Warren Johnson v. Advocate Health and Hospitals

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 16-3848

WARREN JOHNSON, et al.,

Plaintiffs-Appellants,

v.

ADVOCATE HEALTH AND HOSPITALS CORPORATION, doing

business as ADVOCATE CHRIST MEDICAL CENTER,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:14-cv-08141 — Manish S. Shah, Judge.

____________________

ARGUED SEPTEMBER 15, 2017 — DECIDED JUNE 8, 2018

____________________

Before MANION, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge. Employees of Advocate Health

and Hospitals Corporation (Advocate) claim that they were

treated unfairly based on their race. The district court grant-

ed Advocate’s motion for summary judgment, finding that

the plaintiffs failed to offer evidence necessary to support an

element of their claim. We agree with the district court on all

2 No. 16-3848

issues but the question of the hostile work environment, and

remand to the district court for a determination of that claim.

I.

Plaintiffs Warren Johnson, Robert Pannell, Kimberly

Scott-Murray, Annette Smith, and Sherry Young all claim

that they faced race discrimination at the hands of supervi-

sors when they worked as Environmental Service Techni-

cians (EVS techs) at Advocate. EVS techs perform work that

would traditionally be called janitorial work. They clean and

disinfect hospital rooms and common areas, make beds, and

the like. The EVS techs claim that they were treated unfairly

because of their race in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et. seq. and 42 U.S.C.

§ 1981. 1

In 2012, Advocate contracted with Aramark Healthcare

Support Services and reorganized the supervision and oper-

ation of the EVS department. Under the Service Agreement

between Advocate and Aramark, Aramark was responsible

for managing the EVS department while abiding by the poli-

cies of Advocate, including, among other policies, Advo-

cate’s non-discrimination policy. See, e.g., R. 62-6 at 6, 16,

Page ID 1941, 1951. Shortly thereafter, the plaintiffs claim

that Aramark-employed supervisors Susan Castillo, Chris-

topher Skalnik, and Mariusz Michalkowski engaged in dis-

criminatory acts against the plaintiffs. The claims of discrim-

ination include: (1) Johnson and Smith were paid less than

1 We generally have applied the same prima facie requirements to

discrimination claims brought under Title VII and section 1981. Hum-

phries v. CBOCS W., Inc., 474 F.3d 387, 403 (7th Cir. 2007), aff'd, 553 U.S.

442 (2008)

No. 16-3848 3

white EVS techs; (2) Pannell and Scott-Murray were denied

promotions and raises; (3) Plaintiffs were managed and dis-

ciplined more scrupulously than their non-African-

American co-workers, and terminated in a discriminatory

fashion; (4) African-American plaintiffs were given less de-

sirable and more strenuous assignments; (5) Aramark su-

pervisors subjected the plaintiffs to offensive and derogatory

racial comments, creating a hostile work environment.

The district court granted Advocate’s motion for sum-

mary judgment on all counts, concluding that the plaintiffs

did not experience severe or pervasive race-based harass-

ment, that there was no basis for employer liability, and that

the plaintiffs failed to demonstrate that racial animus moti-

vated the decisions to terminate Johnson, Scott-Murray and

Smith. Johnson v. Advocate Health & Hosps. Corp., No. 14 CV

8141, 2016 WL 5871489 (N.D. Ill. Oct. 7, 2016). As for the hos-

tile work environment claim, the lower court held that the

comments, although concerning, were too isolated, indirect,

and sporadic, and not so serious as to have affected the

plaintiffs’ working conditions. Id. at *8. The district court al-

so concluded that there was no basis for employer liability.

Id.

II.

The plaintiffs’ brief is awash in facts and controversies.

They claim that these numerous disputes and presentations

of conflicting evidence create genuine issues of material fact.

It is true that cases with jumbles of ostensibly disputed facts

often signal the need for a trial on the facts. See Payne v.

Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Not all disputed

facts, however, are relevant and material. On summary

judgment we must view the facts and make all reasonable

4 No. 16-3848

inferences that favor them in the light most favorable to the

party opposing summary judgment. Parker v. Four Seasons

Hotels, Ltd., 845 F.3d 807, 814 (7th Cir. 2017). The following

common refrains in summary judgment cases are important

to recall in a case with so many factual recitations:

On summary judgment a court may not make

credibility determinations, weigh the evidence,

or decide which inferences to draw from the

facts; these are jobs for a factfinder. Rather, the

court has one task and one task only: to decide,

based on the evidence of record, whether there

is any material dispute of fact that requires a

trial. Summary judgment is not appropriate if

the evidence is such that a reasonable jury

could return a verdict for the nonmoving par-

ty. We must look therefore at the evidence as a

jury might, construing the record in the light

most favorable to the nonmovant and avoiding

the temptation to decide which party’s version

of the facts is more likely true. As we have said

many times, summary judgment cannot be

used to resolve swearing contests between liti-

gants.

Payne, 337 F.3d at 770 (internal citations and quotations

omitted). To defeat a motion for summary judgment, the

party opposing it must make a “showing sufficient to estab-

lish the existence of an element essential to the party’s case,

and on which that party will bear the burden of proof at tri-

al.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary

judgment is a critical moment for a non-moving party. It

must “respond to the moving party’s properly-supported

No. 16-3848 5

motion by identifying specific, admissible evidence showing

that there is a genuine dispute of material fact for trial. Grant

v. Trs. of Ind. Univ., 870 F.3d 562, 568 (7th Cir. 2017). Infer-

ences supported only by speculation or conjecture will not

suffice. Skiba v. Ill. Cent. R.R. Co., No. 17-2002, 2018 WL

1190856, at *7 (7th Cir. Mar. 8, 2018). Neither will the mere

scintilla of evidence. Grant, 870 F.3d at 571.

Although these common refrains are familiar, the task is

often easier to describe than to perform, and plenty of credi-

bility-weighing traps lay before a court, particularly in such

fact-intensive cases. See, e.g. Payne, 337 F.3d at 771. As our

review is de novo, we affirm the district court only when no

reasonable jury could have found for the plaintiffs. See, e.g.,

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Roh v.

Starbucks Corp., 881 F.3d 969, 973 (7th Cir. 2018).

On top of the normal lattice of summary judgment de-

mands, we must also apply the constructs of employment

discrimination law. For years we have tangled with a “rat’s

nest of surplus tests” in employment discrimination cases—

struggling to pigeon hole evidence into the direct or indirect

method with various overlaying requirements of “convinc-

ing mosaics” and circumstantial or direct evidence. Ortiz v.

Werner Enters., Inc., 834 F.3d 760, 764–66 (7th Cir. 2016). Our

Circuit has now clarified the singular question that matters

in a discrimination case: “[W]hether the evidence would

permit a reasonable factfinder to conclude that the plaintiff’s

race, ethnicity, sex, religion, or other proscribed factor

caused the discharge or other adverse employment action.”

Ortiz, 834 F.3d at 765. “Evidence must be considered as a

whole, rather than asking whether any particular piece of

6 No. 16-3848

evidence proves the case by itself … . Relevant evidence

must be considered and irrelevant evidence disregarded.” Id.

Plaintiffs allege that the district court’s analysis failed to

comport with this new standard in Ortiz, but we disagree.

