sole basis to support his retaliation claim. Fortunately for him, that is sufficient to

survive summary judgment under the facts of this case. To understand why, the court begins with

a condensed time line of the relevant events leading up to Whipple’s termination, especially since

Whipple relies heavily on what he characterizes as “suspicious timing” as proof of Taylor’s

retaliatory motive. That time line is as follows:

1) November 5, 2010: Whipple files a written grievance with the University alleging

racial harassment by Robertson (DE 56-17);

42
2) February 28, 2011: Whipple writes to Bedi and Habecker appealing his promotion

denial and raising complaints about race issues (DE 56-25);

3) June 30, 2011: Whipple writes to Habecker and others to voice several concerns,

including issues related to race (DE 56-26);

4) October 7, 2011: Whipple files his first EEOC charge;

5) January 19, 2012: Whipple files a written grievance (raising many issues, including

race issues) (DE 56-28);

6) January 31, 2012: Whipple files a written grievance objecting to his tenure review

process (and again referencing race issues) (DE 42-6, p. 80);

7) February 28, 2012: Faculty tenure committee votes to deny Whipple’s tenure

application (DE 42-6, p. 81);

8) March 16, 2012: Harrison recommends denying tenure (DE 42-6, p. 83);

9) March 27, 2012: Whipple files a written grievance concerning his tenure review

process and reiterating his concerns about racial discrimination and retaliation (DE 56-29); and,

10) July 30, 2012: Taylor President Habecker officially denies tenure and Whipple’s

employment is terminated (DE 42-3, p. 28).

Whipple argues that this time line is suspicious enough to raise a fact issue as to his retaliation

claim. Plaintiff’s Response, pp. 17-18.

Taylor’s response to Whipple’s suspicious timing argument is curious (and also

completely unavailing). The University states that “[w]hen a retaliation claim is based on

suspicious timing, ‘the order of events is even more important than the time between them; the

theory doesn’t work if the retaliatory act precedes the protected activity.’” Defendant’s

43
Memorandum, p. 17 (quoting Leitgan v. Franciscan Skemp Healthcare, Inc., 630 F.3d 668, 675

(7th Cir. 2011)). Taylor then argues that “the evidence is conclusive that ‘collegiality’ stands as

one of the key factors to be considered during the tenure review process and that Taylor raised

Whipple’s collegiality and student conflict resolution issues as early as 2008, well before he

engaged in the alleged protected activity, e.g., his formal harassment complaint against

Robertson and the filing of Charge 1.” Id. Taylor claims that since its proffered,

nondiscriminatory reason for denying tenure, i.e., Whipple’s collegiality issues ultimately did

him in, was raised “as early as 2008,” it preceded any formal harassment complaint that Whipple

ever submitted. Taylor tiptoes around the time line of events set forth above. It merely argues that

it had a legitimate, nondiscriminatory reason to deny tenure, and since that reason had its genesis

before Whipple formally complained about race or retaliation issues, it somehow negates

Whipple’s suspicious timing theory. In other words, Taylor is attempting to recharacterize its

proffered, nondiscriminatory explanation for not granting tenure as the “adverse action” that

Whipple suffered, and that adverse action preceded any of Whipple’s complaints about race

discrimination. This argument is conceptually flawed, seeing as it puts the cart in front of the

horse, but in the end it doesn’t matter since the undisputed time line of events is sufficient to

raise an inference of retaliation. 

Throughout its briefs, Taylor consistently and adamantly maintains that race issues had

nothing to do with its decision to deny Whipple’s tenure application. Taylor presents a lot of

evidence in support of its proffered, nondiscriminatory reason for that decision, only a portion of

which is discussed in this opinion. And that evidence might well be enough to convince a jury.

But only a jury, of course, can weigh the evidence and make the credibility determinations

44
necessary to decide whether Taylor’s defense ultimately carries the day. For now, the only issue

before the court is whether either of Whipple’s claims withstand summary judgment. 

The undisputed facts regarding the timing of Taylor’s decision to deny tenure in relation

to Whipple’s complaints about racial harassment, together with additional evidence Whipple

presents on the issue of pretext, when all reasonable inferences are drawn in favor of Whipple,

are sufficient to move this case beyond the summary judgment stage. This is especially true when

one focuses on the events that occurred between January 31, 2012, when Whipple complained of

racially based discrimination, and Habecker’s final decision in July to deny tenure. The temporal

proximity between Whipple’s complaints and the adverse employment event raises a genuine

issue of material fact that precludes summary judgment.

In addition to his suspicious timing argument, Whipple punches at least a small hole in

Taylor’s proffered, nondiscriminatory reason for its decision by pointing out that he was “never

disciplined for collegiality or trouble handling conflicts with students (or faculty)” even though

Taylor maintains that those issues were the primary reason for its decision. Plaintiff’s Response,

p. 9. It is undisputed that Whipple was never disciplined for any alleged problems with

collegiality or problems with students. All Taylor says about this undisputed fact is that “[l]ack of

discipline is not a reason for granting tenure at Taylor.” Defendant’s Reply, p. 6. The court is not

sure what this statement means, but it doesn’t matter. In addition, Whipple claims that he “was in

fact quite collegial,” as evidenced by his “ability to inspire six colleagues, including ones from

his own department, to [write] him letters of support for tenure . . . .” Id., p. 11. (See DE 56-36,

pp. 1-4, Letters of Recommendation.) Whether this evidence is sufficient to convince a jury that

Taylor’s proffered, nondiscriminatory reasons for its decision is pretextual remains to be seen.

45
But taken together, and drawing all reasonable inferences in favor of the nonmovant, the court

concludes that Whipple has presented sufficient admissible evidence to withstand summary

judgment. 

