Whipple v. Taylor Univ., Inc.

162 F.Supp.3d 815

Shederick Whipple, D.M.A., Plaintiff,

v.Taylor University, Inc., Defendant.

Cause No.: 3:13-CV-1177

United States District Court, N.D. Indiana, South Bend Division.

Signed February 10, 2016

Christopher C. Myers, Ilene M. Smith, Rachel J. Guin-Lowry, Christopher C. Myers & Associates, Fort Wayne, IN, for Plaintiff.

Michael A. Blickman, Paul C. Sweeney, Courtney R. King, Ice Miller LLP, Indianapolis, IN, for Defendant.

OPINION AND ORDER

William C. Lee, Judge, United States District Court

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 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 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.”² Defendant's 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(c) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505. However, neither the “mere existence of some alleged factual dispute between the parties,” id. , 477 U.S. at 247, 106 S.Ct. 2505, nor the existence of “some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2548 ; 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, 106 S.Ct. 2505. 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) ).

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. 2³ )), which Whipple argues contains irrelevant hearsay 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 double...