Fred Gates v. Board of Education of the City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐3143
FRED G ATES ,
Plaintiff‐Appellant,
v.
BOARD OF E DUCATION OF THE C ITY OF C HICAGO,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15‐CV‐1394 — Robert M. Dow, Jr., Judge.
____________________
A RGUED SEPTEMBER 20, 2018 — D ECIDED FEBRUARY 20, 2019
____________________
Before MANION, HAMILTON, and SCUDDER , Circuit Judges.
HAMILTON , Circuit Judge. Plaintiff Fred Gates testified that
his direct supervisor, Rafael Rivera, addressed him with the
N‐word twice, and once threatened to write up his “black
ass.” The district court granted the employer’s motion for
summary judgment on Gates’s claim for a racially hostile
work environment under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e‐2. In granting summary judgment for
the defendant‐employer, the district court noted that Gates

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2 No. 17‐3143
faced a high bar, “as ‘[t]he workplace that is actionable is one
that is ‘hellish.’” Gates v. Board of Education of the City of Chi‐
cago, No. 15‐CV‐1394, 2017 WL 4310648, at *13 (N.D. Ill. Sept.
28, 2017), quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010,
1013 (7th Cir. 1997) (alteration in original). The court ulti‐
mately decided that Rivera’s comments were not severe or
pervasive enough to rise to the level of a hostile work envi‐
ronment, an adverse employment action that could entitle
Gates to relief under Title VII. Id. at *15.
The district court’s analysis erred in two respects. First, it
relied on the “hellish” standard, which is not a standard a
plaintiff must satisfy. See Jackson v. County of Racine, 474 F.3d
493, 500 (7th Cir. 2007); Johnson v. Advocate Health and Hospitals
Corp., 892 F.3d 887, 901 (7th Cir. 2018), quoting Harris v. Fork‐
lift Systems, Inc., 510 U.S. 17, 21–22 (1993) (“Title VII comes
into play before the harassing conduct leads to a nervous
breakdown.”). Second, the district court failed to focus on the
difference in our hostile environment cases between having
the plaintiff’s co‐workers show racial hostility and having the
plaintiff’s supervisor show racial hostility, especially in using
such poisonous racial epithets as shown in the evidence here.
See, e.g., Robinson v. Perales, 894 F.3d 818, 828–29 (7th Cir.
2018); Rodgers v. Western‐Southern Life Insurance Co., 12 F.3d
668, 675 (7th Cir. 1993). While we affirm all other portions of
the district court’s judgment, we reverse on the claim for a ra‐
cially hostile environment.
I. Factual and Procedural Background
A. Facts Relevant to Summary Judgment
Our account of the facts reflects the defendant Board’s
choice to move for summary judgment. As required, we give

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No. 17‐3143 3
plaintiff Gates the benefit of conflicts in the evidence and
make reasonable inferences in his favor. Terry v. Gary Commu‐
nity School Corp., 910 F.3d 1000, 1004 (7th Cir. 2018); Johnson,
892 F.3d at 893. The Board and its witnesses will be free to
offer their own conflicting evidence at trial, and we do not
vouch for the objective truth of Gates’s testimony that we
must credit in this appeal.
Gates is an African‐American male born in 1965. He has
been a building engineer with the Chicago Board of Educa‐
tion since 2004. In 2010, Gates was hired to fill the sole engi‐
neer position at William C. Goudy Technology Academy. He
reported to school Principal Pamela Brandt until December
2012, when Rafael Rivera became his supervisor. Rivera was
a facilities engineer who oversaw engineering work at sixteen
schools, including Gates’s. Because Rivera supervised so
many schools, he and Gates saw each other in person only
three times or so per month.
Gates’s issues with Rivera began in June 2013. Gates testi‐
fied that at a performance meeting that month, Rivera told
him: “you will not be promoted because of your age and be‐
cause you’re black[.]” Despite Rivera’s comment, Gates still
applied for a promotion in July and August of 2013, which he
did not receive. Gates testified that Rivera prevented him
from getting a better job.
According to Gates, in the late summer of 2013, Rivera’s
behavior became increasingly offensive. Gates testified that
on several occasions Rivera uttered racial epithets against
him. Gates described one meeting with Rivera at his school in
July or August of 2013. Rivera passed gas and then asked
Gates why he did not laugh in response. Gates responded that
he did not know why he should laugh or why it was funny.

