In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3568

MAETTA VANCE,

Plaintiff-Appellant,

v.

BALL STATE UNIVERSITY, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Southern District of Indiana, Indianapolis Division.

No. 1:06-cv-1452—Sarah Evans Barker, Judge.

ARGUED NOVEMBER 29, 2010—DECIDED JUNE 3, 2011

Before BAUER, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge. Maetta Vance was the only AfricanAmerican working in her department at Ball State University (“Ball State”) when racially charged discord

erupted. In 2005, Vance began filing complaints with

Ball State about her coworkers’ offensive conduct, which

included the use of racial epithets, references to the Ku

Klux Klan, veiled threats of physical harm, and other

unpleasantries. In 2006 she filed two complaints with the
2 No. 08-3568

Equal Employment Opportunity Commission (“EEOC”)

for race discrimination and, later, retaliation. After

getting her right-to-sue letter, she filed this action in

federal court alleging a range of federal and state discrimination claims. The district court granted summary

judgment for the defendants and dismissed the case.

On appeal, Vance pursues only her hostile work environment and retaliation claims against Ball State based on

asserted violations of Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. Because she

has not established a basis for employer liability on the

hostile work environment claim or put forth sufficient

facts to support her retaliation claim, we affirm.

I

Ball State prevailed on summary judgment, and so we

recite the facts in the light most favorable to Vance, the

non-moving party. Vance began working for Ball State

in 1989 as a substitute server in the Banquet and Catering

Department of University Dining Services. In 1991, Ball

State promoted Vance to a part-time catering assistant

position, and in January 2007 Vance applied and was

selected for a position as a full-time catering assistant.

Between 1991 and 2007, Vance gained expertise as a

baker and enjoyed the challenge of baking items from

scratch. After she began work as a full-time employee,

a position that included a modest raise and a significant

increase in benefits, her assignments changed. Her new

work consisted of preparing food, including dinners

for formal events, boxed lunches for casual engage-
No. 08-3568 3

ments, and sides and salads, for the catering department’s clients.

For many years things progressed uneventfully. But

in 2001, Saundra Davis, a coworker, hit Vance on the

back of the head without provocation. The two were discussing a work-related duty when Davis became aggressive, shouted at Vance, and slapped Vance as she turned

away. Vance orally complained to her supervisors, but

because Davis soon transferred to another department

Vance did not pursue the matter. Also around that

time, Bill Kimes became Vance’s supervisor. According

to Vance, Kimes gave her the cold shoulder, made her

feel unwelcome at work, and treated other employees to

lunch when she was not around. He refused to shake

her hand when they first met in 2001, and he routinely

used a gruff tone of voice with her.

Things took a turn for the worse in 2005. Davis

returned to Vance’s department, and on September 23,

2005, the two had an altercation in the elevator. Davis

stood in Vance’s way as she tried to get off the elevator

and said, “I’ll do it again,” which Vance took to be a

reference to the slap in 2001. A few days later, Vance

heard from a fellow employee that another coworker,

Connie McVicker, used the racial epithet “nigger” to

refer to Vance and African-American students on campus. McVicker also boasted that her family had ties to

the Ku Klux Klan. On September 26, 2005, Vance complained orally to her supervisor about McVicker’s statements, and on October 17, 2005, she called University

Compliance to request a complaint form. While requesting
4 No. 08-3568

the document, Vance again complained about McVicker’s

racially offensive comments and, for the first time, informed Ball State that Davis had slapped her four years

earlier. In early November, Vance submitted a written

complaint detailing McVicker’s comments and the

elevator incident with Davis.