The district court did exactly as Ortiz demands and ignored

the old “convincing mosaic” language and cut straight to the

“bottom line and determine[d] whether there [was] evidence

from which a reasonable trier of fact could infer discrimina-

tion from Advocate’s actions as to each particular plaintiff.”

Johnson, 2016 WL 5871489, at *5 (N.D. Ill. Oct. 7, 2016), (cit-

ing Liu v. Cook Cty., 817 F.3d 307, 315 (7th Cir. 2016)).

Despite doing away with the need for separate tests and

“mosaics,” the well-known and oft-used McDonnell Douglas

framework for evaluating discrimination remains an effi-

cient way to organize, present, and assess evidence in dis-

crimination cases. David v. Bd. of Trs. of Cmty. Coll. Dist. No.

508, 846 F.3d 216, 224 (7th Cir. 2017) (noting that “Ortiz,

however, did not alter [t]he burden-shifting framework cre-

ated by McDonnell Douglas Corp v. Green, 411 U.S. 792

(1973)”). There is no magic to this test; it is merely one way

of culling the relevant evidence needed to demonstrate

whether a reasonable factfinder could conclude that an em-

ployer engaged in an adverse employment action based on

the plaintiff’s race or other proscribed factor. But because the

framework is helpful we use it to evaluate each of the plain-

tiffs’ claims by looking to see whether the plaintiffs (1) are

members of a protected class; (2) performed reasonably on

the job in accord with their employer[’s] legitimate expecta-

tions; (3) were subjected to an adverse employment action

despite their reasonable performance; and (4) similarly situ-

ated employees outside of the protected class were treated

No. 16-3848 7

more favorably by the employer. David, 846 F.3d at 225. All

of the plaintiffs are African-American and thus fall within a

protected class. Using this framework as an organizational

guide, we address each of the plaintiffs’ claims individually,

beginning with the plaintiffs’ claims that they received lower

pay than non-African-American EVS workers.

A. Pay disparity

Plaintiffs Johnson and Smith claim that they were paid

less than white associates because of their race. Plaintiff

Pannell also asserts that he did not receive “charge pay”—

extra pay for performing work outside of his job description.

To make these claims successfully, the plaintiffs needed to

produce evidence that similarly situated non-African-

American employees were treated more favorably. Reed v.

Freedom Mortg., 869 F.3d 543, 549 (7th Cir. 2017). Similarly

situated means “directly comparable” in all material re-

spects. Id. “The proposed comparator need not be identical

in every conceivable way, however, and courts must con-

duct a common-sense examination.” Id. (quoting Perez v.

Thorntons, Inc., 731 F.3d 699, 704 (7th Cir. 2013)). “The simi-

larly-situated inquiry is flexible, common-sense, and factual.

It asks ‘essentially, are there enough common features be-

tween the individuals to allow a meaningful comparison?’”

Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir. 2012). In the

Coleman opinion, the court warned against using a mechani-

cal “magic formula” for the similarly-situated inquiry but

yet set forth some examples of evidence that would be re-

quired in the usual case. These included whether the em-

ployees being compared (1) were supervised by the same

person, (2) were subject to the same standards, and (3) “en-

gaged in similar conduct without such differentiating or mit-

8 No. 16-3848

igating circumstances as would distinguish their conduct or

the employer’s treatment of them.” Id. (citing Gates v. Cater-

pillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008)).

Once again, this is not a hard and fast test, and there is no

magic to these considerations. In the employment discrimi-

nation context, the requirement to find a similarly situated

comparator is really just the same requirement that any case

demands—the requirement to submit relevant evidence.

Relevant evidence means evidence having “any tendency to

make a fact more or less probable than it would be without

the evidence.” Fed. R. Evid. 401. Evidence of what has hap-

pened to other employees is only relevant if that employee is

in the same boat as the plaintiff. For example, one would ex-

pect an employee with ten years’ experience to be paid more

than an employee with ten months’ experience. Whether a

comparator is similarly situated is typically a question for

the fact finder, unless, of course, the plaintiff has no evi-

dence from which a reasonable fact finder could conclude

that the plaintiff met his burden on this issue. Coleman, 667

F.3d at 846–47; Reed, 869 F.3d at 549.

The plaintiffs argue that Johnson identified two white

EVS technicians named “Kelly” and “Diane” (last names

unknown) who disclosed their salary information to plaintiff

Johnson and, according to Johnson, told him that they were

paid at a higher rate than he was. The plaintiffs argue that

Advocate did not “adequately justify or reconcile this pay

discrepancy” and that even if it did, Advocate mistakenly

thought that Johnson was referring to Diana Esparaza when

actually Johnson was referring to a different person named

“Diane.” (Appellants’ Brief at 10). The defendants, however,

did not have an obligation “to justify or reconcile this pay

No. 16-3848 9

discrepancy.” It is the plaintiffs’ responsibility, on summary

judgment, to make a “showing sufficient to establish the ex-

istence of an element essential to the party’s case, and on

which that party will bear the burden of proof at trial.” Ce-

lotex, 477 U.S. at 322. It is the plaintiffs’ responsibility to go

beyond the pleadings and designate specific facts showing

that there is a genuine issue for trial. Id. at 324. There is no

requirement that the moving party support its motion with

any evidence negating the opponent’s claim. Id. at 323.

Other than Johnson’s statement that “Kelly” and “Diane”

told him they had higher salaries, and that Diane told John-

son that she had no prior experience in a hospital, the plain-

tiffs make no showing to establish an essential element on

which they would bear the burden at trial—that is, whether

Kelly and Diane were similarly situated to the plaintiffs.

They submitted no pay records, nothing about their qualifi-

cations or experience (other than that Diane was an aqua

teacher at a park and had not worked at a hospital before),

who supervised Kelly and Diane, how long they had worked

for the hospital, what types of reviews they received, and if

they had been subject to any discipline. In fact, the plaintiffs

never revealed the last names of “Kelly” and “Diane” such

that the defendant could, on its own, look for the answers to

any of these questions. Even if Kelly and Diane did, in fact,

receive more money than Johnson, without knowing wheth-

er they were similarly situated, a court has no way of dis-

cerning whether this information is relevant to a claim of

race discrimination.

Advocate also argues that Johnson’s report of what

“Kelly” and “Diane” told him is hearsay. Johnson retorts

that this is a statement by the defendant’s employee on a

10 No. 16-3848

matter within the scope of that employee’s relationship with

Advocate and thus not hearsay pursuant to the exclusions

enumerated in Federal Rule of Evidence 801(d)(2)(D). It is

unlikely, however, that this statement falls within the exclu-

sion of Rule 801(d)(2)(D). In order to be excluded, the de-

clarant must be involved in the “decisionmaking process af-

fecting the employment action.” Simple v. Walgreen Co., 511

F.3d 668, 672 (7th Cir. 2007). These declarants were not.

But we need not belabor this hearsay point too much. As

we have just reasoned, even if the statement does not consti-

tute hearsay, it does not provide any relevant information

that would help defeat summary judgment. For purposes of

Title VII, plaintiffs need to produce evidence that similarly

situated non-African-American employees were treated

more favorably. Montgomery v. Am. Airlines, Inc., 626 F.3d

382, 394 (7th Cir. 2010). And the plaintiffs have not done so.