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4 No. 17‐3143
Rivera said “you know what they call that[?]” Gates asked
“call what?” and Rivera responded “[w]hen someone fart and
a black guy’s sitting there.” Gates said “no,” and Rivera an‐
swered, “you call that a shit‐sniffing nigger.” Gates claimed
that he complained about this incident to Rivera’s supervisor
at the time, Ms. Bilqis Jacob‐El. Gates testified that Jacob‐El
asked him whether he had told anyone else about the com‐
ment. He said no. She then instructed Gates to keep to himself
the details of his encounter with Rivera.
Gates also claimed that in November 2013, Rivera again
came to Gates’s school and spoke with him. At this meeting,
Rivera yelled at Gates, telling him “you will kiss the princi‐
pal’s ass to make her happy” or Rivera “would write [him]
up, which would cause [Gates] to get low work evaluations
and get fired.” Gates testified later that Rivera specifically
threatened to write Gates’s “black ass up.” Gates also testified
that in a March 2014 meeting, Rivera ordered him to sit down,
prompting the following exchange:
I said I don’t want to sit down, Rafael. He said,
well, I’m your boss. I’m ordering you to sit
down. So I said I’m not going to sit down. He
said I’m tired of you people. I said who are you
referring to? He said, nigger, you know what
I’m talking about. So I walked out of the library.
On appeal, the Board argued that Rivera could not have
exposed Gates to a racially hostile work environment because
his interactions with Gates were too infrequent. The Board
noted that Rivera made his offending comments over the
course of six months, Gates saw Rivera only three times or so
per month, and from November 2013 to November 2014,
Gates worked only eleven days. (Gates was absent so often

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No. 17‐3143 5
because during that year he took multiple approved leaves
from work, including bereavement leave for his father’s
death, a one‐month sick leave, leave under the Family Medi‐
cal Leave Act to care for his grandfather, and then a nearly
one‐month military leave.) Gates testified that he used the
one‐month sick leave in December 2013 to seek medical atten‐
tion for homicidal thoughts he was experiencing towards Ri‐
vera, Principal Brandt, and his school’s vice principal. The
homicidal thoughts, Gates testified, were brought on by the
discrimination he faced at work.
Rivera began to prepare a pre‐discipline notice for Gates
in December 2013 citing uncompleted work orders at Gates’s
school.1 Rivera did not actually give this notice to Gates. Ri‐
vera later wrote up and issued Gates a different pre‐discipline
notice on March 17, 2014, just before the library incident. The
notice told Gates to report to a pre‐discipline hearing to ad‐
dress the issues with his performance on March 20, 2014. Ac‐
cording to Gates, the library incident in which Rivera called
him the N‐word for a second time happened on March 17 or
18 of 2014. Rivera issued Gates a second pre‐discipline notice
on March 19, 2014 citing insubordination. The second notice
scheduled a pre‐discipline hearing on March 25, 2014. At the
first pre‐discipline hearing on March 20, Gates and a repre‐
sentative from his union met with Rivera. Gates told his union
representative that he believed he was being discriminated
against at work, and the representative advised him to hire an
attorney. Gates did not attend the March 25 hearing because
1 Pre‐discipline notices notify employees that there is a problem with
their work or behavior and that pre‐discipline hearings will be held with
employees and their union representatives to decide whether discipline is
warranted.