Ball State began investigating Vance’s complaint regarding McVicker immediately. Once Vance spoke to

University Compliance on October 17, 2005, two supervisors, Lisa Courtright and Kimes, met to discuss how

to handle the matter. Courtright sent Vance a letter to

inform her that they were investigating. In the meantime, several people from Employee Relations became

involved. Kimes’s investigation corroborated Vance’s

account of what McVicker said, although the witnesses

could not recall whether McVicker used the epithet

generally or directed it at Vance. The Assistant Director

of Employee Relations sent an email to the Director,

stating: “I know we don’t have the specifics on exactly

what and when these utterances were . . . but we need

to make a strong statement that we will NOT tolerate

this kind of language or resulting actions in the workplace.” Ball State used a four-step process to handle

employee discipline, starting with a verbal warning for

the first infraction, followed by a written warning for

the second, with escalating consequences for further

violations. Within this context, the Assistant Director

concluded, “I think we can justify going beyond our

limited prior past history and issue a written

warning . . . we should also strongly advise her verbally

when we issue this that it must stop NOW and if the
No. 08-3568 5

words/behavior are repeated, we will move on to

more serious discipline up to an[d] including discharge.”

Following this recommendation, Kimes gave McVicker

a written warning on November 11, 2005, for “conduct

inconsistent with proper behavior.” The warning

explained that McVicker was being disciplined for

using offensive racial epithets, discussing her family’s

relationship with the KKK, and also “looking intently” and

“staring for prolonged periods at coworkers.” Kimes

advised McVicker that additional violations would lead

to further disciplinary action. Days later, Courtright

met with McVicker to discuss the warning; Courtright

reiterated that racially offensive comments would not

be tolerated. She also suggested that McVicker should

consider avoiding Vance and transferring to another

department.

That same day, Vance complained to Courtright that

McVicker referred to her as a “porch monkey.” Courtright

advised Vance to tell Kimes, which Vance did. Kimes

investigated by speaking to another coworker whom

Vance said witnessed the incident, but that coworker

did not corroborate Vance’s allegation. In turn, Kimes

told Vance that without any witnesses he could not

discipline McVicker, who denied making the comment.

Kimes said that further action on this issue would

devolve into a “she said-she said” exchange. Kimes did

not discipline McVicker for the “monkey” comment,

nor does the record suggest that Courtright mentioned

it when she spoke to McVicker later that week. Kimes

did, however, try unsuccessfully to schedule McVicker
6 No. 08-3568

and Vance to work on alternating days. Over a year

later, McVicker voluntarily transferred to another department.

In response to Vance’s complaint about the September 23, 2005, elevator incident with Davis, Ball State

investigated but found conflicting accounts of what had

happened. Before Vance filed her written complaint on

November 7, 2005, Davis had filed a complaint alleging

that Vance said to Davis: “Move, bitch . . . you are an evil

f------ bitch.” Kimes discussed the situation with his

supervisor, and they decided that counseling both employees about respect in the workplace was the best

path to follow. Kimes spoke with Vance about how to

communicate respectfully in the workplace, but it is

unclear whether he had a similar conversation with

Davis. No one was disciplined for the incident. Around

this time, though the record is not clear about the date,

Davis made references to “Sambo” and “Buckwheat”

while having a conversation with another coworker in

Vance’s presence. Vance understood these words to be

used in a racially derogatory way and thus felt offended by them, but she did not complain to Ball State

at that time.

Conditions were not improving for Vance, and on

December 22, 2005, she informed Kimes that she felt

threatened and intimidated by her coworkers. The following week Vance filed a charge with the EEOC

alleging race, gender, and age discrimination. Vance

also complained that, throughout this period, Davis and

McVicker gave her a hard time at work by glaring
No. 08-3568 7

at her, slamming pots and pans around her, and intimidating her. In 2006, Vance filed a complaint identifying

a variety of other instances where she felt harassed,

including being “blocked” on the elevator by Davis who

“stood there with her cart smiling”; being left alone in

the kitchen with Davis, who smiled at her; and being

around Davis and McVicker, who gave her “weird”

looks. She also filed a complaint alleging that Karen

Adkins, a supervisor, “mean-mugged” her. Ball State

investigated these incidents but found no basis to take

disciplinary action.

On May 10, 2006, Vance filed a complaint with Ball

State against her supervisor, (still) Kimes, alleging that

he forced her to work through breaks. Ball State investigated but found no factual basis for the allegation. In

August 2006, Vance filed a second complaint with the

EEOC alleging that Ball State retaliated against her by

assigning her diminished work duties, forcing her to

work through breaks, denying her the chance to work

overtime hours, and unequally disciplining her. She

filed this lawsuit on October 3, 2006.

