EEOC v. Village at Hamilton Pointe LLC

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 22-2806

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Plaintiff-Appellant,

v.

VILLAGE AT HAMILTON POINTE LLC, d/b/a

Hamilton Pointe Health and Rehabilitation

Center; d/b/a Hamilton Pointe Assisted

Living Center; d/b/a The Cottages at

Hamilton Pointe and TENDER LOVING CARE

MANAGEMENT, LLC, d/b/a TLC

Management,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Evansville Division.

No. 3:17-cv-00147 — Richard L. Young, Judge.

____________________

ARGUED SEPTEMBER 13, 2023 — DECIDED MAY 9, 2024

____________________

Before FLAUM, RIPPLE, and SCUDDER, Circuit Judges.

2 No. 22-2806

RIPPLE, Circuit Judge. The Equal Employment Opportunity

Commission (the “EEOC” or “Commission”) brought this Ti-

tle VII employment discrimination action, 42 U.S.C. §§ 2000e-

2, e-5, on behalf of black employees of Village at Hamilton

Pointe, LLC (“Hamilton Pointe”), which operates a long-term

care facility located in Newburgh, Indiana. This institution

provides nursing, rehabilitation, and assisted living services.

The Commission also named as a defendant Tender Loving

Care Management, LLC, d/b/a TLC Management (“TLC”),

which provides a variety of services to Hamilton Pointe.

Among other matters not immediately relevant to this appeal,

the Commission alleged that Hamilton Pointe and TLC had

subjected the employees to racial harassment while perform-

ing their duties.

The district court granted TLC’s motion for summary

judgment with respect to the claims of some of the employees.

The court held that, on the record before it, TLC could not be

considered an employer within the meaning of Title VII of the

Civil Rights Act. The court also granted Hamilton Pointe’s

motion for partial summary judgment with respect to the

claims of forty employees. Seven remaining employees pro-

ceeded to a jury trial. The jury awarded damages to one em-

ployee. The EEOC now appeals the grant of summary judg-

ment for TLC, the grant of partial summary judgment for

Hamilton Pointe, and the jury’s verdict.

We affirm the judgment of the district court. The district

court correctly granted partial summary judgment on the

claims of the fifteen class members before us on appeal. It

committed no reversible error during the trial of the remain-

ing racial harassment claims. Finally, the district court

No. 22-2806 3

correctly held that TLC was not an employer within the mean-

ing of Title VII.

BACKGROUND

The EEOC brought this action against Hamilton Pointe

and TLC in the United States District Court for the Southern

District of Indiana. It sued on behalf of fifty-two current and

former black employees including seven charging parties

named in the complaint. 1 The complaint alleged, among other

matters, 2 that the defendants had subjected the named charg-

ing parties and a class of current and former employees to se-

vere or pervasive harassment because of their race and there-

fore violated Title VII. 3

As this case comes to us, it presents three distinct issues,

each cast in a separate procedural posture. For ease of read-

ing, we will first discuss the district court’s grant of summary

judgment to Hamilton Pointe on the racial harassment claims

of most of the named employee-claimants. We will then dis-

cuss the trial of the claims of the remaining named claimants.

Finally, because one of the claimants received a damages

award at the trial, we will evaluate the EEOC’s view that TLC

can be considered a joint employer and therefore can be liable

for the satisfaction of that judgment.

1 Before Hamilton Pointe filed its motion for partial summary judgment,

the EEOC agreed to remove five class members from the suit.

2 The EEOC also alleged disparate treatment claims that are not chal-

lenged on this appeal.

3 The district court had subject matter jurisdiction pursuant to 28 U.S.C.

§§ 1331, 1343 and 42 U.S.C. § 2000e-5(f)(1).

4 No. 22-2806

DISCUSSION

A

1.

We begin by setting forth the established legal principles

that must guide our evaluation of the district court’s grant of

summary judgment on the claims of several named employ-

ees. We will then apply these principles to the district court’s

decision with respect to each of the fifteen employees whose

claims the EEOC asks us to review.

The standards governing the grant of summary judgment

are well established. We review the district court’s grant of

summary judgment de novo and, like the district court, take

the facts and all reasonable inferences in the light most favor-

able to the nonmoving party. Uebelacker v. Rock Energy Coop.,

54 F.4th 1008, 1010 (7th Cir. 2022). “An inference is not rea-

sonable if it is directly contradicted by direct evidence pro-

vided at the summary judgment stage, nor is a ‘conceivable’

inference necessarily reasonable at summary judgment.”

MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co.,

994 F.3d 869, 876 (7th Cir. 2021) (quoting Cont’l Cas. Co. v. Nw.

Nat’l. Ins. Co., 427 F.3d 1038, 1041 (7th Cir. 2005)). We will af-

firm the district court’s grant of summary judgment “if the

movant shows that there is no genuine dispute as to any ma-

terial fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). “We may affirm a district court’s

grant of summary judgment on any basis that is apparent

from our review of the record, provided that the issue was

raised and the losing parties had a fair opportunity to contest

it in the district court.” REXA, Inc. v. Chester, 42 F.4th 652, 662

(7th Cir. 2022).

No. 22-2806 5

The substantive standards for establishing a claim of a

hostile work environment based on race are also well estab-

lished. The EEOC must establish that (1) the employee was

subject to unwelcome harassment; (2) the harassment was

based on the employee’s race; (3) “the harassment was so se-

vere or pervasive as to alter the conditions of employment

and create a hostile or abusive working environment”; and

(4) there is a basis for employer liability. Johnson v. Advoc.

Health & Hosps. Corp., 892 F.3d 887, 900 (7th Cir. 2018). We first

turn to a closer examination of these elements.

In establishing that harassment was based on race, the

EEOC “need not show that the complained-of conduct was

explicitly racial[] but must show it had a racial character or

purpose.” Yancick v. Hanna Steel Corp., 653 F.3d 532, 544 (7th

Cir. 2011). This practical approach recognizes that “forms of

harassment that might seem neutral in terms of race … can

contribute to a hostile work environment claim if other evi-

dence supports a reasonable inference tying the harassment

to the plaintiff’s protected status.” Cole v. Bd. of Trustees of N.

Ill. Univ., 838 F.3d 888, 896 (7th Cir. 2016). “Whether the infer-

ence is appropriate depends on the circumstances of the case;

… superficially neutral events are properly considered as part

of ‘the entire context of the workplace.’” Id. (quoting Cerros v.

Steel Techs., Inc., 288 F.3d 1040, 1046 (7th Cir. 2002)). 4 Alt-

hough a connection between the harassment and the plain-

tiff’s protected status need not be explicit, there must be some

connection; “not every perceived unfairness in the workplace

may be ascribed to discriminatory motivation merely because

4 See also Ellis v. CCA of Tenn. LLC, 650 F.3d 640, 648 (7th Cir. 2011) (evi-

dence of the use of the word “monkey” over the intercom provided with-

out context did not support a claim for race-based harassment).

6 No. 22-2806

the complaining employee belongs to a racial minority.” Bea-

mon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 863 (7th Cir.

2005); see also Zayas v. Rockford Mem’l Hosp., 740 F.3d 1154,

1159 (7th Cir. 2014).

A plaintiff must show that the alleged harassment was so

severe or pervasive that it altered the conditions of his em-

ployment. Thompson v. Mem’l Hosp. of Carbondale, 625 F.3d 394,

401 (7th Cir. 2010). When determining whether the harass-

ment was so severe or pervasive, we employ both an objective

and a subjective test. Faragher v. City of Boca Raton, 524 U.S.

775, 787 (1998); see also EEOC v. Costco Wholesale Corp., 903

F.3d 618, 625 (7th Cir. 2018). The subjective beliefs of an em-

ployee are not sufficient alone to meet this standard. Yancick,

653 F.3d at 548. 5 “[T]he environment must be one that a rea-

sonable person would find hostile or abusive, and one that the

victim in fact did perceive to be so.” Smith v. Ne. Ill. Univ., 388

F.3d 559, 566 (7th Cir. 2004) (quotations omitted).

To determine whether the harassing conduct created an

environment that was “objectively hostile, we consider the to-

tality of the circumstances, including: ‘the frequency of the

discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work

performance.’” Alamo v. Bliss, 864 F.3d 541, 549–50 (7th Cir.

2017) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23

5 “[I]f the subjective beliefs of plaintiffs in employment discrimination

cases could, by themselves, create genuine issues of material fact, then vir-

tually all defense motions for summary judgment in such cases would be

doomed.” Mlynczak v. Bodman, 442 F.3d 1050, 1058 (7th Cir. 2006) (quoting

Mills v. First Fed. Sav. & Loan Ass’n of Belvidere, 83 F.3d 833, 841–42 (7th

Cir.1996)).

No. 22-2806 7

(1993)). See also Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 81 (1998). “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

Cnty., 689 F.3d 655, 667 (7th Cir. 2012).

Because harassment need not be both severe and pervasive

to establish a hostile work environment, “[a] ‘severe episode’

that occurs ‘as rarely as once’ or a ‘relentless pattern of lesser

harassment’” can be sufficient to meet the standard. Alamo,

864 F.3d at 550 (quoting Cerros v. Steel Techs., Inc., 398 F.3d 944,

951 (7th Cir. 2005)). Again, in assessing the impact of the con-

duct under this totality of the circumstances approach, we

consider “the specific circumstances of the working environ-

ment and the relationship between the harassing party and

the harassed.” Robinson v. Sappington, 351 F.3d 317, 330 (7th

Cir. 2003). The context is crucial to an accurate appreciation of

the impact a harasser’s conduct had on the work environ-

ment. Scaife v. United States Dep’t of Veterans Affs., 49 F.4th

1109, 1116 (7th Cir. 2022). We “have repeatedly treated a su-

pervisor’s use of racially toxic language in the workplace as

much more serious than a co-worker’s.” Gates v. Bd. of Educ.

of the City of Chic., 916 F.3d 631, 638 (7th Cir. 2019). Further,

the conduct of a direct supervisor merits “more weight in the

analysis” than the conduct of an indirect supervisor whose

conduct in turns merits “more weight than an employee’s co-

equal.” Scaife, 49 F.4th at 1117. 6

6 The EEOC contends (both with respect to the claims dismissed on sum-

mary judgment and the claims that proceeded to trial) that nurses were

the supervisors of the CNAs. It is clear that individuals with these nurses’

(continued … )

8 No. 22-2806

“[T]he more remote or indirect the act claimed to create a

hostile working environment, the more attenuated the infer-

ence that it had an effect on the terms and conditions of the

plaintiff’s workplace.” Yancick, 653 F.3d at 545. Thus “[w]hile

certainly relevant to the determination of a hostile work envi-

ronment claim, when harassment is ‘directed at someone

other than the plaintiff, the impact of [such] second-hand har-

assment is obviously not as great as the impact of harassment

directed at the plaintiff.’” Smith, 388 F.3d at 567 (internal quo-

tations marks and citation omitted). For this same reason, re-

marks addressed “directly to the plaintiff weigh heavier than

when a plaintiff hears them secondhand.” Scaife, 49 F.4th at

1116. For example, in Johnson, we divided the racially charged

language by the plaintiffs’ supervisors into three categories.

892 F.3d at 901–03. First, comments made directly to plaintiffs

carried the most weight. Id. Second, direct comments made to

non-plaintiffs “carr[ied] less weight.” Id. at 902. Nevertheless,

such remarks still constituted evidence that the same super-

visors made racially derogatory comments to other employ-

ees in the same positions and therefore, this evidence tended

to make it more likely that the discrimination was pervasive.

Id. And third, comments that the plaintiffs “were told super-

visors made” which were characterized as the “weakest evi-

dence.” Id. Although these last comments may be admissible

to show “that employees understood their environment to be

one in which derogatory statements were pervasive, … it

limited authority are not “supervisors” as that term has been employed

by the Supreme Court in discussing employer liability. See infra pp. 13–14.

However, the behavior of nurses who have some authority over the class

members, even if they do not meet the definition of a supervisor for con-

sidering employer liability, deserve greater weight than the behavior of

another co-worker on substantially equal footing with the employee.

No. 22-2806 9

would be for the district court to determine whether these

comments were more prejudicial than probative.” Id. at 903.

We “caution[ed] against elevating workplace rumors to evi-

dence of a hostile work environment, although coupled with

other evidence this testimony might have relevance in a hos-

tile work environment claim.” Id.

Finally, there is no requirement that severe or pervasive

harassment stem from co-worker or supervisor conduct. See

Dunn v. Washington Cnty. Hosp., 429 F.3d 689, 691 (7th Cir.

2005). An employer may be liable for a hostile work environ-

ment originating from the harassing conduct of third parties,

Costco, 903 F.3d at 624, including the conduct of nursing home

residents. See Pickett v. Sheridan Health Care Ctr., 610 F.3d 434,

441 (7th Cir. 2010). In such a situation, we do not consider the

employer’s control over the third party, but only the impact

of the third-party harassment on the employee’s working en-

vironment. See Dunn, 429 F.3d at 691.

Establishing severe or pervasive harassment does not en-

sure, by itself, the success of a hostile work environment

claim. An employer’s legal liability for racial harassment also

“depend[s] on the status of the harasser.” Vance v. Ball State

Univ., 570 U.S. 421, 424 (2013). “If the harassing employee is

the victim’s co-worker, the employer is liable only if it was

negligent in controlling working conditions.” Id. This negli-

gence may occur either in failing to discover or in failing to

remedy the harassment. Cole, 838 F.3d at 898. See Williams v.

Waste Mgmt. of Ill., 361 F.3d 1021, 1029 (7th Cir. 2004) (holding

that an employer was not negligent in failing to discover that

an employee was subjected to a racially harassing work envi-

ronment when the employee did not report his concerns to his

supervisors pursuant to the employer’s anti-harassment

10 No. 22-2806

policy). In sum, an employer is liable for non-supervisor har-

assment only if it has been “negligent in discovering or reme-

dying the harassment.” Lambert v. Peri Formworks Sys., Inc.,

723 F.3d 863, 866 (7th Cir. 2013).

Because an employer is “not omniscient, it must have no-

tice or knowledge of the harassment before it can be held lia-

ble.” Durkin v. City of Chi., 341 F.3d 606, 612 (7th Cir. 2003).

The employee must show that the employer had “enough in-

formation so that a reasonable employer would think there

was some probability” of the harassment. Id. This notice must

be “given to either someone with authority to take corrective

action or, at a minimum, someone who could ‘reasonably be

expected to refer the complaint up the ladder to the employee

authorized to act on it.’” Lambert, 723 F.3d at 866 (quoting Par-

kins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1037 (7th

Cir. 1998)).

Generally, when deciding “whether an employer had no-

tice of harassment, we first determine whether the employer

has designated a channel for complaints of harassment.” Par-

kins, 163 F.3d at 1035. “If the employer has established a set of

procedures for reporting complaints about harassment,” we

expect an employee “to follow that policy in order to provide

notice sufficient for the employer to be held responsible, un-

less the policy itself is subject to attack as inadequate.” Lam-

bert, 723 F.3d at 867. By reporting harassment to the “point

person” identified by the employer for receiving complaints,

an employee satisfies the notice requirement. Parkins, 163 F.3d

at 1035. If an employer provides multiple channels for report-

ing harassment, such as a point person and a separate hotline,

an employee need only use one to put the employer on notice.