Smith makes the same claim—that two white associates,

who did not have previous housekeeping experience, in-

formed her that their hourly rates were higher than hers.

R. 46-3 at 63, Page ID 676. Smith’s claims fail for the same

reasons that Johnson’s do—lack of evidence that the other

employees were similarly situated.

Likewise, Pannell claims that he was often directed to

perform work outside of his job description thus warranting

extra “charge pay,” but yet never received such pay. He

claims that there was no evidence that white employees in

his job category were asked to perform these tasks, nor was

there evidence that they were deprived of the charge pay.

Once again, however, the burden was on Parnell to produce

evidence of a disparity and he failed to do so in any manner.

He did not submit affidavits from white EVS technicians

No. 16-3848 11

who were paid for their work, records of assignments, pay,

or any other scintilla of evidence of how similarly situated

white employees were treated. In sum, the plaintiffs failed at

their burden of putting forth relevant evidence on these

facts, and thus cannot survive a motion for summary judg-

ment on the claim that African-American plaintiffs were

paid less than non-African-Americans, either in salary or

charge pay.

B. Failure to promote

The plaintiffs also contend that there are disputed ques-

tions of material fact regarding whether the African-

American EVS tech plaintiffs were passed over for promo-

tions in favor of white EVS workers with less experience and

seniority. Here again, plaintiffs have failed to make a show-

ing sufficient to establish the existence of the same element

discussed above which is essential to their case and on

which they will bear the burden of proof at trial—that is,

that there are similarly situated non-African-American

workers who were treated more favorably. See Celotex, 477

U.S. at 322.

The plaintiffs allege that Johnson, Pannell, Smith and

Scott-Murray applied for promotions that were instead giv-

en to white EVS techs with less experience. We can quickly

dispense with Scott-Murray’s claim as he does not dispute

that he did not apply for any promotions. R. 64 at ¶54, Page

ID 2040. Advocate offered Pannell a Tech 2 position but he

declined it because it was not on his preferred shift. R. 64 at

¶36, Page ID 2029–30; R. 62-10 at ¶13, Page ID 1986. Thus,

according to the undisputed facts, neither Pannell nor Scott-

Murray were denied a Tech 2 position. No reasonable juror

could infer that Pannell and Scott-Murray were passed up

12 No. 16-3848

for promotions because of their race. They were not passed

up at all.

Johnson and Smith, on the other hand, did apply unsuc-

cessfully for other positions. They both claim that Advo-

cate’s hiring personnel passed over their applications and

hired non-African-American people with less seniority or

experience in their stead. Smith’s evidence consisted of her

deposition testimony that she applied for positions, did not

get the jobs, and that white applicants did. Save for one ex-

ception, she did not know the names of any of the appli-

cants, nor anything about their experience, qualifications,

resumes, or interviews. R. 46-3 at 9, 11–12, 65–67, Page ID

622, 624–25, 678–80. Smith did know that a white woman

named Mary Harris, received a dispatcher position for

which she applied. R. 46-3 at 9, Page ID 622. Other than

knowing that Harris had worked in an office before, howev-

er, Smith did not know anything else about Harris’ resume,

background, qualifications or why she was selected for the

position. Id. Just as before, it was the plaintiffs’ burden to set

forth factual information to demonstrate that these other ap-

plicants were similarly situated, and they failed to do so.

Johnson’s claim contains the same defect. Although he

does identify four white employees who received positions

for which he unsuccessfully applied—Gina Lika, John

Mueller, Lance White, and Fred (Last Name Unknown)—he

offers no evidence of their background, qualifications, re-

sume, or any other information that would satisfy the plain-

tiff’s burden to demonstrate that the comparators were simi-

larly-situated applicants. Although the brief points to Plain-

tiff’s Response to Defendant’s Statement of Material Facts as

to Which There is No Genuine Issue (Appellant’s Brief at 12–

No. 16-3848 13

13), and that document, in turn, points to depositions and

declaration pages, we could not find, despite our digging,

any relevant material evidence that the employees who re-

ceived the promotions for which Johnson and Smith applied

were similarly situated to the latter. It was, of course, the

plaintiffs’ responsibility to point us to any evidence that

would have supported this essential element of their claim.

It has become axiomatic in this Circuit to remind parties in

colorful terms that “[j]udges are not like pigs, hunting

for truffles buried in” the record. Albrechtsen v. Bd. of Regents

of Univ. of Wisc. Sys., 309 F.3d 433, 436 (7th Cir. 2002) (citing

United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).

The most we could find through our charitable truffle

hunting was a sprinkling of speculative statements that the

white employees who received the positions seemed like

they may have been less qualified than African-American

candidates. For example, Pannell stated in his deposition

that a white candidate who was hired must have had less

experience than Scott-Murray because “[h]e [the white can-

didate] was hired, and he had to be trained, so I mean if

[Scott-Murray’s] already been trained, he has got less experi-

ence.” R. 46-1 at 9, Page ID 460. And in regard to a different

position, Pannell stated that he spoke with the hired candi-

date and, “[h]er background, as far as being a tech two, I

talked with her and she said she had never done that type of

[tech two] work before.” R. 46-1 at 10, Page ID 461.

Finally, Johnson stated in his deposition that two white

women, whose names he did not know, received jobs in po-

sitions for which he had applied. According to Johnson, one

had the state approved certification for the job (which John-

son did not have), but Johnson did not know anything about

14 No. 16-3848

her other qualifications. The other was, at that time, going

through the state certification program and had no other

work experience other than “she said she worked on and off

at Popeyes.” R. 46 at 62–63, Page ID 422–23. The brief makes

no claim that any of these employees who were hired were

similarly situated to Johnson or Smith and the citations in

the brief do not point to any relevant support that they were.

The plaintiff has failed to make a showing sufficient to estab-

lish the existence of the element that is essential to their

claim—that similarly situated non-African-American em-

ployees were treated more favorably by the employer vis-à-

vis promotions. Celotex, 477 U.S. at 322; David v. Bd. of Trs. of

Cmty. Coll. Dist. No. 508, 846 F.3d 216, 225 (7th Cir. 2017).

C. Disparate terminations

The lack of a relevant comparator similarly dooms sever-

al other of the plaintiffs’ claims. Smith, Johnson, and Scott-

Murray each claim that they were terminated because of

their race. But once again, none of the plaintiffs sets forth

any admissible evidence that similarly situated white em-

ployees were treated more favorably. For example, Smith

alleges she was terminated for refusing to work in her as-

signed area, while another white employee, Jolanta, who al-

so refused to work in her assigned area, was not terminated,

reprimanded, or sent home. The brief is silent as to any evi-

dence that Jolanta was similarly situated. The plaintiffs offer

no evidence about who Jolanta was, what her position was,

who supervised her, why she refused to work in her as-

signed area, and whether she had a similar disciplinary rec-

ord and similar performance reviews. Arguments that con-

sist of conclusory allegations that are not properly devel-

oped are waived. Anderson v. Catholic Bishop of Chicago, 759

No. 16-3848 15

F.3d 645, 649 (7th Cir. 2014). But even if we dig through the

statement of facts (which, again, we should not need to do),

the only evidence that the plaintiff and Jolanta were similar-

ly situated is that they shared the same supervisor R. 64 at

¶ 78, Page ID 2052–53. We have no idea whether Jolanta was

otherwise similarly situated, or whether there were any un-

usual circumstances, mitigating factors, difference in seniori-

ty, that would have made the comparison inapt.