While her case was pending before the district court,

Ball State promoted Vance to the position of a full-time

catering assistant. Still, the strife did not abate. In

April 2007, Vance filed a grievance against McVicker

for saying “payback” to her. Three supervisors, including

Kimes, investigated; McVicker countered that Vance

had said to her: “Just the beginning bitch—you better

watch your house.” Both women denied the allegations against them, and Ball State did not discipline
8 No. 08-3568

anyone. In August 2007, Davis said to Vance, “are you

scared,” in a Southern accent. Ball State investigated and

warned Davis verbally not to engage in such behavior.

That same month, Vance complained that during a

routine day of work Kimes aggressively approached

her while repeatedly yelling the same question at her.

When Ball State investigated, the witness identified by

Vance did not corroborate her account of the incident.

Instead, the witness supported Kimes’s version of what

had occurred and added that it was common for Kimes

to repeat himself until he was sure the other person had

heard him. In September 2007, Davis complained that

Vance splattered gravy on her and slammed pots and

pans around her. Vance denied the allegation but, even

though no witnesses corroborated the event, Ball State

warned Vance about its policies.

Vance also complains that Ball State retaliated against

her for complaining about the racial harassment. Although she was promoted in 2007, Vance argues that

Ball State reassigned her to menial tasks such as cutting

vegetables, washing fruit, and refilling condiment trays.

In her view, Ball State made her into a “glorified salad

girl” even though she possessed a range of advanced

skills that could have been better utilized baking or

cooking complete meals.

II

A

Before reaching the merits of Vance’s claim, we

must resolve an evidentiary issue. After all dispositive
No. 08-3568 9

motion deadlines had passed and both parties had submitted their summary judgment briefs, Vance sought

to supplement the record with evidence of two incidents

that took place in early 2008. The evidence included

two affidavits testifying to a verbally abusive encounter

with Davis’s daughter and husband. During that incident, Davis’s kin insulted Vance and another coworker

with racial epithets and physically threatened them

on university property. The affidavits document this

episode and Kimes’s alleged failure to respond when

Vance complained. Vance also submitted two articles

published in an on-line Ball State forum that discussed

Vance’s discrimination claims against the university,

along with scores of “comments,” some racially offensive, posted in response to the articles. One of the

articles was written by one of Vance’s coworkers.

Vance submitted the evidence on March 12, 2008, and

Ball State moved to strike. Ball State argued before the

district court that Vance was attempting “an end run”

around Federal Rule of Civil Procedure 15(d) by styling

her submission as a supplement to the summary judgment record rather than a supplemental pleading. The

district court concluded that Vance’s supplemental evidence fell within the purview of Rule 15(d), analyzed it

as if Vance had filed a Rule 15 motion, and granted Ball

State’s motion to strike. On appeal, Vance asserts that

the court should have permitted her to supplement the

record, while Ball State defends the district court’s ruling

on the ground that the contested evidence presents new

factual allegations against persons not party to this lawsuit.
10 No. 08-3568

In our view, these materials are best viewed as supplemental to the summary judgment record rather than

as a disguised Rule 15(d) submission. When a plaintiff

initiates a hostile work environment lawsuit, as opposed to a suit claiming discrimination based on discrete

acts, she usually complains of an employer’s continuing

violation of Title VII “based on the cumulative effect

of individual acts.” See National R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 115 (2002) (recognizing that

hostile environment claims by their very nature involve

repeated conduct). The continuing violation doctrine is

usually invoked to defeat a statute of limitations bar

for conduct that falls outside the relevant period, see

Dandy v. UPS, Inc., 388 F.3d 263, 270 (7th Cir. 2004), but

we think the general concept is instructive in this

context as well. That is, a Title VII hostile work environment claim is against the employer for the aggregate

conduct of one or more of its employees. By adding

more “individual acts” as evidence of a hostile work

environment claim, a plaintiff does no more than

strengthen her evidentiary record; this is not enough to

allege a discrete new claim. See Morgan, 536 U.S. at 115

(“Hostile environment claims are different in kind

from discrete acts.”).

Thus, Ball State misses the mark when it contends

that these materials implicate persons not named as

defendants in this lawsuit. Title VII regulates the conduct

of employers, not individual employees. See 42 U.S.C.