See Valentine v. City of Chi., 452 F.3d 670, 679 (7th Cir. 2006).

No. 22-2806 11

But an employee “need not specifically comply with the

company’s internal procedure [so long as] the employer is ad-

equately put on notice of the prohibited harassment.” Yancick,

653 F.3d at 549. When the channel for reporting harassment is

unclear or inaccessible, an employee’s complaints to non-

management only put the employer on notice if the employee

reasonably believed the recipient had the power “to set in mo-

tion the process of bringing his complaints to the attention of

someone with authority to remedy them.” Lambert, 723 F.3d

at 868. We have applied this reasonableness standard when

the employer’s policy states that harassment should be re-

ported to supervisors, but there is a dispute as to whether the

recipient of the complaint should be considered a supervisor

for the purposes of that policy. See Bombaci v. J. Cmty. Pub’g.

Grp., Inc., 482 F.3d 979, 984 (7th Cir. 2007).

An employer has constructive notice of harassment if the

harassment is sufficiently pervasive and obvious. Rhodes v. Ill.

Dep’t of Transp., 359 F.3d 498, 507 (7th Cir. 2004). In Wilson v.

Chrysler Corp., 172 F.3d 500, 509 (7th Cir. 1999), we held that,

although the employer contested whether the plaintiff suffi-

ciently complained about the harassing conduct, the em-

ployer nevertheless had constructive notice of her harassment

because much of the harassment to which she was subjected

“was public and deliberately exhibitionist.” We concluded

that the employer could not escape liability on the grounds

that the management team was “oblivious to such openly hos-

tile behavior.” Id. In Rhodes, however, we determined that the

employer did not have constructive notice of the pervasive

presence of pornography prevalent in the workplace for sev-

eral years where the record revealed that the highest-ranking

employee at the facility disposed of pornographic magazines

whenever he saw them, that offending employees took

12 No. 22-2806

measures to conceal their viewing of pornographic videos

from supervisors, and that no employee complained of the

pornographic magazines or videos. 359 F.3d at 507.

We also note that an employer’s knowledge of an incident

of harassing behavior is insufficient to establish a basis for

employer liability unless that behavior puts the employer on

notice of the existence of an actionable hostile work environ-

ment. Bombaci, 482 F.3d at 985 n.2 (stating that managers’

knowledge of harassers’ sexual jokes and inappropriate com-

ments to others did not constitute employer notice of sexual

harassment suffered by plaintiff because the incidents “did

not come close to creating an actionable work environment”);

Rhodes, 359 F.3d at 507 (holding that plaintiff’s complaint to

management about one pornographic picture taped to her

locker does not impute knowledge to employer of prevalent

pornographic magazines and television used for viewing por-

nography); McPherson v. City of Waukegan, 379 F.3d 430, 441

(7th Cir. 2004) (holding that harasser’s sexually inappropriate

questions to female staff heard by office manager and super-

visor did not put employer on notice that employee would

commit sexual assault in the future because the questions did

not create an actionable hostile work environment).

An employer is not liable for co-worker harassment if,

upon becoming aware of the situation, it took “prompt and

appropriate corrective action reasonably likely to prevent the

harassment from recurring.” Cole, 838 F.3d at 898 (quoting

Porter v. Erie Foods Int’l, Inc., 576 F.3d 629, 636 (7th Cir. 2009)).

“[T]he emphasis of Title VII in this context is not on redress

but on the prevention of future harm.” Lapka v. Chertoff, 517

F.3d 974, 984 (7th Cir. 2008). For instance, “in some circum-

stances, creating physical separation and minimizing time

No. 22-2806 13

worked together are steps reasonably likely to end harass-

ment.” Sutherland v. Wal-Mart Stores, Inc., 632 F.3d 990, 995

(7th Cir. 2011) (holding that the employer’s responses—repri-

manding the harasser, limiting overlap between the har-

asser’s and the victim’s schedules, and reassigning the victim

to another workstation when scheduled to work with the har-

asser—were reasonably likely to end the harassment).

This same negligence standard applies to hostile work en-

vironment claims based on third-party conduct. Costco, 903

F.3d at 627. “[I]t makes no difference whether the person

whose acts are complained of is an employee, an independent

contractor, or for that matter a customer.” Dunn, 429 F.3d at

691. “The employer’s responsibility is to provide its employ-

ees with nondiscriminatory working conditions. The genesis

of inequality matters not; what does matter is how the em-

ployer handles the problem.” Id.

If the harasser is a “supervisor,” the employer is strictly

liable and can only escape that liability if no tangible employ-

ment action had been taken, and the employer establishes, “as

an affirmative defense, that (1) the employer exercised rea-

sonable care to prevent and correct any harassing behavior

and (2) that the plaintiff unreasonably failed to take ad-

vantage of the preventive or corrective opportunities that the

employer provided.” Vance, 570 U.S. at 424. “[A]n employee

is a ‘supervisor’ for purposes of vicarious liability under Title

VII if he or she is empowered by the employer to take tangible

employment actions against the victim.” Id. “In other words,

a supervisor is the one with the ‘power to directly affect the

terms and conditions of employment. This power includes the

authority to hire, fire, promote, demote, discipline or transfer

14 No. 22-2806

a plaintiff.’” Johnson, 892 F.3d at 905 (quoting Nischan v. Strat-

osphere Quality, LLC, 865 F.3d 922, 930 (7th Cir. 2017)). 7

This court and the Court of Appeals for the Fifth Circuit

have applied these basic principles to situations bearing some

similarity to the ones before us today. In Chaney v. Plainfield,

612 F.3d 908, 915 (7th Cir. 2010), we held that the employer’s

policy of honoring residents’ racial preferences in assigning

caregivers not only contributed to a racially hostile work en-

vironment but was the “principal source” of that hostility. In

that case, Chaney, a black certified nursing assistant (“CNA”)

was confronted with work assignment sheets stating that a

particular resident “Prefers No Black CNAs.” Id. at 910. She

honored this directive for fear of termination and also toler-

ated another patient’s refusal of her care, and a third patient’s

racial prejudice relayed through a co-worker. Id. The em-

ployer’s “practice of honoring the racial preferences of resi-

dents was accompanied by racially-tinged comments and ep-

ithets from co-workers.” Id. at 911. 8 Although the use of racial

epithets by co-workers ceased after the CNA reported them

to her supervisor, the employer’s “racial preference policy re-

mained in place and continued to surface in conversations

with other employees.” Id. It was, we concluded, “the princi-

pal source of the racial hostility in the workplace.” Id. at 915.

We had “no trouble finding that a reasonable person

would find [this] work environment hostile or abusive.” Id. at

912. “[T]hrough its assignment sheet that unambiguously,

7 See supra note 6.

8 One white co-worker called her a “black bitch” and another asked the

plaintiff why their employer hired “all of these black n–––[.]” Chaney, 612

F.3d at 911.

No. 22-2806 15

and daily, reminded Chaney and her co-workers that certain

residents preferred no black CNAs,” the employer “foster[ed]

and engender[ed] a racially-charged environment.” Id. Alt-

hough the worst racial insults from co-workers ceased after

the CNA complained, we determined that there was still am-

ple basis for employer liability as the racial preference policy

and constant reminders of that policy remained. Id.

Notably, in Chaney, the employer did not deny that it

maintained a policy of fulfilling patients’ racial preferences

but argued that its policy was permitted under Title VII. Id. at

912–14. The employer presented its policy as the only means

by which it could avoid being forced to choose between dis-

charging racially hostile residents and “exposing black em-

ployees to racial harassment from the residents and, in turn,

exposing itself to hostile workplace liability.” Id. at 914. We

determined this justification to be untenable. First, we noted

that it was well established in this circuit and elsewhere in the

federal courts that “the desire to cater to the racial preferences

of customers was no defense under Title VII to treating em-

ployees differently on the basis of race.” Id. at 913. We saw no

reason to treat a health care facility differently from any other

employer. Moreover, we continued:

[W]ithout resorting to discharging residents, a

long-term care facility confronted with a hostile

resident has a range of options. It can warn res-

idents before admitting them of the facility’s

nondiscrimination policy, securing the resi-

dent’s consent in writing; it can attempt to re-

form the resident’s behavior after admission;

and it can assign staff based on race-neutral cri-

teria that minimize the risk of conflict. [The

16 No. 22-2806

employer] could have, for instance, advised its

employees that they could ask for protection

from racially harassing residents. That way, [the

employer] would not be imposing an un-

wanted, race-conscious work limitation on its

black employees; rather, it would be allowing

all employees to work in a race-neutral, non-

harassing work environment, as is commonly

expected of employers. And even if all these ef-

forts do not guarantee full racial harmony, they

exemplify reasonable measures that an em-

ployer can undertake to avoid liability for

known workplace harassment.

Id. at 915 (internal citations omitted). Instead of pursuing any

of these options, the employer “told Chaney that it was ex-

cluding her from work areas and residents solely on account

of her race, thereby creating a racially charged workplace that

poisoned the work environment.” Id.

As the district court in this case noted, the Court of Ap-

peals for the Fifth Circuit has confronted similar situations,

and its case law contributes significantly to an understanding

of the difficulties posed by the situation before us. In Cain v.

Blackwell, 246 F.3d 758, 759 (5th Cir. 2001), that court affirmed

an entry of summary judgment dismissing a hostile work en-

vironment claim based on sexual harassment directed at a

home caregiver by her Alzheimer’s patient. Although the pa-

tient repeatedly propositioned his home care nurse for sex

and called her disparaging names, the Fifth Circuit deter-

mined that the “unique circumstances” of her employment

made the “obviously impaired [patient’s] commentary insuf-

ficient to establish sexual harassment.” Id. at 760. Because a

No. 22-2806 17

home health care nurse’s “daily routine included dealing with

victims of [diseases like Alzheimer’s] and their particular fail-

ings,” it reasoned that the patient’s “unacceptable but pitiable

conduct was not so severe or pervasive as to interfere unrea-

sonably with [that nurse’s] work performance or, given the

circumstances, to create an abusive work environment.” Id. at

760–61.

Five years later, in EEOC v. Nexion Health at Broadway, Inc.,

199 F. App’x 351, 352 (5th Cir. 2006), the Fifth Circuit applied

Cain’s reasoning to the racially hostile work environment

claim of a nursing home employee subjected to frequent racial

slurs directed at him by a resident suffering from schizophre-

nia. Notably, the Fifth Circuit in Nexion emphasized that

“Cain does not establish a bright-line rule that employees who

care for disabled, elderly patients can never succeed on a title

VII claim.” Id. at 353. Rather, it calls for an “individualized

inquiry into the circumstances of the harassment.” Id. The ob-

jective must be to determine whether, under the circum-

stances, “a reasonable person would find the work environ-

ment hostile or abusive.” Id. Although the resident’s com-

ments “were highly discriminatory” and frequent, “they were

not so frequent as to pervade the work experience of a reason-

able nursing home employee, especially considering their

source.” Id. The resident’s harassment “did not objectively in-

terfere with his work performance or undermine his work-

place competence” as the “job required him to deal with the

tragic failings of elderly people whose minds have essentially

failed.” Id. at 354. In other words, because the employee

“worked in a place where most of the people around him

were often unable to control what they said or did[,] [i]t is ob-

jectively unreasonable for an employee in such a workplace

18 No. 22-2806

to perceive a racially hostile work environment based solely

on statements made by those who are mentally impaired.” Id.

A more recent case from the same circuit emphasizes that

Cain and Nexion are “not a categorical bar on hostile environ-

ment claims arising from harassment by patients.” Gardner v.

CLC of Pascagoula, LLC, 915 F.3d 320, 326 (5th Cir. 2019). “The

‘specific circumstances’ of such claims ‘must be judged to de-

termine whether a reasonable person would find the work en-

vironment hostile or abusive’ taking due account of the

‘unique circumstances involved in caring for mentally dis-

eased elderly patients.’” Id. (quoting Nexion, 199 F. App’x at

353). Severe conduct can still be “enough to allow a jury to

decide whether a reasonable caregiver on the receiving end of

the harassment would have viewed it as sufficiently severe or

pervasive even considering the medical condition of the har-

asser.” Id. at 327 (discussing “evidence of persistent and often

physical harassment” including an assisted living facility res-

ident’s pattern of sexual assaulting female staff).

These Fifth Circuit decisions based their analysis on

whether a reasonable health care worker in such an environ-

ment would consider the patient’s behavior to have made the

work environment hostile or abusive, taking into considera-

tion the special circumstances necessarily involved when car-

ing for patients with these afflictions. See id. at 326. These

cases also acknowledge explicitly that application of a totality

of the circumstances test does not always result in exoneration

of the employer. There is no general assumption of risk. See

Smith v. Sheahan, 189 F.3d 529, 535 (7th Cir. 1999). Indeed, the

cases specifically point to precedent in other circuits where

the conduct of a patient has been considered sufficiently se-

vere or pervasive to constitute harassment. See Gardner, 915

No. 22-2806 19

F.3d at 326 (citing Turnbull v. Topeka State Hosp., 255 F.3d 1238,

1242–43 (10th Cir. 2001), and Crist v. Focus Homes Inc., 122 F.3d

1107, 1108 (8th Cir. 1997)).

2.

With these principles in mind, we now turn to the situa-

tions presented by each employee whose claim is now before

us from the summary judgment ruling of the district court.

a. Sonja Fletcher

Hamilton Pointe hired Sonja Fletcher as a CNA in March

2015. The gravamen of her hostile work environment claim is

an assignment sheet posted in the Spring of 2015 which

stated, as a special need for resident PT: “No African Ameri-

can Males to Provide Care.”

Ms. Fletcher personally cared for PT. In these interactions,

PT did not display any racist tendencies. The day before the

sheet was posted, a nurse had told Ms. Fletcher and another

CNA that PT had made a request for no male caregivers. In

this conversation, the nurse did not mention race. That night,

black male CNA Roshaun Middleton cared for PT. At that

time, Middleton was the only black male CNA assigned to the

unit.

When Ms. Fletcher arrived at work the next morning, the

assignment sheet stated, for the first time, “No African Amer-

ican Males to Provide Care.” Ms. Fletcher was “livid.” 9 She

spoke with fellow CNA Donna Grissett, Middleton (then at

the end of his shift), and other co-workers about the work-

sheet. Ms. Fletcher then went to the employee charged with

9 R.99-8 at 13.

20 No. 22-2806

creating the assignment sheets. She told this scheduler that

she had never before seen a racial restriction used on a work-

sheet. When the scheduler did not amend the sheet,

Ms. Fletcher complained to Director of Nursing Paula Loveall

and Administrator Lauren Hayden. After she made these

complaints, however, the sheet remained posted. Ms. Fletcher

testified that she saw the sheet with the racial restriction up

for three days in a row. Ms. Fletcher did not know when or by

whom the sheet was taken down. After the assignment sheet

was posted, Ms. Fletcher believed that Middleton was banned

from caring for PT.