The same deficiencies plague Scott-Murray’s claims of a

racially-based termination. Her non-specific claim that she

was disciplined for false reasons is unsupported by any de-

tails or any comparison to similarly situated non-African-

American employees. She does raise one example of a non-

African-American employee being treated differently for the

same conduct. Advocate ultimately terminated Scott-Murray

for taking an unauthorized break. Scott-Murray alleges that

she was actually performing her job by cleaning the confer-

ence room at the time of the alleged infraction. She also as-

serts that Diana Esparaza, who is not African American, was

shown more favor by the supervisors and was not terminat-

ed even when she sat in the lobby using her phone and

watching television. The brief provides no information as to

whether Scott-Murray and Esparaza had the same supervi-

sor, or whether they were subject to the same standards.

Johnson also disputes the motivations behind his termi-

nation claiming that management unfairly criticized him,

held him to unfair standards, nitpicked and micromanaged.

This evidence cannot support a claim for race discrimination

unless he can set forth some evidence that similarly situated

non-African-American employees were not treated in the

same manner. A supervisor who nitpicks, micromanages,

16 No. 16-3848

and holds employees to unreasonable standards is simply a

bad boss. It is only if she applies this poor management une-

qually based on race that a plaintiff has a claim for race dis-

crimination.

As evidence of this claim, Johnson makes only the same

type of similarly broad and conclusory allegation that

“white EVS were not subject to such excessive scrutiny, mi-

cromanagement and monitoring.” (Appellant’s Brief at 15).

But even if such an undeveloped, generalized argument that

supervisors treated white employees better than black em-

ployees is not waived (and we believe it is, see Anderson, 759

F.3d at 649), it certainly is not sufficiently supported by evi-

dence so as to survive a motion for summary judgment.

Johnson’s only evidence on this matter was his testimony

that “they walk up behind me, the fact that they nitpick.

They won’t follow white people or Polish people. They will

just follow black people. It’s a fixation upon black people.”

R. 46 at 51, Page ID 411. Johnson can certainly set forth evi-

dence of discrimination in his own declaration or deposition,

but speculation as to an employer’s state of mind is not suf-

ficient to create an issue of material fact. Payne, 337 F. 3d at

772. Nor is a vague claim based on the employee’s subjective

belief that supervisors “nit-picked black” but not white em-

ployees. See Id.

Johnson tries to create a material dispute of fact by point-

ing to inconsistencies in the defendant’s claims about how

many beds each employee was expected to clean on each

shift and whether he was adequately meeting the cleaning

standards and expectations of the employer. There may be

disputed facts about how many beds employees were ex-

pected to clean, but unless there was some evidence that Af-

No. 16-3848 17

rican-American employees were held to a different standard

than white employees, the dispute is not material to the

question of race discrimination.

D. Discriminatory assignments

The related claims—that supervisors assigned African-

American EVS technicians to more strenuous and less desir-

able assignments—also lack evidentiary support. The plain-

tiffs testified that some assignments required more effort

than others. Even accepting the bare allegations that some

floors were less desirable and that more African-American

employees were assigned to these floors (both allegations

without factual support), the plaintiffs have not set forth suf-

ficient evidence to demonstrate that the non-African-

American employees who cleaned the allegedly easier floors

were similarly situated. We do not know, for example,

whether those non-African-American employees had more

seniority or different qualifications or were assigned to those

floors by request or for other reasons. Moreover, the evi-

dence that higher floors were more strenuous came either

from the plaintiffs subjective opinion or speculation as to co-

workers states of mind. See, e.g. R. 46-1 at 8, Page ID 459 (“Q:

Is it possible that some people would find that [a lower

floor] to be more difficult? A: I’ve worked there. I wouldn’t

say so, no.”) In short, this claim fails for the same reason as

the others—the plaintiffs have failed make a showing suffi-

cient to establish the existence of an element essential to their

case. Celotex, 477 U.S. at 322.

E. Hostile work environment/racially derogatory speech

Although we find that the plaintiffs have failed to make a

showing sufficient to defeat summary judgment on their

18 No. 16-3848

claims of race discrimination in pay discrepancy, failure to

promote, termination, and discriminatory work assignments

claims, the claims regarding racially derogatory speech and

a hostile work environment fall on the other side of the line

and survive a motion for summary judgment.

To state a claim for discrimination based on a hostile

work environment, the plaintiffs must show that (1) they

were subject to unwelcome harassment; (2) the harassment

was based on their race; (3) the harassment was so severe or

pervasive as to alter the conditions of employment and cre-

ate a hostile or abusive working environment; and (4) there

is a basis for employer liability. Alamo v. Bliss, 864 F.3d 541,

549 (7th Cir. 2017). The conduct alleged must be “sufficiently

severe or pervasive to alter the conditions of employment.”

Scruggs v. Garst Seed Co., 587 F.3d 832, 840 (7th Cir. 2009).

Whether conduct meets this bar depends on “the severity of

the allegedly discriminatory conduct, its frequency, whether

it is physically threatening or humiliating or merely offen-

sive, and whether it unreasonably interferes with an em-

ployee’s work performance.” Id.; see also Milligan-Grimstad

v. Stanley, 877 F.3d 705, 714 (7th Cir. 2017). Sometimes our

cases phrase the test differently, looking instead for evidence

that the workplace was both subjectively and objectively of-

fensive—either in lieu of the first prong—that the employee

was subject to unwelcome harassment—or the third prong

—whether the harassment was severe or pervasive enough

to rise to the level of a hostile work environment. See Cole v.

Bd. of Trs. of N. Ill. Univ., 838 F.3d 888, 896 n.6 (7th Cir.

2016), cert. denied, 137 S. Ct. 1614 (2017). In the end, we have

concluded that the inquiry is the same. Id.

No. 16-3848 19

We expect a certain level of maturity and thick skin from

employees. “Offhand comments, isolated incidents, and

simple teasing do not rise to the level of conduct that alters

the terms and conditions of employment.” Passananti v. Cook

Cty., 689 F.3d 655, 667 (7th Cir. 2012). “Discrimination laws

do not mandate admirable behavior from employers,

through their supervisors or other employees. Instead, the

law forbids an employer from creating an actionably hostile

work environment for members of protected classes.” Russell

v. Bd. of Trs. of Univ. of Ill. at Chicago, 243 F.3d 336, 343 (7th

Cir. 2001). As the dissent rightfully points out, the environ-

ment need not reach the point of “hellishness,” as some cas-

es once argued. The Supreme Court standard dictates that

the discrimination must be only so severe or pervasive so as

to affect the terms and conditions of employment. Harris v.

Forklift Systems, Inc., 510 U.S. 17, 21–22 (1993). This is a far

cry from hellish.