§ 2000e-2(a). If admitted, Vance’s supplemental evidence

might have cast some light on her hostile work environment claim against Ball State. Whether Ball State is
No. 08-3568 11

liable for the conduct of an employee’s family member

or statements in a university publication is a separate

question we need not resolve, because the district court

did not abuse its discretion in excluding the evidence.

Vance moved to supplement the record after the deadlines for discovery and dispositive motions had “long

passed.” We regularly affirm a district court’s decision

to exclude supplemental evidence in the interest of

keeping cases moving forward. See, e.g., Pfeil v. Rogers,

757 F.2d 850, 858 (7th Cir. 1985).

B

Turning to the merits, we apply the well-known

de novo standard of review to Vance’s case. See Chaney

v. Plainfield Healthcare Center, 612 F.3d 908, 912 (7th Cir.

2010). Vance argues that the facts she has alleged and

supported are sufficient to get her case before a jury,

which would then determine whether her hostile work

environment and retaliation claims are meritorious.

We examine each of her arguments in turn.

Title VII prohibits employers from discriminating

against a person with respect to her “compensation,

terms, conditions, or privileges of employment, because

of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1).

Ball State, however, is not liable to Vance under Title VII

for a hostile work environment unless Vance can prove

(1) that her work environment was both objectively and

subjectively offensive; (2) that the harassment was based

on her race; (3) that the conduct was either severe

or pervasive; and (4) that there is a basis for employer
12 No. 08-3568

liability. See Dear v. Shinseki, 578 F.3d 605 (7th Cir. 2009);

Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1045

(7th Cir. 2002) (“Cerros I”). We emphasize, as we have

before, that the third element of the plaintiff’s prima facie

case is in the disjunctive—the conduct must be either

severe or pervasive. See Cerros v. Steel Technologies, Inc.,

398 F.3d 944, 950 (7th Cir. 2005) (“Cerros II”). The question whether there is a basis for employer liability

depends on whether the alleged harassment was perpetrated by supervisors or coworkers. See Williams v. Waste

Mgmt. of Ill., 361 F.3d 1021, 1029 (7th Cir. 2004); see generally Faragher v. City of Boca Raton, 524 U.S. 775, 807-08

(1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,

764-65 (1998). Employers are “strictly liable” for harassment inflicted by supervisors, but they can assert an

affirmative defense when the harassment does not result

in a tangible employment action. 361 F.3d at 1039 (citing

Ellerth, 524 U.S. at 756 and Faragher, 524 U.S. at 807-08).

If only coworkers were culpable for making a work environment hostile, the plaintiff must show that the

employer has “been negligent either in discovering

or remedying the harassment.” Id. (internal citations

omitted). 

Vance argues that three supervisors, Kimes, Adkins, and

Davis, harassed her on account of her race. To begin,

Vance argues that there are disputed facts regarding

whether Davis was her supervisor, making summary

judgment inappropriate on this issue. We find no such

ambiguity. Under Title VII, “[a] supervisor is someone with power to directly affect the terms and conditions

of the plaintiff’s employment.” Rhodes v. Ill. Dep’t of
No. 08-3568 13

Transp., 359 F.3d 498, 506 (7th Cir. 2004). That authority

“primarily consists of the power to hire, fire, demote,

promote, transfer, or discipline an employee.” Hall v.

Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002) (internal

quotation marks and citations omitted). We have not

joined other circuits in holding that the authority to

direct an employee’s daily activities establishes supervisory status under Title VII. See Rhodes, 359 F.3d at 509

(Rovner, J., concurring) (arguing for a broader standard

of supervisor liability based on EEOC guidelines). We

conclude that Vance has not revealed a factual dispute

regarding Davis’s status by asserting that Davis had

the authority to tell her what to do or that she did not

clock-in like other hourly employees. This means that

we must evaluate her claim against Davis under the

framework for coworker conduct.

We can also summarily dispose of Vance’s allegations

against supervisor Adkins. Vance’s brief says little

about what Adkins may have done to make her work

environment hostile. Before the district court, Vance

argued that Adkins “mean-mugged” her and stared at

her when they were in the kitchen together. Making an

ugly face at someone and staring, while not the most

mature things to do, fall short of the kind of conduct

that might support a hostile work environment claim.