As Director of Nursing, Loveall was responsible for over-

seeing CNA work assignments. Loveall testified that Hamil-

ton Pointe never had a policy that allowed assignments based

solely on the race of a caregiver. She also testified that, in her

position as Director of Nursing, if a resident communicated

to her a fear of a particular caregiver because of the caregiver’s

race and was adamant about not receiving care from that in-

dividual, she would reassign the resident’s caregiver or move

the resident to a different hallway. This particular scenario oc-

curred “[m]aybe twice.” 10 The first time, the resident told

Loveall that she did not want Middleton as her CNA because

he was large and black. Loveall could not recall if this resident

was PT. She also could not recall any other specific occasions

when a similar request had been made.

Later, Ms. Fletcher called the hotline (operated by TLC as

a channel for reporting harassment and other problems at

Hamilton Pointe) to report the assignment sheet. She spoke to

TLC’s hotline operator, who prepared a summary of the call.

10 R.112-17 at 6.

No. 22-2806 21

Ms. Fletcher stated that she was concerned about racial prej-

udice at Hamilton Pointe, described the “No African Ameri-

can Males to Provide Care” statement on the worksheet as an

example of that prejudice, reported that Director Loveall and

Administrator Hayden were rude to her, and requested an in-

vestigation of racial prejudice.

The next day, the hotline operator emailed her summary

of the call to Steve Ronillo, TLC’s Vice President of Human

Resources. Ronillo then spoke to TLC’s Regional Director

Tamara Bledsoe and TLC’s Chief Nursing Officer. Days later,

Bledsoe went to Hamilton Pointe. She spoke separately to

Ms. Fletcher, Hayden, and Loveall.

After she made her hotline call, Ms. Fletcher never saw an-

other assignment sheet referencing race. She recalled only one

other incident in which a caregiver was banned from a room.

Grissett, who is black, was banned from caring for a specific

resident. Grissett and Ms. Fletcher swapped rooms and the

resident did not object to Ms. Fletcher’s care.

Ms. Fletcher heard the N-word used many times during

her more than thirty-year career as a CNA at multiple facili-

ties. She testified that she heard it more frequently earlier in

her career. She did not testify in her deposition that she had

heard the slur used at Hamilton Pointe or experienced any in-

cident where she was subjected to racially harassing state-

ments from a resident at the facility.

Ms. Fletcher resigned from Hamilton Pointe in October

2015. She testified that the assignment sheet incident was one

of her main reasons for leaving Hamilton Pointe.

The district court decided that Ms. Fletcher was not sub-

jected to a hostile work environment. The court distinguished

22 No. 22-2806

Ms. Fletcher’s claim from the one in Chaney on several

grounds. First, the statement on the assignment sheet was not

directed at her; it applied to black men, and Ms. Fletcher is a

woman. Second, the assignment sheet was taken down three

days after Ms. Fletcher complained. Third, Ms. Fletcher never

saw another racial restriction on an assignment sheet. Fourth,

black employees continued to care for PT after the assignment

sheet was posted. Fifth, Ms. Fletcher alleged no co-worker or

resident harassment.

We agree with the district court. A reasonable jury could

not find that the conduct alleged by Ms. Fletcher constituted

sufficiently severe or pervasive racial harassment as to alter

the conditions of her employment. Ms. Fletcher’s claim, as

presented to us by the EEOC on appeal, centers on the assign-

ment sheet. Racially discriminatory assignment sheets were

not a pervasive aspect of Ms. Fletcher’s experience at Hamil-

ton Pointe. She testified to seeing the “No African American

Males to Provide Care” assignment sheet for only three days.

After this assignment sheet was removed, Ms. Fletcher did

not see another racially discriminatory assignment sheet.

Because discriminatory assignment sheets were not perva-

sive in her workplace and she alleges no other harassing con-

duct, Ms. Fletcher must establish that her experiences related

to this one assignment sheet were sufficiently severe to alter

her working conditions. She cannot do so. The discriminatory

assignment did not relate directly to Ms. Fletcher. This does

not mean, of course, that the incident had no impact on her. It

only means that its impact on her should be assessed as less

than its impact on the person and specific category of persons

against whom it was directed, Middleton and black men. See

Smith, 388 F.3d at 567; see also Yuknis v. First Student, Inc., 481

No. 22-2806 23

F.3d 552, 554 (7th Cir. 2007) (“[O]ne could be in the target area

[of harassment] because a group of which one was a member

was being vilified, although one was not singled out.”).

In arguing against affording lesser impact to the assign-

ment sheet, the EEOC submits that Ms. Fletcher found her

work environment subjectively hostile: She testified that the

assignment sheet was one of the reasons she left Hamilton

Pointe. However, subjective hostility is not enough to estab-

lish objective hostility. See Smith, 388 F.3d at 566 (“While

Weaver did allege that she subjectively experienced her work

environment as hostile …, we agree with the district court that

she did not sufficiently show her work environment to be ob-

jectively hostile within the meaning of Title VII.”). Because the

assignment sheet did not bar Ms. Fletcher, or any other black

woman, from caring for PT, and because she was subjected to

no other harassment from staff and residents, Ms. Fletcher’s

allegations are not, from an objective point of view, suffi-

ciently severe. The district court correctly concluded that the

facts of this case are clearly distinguishable from those in

Chaney. In Chaney, the assignment sheet served as a daily re-

minder that certain residents preferred no black caregivers.

612 F.3d at 912. Here, by contrast, Ms. Fletcher only saw the

racially discriminatory assignment sheet for three days. Man-

agement was responsive to her complaint. Moreover,

Ms. Fletcher was never the subject of discriminatory conduct.

By contrast, Chaney’s room assignment was restricted by the

assignment sheet. Co-workers called Chaney a “black bitch”

and the N-word on multiple occasions. Id. Ms. Fletcher does

not allege any comparable harassment from her co-workers.

24 No. 22-2806

b. Tamara McGuire

Hamilton Pointe hired Tamara McGuire as a CNA in Sep-

tember 2012. She stopped working full-time as a CNA at

Hamilton Pointe in 2016 but continued part-time work. Begin-

ning in 2017, she moved into a new role as an Activities As-

sistant while continuing to pick up CNA shifts.

At a shift change between June and December 2016, a

black CNA showed Ms. McGuire an assignment sheet which

said “no blacks allowed” with respect to a specific resident in

the Skilled Unit. The CNA told Ms. McGuire not to enter the

resident’s room even if the call light was on. Ms. McGuire did

not see this assignment sheet posted, and it was not provided

to her by the facility. At the time, there were no printed as-

signment sheets left in the nurse’s station. She only discussed

the assignment sheet with the CNA. She did not report it to

anyone higher in the management chain.

At her 2018 deposition, Ms. McGuire testified that she had

not been told by a CNA to avoid certain residents who re-

quested no black caregivers for “maybe a couple of years.”11

She remembered that in 2014 and 2015, it was common for

CNAs to tell their replacement at a shift change which rooms

did not want black caregivers. For example, on one occasion,

CNAs told her that resident AM did not want black caregiv-

ers. Ms. McGuire did not complain about AM’s request be-

cause it was already known among the CNAs. She never

spoke about AM’s racial preference with a nurse or supervi-

sor. She never received such a direction from a charge nurse.

Such situations were no longer common in 2018.

11 R.99-9 at 24.

No. 22-2806 25

During Ms. McGuire’s first three or four years at the facil-

ity, CN and OJ were residents of the Memory Care Unit. The

two black male CNAs who worked in the unit told

Ms. McGuire that they could not go into CN’s room or OJ’s

room. Other members of the nursing staff also told

Ms. McGuire, in the context of switching assignments, that

the black male CNAs could not enter these rooms.

Ms. McGuire and other black female CNAs provided care for

CN and OJ on a regular basis. Ms. McGuire saw white male

CNAs provide them care. Ms. McGuire never reported her

concerns regarding CN and OJ to her supervisors or anyone

above her in the management chain.

In her time at Hamilton Pointe, Ms. McGuire heard resi-

dents use racial slurs, including the N-word. On the Skilled

Unit, “certain residents would scream out racial slurs” to

Ms. McGuire and other employees. 12 In 2016, resident JS

yelled “I don’t want you [n-words] in here. Leave me alone”

at Ms. McGuire while she was attempting to provide care.13

Nurse Cindy Rector and a CNA were present when this oc-

curred. After hearing JS use the slur, Rector told Ms. McGuire

that Rector would take care of JS for the remainder of the shift.

Also in 2016, Ms. McGuire heard a resident call a black CNA

a “black bitch” as the CNA was leaving the resident’s room. 14

After this incident, Ms. McGuire heard nurses tell black CNAs

“Don’t go in there” and “We’ll have somebody else go in

there.”15 Ms. McGuire did not complain about this incident to

12 R.112-12 at 4.

13 Id. at 16.

14 R.99-9 at 21.

15 Id.

26 No. 22-2806

anyone at Hamilton Pointe. Separately, Ms. McGuire heard a

resident call another resident a “black bitch.” 16 She testified

that, in some situations, she believed that reassigning the

caregiver was an appropriate response to a resident directing

a racial slur at a caregiver.

Later, possibly in February 2018, Ms. McGuire heard a res-

ident call CNA Michelle Johnson, “that black [n-word]

bitch.” 17 Ms. McGuire heard the slur from the hallway where

she was standing with other nurses. Ms. McGuire did not re-

port the incident and did not know if anyone else reported it.

This resident did not require CNA care. Ms. McGuire inter-

acted with him only in the context of her duties as Activities

Assistant.

Ms. McGuire also alleged that she experienced race-based

harassment from two white co-workers, Crystal Brown, a

qualified medication aide, and Costelle Beliles, a CNA.

Ms. McGuire testified that Brown and Beliles “always made it

difficult for every black employee,” including Ms. McGuire. 18

They frequently made allegations against black co-workers.

This included writing up Ms. McGuire: “[E]very time we had

anything, if I would come in five minutes late, they were writ-

ing me up. Not to say it wasn’t necessary, but just like any-

thing that they could find for me to write me up on.”19

Ms. McGuire reported her difficulties with Brown and Beliles

to nurses and her unit managers but could not recall

16 R.112-12 at 18.

17 Id. at 22.

18 Id. at 13.

19 Id. at 14.

No. 22-2806 27

specifically what she reported to them. Beliles was terminated

by Hamilton Pointe in 2015. Ms. McGuire eventually began

scheduling her shifts to avoid Brown.

Ms. McGuire recalled one specific encounter with Brown

and Beliles. When Ms. McGuire was working with both co-

workers in the Assisted Living Unit, a black man who worked

in the Skilled Unit as a dietary aide came to the Assisted Liv-

ing Unit entrance. Ms. McGuire knew he was an employee

and let him in. As Ms. McGuire spoke to the dietary aide,

Brown and Beliles called over to the Skilled Unit and to their

supervisor to report Ms. McGuire. Nurse Rector and Nurse

Jackie Lamp verified that the dietary aide was a Hamilton

Pointe employee. Ms. McGuire did not receive any discipli-

nary action. Ms. McGuire reported this incident to then-Ad-

ministrator Christina Malvern. In Ms. McGuire’s view, the in-

cident was race-related because it was not the standard pro-

tocol to make a call when someone came to the door.

During her training to become an Activities Assistant,

Ms. McGuire walked past the wife of Administrator Shawn

Cates on her way upstairs to the lavatory in the Assisted Liv-

ing Unit. Cates’s wife followed Ms. McGuire, who was not

wearing a uniform, up the stairs. From the bathroom,

Ms. McGuire heard a conversation between Cates and his

wife, in which Cates’s wife said, “There was a black girl who

just walked up here, and I have no idea where she went.” 20

Cates then told his wife that all employees wore uniforms.

Ms. McGuire did not complain about this incident to Cates,

anyone else at Hamilton Pointe, or the TLC hotline.

20 Id. at 11.

28 No. 22-2806

The district court determined that, viewing her allegations

in their totality, Ms. McGuire could not establish that she suf-

fered severe or pervasive harassment. The court stated that

Ms. McGuire alleged only four instances of residents using

racially inappropriate language over the course of six years

and agreed with the facility’s practice of reassigning caregiv-

ers in response to resident harassment. The district court char-

acterized her evidence regarding Brown and Beliles as “too

vague and speculative to establish severe or pervasive harass-

ment” and determined that there was not enough evidence to

show that their conduct was based on race. EEOC v. Vill. at

Hamilton Pointe LLC, No. 17-cv-00147, 2020 WL 13568924, at

*10 (S.D. Ind. Sept. 29, 2020). Regarding the conduct of Cates’s

wife, the district court concluded that her identification of

Ms. McGuire as a “black girl” was not alone sufficient to es-

tablish that her conduct was race-based and that since it was

never reported, there was no basis for employer liability.

We agree with the district court that the conduct alleged

by Ms. McGuire was not sufficiently severe or pervasive to

violate Title VII. The incidents she describes occurred across

the six-year period between her initial hiring by Hamilton

Pointe and her 2018 deposition. Her experiences with abusive

residents therefore must be assessed in that temporal context

and can be classified fairly as infrequent. See Peters v. Renais-

sance Hotel Operating Co., 307 F.3d 535, 552 (7th Cir. 2002) (de-

scribing six alleged acts of insensitive and offensive conduct

including a co-worker’s use of the N-word over the course of

a year and a half as “infrequent”). Although the frequency of

the alleged co-worker harassment is not as well-developed in

the record, Ms. McGuire had not worked with Brown and

Beliles together since at least Beliles’s termination in 2015.

And at some point, she ceased working with Brown.

No. 22-2806 29

Ms. McGuire heard residents use offensive racial slurs, in-

cluding the N-word. We have long recognized that “the N-

word is an egregious racial epithet.” Scaife, 49 F.4th at 1116;

see also Paschall v. Tube Processing Corp., 28 F.4th 805, 815 (7th

Cir. 2022) (“There may well be a situation in which the one-

time use of the N-word can be found to be severe enough to

warrant liability.”). But the context is relevant. “An inquiry

into the objective severity of harassment, … ‘requires careful

consideration of the social context in which particular behav-

ior occurs and is experienced by its target.’” Cerros, 288 F.3d

at 1046 (quoting Oncale, 523 U.S. at 81). For instance, we have

drawn a strong distinction between the severity of a supervi-

sor’s use of the N-word and that of a co-worker. Gates, 916

F.3d at 638. Although certainly still offensive, the use of a ra-

cial slur by a resident in the nursing home context would be

considered less offensive to a reasonable person than if the

same slur were said by a co-worker or supervisor in that same

setting. This observation is particularly true when the recipi-

ent is a professional trained to give care in a geriatric setting.

Regarding the severity of Brown and Beliles’s conduct,

Ms. McGuire provides only two specific examples of their

harassing behavior. Both occurred before Beliles’s termina-

tion in 2015. Ms. McGuire describes being written-up for be-

ing five minutes late and an incident in which they attempted

to get her disciplined for letting a man Brown and Beliles did

not recognize into a unit and for speaking with him while on

duty. Ms. McGuire does not allege any specific racial com-

ments by either Brown or Beliles. Neither Brown nor Beliles

were Ms. McGuire’s supervisor and she does not allege that

either had supervisory authority over her. Although

Ms. McGuire did eventually begin taking shifts to avoid

30 No. 22-2806

Brown, there is little other evidence that their behavior im-

pacted her job performance.