The district court determined, as a matter of law, that the

conduct complained of was not sufficiently severe or perva-

sive. We disagree. Whether harassment was so severe or

pervasive as to constitute a hostile work environment is gen-

erally a question of fact for the jury. Passananti, 689 F.3d at

669. See also, Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 310

(6th Cir. 2016); Mosby–Grant v. City of Hagerstown, 630 F.3d

326, 335 (4th Cir. 2010); E.E.O.C. v. PVNF, L.L.C., 487 F.3d

790, 798 (10th Cir. 2007). In order to remove such a question

of fact from the jury on summary judgment, the court would

have to determine that no reasonable jury could find the

conduct at issue severe or pervasive. In this case, it is certain-

ly possible that a reasonable jury could find that the conduct

was pervasive or severe based on the claims of racially de-

rogatory speech used by Aramark supervisors. Once again,

20 No. 16-3848

we remind ourselves that as we review the facts on sum-

mary judgment we do so in the light most favorable to the

plaintiffs and refrain from resolving swearing contests. We

have divided those facts—the incidents of racially derogato-

ry speech—into three categories: comments made directly to

plaintiffs; comments made directly to non-plaintiff co-

workers and comments made to non-plaintiffs about which

others were aware.

1. Racially charged language

a. Comments made directly to plaintiffs

The defendants argue that the plaintiffs have little admis-

sible evidence to support assertions that supervisors used

racially derogatory language (Appellees’ Brief at 22). This is

not so. The plaintiffs cited to deposition testimony and

sworn declarations in which the plaintiffs testified that they

heard racially derogatory language. Nothing more is re-

quired on summary judgment. “Provided that the evidence

meets the usual requirements for evidence presented on

summary judgment—including the requirements that it be

based on personal knowledge and that it set forth specific

facts showing that there is a genuine issue for trial—self-

serving” testimony is an acceptable method for a non-

moving party to present evidence of disputed material facts.

Payne, 337 F.3d at 773.

Supervisor Castillo told plaintiff Johnson that he

“cleaned like a monkey.” R. 64 at ¶ 25, Page ID 2002; R. 46 at

68, 87, Page ID 428, 447. Supervisor Michalkowski would use

the N-word around African-American employees and would

“mock Johnson as if to say African Americans only speak

slang,” and answer “yo” when Johnson would say “hello.”

No. 16-3848 21

R. 64 at ¶ 26, Page ID 2023; R. 46 at 54, Page ID 414. He

would try to rap, or say “I’m from the hood,” or speak using

stereotypical African-American slang when African-

American EVS techs were around. R. 46-1 at 56–57, 83, Page

ID 507–08, 534; Supervisor Skalnik told plaintiff Scott-

Murray not to give him the “black girl ghetto attitude.” R. 64

at ¶ 45, Page ID 2035; R. 46-2 at 16, Page ID 553. Pannell once

heard Supervisor Hudson call plaintiff Young “a black B. Bi-

polar. Crazy.” R. 64 at ¶ 42, Page ID 2033–34; R. 46-1 at 54,

Page ID 505. Supervisor Hudson called Young “black wig-

wearing witch[ ].” R. 46-4 at 5, Page ID 690. Hudson also

called Young “bipolar” and “crazy.” R. 64, ¶ 42, Page ID

2033–34. Plaintiff Young testified that she often heard

Michalkowski mocking African Americans and on several

occasions (“about three,” she testified), she heard him use

the N-word:

Mike always had the black jokes, you know.

The—he always the black, the slums, the slang

talk. And make fun about how, you know, we

talk, Black people talk. And I found it to be

very offensive … you know, yo this and we be

saying and, you know how black people—

black slang talk. Oh man, we be doing this, but

he talk, try to talk the exact same way the black

guys be talking, yo ni**er this, yo ni**er that

because that’s the words they used to each oth-

er … He did it quite a bit. Had his black slang

talk, you know, yo ni**er this, yo ni**er.

R. 46-4 at 70, Page ID 755 (edits ours).

22 No. 16-3848

b. Direct comments made to non-plaintiffs

Comments made to non-plaintiff co-workers carry less

weight in the evaluation of a hostile environment claim, but

they are not irrelevant. Russell, 243 F.3d at 343 (noting that

“[w]hen harassing statements are directed at someone other

than the plaintiff, the impact of such second hand harass-

ment is obviously not as great as the impact of harassment

directed at the plaintiff.”) After all, the plaintiffs’ burden in a

hostile work environment claim is to demonstrate that ra-

cially charged comments were severe or pervasive. Evidence

that the same supervisors made racially derogatory com-

ments to other employees in the same positions is certainly

relevant evidence tending to make it more likely that the

discrimination was pervasive. Eventually a jury will be able

to weigh such evidence and, with instruction, give it the ap-

propriate amount of weight.

EVS tech Fernando Carpintero gave testimony through a

declaration that Susan Castillo told him directly, while in-

quiring if he knew anyone who would be interested in work-

ing at Advocate, “I don’t want any blacks. They’re lazy.”

R. 62-12 at 2, Page ID 1993. A dispatcher for the EVS de-

partment, Mary Harris, testified through a declaration that,

“[o]n one occasion, I told Susan Castillo that I think I could

handle being a supervisor in the EVS department and Susan

responded, ‘Honey, you’re the wrong color.’” R. 62-11 at 2,

Page ID 1989.

c. Comments made to others about which the plaintiffs

heard

The weakest evidence the plaintiffs present is evidence

about comments that they were told supervisors made—in

No. 16-3848 23

other words, hearsay. It appeared to be well-known

throughout the hospital that Castillo had referred to an em-

ployee as a “porch monkey.” For example, Connie Lockridge

reported to her supervisor that it had happened. R. 62-2 at

14, Page ID 1740; R. 62-3 at 95, Page ID 1853. One dispatcher,

Mary Harris, declared that she heard several African-

American employees, including Lockridge, complain that

Castillo used racially offensive terms such as “porch mon-

key.” R. 62-11 at 2, page ID 1989. Another stated in his decla-

ration that he was “personally aware that Castillo referred to

African Americans as ‘porch monkeys.’” R. 62-12 at 2, Page

ID at 1993. Other employees reported hearing that Susan

Castillo preferred to have Polish people cleaning rather than

African-American people. See e.g. R. 46-3 at 39, Page ID 652.

One of the supervisors who was himself accused of racism,

Michalkowski, testified that an employee came to him to

complain that supervisor Susan Castillo had called another

employee a porch monkey. R. 62-2 at 13–14, Page ID 1739–

40. Finally, an Advocate vice president said to another em-

ployee, within earshot of Johnson, that it was hard to get Af-

rican-American employees to leave. R. 46 at 89, Page ID 449.

Although these comments are largely hearsay, and in some

cases, double hearsay, some of it could be admitted under

hearsay exceptions. For example, it is evidence, not of the

veracity of the remark of course, or even of the truth as to

whether Castillo uttered it or not, but of the fact that em-

ployees understood their environment to be one in which

derogatory statements were pervasive. This latter group of

evidence might have some bearing in a trial on the merits,

but it would be for the district court to determine whether

these comments were more prejudicial than probative. We

would caution against elevating workplace rumors to evi-

24 No. 16-3848

dence of a hostile work environment, although coupled with

other evidence this testimony might have relevance in a hos-

tile work environment claim.