Vance’s complaints about Kimes require a closer look,

but this reveals that she has failed to establish that

Kimes’s conduct had a racial “character or purpose.” See

Luckie v. Ameritech Corp., 389 F.3d 708, 713 (7th Cir. 2004).

Although there is some indication in the record that
14 No. 08-3568

Kimes was generally difficult to work with, we assume,

favorably to Vance, that he picked on her. Still, even in

that light, Vance’s allegations do not establish that

Kimes’s unkind or aggressive conduct was motivated

by Vance’s race. Although a plaintiff does not need to

identify an explicitly racial dimension of the challenged

conduct to sustain a Title VII claim, she must be able to

attribute a racial “character or purpose” to it. See Hardin

v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345 (7th Cir.

1999). Vance has not put forth any facts to establish that

any of Kimes’s conduct was motivated by, or had anything to do with, race. To the contrary, in her deposition

Vance conceded that she never heard Kimes say anything suggesting ill will towards her because of her

race, nor did any other employee report to Vance that

Kimes had uttered racially derogatory comments. The

undisputed facts establish that there are no grounds

for employer liability for violation of Title VII based on

the conduct of Vance’s supervisors.

This leaves Vance’s treatment at the hands of her two

coworkers, Davis and McVicker. When evaluating a

hostile work environment claim, we consider “the entire

context of the workplace,” see Cerros I, 288 F.3d at 1046,

not the discrete acts of individual employees. The district

court analyzed Vance’s allegations against Davis and

McVicker separately, finding that summary judgment

was proper based on the conduct of each woman independently. We stress that a hostile work environment

claim requires a consideration of all the circumstances,

because in the end it is the employer’s liability that is

at issue, not liability of particular employees. Thus, for
No. 08-3568 15

example, if we had found that Vance’s supervisors had

contributed to a racially hostile work environment, that

conduct would form part of the context for Vance’s

claim against Ball State, just as the actions of her coworkers would. The only reason we have divided

our analysis between the conduct of supervisors and

employees is to ensure that we are respecting the

standards for vicarious liability that apply. See Williams,

361 F.3d at 1029.

Assuming without deciding that Vance’s allegations

against her coworkers satisfy the first three elements of

a Title VII hostile work environment claim, we conclude

nonetheless that Vance cannot prevail because there is

no basis for employer liability. See Tutman v. WBBM-TV,

Inc./CBS, Inc., 209 F.3d 1044, 1048-49 (7th Cir. 2000)

(“We do not decide whether a hostile work environment

existed because the question whether [the employer]

took prompt and effective action is dispositive here.”).

For Ball State to be liable, Vance must put forth sufficient facts to establish that it was negligent in failing

to “take reasonable steps to discover and remedy the

harassment.” Cerros II, 398 F.3d at 953. Once aware of

workplace harassment, “the employer can avoid liability

for its employees’ harassment if it takes prompt and appropriate corrective action reasonably likely to prevent

the harassment from recurring.” Wyninger v. New Venture

Gear, Inc., 361 F.3d 965, 978 (7th Cir. 2004) (internal citations omitted). While it is unfortunate that Ball State’s

remedial measures did not persuade Davis or McVicker

to treat Vance with respect, and we have nothing but

condemnation for the type of conduct Vance has alleged,
16 No. 08-3568

we find that Ball State satisfied its obligation under Title

VII by promptly investigating each of Vance’s complaints

and taking disciplinary action when appropriate. See

Porter v. Erie Foods Int’l Inc., 579 F.3d 629, 636 (7th Cir.

2009) (“Our focus, therefore, is on whether [the employer] responded promptly and effectively to the incident.”).