The conduct of Cates’s wife adds little to the totality of the

circumstances analysis. It is not clear that this conduct was

race-based. Even if we presume it to be race-based, it can only

be classified as mildly offensive. 21

c. Vanessa Miles

Hamilton Pointe hired Vanessa Miles in January 2013.

Ms. Miles testified that, during her time at Hamilton Pointe,

she witnessed discrimination against darker-skinned black

employees. Ms. Miles, who does not consider herself darker-

skinned, observed that darker-skinned staff members were

disproportionately targeted for disciplinary action. On one

occasion, Ms. Miles saw a white nurse berate a darker-

skinned black nurse for a mistake that the white nurse

claimed the black nurse had made. Ms. Miles interceded and

assumed the blame for the supposed error. The white nurse

then merely indicated “Oh, okay” rather than directing the

same treatment towards Ms. Miles. 22 Ms. Miles immediately

reported this incident to Director of Nursing Loveall. She ex-

plained to Loveall that there was a pattern of discrimination

against darker-skinned employees. Loveall told Ms. Miles

that she would address the issue. However, Ms. Miles be-

lieved this unfair treatment continued.

21 Cf. Peters, 307 F.3d at 552 (describing incidents including “a bartender’s

request to investigate an African American guest who was allegedly steal-

ing coins from a fountain” and “other African–American guests being de-

nied additional ice and cups for a party” as “mildly offensive”).

22 R.99-10 at 14.

No. 22-2806 31

Ms. Miles also heard residents make comments that she

considered racially derogatory. A resident once told

Ms. Miles that she smelled like pork, and Ms. Miles under-

stood this comment to have a racial connotation. On another

occasion, Ms. Miles heard a resident say that the darker-

skinned nurse, who spoke with a Nigerian accent, could not

speak English correctly.

On several occasions, Ms. Miles received warnings from

nurses that particular residents were racist. These warnings

were common and delivered as “kind of like a joke.” 23 A

nurse would tell Ms. Miles that a resident “might be a bit rac-

ist, so just a heads up” before Ms. Miles cared for the resident

and then afterwards ask Ms. Miles how caring for the resident

went. 24 The warnings did not affect her job assignments, but

they made her feel belittled.

Ms. Miles saw the “No African American Males to Provide

Care” assignment sheet on the morning it was posted. This

was her first and only time seeing a racial restriction on an

assignment sheet. She did not remember how many days she

saw the sheet or recall if she complained to anyone about its

language. Ms. Miles personally cared for PT. On one occasion,

PT had Ms. Miles fluff her pillows for about ten minutes. She

stopped when PT’s son entered the room and told Ms. Miles

she could leave. Ms. Miles did not recall hearing PT make any

racist comments. Ms. Miles ended her employment at Hamil-

ton Pointe in June 2015.

23 Id. at 9.

24 Id.

32 No. 22-2806

The district court determined that Ms. Miles had not been

subjected to behavior so severe or pervasive as to alter the

conditions of her employment. In the district court’s view, the

“smell like pork” comment was neither facially racial nor suf-

ficiently offensive to meet the standard. The court character-

ized Ms. Miles’s testimony regarding the incident with the

darker-skinned nurse as providing “nothing other than spec-

ulation as to why a nurse was frustrated with another African

American CNA,” but not with Ms. Miles. Hamilton Pointe,

2020 WL 13568924, at *11. The court also emphasized that the

assignment sheet was not directed at Ms. Miles, did not affect

her job assignment, and was the only racially discriminatory

assignment sheet that she saw during her employment.

The district court correctly concluded that Ms. Miles was

not subjected to severe or pervasive harassment. Ms. Miles’s

claim turns largely on harassment directed at others and

therefore must be distinguished from Chaney. Besides the as-

signment sheet, Ms. Miles principally alleges that harassment

was directed against darker-skinned black nurses, a group to

which she herself does not belong. In Walker v. Mueller Indus-

tries, Inc., 408 F.3d 328, 331 (7th Cir. 2005), we held that a white

employee could not succeed on a hostile work environment

claim based on racial harassment directed at his black co-

workers. Assuming that the alleged conduct was sufficiently

severe or pervasive for those black co-workers to meet the

standard, we determined that the white employee failed to

“establish that the conduct was so offensive to him as a third

party as to render the workplace hostile not only for him but

for any reasonable employee who likewise was a bystander

rather than a target of the harassment.” Id. Here, Ms. Miles

presents a stronger case than that presented in Walker; the har-

assment she observed was directed not against a different

No. 22-2806 33

racial group but against other black employees based on their

color. Still, Ms. Miles was not within the target area of the har-

assment. See Yuknis, 481 F.3d at 554.

Although the belittling warnings from co-workers and the

“smells like pork” comment were directed at her, these com-

ments, even taken together with the secondhand harassment,

would not allow a reasonable jury to find that such conduct

was sufficiently severe or pervasive to be actionable.

d. Trent Carter

Hamilton Pointe hired Trent Carter as a dietary aide in

April 2013. As a dietary aide, Mr. Carter was tasked with

bringing trays of food for residents from the kitchen to the

residence halls. Throughout his employment at Hamilton

Pointe, he brought the trays on a cart to the residence hall, and

the nursing staff then delivered the meals to the resident’s

rooms. This procedure was the same for all resident rooms

regardless of the resident’s race. Mr. Carter was never in-

structed not to enter a specific resident’s room. He under-

stood that he was to deliver trays to the residents directly if

the nursing staff was unavailable, but he never did so “be-

cause the nurse would take it,” and he was instructed not to

enter rooms by his supervisor Annette Brown. 25

Around May 2017, on two occasions, Brown instructed

Mr. Carter not to enter any resident rooms. Brown told

Mr. Carter that white CNAs had told her that black CNAs

were not allowed to go into any rooms. Brown also told

Mr. Carter that a resident’s property had gone missing.

Around the same time, Mr. Carter heard rumors from other

25 R.99-11 at 3.

34 No. 22-2806

employees that residents’ possessions had gone missing. In

his four years at the facility before receiving these instructions

from Brown, Mr. Carter had never entered a resident’s room.

On approximately three occasions, another white supervi-

sor also told Mr. Carter not to enter resident rooms. He told

Mr. Carter not to enter the rooms so that residents would not

accuse Mr. Carter of stealing from them. This supervisor also

said that he had heard that black CNAs were not allowed to

enter any resident rooms.

Mr. Carter once overheard the use of the N-word in the

facility. As he was standing outside the kitchen, Mr. Carter

heard a woman’s voice in the kitchen say, “We didn’t want

that big-ass [n-word] working here no more.” 26 Mr. Carter did

not know who uttered the slur. He did not report hearing it

to anyone. Mr. Carter’s employment at Hamilton Pointe was

terminated in June 2017.

The district court concluded this evidence was insufficient

to establish that Mr. Carter was subjected to a hostile work

environment. It characterized the instructions he received to

not enter resident rooms as intended to avoid theft allegations

and his statements about black CNAs being barred from

rooms as inadmissible hearsay. The court emphasized that

these instructions did not modify his job duties. The court

noted that Mr. Carter only heard the N-word once and that it

was not directed at him and stated there was no basis for em-

ployer liability.

We agree with the district court’s conclusion that

Mr. Carter did not experience severe or pervasive

26 Id. at 5.

No. 22-2806 35

harassment. On one occasion over the span of four years at

the facility, Mr. Carter overheard an unknown person use the

N-word in an unknown context. He reported this incident to

no one at the facility. Despite the inherent offensiveness of the

N-word, this single incident adds little to the totality analysis.

Mr. Carter testified that the standard procedure for the deliv-

ery of food trays throughout his time at the facility was for

dietary aides like himself to leave the trays in the halls to be

delivered to individual residents by the nursing staff. This

procedure was facially race-neutral. The statements made by

Mr. Carter’s supervisors about other black employees not be-

ing permitted to enter the rooms are not inadmissible hearsay

if submitted to show only that Mr. Carter understood that the

restriction from entering resident rooms was based on race.

See Johnson, 892 F.3d at 903. However, these statements are not

sufficiently offensive in this context to constitute severe or

pervasive harassment.

e. Montoya Smith

Hamilton Pointe hired Montoya Smith as a qualified med-

ication aide in March 2015. Ms. Smith worked for a period of

her employment in the Assisted Living and Memory Care

Units. While she was employed in these units, Kellie Jean be-

came the assisted living director.

Ms. Smith heard residents use racial slurs on multiple oc-

casions. Several residents used the N-word in her presence.

Ms. Smith testified both that residents suffering from Alz-

heimer’s disease or dementia would call her the N-word

when they became upset and that she did not know the cog-

nitive state of all the residents who she heard use the N-word.

Residents also referred to Ms. Smith as “server” and “the

help” on multiple occasions. On one or two occasions, a

36 No. 22-2806

resident also referred to her as “boy.” Once, a nurse told

Ms. Smith to be careful around a resident because the resident

had told a CNA that he had probably owned the CNA’s

grandmother.

Ms. Smith reported resident uses of the N-word and other

offensive terms on multiple occasions to those she considered

to be her supervisors, including Jean and Administrator Hay-

den. These supervisors responded to her complaints with

comments to the effect of “Oh, it’s of their era. You know, they

just do that. You know, they have their rights. Well that’s—

you know, go out and smoke a cigarette.” 27 Sometimes, su-

pervisors responded by telling Ms. Smith about how one of

their own family members was racist. Ms. Smith felt these re-

sponses simply brushed her concerns “under the rug” and

that if she reported her concerns to anyone else, they would

do the same. 28

Several co-workers also made statements to and around

Ms. Smith that she considered to be racially offensive. A nurse

said, in reference to black employees, “I get you girls mixed

27 R.99-18 at 7–8.

28 Id. at 9. These supervisors responded similarly when Ms. Smith re-

ported that residents called her “server” or “the help,” they told her,

“That’s of their era. Don’t pay it any attention. Brush it off. You know,

that’s how they were raised.” Id. at 9–10. On some occasions, she did not

report racially offensive resident conduct because it was witnessed by “the

bosses.” Id. at 9. Ms. Smith also testified that she did not document resi-

dent use of the N-word in residents’ charts, because she had been in-

structed by supervisors not to document events which would invite in-

quiry by state officials. She testified that she probably recorded resident

uses of the N-word in paper incident reports but could not specifically

recall ever doing so.

No. 22-2806 37

up all the time,” stated that she had a specific number of black

friends and made comments making fun of names she associ-

ated with black people. 29 Another co-worker also said that she

had a specific number of black friends and stated “I’m not rac-

ist. I hang out with black people all the time.” 30 Two others

told Ms. Smith that they “don’t see color.”31 Ms. Smith heard

a white qualified medication aide state that she did not un-

derstand why “black girls” did not like the aide’s relationship

with a black man and that it was not “her fault that his black

mother had all of those children and didn’t do anything for

them.” 32 Ms. Smith did not report any of these statements by

her fellow employees to her supervisors or management be-

cause she did not believe they would act upon her complaints.

Nor did she tell her co-workers that she found their state-

ments offensive.

Ms. Smith was never prohibited from entering a room be-

cause of her race. Nor did she see any written discriminatory

assignments. When she reported racial comments made by

residents, she did not ask to have her assignments changed.

She believed that if a resident used the N-word or refused to

have a black caregiver, her supervisors should have assigned

that resident a white caregiver. Hamilton Pointe terminated

Ms. Smith’s employment in May 2016.

The district court determined that the evidence presented

was insufficient to support a racially hostile work

29 Id. at 10.

30 Id.

31 Id.

32 Id.

38 No. 22-2806

environment claim. It concluded that the statements made to

and around Ms. Smith by co-workers were “insensitive and

show racial stereotypes,” but were neither severe nor perva-

sive. Hamilton Pointe, 2020 WL 13568924, at *19. The court

found that Ms. Smith heard the N-word from residents suf-

fering from Alzheimer’s disease or other memory-impairing

conditions and heard other residents using the terms “server”

and “the help.” Noting that Ms. Smith did not ask to be reas-

signed and was never threatened physically, it determined,

“[g]iven the unique circumstances of her employment,” that

she was not subjected to a racially hostile work environment.

Id.

Based on the record before us, we believe that the district

court correctly ruled that Ms. Smith was not subjected to a se-

vere or pervasive racial environment that altered the condi-

tions of her employment. The residents’ repeated use of the

N-word is troubling. But apparently some, and perhaps most,

of these aspersions came from patients suffering severe men-

tal impairments. As we have noted, a resident’s racist state-

ment, although still very offensive, is not entitled to the same

weight as would be warranted if the same statement was

made by a co-worker. This conclusion is especially true when

the speaker is or could be perceived to be suffering from a

medical condition. See Cain, 246 F.3d at 760. Patient references

to Ms. Smith and other Hamilton Pointe employees as “the

help” or “server” are not racist on their face and most cer-

tainly do not, standing alone, constitute severe or pervasive

racial harassment. Nor do these references when evaluated as

No. 22-2806 39

part of the totality of the circumstances meet that standard

here. 33

f. Bianca Toliver

Hamilton Pointe hired Bianca Tolliver as a dietary cook in

May 2015. On her first day, a cook, who was white, trained

her. While showing Ms. Toliver around the kitchen, the white

cook pointed out a mess and told Ms. Toliver that she “was

not cleaning up after these [n-words].” 34 Startled, Ms. Toliver

told her mentor to repeat herself. The white cook did so, again

uttering the slur. Ms. Toliver understood the white cook to be

referring to David Ussery, their black co-worker.

Ms. Toliver immediately went to her supervisor, Chef Cal-

vin, and reported the offensive language. Chef Calvin told

Ms. Toliver he would address the issue. Chef Calvin then took

the white cook aside on that same day. The white cook then

apologized to Ms. Toliver but did not receive a suspension.

Ms. Toliver considered the apology to be insufficient and told

Chef Calvin that she thought the situation had not been han-

dled correctly. Notably, Ms. Toliver believed that Chef Calvin

also reported the white cook to Administrator Hayden. How-

ever, Administrator Hayden never spoke to Ms. Toliver about

the incident. Ms. Toliver did not herself report the incident or

her concerns about the laxity of the response to Administrator

Hayden.

33 Although some of the residents Ms. Smith heard use the N-word suf-

fered from Alzheimer’s disease or other memory issues, Ms. Smith never

testified that she exclusively heard the word used by residents suffering

from these conditions. She did not know the mental state of all the resi-

dents she heard use the N-word.