2. This evidence is sufficient to create a triable issue of

fact

The district court found that, although these comments

were “cause for concern … they were not so serious (on their

own or in combination) or so numerous that they materially

influenced plaintiffs’ working conditions.” Johnson, 2016 WL

5871489 at *8. The district court asserted that there was no

evidence that racially derogatory comments made to one

plaintiff had any bearing on other plaintiffs’ work environ-

ments, and thus combining the plaintiffs’ experiences does

not advance any one plaintiff’s claim. Id. And in conclusion

the district court stated that, “[t]he things each plaintiff

heard were too isolated, indirect and sporadic to be actiona-

ble. Although plaintiffs should not encounter racism in their

workplace, a hostile work environment claim under TitleVII

and § 1981 does not provide relief from the comments made

to plaintiffs.” Id. at 19–20.

The district court, evaluating these claims on summary

judgment—where relevant, material, admissible facts must

be assumed to be true—erred by concluding that no reason-

able jury could find these comments to be severe or perva-

sive. We have noted that “Given American history, we rec-

ognize that the word ‘ni**er’ can have a highly disturbing

impact on the listener. Thus, a plaintiff’s repeated subjection

to hearing that word could lead a reasonable factfinder to

conclude that a working environment was objectively hos-

tile.” Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th

Cir. 2004) (citing Virginia v. Black, 538 U.S. 343 (2003)) (edit

No. 16-3848 25

ours); see also Passanati, 689 F.3d at 668 (“in claims of racial

harassment, racially-charged words certainly can suffice.”);

Rodgers v. Western–Southern Life Ins. Co., 12 F.3d 668, 675–76

(7th Cir. 1993) (finding an actionable hostile work environ-

ment when supervisors and employees referred to plaintiff

by the term “ni**er” between five and ten times during his

employment).

The plaintiffs put forth evidence that one supervisor rou-

tinely harassed them by trying to mock what he thought was

the speech of the African-American EVS techs, directly call-

ing the African-American plaintiffs “ni**er.” They also put

forth evidence of supervisors calling plaintiffs “black wig-

wearing witches,” “a black B. Bipolar. Crazy,” and telling a

plaintiff she had a “black girl ghetto attitude.” It may be, as

the dissent points out, that some individual plaintiffs heard

relatively few uses of racist language aimed directly at them

as individuals. But, as we made clear through our catalogue

of the evidence of racist statements made not only to plain-

tiffs, but to others (see supra pp. 22-23), the collective evi-

dence is sufficient to infer that all of these co-workers knew

that their supervisors were repeatedly using racist language

towards many employees to define the working environ-

ment for all of them. And, it is also sufficient to infer that

these supervisors were using racist language in a pervasive

way to establish racial and hierarchical dominance in the

workplace. That evidence should allow a reasonable jury to

find that each of the plaintiffs experienced a racially hostile

working environment.

The plaintiffs’ evidence that the harassment altered the

terms of their employment is thin perhaps, but it is enough

to survive summary judgment. Particularly because we have

26 No. 16-3848

noted that “a plaintiff's repeated subjection to hearing that

word [ni**er] could lead a reasonable factfinder to conclude

that a working environment was objectively hostile.” Hrob-

owski, 358 F.3d at 477. Several of the plaintiffs complained

about the harassment through the official channels and testi-

fied about the stress they felt because of it, or the increase in

the difficulty of their assignments. See, e.g. R. 64 at ¶¶ 14, 17,

23, 28, 30, 42, 46, 65, 69, Page ID 2015, 2017, 2021, 2024, 2026,

2034, 2036, 2045, 2047. As to the subjective component of the

inquiry, all that the plaintiffs had to establish was that they

perceived the environment to be hostile or abusive. Hrob-

owski, 358 F.3d at 477. A reasonable jury could find that these

words, among them one of the most racially derogatory

word in the English language, that the plaintiffs heard were

unwelcome, and therefore there is an issue of material fact

regarding subjective hostility. Id.

3. Employer liability

A showing of severe or pervasive harassment is neces-

sary but not sufficient to survive summary judgment. The

plaintiffs must also demonstrate a basis for employer liabil-

ity. The question of employer liability has become a bit

muddled in this case. The defendant in these proceedings is

Advocate. The alleged discrimination came at the hands of

Aramark’s supervisors 2. In Title VII cases, liability is direct

2For purposes of this appeal, the claims are basically limited to ac-

tions taken by Aramark supervisors. One Advocate employee, Margaret

DeYoung, was alleged to have made one comment within earshot of

plaintiff Johnson that “it’s a hassle to get [blacks] to leave.” R. 46 at 89,

Page ID 449. Otherwise all the claims of the direct discrimination were

directed at words and actions of Aramark employees, and then at Advo-

cate for failure to stop or remedy the discrimination.

No. 16-3848 27

rather than derivative. Dunn v. Washington Cty. Hosp., 429

F.3d 689, 691 (7th Cir. 2005). The employer is actionable only

for its own deeds. Id. Thus employers are strictly liable for

the discriminatory acts perpetrated by supervisors and they

are liable for the discriminatory acts of others—coworkers,

independent contractors, customers, inmates etc.—only if

they are negligent either in discovering or remedying the

harassment. Nischan v. Stratosphere Quality, LLC, 865 F.3d

922, 930 (7th Cir. 2017). The plaintiff bears the burden of

showing that the employer knew of the problem and that the

employer did not act reasonably to remedy the issue once it

had knowledge. See Dunn, 429 F.3d at 691.

But which entity was the plaintiffs’ employer for purpos-

es of the Title VII claim, and must there be but one? It is not

uncommon for employers to hire subcontractors or other-

wise outsource supervision, just as Advocate did here. Un-

der Title VII law, an employee is considered the supervisor

of the alleged victim of discrimination when “the employer

has empowered that employee to take tangible employment

actions against the victim.” Vance v. Ball State Univ., 570 U.S.

421, 431 (2013). In other words, a supervisor is the one with

the “power to directly affect the terms and conditions of em-

ployment. This power includes the authority to hire, fire,

promote, demote, discipline or transfer a plaintiff.” Nischan,

865 F.3d at 930. When analyzing which entity—Aramark,

Advocate or both—served as the plaintiffs’ de facto employ-

er for purposes of Title VII liability, we use a five-factor test

which requires us to consider:

(1) the extent of the employer’s control and su-

pervision over the worker, including directions

on scheduling and performance of work, (2)

28 No. 16-3848

the kind of occupation and nature of skill re-

quired, including whether skills are obtained

in the workplace, (3) responsibility for the costs

of operation, such as equipment, supplies, fees,

licenses, workplace, and maintenance of opera-

tions, (4) method and form of payment and

benefits, and (5) length of job commitment

and/or expectations.

Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 378–

79 (7th Cir. 1991). See also, Nischan, 865 F.3d at 929. The most

important of these factors is the ability to supervise and con-

trol the employees. Love v. JP Cullen & Sons, Inc., 779 F.3d

697, 702 (7th Cir. 2015). And of those control factors, the abil-

ity to hire and fire ranks as most significant. Id.

For purposes of Title VII an employee can have more

than one employer. Harris v. Allen Cty. Bd. of Comm’rs, No.

17-2577, 2018 WL 2275752, at *3 (7th Cir. May 18, 2018). An

entity can be an indirect employer or a joint employer or

have some other complex combined relationship with an

employee. Whitaker v. Milwaukee Cty., Wisc., 772 F.3d 802, 810

(7th Cir. 2014). And when more than one entity is potentially

involved in the employment relationship, a court should ap-

ply the Knight factors to determine which entity or entities

qualify as an employer for purposes of applying Title VII.