Between October 2005 and October 2007, Vance filed

numerous complaints about her troublesome encounters

with Davis and McVicker. Ball State took reasonable

corrective action as Vance lodged each complaint. In

response to Vance’s complaint that McVicker used the

racial epithet “nigger” and bragged about her family

connections with the Ku Klux Klan, Ball State

promptly investigated, involved the appropriate supervisory personnel, and issued a written reprimand to

McVicker. According to Ball State policy, McVicker

technically should have received a stage-one oral

warning because she had no prior complaints on her

record, yet the university concluded that a more

serious measure was in order. The written warning conveyed to McVicker that her racially offensive language

would not be tolerated, and two supervisors met

with McVicker separately to discuss the matter. Meanwhile, a supervisor remained in contact with Vance and

assured her that they were investigating her complaint.

Vance lodged two additional complaints against

McVicker during this period, one in November 5, 2005,

for referring to her as a “porch monkey” and one in

April 2007 for saying “payback.” In response to the 2005
No. 08-3568 17

complaint, Ball State again promptly investigated, but a

witness identified by Vance could not corroborate that

McVicker used the offensive term to refer to Vance.

Similarly, Ball State uncovered competing versions of

what took place in connection with Vance’s 2007 “payback” complaint. When Ball State questioned McVicker

about the incident, she counter-complained that Vance

said: “Just the beginning bitch—you better watch your

house.”

Again, we are taking the view of these facts that favors

Vance; we express no opinion about what “really” happened. From that perspective, we assume that McVicker

made the alleged statements. On the issue of employer

liability, however, we must look at the employer’s

response in light of the facts it found in its investigation.

See Porter, 579 F.3d at 636 (observing that, “taken as a

whole,” the employer “took appropriate steps to bring

the harassment to an end”). It may be commonplace that

an employee accused of verbally abusing or intimidating

a coworker denies the allegation. But Ball State did what

it could and did not stop by accepting a simple denial.

Moreover, the record does not reflect a situation in

which all ties went to the discriminator; if it did, we

would be inclined to send this case to a jury. Ball State,

however, calibrated its responses depending on the

situation. Sometimes when it was unsure who was at

fault it counseled both employees; sometimes it warned

alleged wrongdoers to take care or desist.

Vance complained to her supervisors several times

about Davis’s conduct. The two most serious allegations
18 No. 08-3568

relate to the elevator incident in 2005 and the “are you

scared” comment in 2007. We note that Vance conceded

at her deposition that she did not complain to Ball State

about Davis’s use of the terms “Sambo” and “Buckwheat.”

We take Vance at her word that, in context, the terms

“Sambo” and “Buckwheat” were used as explicit racial

slurs that would require remedial measures from an

employer under Title VII. See Daniels v. Essex Group, Inc.,

937 F.2d 1264, 1266 (7th Cir. 1991) (noting “Buckwheat” is

a racial taunt); Boyd v. State Farm Ins. Co., 158 F.3d 326 n.1

(5th Cir. 1998) (“[I]n the context of employment discrimination law, the term ‘Buckwheat’ is generally considered

to be a racial slur or epithet.”). Under Title VII, however,

an employer’s liability for coworker harassment is not

triggered unless the employee notifies the employer

about an instance of racial harassment.

Ball State first learned of the September 23, 2005, altercation from Davis, when she filed a complaint against

Vance for saying, “Move, bitch . . . you are an evil f------

bitch.” Later, Vance complained that Davis had said, “I’ll

do it again,” referring to, according to Vance, the time

in 2001 when Davis slapped her. Ball State investigated,

but both women stuck to their stories and denied saying

anything offensive to the other. Ball State’s response to

this altercation was reasonable. We have said that Title VII

is “ ‘not . . . a general civility code’ and we will not

find liability based on the ‘sporadic use of abusive language.’ ” Ford v. Minteq Shapes and Services, Inc., 587 F.3d

845, 848 (7th Cir. 2009) (quoting Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998)). Faced with competing

complaints, the first of which was lodged against Vance,
No. 08-3568 19

Ball State pursued a reasonable course of action by counseling both employees about civility in the workplace.

Finally, after Vance complained that Davis said “are

you scared” to her in a Southern accent, Ball State again

investigated. Although Davis denied making the statement, Ball State again formally warned Davis orally to

refrain from such actions. This response was reasonable

in light of the circumstances.