34 R.99-19 at 7.

40 No. 22-2806

A couple of months later, the same white cook made racial

comments to Ms. Toliver and inappropriately touched her

hair. She told Ms. Toliver that she came from a town where

she rarely saw black people. She then proceeded to run her

hands through Ms. Toliver’s hair and speak about the differ-

ence in texture between Ms. Toliver’s black hair and her own

hair. Ms. Toliver shoved the white cook’s hand away and told

her “Get your hands out of my hair.”35 Because the chef posi-

tion was vacant at the time and because Ms. Toliver did not

believe that sufficient action had been taken earlier, Ms. Toli-

ver did not complain about this second incident to anyone at

Hamilton Pointe. Afterward, however, she did not feel com-

fortable working with the white cook. Ms. Toliver tried to

schedule shifts to avoid her and began looking for a new job.

Like Mr. Carter, one of Ms. Toliver’s job duties was deliv-

ering residents’ food trays. The standard procedure was for

the dietary staff to deliver the trays to the nurse’s station and

for the nursing staff to then deliver them to the resident

rooms. But if the nurses and CNAs were unavailable, dietary

staff would sometimes enter resident rooms to deliver trays.

Ms. Toliver testified that the dietary employees talked among

themselves about limiting the number of employees entering

rooms to avoid theft allegations. She believed this goal of

avoiding theft allegations did not come from her supervisor

or the Administrator and that it was followed by dietary em-

ployees regardless of their race.

One day, Yana Shelby, a black CNA, vented to Ms. Toliver

about being prohibited from entering certain resident’s rooms

in the Rehab Unit because of her race. This was the first time

35 Id. at 9.

No. 22-2806 41

Ms. Toliver had heard another employee complain about ra-

cial discrimination at Hamilton Pointe. Ussery also expressed

his frustration to Ms. Toliver that black employees were told

not to enter certain resident rooms.

A nurse in the Rehab Unit instructed Ms. Toliver not to

enter a specific resident’s room and to instead leave trays for

the resident at the nurse’s station. The nurse did not refer to

race in providing this instruction, but Ms. Toliver had heard

from several CNAs, including Shelby, that this resident re-

fused care from black caregivers. Ms. Toliver followed the in-

struction for the duration of the resident’s stay and never en-

tered the room. She never complained about this incident. She

ended her employment at Hamilton Pointe in January 2018.

The district court concluded that, when considered in their

totality, Ms. Toliver’s experience with the white cook and the

tray delivery instructions did not amount to severe or perva-

sive harassment. The court noted that the instructions not to

deliver trays to resident rooms was not a race-based assign-

ment because it was the standard procedure for all dietary

cooks. It then concluded that the white cook’s conduct was

not sufficiently severe or pervasive to establish a hostile work

environment and that there was no basis for employer liabil-

ity. The district court emphasized that although offensive, the

white cook’s use of the N-word was directed at another em-

ployee, not Ms. Toliver, and that the cook apologized and did

not use the word again. It also noted that Ms. Toliver did not

complain about the hair-touching incident.

The district court correctly concluded that Ms. Toliver’s al-

legations are not sufficiently severe or pervasive to support a

hostile work environment claim. The cook’s conduct, both in

using the N-word in the workplace to refer to a co-worker and

42 No. 22-2806

in touching Toliver’s hair without permission, was race-based

and inappropriate in the workplace. However, these two in-

cidents, the first of which was followed by an apology, are not

sufficient to constitute severe harassment. “[O]ne utterance of

the N-word has not generally been held to be severe enough

to rise to the level of establishing liability.” Nichols v. Mich.

City Plant Plan. Dep't, 755 F.3d 594, 601 (7th Cir. 2014). In the

sexual harassment context, we have held more offensive non-

consensual touching than the incident alleged by Ms. Toliver

to have not created an actionable hostile work environment.36

The statements by co-workers about being banned from

rooms, although admissible, must be afforded little weight in

these circumstances. In Johnson, we “caution[ed] against ele-

vating workplace rumors to evidence of a hostile work envi-

ronment, although coupled with other evidence this testi-

mony might have relevance in a hostile work environment

claim.” 892 F.3d at 903. These comments may be admissible to

show “that employees understood their environment to be

one in which derogatory statements were pervasive,” but are

the “weakest evidence.” Id. When faced with such comments,

the trial court always must make a prudential judgment as to

whether they are more probative than prejudicial. Here, alt-

hough co-workers’ statements to Ms. Toliver that CNAs were

banned from certain rooms because of their race is relevant to

Ms. Toliver’s impression that harassment was pervasive,

36 See McPherson, 379 F.3d at 439 (concluding that a supervisor’s “inquiries

about what color bra McPherson was wearing, his suggestive tone of voice

when asking her whether he could ‘make a house call’ when she called in

sick and the one occasion when he pulled back her tank top with his fin-

gers” were not sufficient to establish a sexually hostile work environ-

ment).

No. 22-2806 43

these utterances must be assessed in light of other evidence to

demonstrate, in the totality of the circumstances, where

Ms. Toliver was subjected to a hostile work environment.

Here, that other evidence is insufficient.

g. Raven Langley

Hamilton Pointe first hired Raven Langley as a CNA in

June 2015. She resigned before completing orientation and

without providing independent care to any resident. Hamil-

ton Pointe re-hired Ms. Langley in June 2016. She then trained

for two weeks before providing care independently.

After her training period, Ms. Langley experienced ra-

cially offensive language from two residents. One resident,

who suffered from dementia, called her “the help” between

five and twenty times. She did not use any other racially of-

fensive words. Ms. Langley told the resident not to call her

“the help,” but could not recall how the resident responded.

Ms. Langley reported this conduct to her charge nurse and

asked if another caregiver could take her place. The charge

nurse did not change Ms. Langley’s assignment but told her

to bring another employee with her when caring for the resi-

dent. Ms. Langley was comfortable continuing to care for this

resident. She preferred bringing in a second employee.

Another resident used the N-word three to five times in

Ms. Langley’s presence. The resident said it at least once in

the context of telling Ms. Langley that she did not want care

from an N-word. Ms. Langley told the resident that the word

was offensive but could not recall the resident’s response.

Ms. Langley reported this resident’s use of the N-word to that

hall’s charge nurse. The charge nurse told her that using the

slur was normal behavior for the resident. Ms. Langley was

44 No. 22-2806

still comfortable caring for the resident. She did not ask the

charge nurse to be re-assigned. On her own initiative, how-

ever, she began to take another employee into the room with

her when caring for the resident.

About a week before Ms. Langley ended her employment

at Hamilton Pointe, the assistant director of nursing came to

Ms. Langley and asked how she was doing. Ms. Langley told

the assistant director about the language used by the two res-

idents and the assistant director said that she would investi-

gate. Ms. Langley testified that she did not know if the assis-

tant director took any action. In her remaining days at Ham-

ilton Pointe, Ms. Langley did not notice any changes in the

two residents’ behaviors. She was assigned to their hallways

only about twice a week.

Ms. Langley did not believe she was assigned rooms or

prevented from caring for any resident because of her race.

She saw no assignment sheets that stated no black care. She

did see written indications that certain residents had histories

of “behavior towards certain races.” 37

Ms. Langley resigned from Hamilton Pointe for a second

time in July 2016. She testified that she did not consider the

work environment to be offensive “as far as on a day.” 38 She

suffered emotional harm or distress “[i]n the moment … just

from the slurs” but not after. 39

The district court concluded that no reasonable jury could

find that Ms. Langley was subjected to a racially hostile work

37 R.99-13 at 11.

38 Id. at 13.

39 Id.

No. 22-2806 45

environment. The court determined that, in the context of car-

ing for a resident with dementia, the repeated use of the

phrase “the help” was not so severe as to meet the standard.

The court emphasized that Ms. Langley continued to be com-

fortable providing care for both residents after reporting their

behavior. It also noted Ms. Langley’s testimony that she did

not consider the work environment to be offensive.

The district court did not err in dismissing Ms. Langley’s

claim on summary judgment. The record will not support the

conclusion that she was subjected to severe or pervasive har-

assment. The two residents’ racial abuse, particularly the sec-

ond resident’s use of the N-word, was certainly offensive. But

given the nursing home context, Ms. Langley’s limited contact

with these residents, and her testimony that she was comfort-

able caring for the residents after she reported their behavior,

their comments were neither sufficiently severe nor pervasive

to alter the conditions of her employment.

h. Taki-a Roberts

Hamilton Pointe hired Taki-a Roberts as a dietary aide in

November 2015. Early in her employment, a resident, JH, ac-

cused Ms. Roberts of abuse. Because of this complaint,

Ms. Roberts was suspended. When Hamilton Pointe’s inves-

tigation later determined that the abuse allegation was unsub-

stantiated, she returned to work. She was instructed to stay

away from JH.

After her return to work, Ms. Roberts, in her view, was

harried by Administrator Hayden. Although Hayden never

expressly ordered Ms. Roberts not to leave the kitchen, when-

ever she found her outside the kitchen, she would order her

to return. In March 2016, Ms. Roberts’s position was changed

46 No. 22-2806

to dietary cook. Ms. Roberts testified that Hayden’s harass-

ment may have been race-based because Hayden’s ire was

specifically focused on her. Hayden never expressly referred

to Ms. Roberts’s race.

In her time at Hamilton Pointe, Ms. Roberts heard several

residents use offensive racial language. She heard four or

more residents regularly use the N-word. She first heard a

resident use the slur during her third or fourth week of em-

ployment and from then onward she heard it used two or

three times a day in the dining room. Ms. Roberts also heard

these residents state outside the dining room that they did not

want care from N-words. She did not believe that these resi-

dents were referring to her because as a dietary aide she

“couldn’t really go in their rooms.” 40 She knew that black em-

ployees cared for these residents. Ms. Roberts also heard JH

refer to one of her black coworkers in the kitchen as “boy.”

Within the kitchen, Ms. Roberts heard black employees use

racial language, but she did not consider this language to be

discriminatory or harassing.

Ms. Roberts never reported any resident’s use of the N-

word to management or to the TLC hotline. She had experi-

enced the use of racial slurs by residents while working at

other long-term care facilities. Because those institutions

“would just sweep it under the rug,” she believed Hamilton

Pointe would do the same. 41

Ms. Roberts never heard a supervisor instruct any em-

ployee not to enter rooms because of a resident’s racial

40 R.99-17 at 10.

41 Id. at 8.

No. 22-2806 47

preference, but she believed that black caregivers were told

not to care for certain residents. Ms. Roberts herself was never

told to stay away from any resident because of her race.

Ms. Roberts left Hamilton Pointe in July 2016.

The district court granted Hamilton Pointe’s motion to

dismiss Ms. Roberts’s claim. In discussing the offensive lan-

guage that Ms. Roberts heard residents use, the district court

noted that it was not directed against Ms. Roberts, that she

never complained about the comments to management, and

that she denied suffering any emotional harm. Finally, it

stated that Ms. Roberts’s suspension during the elder abuse

investigation, as required by federal and state regulations,

could not be construed as evidence of a hostile work environ-

ment.

The district court properly granted summary judgment.

The record will not support a conclusion that Ms. Roberts was

subjected to a severe or pervasive racial environment that al-

tered the conditions of her employment. The repeated subjec-

tion of an employee to hearing the N-word can be sufficient

to constitute an objectively hostile environment. Hrobowski v.

Worthington Steel Co., 358 F.3d 473, 477 (7th Cir. 2004) (holding

that the work environment was objectively hostile where co-

employees frequently used racial slurs including the N-word

and the plaintiff’s fellow supervisors used the N-word on

more than one occasion). However, here, the speakers were

nursing home residents not co-employees. As we discussed

above, resident conduct must be given less weight in deter-

mining whether a work environment was objectively offen-

sive than the conduct of co-employees. Further, although

Ms. Roberts was in the target area of the residents’ racist lan-

guage, the comments were not directed at her. Our precedent

48 No. 22-2806

does not require that identical weight be given to an em-

ployee’s experience of overhearing racial slurs, as would be

given if the employee herself was directly called the slur. The

objective offensiveness inquiry is driven by context. In the

context of employment in a nursing home, Ms. Roberts’s ex-

perience of overhearing residents using racial slurs does not

meet this standard.

Furthermore, there is no basis for employer liability in re-

spect to the resident’s racially offensive language. Ms. Roberts

never reported the matter. “An employer is not liable for co-

employee racial harassment ‘when a mechanism to report the

harassment exists, but the victim fails to utilize it,’” and the

employer was not otherwise “adequately put on notice of the

prohibited harassment.” Yancick, 653 F.3d at 549. The evi-

dence here suggests Hamilton Pointe provided reasonable av-

enues for employees to report harassment. During the rele-

vant period, Hamilton Pointe’s employee handbook included

a harassment complaint procedure instructing employees to

report any job-related harassment to the administrator, their

supervisor, or the hotline operated by TLC. This hotline pro-

vided an avenue for reporting outside the management chain.

Hotline calls, like the one made by Ms. Fletcher, were received

and investigated by TLC staff. The handbook also contained

a problem-solving procedure stating that employees were to

bring any complaints first to their immediate supervisor and

then up the management chain to their department manager,

and the administrator. Ms. Roberts did not use these channels

to put Hamilton Pointe on notice of the residents’ behavior.

The EEOC has not presented evidence that management

No. 22-2806 49

knew or should have known that residents were frequently

using racial slurs in the dining room.42

To the extent that Ms. Roberts also alleges a campaign of

harassment by Administrator Hayden, a Title VII supervisor,

this theory of harassment fails. A reasonable jury could not

conclude on this record that Administrator Hayden’s conduct

toward Ms. Roberts was race-based.

i. Ruth Washington

Hamilton Pointe hired Ruth Washington as a qualified

medication aide in December 2015. Ms. Washington heard

three white co-workers make statements that she found ra-

cially offensive.

Ms. Washington and white CNA Laura Williams had sev-

eral conversations about mixed-race children, including

Ms. Washington’s own nieces and nephews. In one of these

conversations, Ms. Washington showed Williams photos of

her nieces and nephews. Williams told Ms. Washington that

her nephew was “nice looking.”43 When Ms. Washington re-

sponded that he was mixed race, Williams asked, “don’t they

stay with your own kind?” 44 Ms. Washington replied “Yeah,

we do.” 45 Ms. Washington then asked if Williams would

42 See Bombaci, 482 F.3d at 985 (holding that employer did not have con-

structive notice of frequent sexual harassment that occurred on plant floor

and directly next to plant manager’s office door over the course of three

years since there was no indication that the harassment occurred in front

of the plant manager or other supervisors).

43 R.100-1 at 13.

44 Id.

45 Id.

50 No. 22-2806

disown her daughter if she “came home with a black guy?”46

Williams replied that she would. Ms. Washington told Wil-

liams that her answer made her “seem like a bigot.”47

Ms. Washington never reported Williams’s comments to any-

one else at Hamilton Pointe.

Ms. Washington also heard Nurse Lamp use the phrase

“you people” multiple times. On three or more occasions,

Lamp made comments about Ms. Washington being difficult

to see in the dark. On one of these occasions, Ms. Washington

was working on a night shift in a space with “[p]lenty of light”

when Lamp told her, “I didn’t see you in the dark.”48

Ms. Washington never reported Lamp’s comments up the

management chain.