Love, 779 F.3d at 701–02. 3

According to the plaintiffs, the Aramark supervisors ap-

proved overtime, created and changed schedules, approved

3

The same Knight factors are used for differentiating between em-

ployees and independent contractors and also for determining who is an

employer for purposes of Title VII liability. See Love, 779 F.3d at 702–05.

No. 16-3848 29

and denied vacation requests, assigned work, disciplined

employees including issuing “Corrective Action Notices,”

did quality checks, and completed performance reviews.

R. 63 at ¶ 30, 32, Page ID 2003. The parties agree that by con-

tract, Advocate maintained ultimate control over discipli-

nary, hiring, and firing actions and that Aramark supervi-

sors could not hire, fire or discipline any EVS tech without

prior approval from Advocate. See R. 63 at ¶ 33, Page ID

2002–03; (Appellants’ Brief at 20). In other words, the Ara-

mark supervisors did have some supervisory and control

powers in the sense that they supervised work, created

schedules and assignments, recommended discipline, etc.,

but, by contract, a significant amount of control remained

with Advocate. We therefore conclude that, because signifi-

cant control remained in the hands of Advocate it was (at

least one of) the plaintiffs’ employers for purposes of Title

VII liability.

The district court did not address the remaining Knight

factors, nor delve further into the role that Aramark supervi-

sors played in “tangible employment actions” directed at the

plaintiffs. See Vance, 570 U.S. at 431. Such a discussion was

not critical to its decision at the time, as it had found no evi-

dence of discrimination. The court concluded, therefore,

with a short-shrift explanation in a footnote, that the Ara-

mark supervisors were not agents of Advocate. Johnson, 2016

WL 5871489 at *9 n.1. Now however, because we conclude

that there is a factual question regarding the racially deroga-

tory speech, we think it worth a full airing by the district

court as to the relationship between Advocate, Aramark and

the plaintiffs.

30 No. 16-3848

It is true that by the terms of the contract between the

parties, Advocate retained final control of most of the tangi-

ble employment actions like hiring and firing. But it is also

possible that, in reality, Advocate acted as a mere rubber

stamp for the recommendations of Aramark supervisors

about these tangible employment actions. Once the District

Court ferrets out the question of supervisor status and the

relationship between the entities, including whether “the

employer may be held to have effectively delegated the

power to take tangible employment actions” to the Aramark

supervisors (Vance, 570 U.S. at 447), it can determine under

which standard Advocate might be held liable for actions by

Aramark supervisors—strict liability or negligence. And de-

pending on which standard applies, the district court may

need to consider whether Advocate took “prompt and ap-

propriate corrective action reasonable likely to prevent the

harassment from recurring.” Cole v. Bd. of Trustees of N. Illi-

nois Univ., 838 F.3d 888, 898 (7th Cir. 2016), cert. denied, 137 S.

Ct. 1614 (2017).

The district court will also have an opportunity to con-

sider the remaining four Knight factors. These were not ad-

dressed by the parties or the district court because no dis-

crimination had been found. But based on the record before

this court now, it appears that many, but not all, of those fac-

tors confirm that Advocate was an employer.

For example, considering the second factor, it appears

that, according to the contract between the parties, Aramark

was responsible for some training of EVS techs. See R. 62-6

at 7, Page ID 1942 (Aramark leaders “will coordinate train-

ing and management of the hourly service employees on

Advocate’s payroll in those departments managed by Ara-

No. 16-3848 31

mark … .”). There has been no factual development on this

point and the district court did not consider it.

The remaining factors all point to Advocate as the em-

ployer. Advocate was responsible for the costs of operation

of the hospital including the equipment, fees, licensing, facil-

ities and maintenance. Advocate paid the plaintiffs’ salaries

and the EVS tech employees expected to stay in their posi-

tions indefinitely.

The answer to the question of whether Advocate took

“prompt and appropriate corrective action reasonable likely

to prevent the harassment from recurring.” Cole, 838 F.3d at

898 also will require a hard look at the particular facts and

circumstances of the case at hand. But we conclude that

there is sufficient evidence of notice to the employer to pro-

ceed past a motion for summary judgment. Johnson did not

report the “porch monkey” comment to Advocate human

resources, nor did he report Michalkowski’s mocking slang,

but other employees did. Johnson also reported to the presi-

dent of the hospital that a supervisor had stated that she pre-

ferred to hire Polish workers rather than African-American

workers because “they clean better.” And Johnson submitted

a list of African-American associates who he believed had

been discriminated against and gave this list to Advocate’s

human resources department. Smith made several com-

plaints to Advocate’s human resources department about

what she believed to be racially motivated behavior. R. 46-3

at 61, Page ID 674; R. 62-1 at 104–112, 144–145, Page ID 1649–

57, 1689–90. Scott-Murray reported to Advocate human re-

sources department that her Aramark supervisor told her

“not to give him that black girl ghetto attitude.” R. 64 at ¶ 45,

32 No. 16-3848

Page ID 2035. Based on these reports, a jury could conclude

that Advocate had adequate notice of the problem.

As for adequate steps to remedy the discrimination, Ad-

vocate investigated many of the complaints, held some

meetings, and met with some supervisors. It is true that an

employer’s course of action need not have been perfect, but

it cannot be negligent. Williams v. Waste Mgmt. of Ill., 361

F.3d 1021, 1030 (7th Cir. 2004). Advocate argues that it took

sufficient corrective action by investigating “the allegations

brought by Plaintiffs and [taking] remedial action in the

form of training and rounding with associates.” (Appellee’s

Brief at 41). Advocate also notes that it reassigned Castillo

when certain allegations were made in fall 2014, and moved

Skalnik away from Plaintiff Scott-Murray when she com-

plained that he placed his hands on her. The district court

pointed out that Advocate human resources employees in-

vestigated Scott-Murray’s complaint against Skalnik; inves-

tigated Smith’s complaints of improper treatment; provided

discrimination and harassment training; instructed leader-

ship to round with associates in EVS; and investigated John-

son’s complaint about payroll errors and resolved some of

them. Johnson, 2016 WL 5871489 at *3–4.

Plaintiffs argue that Advocate did not reprimand or ter-

minate any of the harassers, including Castillo, Skalnik, or

Michalkowski. Advocate did not separate Castillo from the

employees who raised concerns about her. Although Advo-

cate’s human resources employee, Abigail Oman, stated that

she investigated Johnson’s claims that he and other African-

American EVS techs were being treated unfairly, the plain-

tiffs argued that the investigation was wholly inadequate.

Johnson had supplied Oman with a list of other African-

No. 16-3848 33

American EVS techs who he claimed were also being treated

unfairly. Oman went back through her notes of conversa-

tions she had in the past with some of those African-

American EVS techs to see if they had any past reports that

corroborated Johnson’s, but she did not re-interview any of

the EVS techs after Johnson’s complaint, and she did not in-

terview workers on the list with whom she had never spo-

ken. Nor did she contact any white EVS techs to compare

their experiences. Certainly a jury could conclude that an in-

vestigation such as this one—a review of notes of previous

conversations with some of the employees on Johnson’s

list—was negligent.

Finally, although Advocate held discrimination training

sessions, it is undisputed that Michalkowski, one of the main

alleged perpetrators of the discrimination, did not attend.