A plaintiff can meet his burden on the issue of suspicious timing by using circumstantial

evidence so long as that evidence presents “‘a convincing mosaic . . .’ [that] would permit a

reasonable trier of fact to infer retaliation by the employer.” Castro v. Devry University Inc., 786

F.3d 559, 564-65 (7th Cir. 2015) (quoting Rhodes, 359 F.3d at 504). There are “three categories

of circumstantial evidence available to a plaintiff using the ‘convincing mosaic approach’ to

show unlawful retaliation.” Id. At 565 (citing Coleman v. Donahoe, 667 F.3d at 860). These

include: “(1) evidence of suspicious timing, (2) evidence that similarly situated employees were

treated differently, and (3) evidence that the employer’s proffered reason for the adverse

employment action was pretextual.” Id. Finally, “[e]ach category of circumstantial evidence can

suffice by itself to preclude summary judgment, depending on its strength in relation to the other

evidence, but plaintiffs may also use them together.” Id. (citations omitted). When temporal

proximity is one among several tiles in an evidentiary mosaic depicting retaliatory motive,

however, “[s]uspicious timing . . . can sometimes raise an inference of a causal connection.”

Magyar v. St. Joseph Regional Medical Center, 544 F.3d 766, 772 (7th Cir. 2008); see Scaife v.

Cook County, 446 F.3d 735, 742 (7th Cir. 2006) (“Close temporal proximity provides evidence

of causation and may permit a plaintiff to survive summary judgment provided that there is other

evidence that supports the inference of a causal link.”) (quoting Lang v. Illinois Dep’t of

Children and Family Ser., 361 F.3d 416, 419 (7th Cir. 2004)). Determining “[w]hen the

inference is appropriate cannot be resolved by a legal rule; the answer depends on context. . . . A

46
jury, not a judge, should decide whether the inference is appropriate.” Loudermilk v. Best Pallet

Co., LLC, 636 F.3d 312, 315 (7th Cir. 2011).

Whipple has presented evidence of suspicious timing and evidence that at least arguably

calls into question Taylor’s proffered, nondiscriminatory explanation for its decision to deny

tenure. This might not be much, but it is sufficient to survive summary judgment.

The court is compelled to make some final remarks. Throughout this opinion the court

has been highly critical of both parties’ briefs. While the court certainly does not want to seem

pedantic or be perceived as such (at least not to an undeserved degree!), it stands by its criticism,

which is included to make two points: 1) the briefing in this case really was that bad; and, 2) it

wasn’t all the fault of the parties. 

As to the first point, Whipple is represented by respected lawyers with decades of

experience in employment cases and Taylor is represented by a venerable law firm. The court

expects such experienced attorneys to submit stellar work product, and that did not happen in this

case. The briefing on both sides was sloppy, cumbersome, disjointed, and often illogically

constructed. The court has pointed out many of these problems in this opinion, and is hopeful

that both sides will “up their game” from this point forward.

As to the second point, the court is mindful of the fact that both plaintiffs and defendants

in employment discrimination cases are, to a great degree, almost forced to pack their pleadings

with all manner of argument on a host of issues–some crucial, some less so, some immaterial,

and some downright irrelevant. This is so because the analytical framework for resolving motions

for summary judgment in these cases has become unduly burdensome to the parties and the

courts. In fact, the Seventh Circuit took notice of this problem by acknowledging “the snarls and

47
knots that the current methodologies used in discrimination cases of all kinds have inflicted on

courts and litigants alike.” Coleman v. Donahoe, 667 F.3d at 862-63 (J. Wood, concurring). As

Judge Wood wrote in her concurrence: 

Like a group of Mesopotamian scholars, we work hard to see if a “convincing

mosaic” can be assembled that would point to the equivalent of the blatantly

discriminatory statement. If we move on to the indirect method, we engage in an

allemande worthy of the 16th century, carefully executing the first four steps of

the dance for the prima facie case, shifting over to the partner for the

“articulation” interlude, and then concluding with the examination of evidence of

pretext.

Id. Litigants, no doubt, are equally frustrated with the requirements placed upon them by the

McDonnell Douglas paradigm. This burden-shifting method requires both the plaintiff and the

defendant to jump through all sorts of hoops when presenting or opposing a motion for summary

judgment. For example, it is often not enough anymore for the parties in a discrimination case to

argue about whether “similarly situated employees” were treated more favorably. Now, courts

and litigants find themselves crawling around in the weeds arguing about “sub-issues,” such as

whether the “similarly situated” employees a plaintiff points to are even fair “comparators” in the

first place. This does not serve as an excuse for lawyers to file briefs in federal court that contain

improper citation form, careless grammatical errors, unnecessary and visually obnoxious

typographical tricks, or illogical or irrelevant arguments; but it does help explain why parties

often file such poorly written briefs. If the method of analysis is itself unduly cumbersome, the

briefs will often reflect that characteristic. Judge Wood made a compelling (and entertaining)

argument for modifying the analytical approach to these cases, if not retiring the McDonnell

Douglas test altogether. But doing so is a task beyond this court’s pay grade; and so until things

change, courts and litigants are forced to engage in an “allemande” even though a simple box

48
step would benefit all. 

CONCLUSION

For the reasons set forth above, the Defendant’s motion for summary judgment (DE 41)

is: DENIED as to the issue of the timeliness of the Plaintiff’s claims; GRANTED as to the

Plaintiff’s race discrimination claim; and DENIED as to the Plaintiff’s retaliation claim. The

Plaintiff’s first motion to strike (DE 58) is MOOT; the Defendant’s motion to strike (DE 61) is

GRANTED in part and DENIED in part; and the Plaintiff’s second motion to strike (DE 67) is

MOOT.

 

Date: February 10, 2016.

 /s/ William C. Lee 

William C. Lee, Judge

United States District Court

Northern District of Indiana

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