Ms. Washington heard Nurse Rector use the phrase “you

people” on several occasions when referring to the hair and

skin color of black people. In a conversation with Rector about

mixed-race children, Ms. Washington told Rector there were

mixed-race children in her family, and Rector asked, “what

are their skin colors?” 49 Within this same conversation, Rector

stated that mixed-race couples should not have children. This

conversation upset Ms. Washington, and she expressed this

to Rector. Eventually, Ms. Washington began to avoid sitting

in the nurse’s station where she would have to interact with

Rector. Ms. Washington did not complain about these com-

ments to anyone.

46 Id.

47 Id.

48 Id. at 11.

49 Id.

No. 22-2806 51

According to Ms. Washington, Rector treated her convey-

ance of resident medication requests with more skepticism

than she did for other CNAs. One night, Ms. Washington told

Rector that a resident requested Tylenol. Rector asked

Ms. Washington, “Really? Did they really ask for it?”50 After

Ms. Washington stated again that the resident had requested

the medication, Rector walked down the hall to confirm with

the resident before returning to the medical cart to dispense

the Tylenol. Since this scenario had occurred before,

Ms. Washington predicted to other CNAs that it would hap-

pen again.

Two days later, a resident requested a pain pill from

Ms. Washington. When Ms. Washington relayed the request

to Rector, Rector asked, “Did she really ask, or did you ask

her?” 51 Again, although Ms. Washington reaffirmed the resi-

dent’s request, Rector walked down the hall to confer with the

resident before dispensing the pill. In contrast, when Williams

relayed a resident’s request for medication, Rector expressed

no skepticism and delivered the pill without first confirming

with the resident. However, Rector did trust Ms. Washington

with delivering medication. Sometimes, Rector would ask

Ms. Washington to deliver pills to residents at the end of the

hall, even though the task was within Rector’s job duties.

Ms. Washington complained to Lamp about Rector’s treat-

ment of her with respect to the distribution of medication. She

knew Rector and Lamp were friends. She did not report her

50 Id. at 16.

51 Id.

52 No. 22-2806

concerns to Administrator Cates, because Cates made her un-

comfortable.

Although Ms. Washington never saw an assignment sheet

stating no black care, she was instructed not to enter a resi-

dent’s room because of her race. Nurse Lamp told Ms. Wash-

ington that she was not permitted to enter resident LE’s room

because LE did not want black people in her room. Ms. Wash-

ington testified that she and Amber Cottrell, the other black

CNA assigned to the hall, did not provide care for LE. Ham-

ilton Pointe’s records indicate that Ms. Washington was as-

signed to care for LE on two dates and that after these dates,

Cottrell was assigned to care for LE. Ms. Washington testified

that on one occasion, she did enter LE’s room and LE told her,

“You’re not supposed to be in here.” 52 When presented at her

deposition with documentation of a complaint filed against

her by LE, Ms. Washington testified that she could not recall

if LE ever filed a complaint against her. Ms. Washington did

not report being barred from LE’s room to management. She

testified that she could not recall making a call to the TLC hot-

line. Hamilton Pointe terminated Ms. Washington’s employ-

ment in May 2017.

The district court dismissed Ms. Washington’s claim. It de-

termined that no reasonable jury could find that Ms. Wash-

ington’s re-assignment away from caring for LE was race-

based because Hamilton Pointe’s records indicated that this

reassignment occurred after LE filed a grievance against her

and, after that, LE continued to receive care from other black

CNAs. It further stated that Rector’s references to “you

52 Id. at 12.

No. 22-2806 53

people” did not rise to the level of severe or pervasive harass-

ment.

This record will not support a conclusion that Ms. Wash-

ington was subjected to severe or pervasive harassment. The

harassing conduct alleged by Ms. Washington consists pri-

marily of unreported co-worker comments. The comments

made by Ms. Washington’s co-employees during conversa-

tions about mixed-race children did not alter the conditions

of her employment. Assuming, for the sake of argument, that

these statements reasonably could be characterized as harass-

ment, they are certainly neither severe nor pervasive. In re-

gard to LE, Ms. Washington’s testimony about Lamp’s expla-

nation for her prohibition from the room is insufficient to

show that her prohibition from the room was race-based.

Hamilton Pointe has produced evidence that LE was assigned

black caregivers including Ms. Washington, and that LE con-

tinued to be assigned black caregivers after Ms. Washington

was banned from her room.

j. Lashawn Johnson

Hamilton Pointe hired LaShawn Johnson as a CNA in Feb-

ruary 2016. While working in the Skilled Unit, Mr. Johnson

saw a worksheet stating in some abbreviated form “no Afri-

can American care” with respect to particular residents. It also

said “No Male Care” for certain residents. This worksheet

was up for a two-week period in the hall to which he was as-

signed. This was the only assignment sheet Mr. Johnson saw

indicating a racial prohibition on caring for a resident.

Mr. Johnson testified that, on the halls where he worked,

three or four residents, including LK, asked for “No Male

Care” but accepted care from white male employees.

54 No. 22-2806

Mr. Johnson specifically saw a white male wound-care nurse

provide care to at least one of these residents. Because LK re-

quested no male care, Mr. Johnson had to switch out with a

CNA assigned to another hall to accommodate her request.

He still took LK treats and responded to her call lights. Alt-

hough LK did not want Mr. Johnson to provide personal care

like changing her, she accepted this care from both black fe-

male and white male employees.

While working at the facility, Mr. Johnson was in a rela-

tionship with a fellow Hamilton Pointe employee, who is

white. Mr. Johnson sometimes went to that employee’s unit

to assist her. A nurse in that unit told Mr. Johnson to stay in

his own unit. Mr. Johnson also heard this nurse ask the other

employee, “Why are you with him? Why are you with a black

man? Why don’t you have a white man?" 53

On his visits to the other employee’s unit, Mr. Johnson

would socialize with a particular male resident. This situation

changed after the resident’s wife discovered that Mr. Johnson

was dating a white woman. A nurse told Mr. Johnson,

“You’re not allowed in that room because she don’t want her

husband getting took care of from a black man, from

blacks.” 54 He did not complain to anyone about the nurse’s

comment. Mr. Johnson’s employment ended in spring 2016.

The district court determined that Mr. Johnson was not

subjected to an objectively hostile work environment. In do-

ing so, it emphasized that Mr. Johnson encountered only one

discriminatory assignment sheet, provided non-personal care

53 R.99-12 at 13.

54 R.113-11 at 10.

No. 22-2806 55

to LK and was not assigned to the male resident’s room from

which he was banned.

We agree with the district court’s analysis. The district

court correctly decided that the record will not support a con-

clusion that the events of which Mr. Johnson complains con-

stituted severe or pervasive harassment. He encountered a ra-

cially discriminatory assignment sheet, but such sheets were

not a pervasive aspect of his employment like they were in

Chaney. Given Mr. Johnson’s testimony that the assignment

sheet he saw was directed against all black employees, its im-

pact must be considered as more severe in respect to him than

the “No African American Males to Provide Care” sheet was

in respect to Ms. Fletcher. However, when evaluated with his

other experiences it is not sufficiently severe as to alter the

conditions of his employment. His observation that a few res-

idents accepted care from white male employees despite re-

questing no male care adds little to assessing the objective of-

fensiveness of the work environment. Although a race-based

motivation for the instruction to remain in his own unit can

be inferred from the nurse’s other statements, it is significant

in weighing the offensiveness of this prohibition that

Mr. Johnson was not assigned to that unit. Similarly, his pro-

hibition from entering the male resident’s room must be con-

strued as less offensive because he was never assigned to care

for that resident. Neither of these prohibitions altered his job

duties or interfered with his work performance.

Moreover, there is no basis for employer liability. No tes-

timony has been presented indicating that Mr. Johnson raised

his concerns about the assignment sheet he encountered or

the other alleged harassing conduct to anyone at Hamilton

Pointe. Even if Hamilton Pointe were on notice of the race-

56 No. 22-2806

based assignment sheet given Ms. Fletcher’s 2015 complaint,

the EEOC has not explained why Hamilton Pointe should

have known about Mr. Johnson’s experiences in the unit he

was not assigned.

k. L’Sheila Lewis

Hamilton Pointe hired L’Sheila Lewis as a CNA in April

2016. During her employment, Ms. Lewis was told on two oc-

casions by a white co-worker not to enter a particular resi-

dent’s room in the Rehab Unit because the resident did not

want any black people in her room. A white nurse, without

expressly referring to race, told her that CNAs needed to re-

spect this resident’s “right to refuse care from a person.” 55

Ms. Lewis did not report the resident’s request to anyone. She

did not see any racial preference documented in writing for

the resident.

Ms. Lewis experienced an incident of racially harassing

language at Hamilton Pointe. A white female resident berated

Ms. Lewis when she entered the resident’s room to assist her.

She called Ms. Lewis several names including “black B” and

the N-word. 56 Ms. Lewis had previously cared for the resident

without encountering racial abuse. She only reported the in-

cident to Ms. Washington. Ms. Washington told Ms. Lewis

she would document what happened and report it to the

charge nurse. Ms. Lewis recorded in the resident’s chart that

she “used some very colorful language.” 57

55 R.113-9 at 7.

56 Id. at 4.

57 Id. at 5.

No. 22-2806 57

Later that night, Ms. Lewis had a heated confrontation

with Ms. Washington, Nurse Lamp, Cottrell, and Williams

that began after Ms. Lewis rejected Ms. Washington’s request

for Ms. Lewis to deliver a snack to a resident. After her shift

ended, Ms. Lewis was suspended because of this confronta-

tion. She was subsequently terminated less than two months

after she was hired. Because of this suspension and termina-

tion, Ms. Lewis never received any more information about

the incident with the resident.

The district court determined that no reasonable jury

could find that Ms. Lewis was subjected to a racially hostile

work environment. In doing so, the district court also noted

that Ms. Lewis testified that she did not raise any concerns

about what the CNAs told her. In discussing the incident of

resident harassment, the court emphasized that Ms. Lewis

complained only to Ms. Washington, did so on her last day,

and never saw the resident again.

We agree with the district court’s analysis. Ms. Lewis’s

claim consists of co-employee statements made about a resi-

dent refusing black caregivers and a single incident of verbal

racial abuse committed against Ms. Lewis by another resi-

dent. Interpreting the nurse’s “a person” statement, as the

EEOC asks us to, as endorsing the resident’s request to not

receive care from black caregivers, these events, in their total-

ity, constitute neither severe nor pervasive harassment.

There is no basis for employer liability. Ms. Lewis did not

report to anyone that the CNAs told her about the resident’s

request for no black caregivers and that a nurse had instructed

her to follow the request. Ms. Lewis told only Ms. Washing-

ton, a qualified medication aide, about being harassed by the

resident. Even if there was a reasonable basis for Ms. Lewis to

58 No. 22-2806

believe that Ms. Washington “had the responsibility to, and

would, refer [her] complaints to someone who could address

the problem,” Lambert, 723 F.3d at 867, Ms. Lewis never again

dealt with the resident who harassed her. Hamilton Pointe

could not have been negligent in failing to remedy this har-

assment.

l. Naim Muhammad

Hamilton Pointe hired Naim Muhammad as a CNA in Au-

gust 2016. One day, as several employees including Mr. Mu-

hammad were gathered at a nurse’s desk in the Skilled Unit,

Nurse Lamp told the charge nurse, “That boy can’t work

down that hall there.” 58 Mr. Muhammad knew Lamp to be

referring to him and a particular service hall.

On a separate occasion, Mr. Muhammad heard a nurse tell

a black female CNA that she was prohibited from working in

the same service hall because the residents in that hall did not

want black caregivers. This was the only time he heard a state-

ment that black caregivers were forbidden in a particular hall.

Mr. Muhammad believed that all men and black women were

not permitted to work in the hall. He discussed these racial

prohibitions with co-workers but did not complain about the

issue to management or call the hotline.

Around the same time as the comment was made to the

CNA, Mr. Muhammad was assigned to some rooms in this

service hall as part of a split assignment with another hall. He

was not prohibited from entering his assigned rooms. But on

several occasions, Lamp, Ms. Washington, and other co-

workers instructed Mr. Muhammad not to enter specific other

58 R.100-4 at 4.

No. 22-2806 59

rooms in the hallway. More than a couple times, these oral

instructions referenced his race as the reason for this prohibi-

tion. Although not rooms to which Mr. Muhammad was as-

signed, these were rooms for which he would have been ex-

pected to answer a call light.

Mr. Muhammad never saw any written assignment sheet

stating a resident’s racial preference for caregivers. He heard

co-workers mention “different notes about black people,” but

he did not see them himself. 59 Mr. Muhammad’s employment

at Hamilton Pointe ended in July 2017.

In granting Hamilton Pointe’s motion for summary judg-

ment, the district court characterized Lamp’s “[t]hat boy can’t

work down that hall” comment as “at most, an isolated offen-

sive utterance.” Hamilton Pointe, 2020 WL 13568924, at *25. It

determined that neither Lamp nor Ms. Washington’s com-

ments affected his job assignments.

The district court correctly concluded that Mr. Muham-

mad was not subjected to severe or pervasive harassment.

Lamp’s statement that he could not work down a hall—

though offensive to Mr. Muhammad in its use of “boy”—is

not sufficient to establish that Hamilton Pointe had a policy

of prohibiting black CNAs or black male CNAs from that

hall. 60 Mr. Muhammad himself was assigned to the same hall.

59 R.112-20 at 13.

60 Because no evidence has been presented that nurses could take tangible

employment actions against CNAs, Lamp was not Mr. Muhammad’s Title

VII supervisor. See Vance, 570 U.S. at 424; Montgomery v. Am. Airlines, 626

F.3d 382, 391 (7th Cir. 2010) (holding that a crew chief’s “occasional au-

thority to oversee some aspects” of Montgomery’s work as a mechanic did

not render him a Title VII supervisor).

60 No. 22-2806

Furthermore, there is no basis for employer liability. Mr. Mu-

hammad did not report the statements banning him or other

black CNAs from the hall and the specific rooms to anyone

above him in the management chain.

m. Sara Johnson

Hamilton Pointe first employed Sara Johnson in 2014. In

November 2016, it re-hired her as a CNA. During either her

first or second period of employment, Ms. Johnson heard two

female residents say they did not want black caregivers. One

of them used the N-word in doing so. These requests were

then reflected on at least one assignment sheet that indicated

“no black caregivers.” After these requests, she no longer

cared for these two residents and found her own replace-

ments. She could not recall if she reported the discriminatory

assignment sheet to management.

On “maybe two” occasions during her second stint of em-

ployment, Hamilton Pointe residents called Ms. Johnson the

N-word. 61 When she reported resident use of the N-word to

nurses, they would reply, “That’s the era that they came

from.” 62 After a resident called her the N-word, she had to

find co-workers to replace her. Ms. Johnson then did not care

for that resident on later shifts. She resigned from Hamilton

Pointe in April 2017.

The district court concluded that Ms. Johnson was not sub-

jected to a racially hostile work environment. In the district

court’s view, her claim relied upon the discriminatory assign-

ment sheet but she could not remember any details regarding

61 R.100-3 at 6.

62 Id. at 7.

No. 22-2806 61

that assignment sheet including when it was posted. It distin-

guished Ms. Johnson’s claim from Chaney on the grounds that

Ms. Johnson did not allege that she saw race-based assign-

ment sheets for several months in a row, was banned from

resident rooms, or experienced co-worker harassment.