There is, moreover, a clear factual dispute as to whether Cas-

tillo—the other Aramark supervisor most accused of dis-

crimination—attended the human resources training ses-

sions. The district court found it “unfortunate” that the al-

leged discriminators did not attend the anti-discrimination

training. We think it is more than unfortunate; it creates a

material fact as to whether Advocate took reasonable actions

to remedy the alleged discrimination. A jury might well find

that Advocate’s actions were minimally sufficient or even

completely so, but that is a factual determination based on

all of the facts and circumstances of this particular case. And

those “facts and circumstances” include the “gravity of the

harassment alleged.” May v. Chrysler Grp., LLC, 716 F.3d 963,

971 (7th Cir. 2013); see also Berry v. Delta Airlines, Inc., 260

F.3d 803, 811 (7th Cir. 2001) (“An employer’s response to al-

leged instances of employee harassment must be reasonably

calculated to prevent further harassment under the particu-

34 No. 16-3848

lar facts and circumstances of the case at the time the allega-

tions are made.”). In short, the question as to whether an

employer’s response was reasonably likely to end the har-

assment is fact specific and must be analyzed according to a

totality of the circumstances review. By dismissing on sum-

mary judgment Advocate’s liability for the hostile work en-

vironment, the district court declared that no reasonable jury

could have found that Advocate’s response to the discrimi-

nation was inadequate. We disagree.

Perhaps Advocate’s response was adequate given the

fairly low bar this court has set. Williams, 361 F.3d at 1030.

But that is a factual determination to be made based on the

individual facts and circumstances of this case. Erickson v.

Wisc. Dep’t of Corr., 469 F.3d 600, 606 (the determination of

employer liability is “fact-specific and must be analyzed ac-

cording to the totality of the circumstances.”); Guess v. Beth-

lehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990) (noting that

the effectiveness of an employer’s corrective action is a ques-

tion of fact). In this case, we conclude that it could not be de-

termined as a matter of law on a motion for summary judg-

ment.

On a final note, we reject entirely the defendant’s notion

that it “strains credulity” to think that African-American

employees might be subject to a hostile work environment

where many of the managers in the workplace are also Afri-

can-Americans. There are many reasons why women and

minorities in management might tolerate discrimination

against members of their own class, or why they might par-

ticipate in discriminatory acts themselves. See, e.g., Ramit

Mizrahi, "Hostility to the Presence of Women": Why Women

Undermine Each Other in the Workplace and the Consequences for

No. 16-3848 35

Title VII, 113 Yale L.J. 1579 (2004). We need not delve into

this extensive psycho-social research for purposes of this

case.

III.

In sum, we reverse the district court’s grant of summary

judgment on the hostile work environment claim in regards

to the racially derogatory language, and remand to the dis-

trict court for a determination on the merits of that claim.

The decision of the district court is affirmed in all other re-

spects.

36 No. 16-3848

MANION, Circuit Judge, concurring in part and dissenting

in part. I agree with the court that the plaintiffs failed to ad-

duce enough evidence to avoid summary judgment on their

various disparate treatment claims, so I join its opinion in

those respects. However, I disagree with the court’s conclu-

sion that the plaintiffs’ hostile work environment claims

should go to trial. For the reasons stated by the district court,

I would affirm the judgment in favor of Advocate in its en-

tirety.

It is of course true that even “[o]ne overtly racial comment

is too many in terms of basic civility and expected workplace

norms.” Johnson v. Advocate Health & Hosps. Corp., No. 14-CV-

8141, 2016 WL 5871489, at *7 (N.D. Ill. Oct. 7, 2016) (opinion

below). Nevertheless, “Title VII is not a general code of work-

place civility, nor does it mandate admirable behavior from

employers.” McKenzie v. Milwaukee Cty., 381 F.3d 619, 624 (7th

Cir. 2004). “We will not find a hostile work environment for

mere offensive conduct that is isolated, does not interfere with

the plaintiff’s work performance, and is not physically threat-

ening or humiliating.” Yankick v. Hanna Steel Corp., 653 F.3d

532, 544 (7th Cir. 2011). Under this standard, we have held that

“[a] handful of comments spread over months” is insufficient

to demonstrate “severe or pervasive” harassment as a matter

of law. Baskerville v. Culligan Int’l Co., 50 F.3d 428, 431 (7th Cir.

1995); see also Patt v. Family Health Sys., Inc., 280 F.3d 749, 754

(7th Cir. 2002) (eight comments over the course of employ-

ment not enough). In sum, although we have disclaimed our

former use of the descriptor “hellish” to describe an actiona-

ble work environment, compare Wyninger v. New Venture Gear,

Inc., 361 F.3d 965, 977 (7th Cir. 2004) (quoting Rogers v. City of

Chicago, 320 F.3d 748, 752 (7th Cir. 2003)), with Jackson v. Cty.

of Racine, 474 F.3d 493, 500 (7th Cir. 2007), plaintiffs still must

No. 16-3848 37

clear a high bar to avoid summary judgment, see Boumehdi v.

Plastag Holdings, LLC, 489 F.3d 781, 789 (7th Cir. 2007) (com-

paring the “high standard for hostile work environment

claims” with the even higher one for constructive discharge

claims).

This is not a class action; each individual plaintiff must ad-

duce enough evidence for a reasonable juror to conclude that

he or she was subject to a hostile work environment. When

viewed in this manner, the district court was clearly correct

that “[t]he things each plaintiff heard were too isolated, indi-

rect, and sporadic to be actionable.” Johnson, 2016 WL

5871489, at *8. Indeed, once one discounts the plaintiffs’ dis-

parate treatment claims (as the court does), some of the plain-

tiffs’ hostile work environment claims are extraordinarily

weak. Plaintiff Kimberly Scott-Murray, for example, com-

plains of just one racially charged comment the entire time

she was employed at Advocate. She had no interaction with

Susan Castillo and just one minor interaction with Mike

Michalowski, so the conduct of these two major offenders had

little to no impact on her work environment. Plaintiff Robert

Pannell’s claim is on even shakier ground; the only racially

charged comments which he testified to hearing were not ad-

dressed to him. And neither the court today nor the district

court pointed to any race-based comment made in the pres-

ence of Plaintiff Annette Smith. At the very least, we should

affirm summary judgment for Advocate against these three

plaintiffs.

Plaintiffs Warren Johnson and Sherry Young have some-

what stronger claims, but even their allegations fall short of

demonstrating the type of work environment necessary to

survive summary judgment. I agree with the district court

38 No. 16-3848

that “[e]ach of these comments should be cause for concern,

but they were not so serious (on their own or in combination)

or so numerous that they materially influenced plaintiffs’

working conditions.” Id. These “sporadic, offensive com-

ments” are simply not enough to clear the high bar this court

has set in order to bring hostile work environment claims be-

fore a jury. Id. Therefore, I would also affirm the district court

with respect to Johnson’s and Young’s hostile work environ-

ment claims. 1

Because I conclude that none of the plaintiffs proffered

sufficient evidence to avoid summary judgment on their hos-

tile work environment claims, I respectfully dissent from that

portion of the court’s opinion and judgment. I would affirm

the judgment below in full.

1Because I conclude that the plaintiffs’ hostile work environment claims

should fail, I express no opinion on whether employer liability was appro-

priate in this case.