Equal Employment Opportunity Commission v. Village at Hamilton Pointe Llc, d/b/a Hamilton Pointe Health

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2806
EQUAL EMPLOYMENT O PPORTUNITY
C OMMISSION ,
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 T ENDER LOVING C ARE
M ANAGEMENT, 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.
____________________
A RGUED S EPTEMBER 13, 2023 — DECIDED M AY 9, 2024
____________________
Before F LAUM , R IPPLE, and S CUDDER , Circuit Judges.

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2 No. 22-2806
R IPPLE, 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

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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).

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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).

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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).

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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)).

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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 … )

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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.

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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

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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).

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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

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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

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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

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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.

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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

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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

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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

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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

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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.

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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.

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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

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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

-- 22 of 82 --

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.

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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.

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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.

-- 25 of 82 --

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.

-- 26 of 82 --

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.

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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.

-- 28 of 82 --

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

-- 29 of 82 --

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.

-- 30 of 82 --

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.

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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

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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.

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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.

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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

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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.

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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.

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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

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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.

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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.

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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

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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).

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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

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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.

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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

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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.

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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

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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-

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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.

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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

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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.

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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).

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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.

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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,

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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

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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 … )

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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.

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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).

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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

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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.

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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.

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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

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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

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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

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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.

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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.

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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).

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82 No. 22-2806
The judgment of the district court is affirmed.
AFFIRMED

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