Ms. Johnson was not subjected to severe or pervasive har-

assment. The district court incorrectly stated that Ms. Johnson

did not allege to have been banned from rooms, but that com-

plaint is implicit in her statement that she was required to find

a replacement when the two residents requested no black

caregivers. The other factors upon which the court distin-

guished her claim from Chaney are sound. Ms. Johnson did

not allege co-worker racial hostility. She alleged seeing writ-

ten race-based assignments for two residents, not that racially

discriminatory assignment sheets were prevalent in her time

at Hamilton Pointe. Ms. Johnson was subjected to resident use

of the N-word, but she testified that this happened “maybe”

twice in her second stint of employment. As we have dis-

cussed, in the nursing home context, two resident uses of the

N-word are not sufficiently severe to establish a hostile work

environment claim. Taken together, the assignment sheet and

two resident uses of the N-word constitute neither severe nor

pervasive harassment.

n. Amber Johnson

Hamilton Pointe hired Amber Johnson as a CNA in April

2017. Ms. Johnson alleged hostile treatment from several res-

idents. She also alleged that her repeated assignments to the

more difficult Rehab Unit were race-based.

When resident RG requested snacks and Ms. Johnson

could not fulfill his requests because the kitchen was locked,

62 No. 22-2806

RG became angry with her. He called her “stupid” and

“lazy.” 63 Though RG did not expressly reference race,

Ms. Johnson perceived his belittling language to be racially

motivated.

The next day, a CNA asked Ms. Johnson what happened

between her and RG. After Ms. Johnson explained what oc-

curred, the CNA, without mentioning race, told her that she

was not allowed to go back into RG’s room. Ms. Johnson re-

ported the incident to Nurse Deb Butturi. Since the incident

occurred on the night shift, there was no management in the

building at the time.

About a month later, Ms. Johnson responded to RG’s call

light. When she entered the room, he told her "Get. You know

you are not supposed to be in here. Get." and repeated the

word “Get” while pointing at the door until Ms. Johnson

left. 64 She reported this incident to Butturi. Ms. Johnson did

not provide care again to RG. She does not believe that any-

one spoke to RG after either incident.

Resident JL was known among facility staff for his inap-

propriate behavior. Ms. Johnson testified that his inappropri-

ate conduct was more sexually oriented than racially ori-

ented, but described two incidents in which he made racial

comments. During one shift, JL suggested that Ms. Johnson

and another employee “get naked and rub Mazola oil on

[their] bodies and see what happens because he would love

to see [their] brown bodies oiled up.” 65 On another shift, JL

63 R.100-7 at 8.

64 Id. at 6.

65 Id. at 7.

No. 22-2806 63

told Ms. Johnson that he was not a racist because he had

grown up with black people and proceeded to discuss black

people he had employed.

Either Ms. Johnson or the other employee reported this

first incident, but Ms. Johnson did not believe any action was

taken in response. She testified that she probably documented

the behavior in JL’s chart and that his inappropriate behavior

was reported to nurses on other occasions.

Another resident, JT, did not make any racial or offensive

statements to Ms. Johnson but was reluctant to receive care

from her. Ms. Johnson told Nurse Sylvia Wolf about JT’s re-

luctance to receive care. Wolf told Ms. Johnson “Don’t go back

in that room.”66 Ms. Johnson asked, “What’s going on?”67

Wolf replied, “Oh, she’s a bigot.”68 Wolf also told her that JT

had dementia and was “from that generation where that was

normal, and that generation—it’s still fortunate that that gen-

eration is dying off.” 69 Ms. Johnson only dealt with JT for one

part of one shift; she never cared for her again. She could not

recall if she documented the incident in JT’s chart.

Ms. Johnson wanted to report this incident regarding JT to

management. She placed a note under the door of then-Direc-

tor of Nursing Lynn Jones. This note stated “I’m having some

issues. I really need to talk to you.” 70 She also wrote that she

needed a break from the Rehab Unit. Ms. Johnson had

66 Id. at 6.

67 Id.

68 Id. at 7.

69 Id. at 12.

70 Id. at 11.

64 No. 22-2806

intended to discuss the specifics, including the incident with

JT, when she had an opportunity to speak with Jones. This

was one of many notes Ms. Johnson left under Jones’s door

before she had the opportunity to speak with her. Jones was

seldom available to Ms. Johnson. Ms. Johnson worked the

night shift, and Jones worked during the day. Ms. Johnson did

eventually speak with Jones on multiple occasions, including

at least once after she left the note. Ms. Johnson does not recall

the substance of their conversations.

Nurse Lamp told Ms. Johnson that when she saw black

CNA Jo Murray in a dark room, Lamp said: “Oh, my God, I

didn’t even see you. You’re so black. It’s dark in here.” 71 In

telling the story, Lamp cast the event as funny. Ms. Johnson

did not tell Lamp that she was offended but conveyed her of-

fense through her facial expression. Ms. Johnson told Murray

what Lamp had told her but did not report Lamp’s story to

anyone higher in the chain of command.

Ms. Johnson initially worked mostly in the Skilled Unit

but was later assigned primarily to the Rehab Unit. She be-

lieved the Rehab Unit to be “substantially harder, more de-

manding.” 72 She continued to be assigned almost exclusively

to the Rehab Unit, even as she requested to work in other

units. She was told that the reason for her assignment to the

Rehab Unit was because she worked twelve-hour shifts, but

she knew of four non-black employees who also worked

twelve-hour shifts and did not work exclusively in the Rehab

Unit. Only she and another person, who she identified as also

71 Id. at 14.

72 Id. at 15.

No. 22-2806 65

“brown,” “worked Rehab, never had opportunities to work

anywhere else.” 73

When she was assigned to the Rehab Unit, it was short-

staffed. Ms. Johnson and another black CNA would have re-

sponsibility for all of the unit’s eighty patients. They repeat-

edly asked for more CNAs to be assigned to help, but their

requests were denied. When white employees working in the

Skilled Unit asked for help, their shift was expanded from two

to four CNAs.

Ms. Johnson repeatedly complained to Director Jones and

the assistant director of nursing about her assignment to the

Rehab Unit. In one note to Jones, Ms. Johnson wrote that the

people who worked twelve-hour shifts, without having to

work exclusively in the Rehab Unit were not “brown” but she

and the “brown” employee had to work all their shifts in the

Rehab Unit: “I think you guys know why.” 74

During this same period, Ms. Johnson had an ongoing dis-

pute with Williams, who worked in the Skilled Unit.

Ms. Johnson frequently reported Williams’s conduct to Direc-

tor Jones and another supervisor over a six-month period, but

no action was taken. She told them that Wiliams had been

threatening to fight her. Ms. Johnson asked for a meeting with

Administrator Cates. This meeting was scheduled, but Cates

did not appear.

Near the end of her employment at Hamilton Pointe,

Ms. Johnson was asked to work an unscheduled shift on a Sat-

urday. She conditioned her acceptance on her not being

73 Id.

74 R.113-21 at 17.

66 No. 22-2806

assigned to the Rehab Unit. When she arrived at the facility,

she nevertheless discovered that she was assigned to the Re-

hab Unit. She refused to work the shift and called Adminis-

trator Cates. Cates told her that he was at a wedding and

asked why she called him on a Saturday. Cates ended the call

by telling Ms. Johnson “We have been on the phone for nine

minutes, Amber. I can’t get these minutes back," and that

other facilities were hiring. 75 Ms. Johnson worked the shift

and soon after found another job. Ms. Johnson’s employment

ended in July 2018.

The district court determined that the EEOC failed to es-

tablish that Ms. Johnson was subjected to a racially hostile

work environment. In the district court’s view, much of the

harassing conduct alleged by Ms. Johnson was not based on

race. It placed JL’s “brown bodies” comment and JG’s conduct

into this category because JL made sexually inappropriate

comments to caregivers of different races and the insults used

by JG were not facially racial. The court determined that

Ms. Johnson’s subjective belief that her Rehab Unit assign-

ment and lack of support were race-based was insufficient to

support her race-based assignment claim. 76 The district court

concluded that the incidents it classified as race-related

(Lamp’s story, the instruction not to enter JT’s room, and JL’s

proclamations that he was not racist) when taken together did

75 Id. at 5.

76 Citing seven Hamilton Pointe staffing sheets from 2015 and 2016, the

district court stated that “[b]oth African American and Caucasian employ-

ees were assigned to all halls at Hamilton Pointe.” Hamilton Pointe, 2020

WL 13568924, at *28.

No. 22-2806 67

not support a finding that she was subjected to severe or per-

vasive harassment.

The district court did not err in finding that Ms. Johnson

was not subjected to severe or pervasive harassment. We can-

not accept, however, the court’s characterization of JL’s “Ma-

zola oil” comment. A reasonable factfinder could find this

comment to be race-based. Even when this comment is taken

into consideration, Ms. Johnson’s experiences of resident and

co-worker racial harassment are, in their totality, insufficient

to constitute severe and pervasive harassment. She was not

exposed to residents’ use of the N-word. The only race-based

comment she heard from a co-employee was Lamp’s offen-

sive joke about not seeing Murray in the dark.

An undesirable and stigmatizing job assignment can con-

tribute to a hostile work environment. In Hall v. City of Chi.,

713 F.3d 325, 330 (7th Cir. 2013), we recognized that, viewed

in its totality, a supervisor’s conduct in assigning an employee

to unnecessary menial work, forbidding her from speaking to

her co-workers, banning her from meetings, and subjecting

her to occasional verbal outbursts constituted severe or per-

vasive harassment. However, unlike in Hall, there is no sug-

gestion that Ms. Johnson was assigned to “useless” and “me-

nial” tasks to ostracize or humiliate her. See id. Nor is there

any evidence that she was assigned more difficult tasks in or-

der to compel her to resign. Her subjective assessment that

her assignments to the more difficult Rehab Unit were race-

based stemmed only from her own conclusions that the as-

signments must have been race-based. She was not subjected

to race-based comments from the supervisors charged with

making the assignments. Her exclusive assignments and lack

68 No. 22-2806

of support in the Rehab Unit hardly support a harassment

claim.

o. Charah Milan

Hamilton Pointe hired Charah Milan as a CNA in May

2017. Ms. Milan was subjected to racially offensive language

in the course of her employment. On one occasion, Ms. Milan

heard a resident tell another resident: “That [n-word] you

know was in here.” 77 When Ms. Milan heard this, she shook

her head and walked on.

Ms. Milan heard residents frequently used the phrase

“that colored girl,” often in the context of identifying black

employees. She heard co-workers use the phrase about ten

times, mainly when quoting residents; one co-worker would

tell another co-worker that a resident “said she was looking

for that colored girl.” 78 Residents would also sometimes refer

to white employees as “the white girl,” but employees did not

repeat these identifications. Ms. Milan did not report her con-

cerns about the phrase to anyone.

Ms. Milan never saw any racial preference expressed in

writing and was never told not to go into a room because of

her race. A black CNA told Ms. Milan that she saw a docu-

ment which stated that black caregivers should not enter the

rooms of particular residents. Ms. Milan did not raise any con-

cerns to management about the CNA’s story. Hamilton Pointe

terminated Ms. Milan’s employment in August 2017.

The district court concluded that Ms. Milan could not es-

tablish a hostile work environment claim. It found that

77 R.100-8 at 3.

78 Id.

No. 22-2806 69

residents’ use of racial descriptors like “colored girl” did not

rise to the level of severe or pervasive harassment. The court

stated that Ms. Milan’s testimony about the other CNA’s

statements was inadmissible hearsay and emphasized that

Ms. Milan never experienced a race-based assignment herself.

The district court correctly concluded that Ms. Milan was

not subjected to severe or pervasive harassment. She heard

the N-word used by a resident on one occasion, heard resi-

dents frequently use the term “colored” to describe employ-

ees, and heard co-employees use the term “colored” princi-

pally in the context of quoting the residents. In the context of

a nursing home, these comments, taken in their totality, are

not so severe or pervasive as to alter the conditions of Ms. Mi-

lan’s employment. Further, there is no basis for employer lia-

bility. According to the record, Ms. Milan never raised con-

cerns about any of the harassing behavior she alleges to any-

one above her in the management chain at Hamilton Pointe.

3.

In sum, the evidence of record does not support, under es-

tablished principles of law, a case for racial harassment that

was so severe or pervasive as to alter the conditions of em-

ployment for any of these claimants. Moreover, in many of

the instances, the record will not support an inference that the

matter at issue was reported to a level of management capable

of effecting the needed change to abate the claimed injurious

practice. Nor, in many cases, is it sufficiently clear that the

employee reported the condition to a supervisor who could

be reasonably expected to report the condition to such a man-

agement level. A more detailed description of the responsibil-

ities of the various employees involved in the management of

the institution is generally necessary in institutions such as

70 No. 22-2806

the one involved here. We cannot assume that those who have

supervisory responsibility for the level of professional health

care over those of lesser rank in the healthcare setting neces-

sarily have management or disciplinary authority and re-

sponsibility over those same individuals. The record in this

case cannot be characterized as adequate in this regard. See

Young v. Bayer Corp., 123 F.3d 672, 674–75 (7th Cir. 1997); see

also Huston v. Proctor & Gamble Paper Prod. Corp., 568 F.3d 100,

107–08 (3d Cir. 2009); Torres v. Pisana, 116 F.3d 625, 634–38 (2d

Cir. 1997).

B

The EEOC also asks that we consider matters with respect

to the claimants whose cases went to trial. In order to give

meaningful context to the matters that we now will discuss,

we point out that the EEOC raises no objection on appeal to

the instructions given to the jury by the trial judge.

What the EEOC does suggest, however, is that the verdict

forms submitted to the jury deflected the jury’s attention from

considering, with respect to each claimant, its obligation to

consider all the circumstances as known by the defendant at

the time of the alleged incidents. 79 The final verdict forms

79 Hamilton Pointe submits that this contention has been waived because

the EEOC did not object to the district court’s final verdict forms at trial.

When a party fails to raise an objection to verdict forms at trial, it either

forfeits or waives that objection on appeal. See Robinson v. Perales, 894 F.3d

818, 827 (7th Cir. 2018).

After an informal and unrecorded conference on the final day of trial,

the district court provided the EEOC an opportunity to object on the rec-

ord to the final jury instructions and final verdict forms. The EEOC used

(continued … )

No. 22-2806 71

required jurors to indicate separately whether the EEOC had

proven that a claimant was subjected to a hostile work envi-

ronment by supervisor harassment and whether the EEOC

had proven a claimant was subjected to a hostile work envi-

ronment by co-worker/resident harassment.

We review the district court’s verdict forms for abuse of

discretion. Malone v. Reliastar Life Ins. Co., 558 F.3d 683, 692

(7th Cir. 2009). “In evaluating whether a verdict form is con-

fusing or misleading, we consider the verdict form in light of

the instructions given to determine ‘whether [the jury] had

[an] understanding of the issues and its duty to determine

those issues.’” EEOC v. Mgmt. Hosp. of Racine, Inc., 666 F.3d

422, 439 (7th Cir. 2012) (quoting Happel v. Walmart Stores, Inc.,

602 F.3d 820, 827 (7th Cir. 2010)). The court “will not set aside

a verdict unless a party suffered prejudice from the assigned

error.” Happel, 602 F.3d at 826.