The catering department was undoubtedly an unpleasant

place for Vance between 2005 and 2007. Yet the record

reflects that Ball State promptly investigated each complaint that she filed, calibrating its response to the

results of the investigation and the severity of the

alleged conduct. As we have said before, prompt investigation is the “hallmark of reasonable corrective action.”

Cerros II, 398 F.3d at 954. This is not a case where the

employer began to ignore an employee’s complaints as

time went on. Ball State investigated Vance’s complaint

against Davis in 2007 with the same vigor as it did

her complaint in 2005. Of course, the ideal result of an

employee’s complaint would be that the harassment

ceases. But Title VII does not require an employer’s

response to “successfully prevent[] subsequent harassment,” though it should be reasonably calculated to do

so. Cerros II, 398 F.3d at 954 (quoting Savino v. C.P. Hall

Co., 199 F.3d 925, 933 (7th Cir. 1999)). In this case, we

conclude that the undisputed facts demonstrate that

there is no basis for employer liability.
20 No. 08-3568

C

Vance also alleges that Ball State retaliated against

her for complaining about the racial harassment by reassigning her to menial tasks, denying her overtime hours,

and unequally disciplining her. Employers may not

punish employees for complaining about workplace

conduct that even arguably violates Title VII. 42 U.S.C.

§ 2000e-3(a); Sitar v. Indiana Dep’t of Transp., 344

F.3d 720, 727 (7th Cir. 2003). To establish a prima facie

case of retaliation, a plaintiff may use either the direct or

indirect method of proof. Vance is proceeding only

under the indirect method, which requires her to show

that (1) she engaged in a statutorily protected activity;

(2) she performed her job according to the employer’s

expectations; (3) she suffered an adverse employment

action; and (4) she was treated less favorably than a

similarly situated employee. Stephens v. Erickson, 569 F.3d

777, 787 (7th Cir. 2009). Once the plaintiff establishes her

prima facie case, the burden shifts to the defendant to

establish a non-invidious reason for the action. The

burden then shifts back to the plaintiff to show that

the defendant’s reason was pretextual. Id. Ball State

concedes that Vance engaged in a protected activity and

does not claim Vance’s work performance was sub-par.

Our focus is thus on the final two elements of Vance’s

prima facie case.

It is possible for a plaintiff to establish a claim of retaliation based on a change of work responsibilities,

“depend[ing] on how much of a change, and how disadvantageous a change, took place.” Sitar, 344 F.3d at 727; see
No. 08-3568 21

also Herrnreiter v. Chi. Hous. Auth., 315 F.3d 742, 744-45 (7th

Cir. 2002) (listing cases). In order to succeed, “ ‘a plaintiff

must show that a reasonable employee would have

found the challenged action materially adverse.’ ” Lapka v.

Chertoff, 517 F.3d 974, 985 (7th Cir. 2008) (quoting

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006)). Generally, if the challenged action would discourage other employees from complaining about employer conduct that violates Title VII, it constitutes an

adverse employment action. See Burlington, 548 U.S. at

57, 68.

Vance’s strongest argument depicts an unusual instance of retaliation, in which Ball State simultaneously

promoted her and assigned her to diminished work

duties in 2007. The district court observed that whether

Vance suffered a materially adverse employment action

was a close call, but it concluded that a jury could

conclude that her reassignment was materially adverse.

Still, the district court concluded that Vance’s theory

fails because she did not establish that she was treated

less favorably than a similarly situated employee. We

agree with the district court, and conclude in addition

that Vance cannot show that she suffered a materially

adverse employment action.

Vance concedes that her promotion included a modest

pay raise and a significant increase in benefits. She

argues, however, that once promoted she was assigned

to more menial tasks. In particular, she asserts that Ball

State assigned her to cut vegetables and refill condiments,

while entrusting her coworker, Brad Hutson, with more
22 No. 08-3568

complicated tasks such as preparing complete meals.

We recognize that it is possible for an employer to

retaliate clandestinely against an employee while

formally promoting her, but the record cannot be

stretched to support such a theory here. Vance personally

sought out the new full-time position; it was her choice

to leave the part-time position where she baked often

and was generally content with her work assignments.

Her new job included some of the tasks about which she

is complaining, but it also included a range of other

tasks including preparing more complicated dishes.