In the EEOC’s view, the verdict forms precluded the jury

from considering, with respect to each claimant, the totality

of the circumstances. The gravamen of its complaint is that,

by asking jurors to evaluate supervisor harassment separately

from coworker/resident harassment, the jury’s attention was

necessarily deflected from considering all the circumstances

in determining if the claimants experienced severe or perva-

sive harassment. This argument has no merit. Following the

this opportunity to object to several of the district court’s final jury instruc-

tions but raised no objection to the verdict forms.

The EEOC explains its failure to object by asserting that it believed its

objection would have been futile because of its prior objection to Hamilton

Pointe’s proposed verdict forms. After careful examination of the trial rec-

ord, we conclude that there is sufficient ambiguity in that record to make

it inadvisable to rest our decision on waiver.

72 No. 22-2806

Seventh Circuit’s pattern jury instructions, the district court

carefully and methodically first set forth the separate require-

ments for harassment by co-employee or third party and for

harassment by supervisor. 80 The verdict forms mirror those

instructions. The district court acted well within its discretion

in determining that to separate the elements of supervisor

harassment and co-worker/resident harassment in the jury in-

structions while asking the jury to evaluate them together as

a single item in the verdict form would have invited juror con-

fusion.

Further, the district court did not fail to communicate to

the jury that a hostile work environment should be consid-

ered based on the totality of the circumstances. Indeed, the

court’s jury instructions clearly told the jurors to consider “all

the circumstances known to the Claimant at the time of em-

ployment” when evaluating whether a reasonable person

would find the work environment to be hostile. 81

The district court’s final verdict forms did not constitute

an abuse of its discretion.

C

Finally, because the jury determined that Hamilton Pointe

was liable in damages to one of the claimants whose case went

80 The court followed Pattern Civil Jury Instructions of the Seventh Cir-

cuit, 3.04, 3.05A, 3.05B (rev. 2017). The district court’s jury instructions

number 19 and 20 adhere to pattern instructions 3.04 and 3.05.

81 R.290 at 24 (Instruction #21).

No. 22-2806 73

to trial, we must assess the EEOC’s contention that TLC also

might be liable for this judgment.

TLC is an Indiana corporation with its principal office in

Marion, Indiana. At the relevant time, TLC was owned and

operated by Gary Ott, Ryan Ott, Dwight Ott, and Cullen Gib-

son. These four individuals were also managing members of

Hamilton Pointe. Hamilton Pointe had at least one additional

managing member, Administrator Shawn Cates. Although

the two entities shared common owners, TLC did not own a

membership interest in Hamilton Pointe.

TLC provides management consulting and a variety of

other services to multiple health care facilities including

Hamilton Pointe. A management agreement signed in 2012

governs the relationship between Hamilton Pointe and TLC.

Under its terms, TLC provides management support, com-

puter support, accounting support, and other services to

Hamilton Pointe. More specifically, Hamilton Pointe relies on

TLC’s services in several areas. Hamilton Pointe uses TLC’s

payroll processing to pay its employees and provides benefits

to its employees through a TLC-offered group benefits plan

while paying the costs of those benefits. TLC also temporarily

fills vacancies at Hamilton Pointe with its own employees and

operates the hotline to receive, process, and investigate com-

plaints made by Hamilton Pointe employees. In exchange for

these services, Hamilton Pointe pays TLC 6.5% of its monthly

net revenue.

Cates, the administrator of Hamilton Pointe at the time

this suit was filed, testified that, as administrator, he is re-

sponsible for management decisions at Hamilton Pointe and

supervision of the department heads who manage the day-to-

day operations of the facility’s staff. The Hamilton Pointe

74 No. 22-2806

administrator is hired, supervised by, and subject to termina-

tion by TLC. The administrator must consult with TLC re-

gional and departmental directors on a range of matters.

Cates stated that, as administrator, he retains, despite his ob-

ligation to consult with TLC, ultimate authority over these de-

cisions. For example, although TLC sets Hamilton Pointe’s

pay scale, Cates testified that he went outside the scale when

hiring a director of sales and had the autonomy to do so.

Cates stated that as Hamilton Pointe’s administrator he

has hiring and firing authority over the department managers

who in turn have hiring and firing authority over the employ-

ees in their departments. Hamilton Pointe’s disciplinary

forms require that both the written warnings prior to an em-

ployee termination and the termination itself “must be re-

viewed” by TLC’s regional director of operations and Human

Resources department head. 82 Hamilton Pointe and TLC

maintain that TLC did not have the authority to hire or fire

non-management staff at Hamilton Pointe, including the in-

dividual class members in this case.

Christina Malvern, the administrator of Hamilton Pointe

from May 2013 to August 2014, stated that TLC approval was

required for several tasks including employment decisions: “I

could not terminate any employee without approval from

TLC’s Human Resources department.” 83 Gary Ott, President

of TLC, testified that although TLC HR staff advise the ad-

ministrator on following the correct termination procedures

and whether Hamilton Pointe has sufficient cause for termi-

nation, “it’s still the administrator’s decision because the

82 R.110-5 at 14.

83 R.110-14 ¶11.

No. 22-2806 75

administrator is the one that’s finally responsible and runs the

show.” 84 Ott conceded that the administrator is beholden to

the TLC regional director, but maintained that TLC does not

dictate facility policy:

I would say that the regional director has more

authority, probably, than anybody, because the

administrator works for them. So the adminis-

trator is going to listen to them. But as far as –

we have not set it up in that sense that the man-

agement company is dictating what’s going on

back and forth. We don’t do that because we’re

out of the loop. When we are up in the ivory

tower over here in Marion, Indiana, we don’t

understand what’s going on down here. So we

should not be making those decisions, but we

can advise people right and wrong, you know,

type thing like that. 85

In TLC’s motion for partial summary judgment, it con-

tended that it did not have an employer-employee relation-

ship with the class members and therefore could not be found

liable to them under Title VII. The EEOC offered a two-

pronged argument in response. It first argued that TLC,

through its relationship with Hamilton Pointe, exercised suf-

ficient control over the class members to be classified as a joint

employer. It also submitted that the relationship between TLC

and Hamilton Pointe justified the piercing of the corporate

veil between the two entities.

84 R.110-1 at 19.

85 Id. at 20.

76 No. 22-2806

1.

The district court granted TLC’s motion for summary

judgment. First, it held that the EEOC had failed to raise a

genuine issue of material fact as to whether TLC was a joint

employer of the claimant-employees. The district court ap-

plied the five-factor test that we adopted in Knight v. United

Farm Bureau Mutual Insurance Co., 950 F.2d 377 (7th Cir. 1991).

That approach requires a court 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) the

kind of occupation and nature of skill required,

including whether skills are obtained in the

workplace, (3) responsibility for the costs of op-

eration, such as equipment, supplies, fees, li-

censes, workplace, and maintenance of opera-

tions, (4) method and form of payment and ben-

efits, and (5) length of job commitment and/or

expectations.

Id. at 378–79 (citation omitted).

The district court determined that, although the EEOC

contended that TLC exercised control over Hamilton Pointe

employees, particularly over the decision to fire employees,

the relevant deposition testimony demonstrated only that

“TLC gave Hamilton Pointe administrators its input and rec-

ommendation on these types of employment decisions; it did

not make them or otherwise control their outcome.” EEOC v.

Vill. at Hamilton Pointe LLC, No. 17-cv-00147, 2020 WL

1532112, at *4 (S.D. Ind. Mar. 31, 2020). In arriving at this con-

clusion, the district court stated that the issue was “best

No. 22-2806 77

addressed” by Ott’s testimony that TLC Human Resources

would advise the administrator at each stage of termination,

with the Hamilton Pointe administrator retaining the ultimate

authority to decide whether a firing would occur. Id. The dis-

trict court concluded that “providing only input and recom-

mendations does not establish the right to control an em-

ployee.” Id. (citing Nischan, 865 F.3d at 929). The court further

rejected the EEOC’s argument that TLC paid the cost of Ham-

ilton Pointe’s operations. Under the parties’ management

agreement, noted the court, TLC billed Hamilton Pointe for

the services TLC provided the facility, and Hamilton Pointe’s

members, not TLC, were responsible for its recapitalization.

The district court then rejected the EEOC’s contention that

Hamilton Pointe’s employee benefits ran through TLC be-

cause Hamilton Pointe paid for those benefits.

To determine whether an entity should be treated as a joint

employer, we “employ an ‘economic realities’ test which is, in

its essence, an application of general principles of agency law

to the facts of the case.” Frey v. Coleman, 903 F.3d 671, 676 (7th

Cir. 2018) (citations omitted). The district court appropriately

applied the five-factor Knight test to implement this approach.

In this appeal, the EEOC contests the district court’s analysis

of three of those factors: (1) the extent of the employer’s con-

trol and supervision over the worker; (3) responsibility for the

costs of operation; and (4) method and form of payment and

benefits.

We turn first to the issue of control. “The most important

of [the Knight] factors is the ability to supervise and control

the employees.” Johnson, 892 F.3d at 905. “And of those con-

trol factors, the ability to hire and fire ranks as most signifi-

cant.” Id. In the EEOC’s view, the district court erred in

78 No. 22-2806

determining TLC’s control over the Hamilton Pointe admin-

istrators to be immaterial. As it sees the matter, control over

the administrators gave TLC indirect control over the claim-

ants. It relies on a decision of the United States Court of Ap-

peals for the District of Columbia Circuit, in which that court

wrote that “control exercised indirectly—such as through an

intermediary—may be sufficient to establish joint-employer

status.” Sanitary Truck Drivers v. NLRB, 45 F.4th 38, 42 (D.C.

Cir. 2022) (internal quotation marks and citation omitted).

The EEOC further argues that the district court erred in con-

cluding that there was no genuine issue of fact as to whether

TLC offered only “input and recommendations” on Hamilton

Pointe employment decisions. The EEOC points to the district

court’s finding that Ott’s testimony “best addressed” the issue

as a credibility finding.

In evaluating the EEOC’s position, we cannot accept, as a

threshold matter, the EEOC’s characterization of Ott’s depo-

sition testimony as presenting a factual matter precluding

summary judgment. As we understand the district court, it

simply took the view that Ott’s testimony provided a more

thorough explanation of the relationship between the two en-

tities. The EEOC also points to Ott’s testimony that TLC’s re-

gional director holds the “most authority” over termination

because the administrator is responsible to the regional direc-

tor. In the Commission’s view, this testimony supports a con-

clusion that TLC approval was required for termination. But

this interpretation fails to account for the remainder of Ott’s

answer where he states that the decision should not be made

by the management company. Although Malvern, the former

administrator, explicitly stated that TLC’s approval, rather

than merely review, was required to terminate an employee,

her tenure at Hamilton Pointe preceded the allegations in this

No. 22-2806 79

case. 86 Cates and Ott testified to the relationship between

Hamilton Pointe and TLC during the period in which TLC

would have accrued liability.

In arguing that the administrator’s accountability to TLC

creates an inference of TLC’s control over hiring decisions, the

EEOC also fails to account for the evidence that the depart-

ment managers had hiring and firing power over the claim-

ants. Even if the administrator were TLC’s agent of indirect

control, TLC’s authority over the department managers

would still be one level removed.

The EEOC’s costs of operation argument is grounded in

the structure of the management agreement. Based on the

terms of that management agreement, TLC may experience a

loss if the costs of its services exceed 6.5% of Hamilton

Pointe’s net revenue. However, based on these same terms,

Hamilton Pointe could also “overpay” for TLC’s services if

Hamilton Pointe’s revenues were strong. The EEOC has

pointed to no evidence that the fees paid by Hamilton Pointe

to TLC are consistently incongruous with the cost of TLC’s

services.

2.

The district court also was not persuaded by the EEOC’s

veil piercing argument. Because both TLC and Hamilton

Pointe are Indiana entities, Indiana law governs the EEOC’s

argument that TLC has forfeited, in effect, its limited liability.

See Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 364 (7th

Cir. 2016). The focus of Indiana’s veil-piercing standard is

86 The harassment claims which proceeded to trial concerned the period

from February 1, 2015, to October 12, 2017.

80 No. 22-2806

“whether ‘the corporate form was so ignored, controlled or

manipulated that it was merely the instrumentality of another

and that the misuse of the corporate form would constitute a

fraud or promote injustice.’” Id. (quoting Reed v. Reid, 980

N.E.2d 277, 301 (Ind. 2012)). Indiana law places little stock in

the alleged integration of entities. “The corporate veil is

pierced, when it is pierced, not because the corporate group

is integrated, [but] because it has neglected forms intended to

protect creditors from being confused about whom they can

look to for the payment of their claims.” Id. (quoting Papa v.

Katy Indus., Inc., 166 F.3d 937, 943 (7th Cir. 1999)). In Bridge,

we determined that the separateness of two entities should

not be disregarded even though they had similar names and

shared common owners, two directors, a website, an address

for their tax returns, health-insurance benefit plans, a human

resources employee, an accountant, and a payroll coordina-

tor. Id. As we noted in Bridge, in Indiana, the separateness of

corporate entities should be disregarded for an anti-discrimi-

nation claim and piercing only appropriate where:

(1) the enterprise has purposely divided itself

into smaller corporations to dodge require-

ments imposed by the anti-discrimination laws;

(2) a creditor of one corporation could, by pierc-

ing the corporate veil, sue its affiliate; or (3) the

affiliate directed the discriminatory act or prac-

tice of which the plaintiff complains.

Id. (citing Papa, 166 F.3d at 940–42 (7th Cir. 1999). The district

court correctly determined that none of these conditions are

present here.

No. 22-2806 81

Conclusion

In instructing the jury in this case, the district court said:

In deciding the EEOC’s claims, you should not

concern yourselves with whether Hamilton

Pointe’s actions were wise, reasonable, or fair.

Rather, your concern is only whether the EEOC

has proved that Hamilton Pointe subjected one

or more Claimants to race-based job assign-

ments and/or subjected one or more Claimants

to a hostile work environment because of their

race. 87

This point was certainly a salutary one to make to the jury.

It is also an important point for the reader of this opinion to

keep in mind. As presently constituted, the federal law gov-

erning racial harassment proscribes conduct that is so severe

or pervasive as to change the conditions of the victim’s em-

ployment. It does not ensure that the worker will have wise

and skilled superiors with a sharply honed sense of social jus-

tice and a mastery of personnel management skills. We have

applied that existing law today. Our opinion constitutes,

however, no approval of the situations portrayed in the pages

of this record. Whether our legal norms ought to be tightened

or updated at the federal or state level to ensure a higher level

of civilization in our health care institutions is a pressing sub-

ject within the ken of our legislatures and regulatory agencies.

87 R.290 at 25 (Instruction #22).

82 No. 22-2806

The judgment of the district court is affirmed.

AFFIRMED