While Vance may have been disappointed with her new

assignments, considering the entire context of her promotion we conclude that no rational jury could find that

she experienced a materially adverse employment action.

Put another way, we find that a reasonable person

would not be dissuaded from complaining about race

discrimination by witnessing the treatment Vance

received: a promotion to a full-time position with accompanying benefits, a raise in pay, and—taking all of

Vance’s allegations as true—a change in work assignments that included basic salad preparation. This case

does not present the problem we encountered in Washington v. Illinois Dep’t of Revenue, 420 F.3d 658 (7th Cir.

2005), where we reversed a grant of summary judgment

based on the notion that a change in work schedule

that did not affect salary or duties could not constitute

an adverse employment action. In Washington, we

observed that while a reassignment that does not

affect pay or opportunities for promotion will “by and

large” not be actionable for a retaliation claim under Title
No. 08-3568 23

VII, “ ‘by and large’ differs from ‘never.’ ” Id. at 662. When,

as in that case, the employer exploits a known vulnerability

of an employee—the plaintiff there relied on her

previously established flex-time schedule so she could

care for her son, who had Down syndrome—an altered

work schedule can constitute an adverse work action.

Id. Even though a change in assignments, like an altered

work schedule, conceivably might amount to an adverse

employment action, Vance must allege more than a

dislike for her new assignments or a preference for her

old ones for her case to go forward.

Approaching the issue as the district court did, by

asking whether there was a similarly situated employee,

leads to the same result. Only two employees held the

position of a full-time catering assistant at the time of

this dispute, Vance and Hutson. Both employees were

promoted to that position on the same day, and for

the most part both were assigned to the same range of

duties. We accept Vance’s allegation that their work

assignments were not identical, but the record reflects

that they were assigned to a substantially similar set

of tasks. Thus, even if Vance had established that Ball

State subjected her to a materially adverse action, her

claim would fail because she has not satisfied the final

element of the prima facie analysis.

Vance also alleges that Ball State retaliated by offering

her fewer opportunities to work overtime hours. We

said in Lewis v. City of Chicago, 496 F.3d 645, 654 (7th Cir.

2007), that the loss of opportunity to work overtime

can amount to an adverse employment action. The
24 No. 08-3568

parties agree that Vance worked fewer overtime hours

than Brad Hutson in 2007. Ball State defends by arguing

that Hutson is not similarly situated to Vance because

he worked significantly more regular hours than her,

which, as a consequence, made him available to work

more overtime hours. This is in part because Ball State

has a “work continuation” policy, which mandates that

the employee who began a task that is unfinished at

the end of a shift must stay and get the task completed.

The record indicates that Vance often took FMLA

leave, called in sick unexpectedly, and left work early

for health reasons. Vance does not dispute that she

worked fewer regular hours than Hutson. Instead, she

argues that, because she was the more senior employee,

she should have been offered more opportunities to

work overtime. She adds, without citation or support,

that the work continuation policy Ball State relies on is

“void.” Neither of these arguments is availing. Even if

Vance had seniority over Hutson, the undisputed facts

establish that they did not work a comparable number

of regular hours. Thus, the two are not similarly situated

for the purpose of this analysis. Vance’s assertion that

the work continuation policy is void, without citing

evidence in the record, is unhelpful. We have repeatedly

said that a “nonmoving party cannot defeat a motion

for summary judgment with bare allegations.” de la Rama

v. Illinois Dep’t of Human Services, 541 F.3d 681, 685 (7th

Cir. 2008). 

Finally, Vance argues that Ball State retaliated against

her by issuing her a verbal warning for allegedly splat-
No. 08-3568 25

tering gravy on Davis and slamming pots and pans on

the counter. Although we give the concept of an adverse employment action a generous construction, it is

not this broad. Vance appears to concede as much, altering her argument slightly on appeal to claim that Ball

State’s warning to Vance amounts to taking the side of

those who harassed her, which she sees as retaliation

through the creation of a more hostile work environment. No reasonable jury could find that the delivery of

a verbal warning, based on a complaint from a coworker,

constitutes an adverse employment action or creates

an objectively hostile work environment.

The judgment of the district court is AFFIRMED.

6-3-11