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6 No. 17‐3143
he had been injured on the job in the meantime. No formal
disciplinary action was taken against Gates. After his injury,
Gates went on workers’ compensation leave, and during that
time began working a second job at the University of Illinois‐
Chicago. Rivera informed an employee with the Board’s legal
department that Gates had taken several extensive leaves and
then found a second job. Gates believed that Rivera took this
action to have him fired.
When Gates returned from his leave in November 2014, he
was assigned to the Far South Side or Southwest Collabora‐
tive, a group of traveling building engineers who work at dif‐
ferent schools throughout the southwest side of Chicago. In
the position at William C. Goudy Technology Academy that
Gates held before his leaves, he was a Class 3 engineer (the
lowest‐paid of three classes), earning around $82,000 to
$87,000 a year. 2 When Gates testified at his deposition in 2016,
he was a Class 2 engineer with the Southwest Collaborative
earning between $94,000 and $97,000 a year.
B. Proceedings in Civil Rights Agencies and the District Court
Gates never filed a formal internal complaint with the
Board about the discrimination he says he suffered. Instead,
on April 14, 2014, he filed a formal charge of discrimination
with the Illinois Department of Human Rights and the United
States Equal Employment Opportunity Commission. The
EEOC issued Gates a notice of his right to sue. Gates then filed
a five‐count complaint against the Board in the district court
2 The term Chief Engineer was abolished in 2012 under the terms of a
collective bargaining agreement. When the title was in use, it applied au‐
tomatically to any building engineer appointed to a school with only one
engineer—so Gates was the Chief Engineer at Goudy.

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No. 17‐3143 7
alleging age and race discrimination and retaliation. The
Board eventually moved for summary judgment on all claims,
and the district court granted the motion. Gates v. Board of Ed‐
ucation of the City of Chicago, No. 15‐CV‐1394, 2017 WL
4310648, at *1 (N.D. Ill. Sept. 28, 2017).
As the district court noted, neither Gates’s complaint nor
his answers to the Board’s interrogatories said that Rivera had
ever used the terms “black,” “black ass,” “age,” or the N‐
word. Id. at *7. Those specifics surfaced for the first time dur‐
ing Gates’s deposition testimony. The district court carefully
considered whether to treat those portions of his testimony as
part of the summary judgment evidence and ultimately de‐
cided to consider this testimony. That was probably the cor‐
rect decision, and in any event that point is not disputed on
appeal. Still, the district court concluded that Gates could not
sufficiently establish that he suffered a racially hostile work
environment in violation of Title VII. The court explained that
“the threshold for plaintiffs is high, as “[t]he workplace that
is actionable is one that is ‘hellish.’” Id. at *13, quoting Perry v.
Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997). The
harassing conduct, the court continued, must be severe or per‐
vasive and Rivera’s behavior towards Gates was neither. Id. at
*14–15. 3
3 The district court also granted summary judgment for the Board on
Gates’s other claims for age and race discrimination based on a denial of
a promotion and the pre‐discipline notices plus a negative performance
review, as well as his retaliation claims based on a denial of a promotion
and the pre‐discipline notices plus a negative performance review. Gates,
2017 WL 4310648, at *13, *17–18. Gates does not challenge those aspects of
the judgment on appeal.

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8 No. 17‐3143
II. Analysis
A. Standard of Review
We review de novo the district court’s grant of summary
judgment. Jackson v. County of Racine, 474 F.3d 493, 498 (7th
Cir. 2007); Johnson v. Advocate Health and Hospitals Corp., 892
F.3d 887, 894 (7th Cir. 2018); Whitaker v. Wisconsin Dep’t of
Health Services, 849 F.3d 681, 684 (7th Cir. 2017). Summary
judgment is proper where “the movant shows that there is no
genuine dispute as to any material fact and the movant is en‐
titled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
our review, we “constru[e] all facts, and draw[] all reasonable
inferences from those facts, in favor of the nonmoving party.”
Whittaker v. Northern Illinois University, 424 F.3d 640, 644–45
(7th Cir. 2005), quoting Telemark Development Group Inc. v.
Mengelt, 313 F.3d 972, 976 (7th Cir. 2002).
B. Racially Hostile Work Environment
The district court ruled that Gates provided insufficient
evidence to establish that he was subject to a hostile work en‐
vironment. To prevail on a Title VII claim, a plaintiff must
show that
[1] he is a member of a class protected by the
statute, [2] that he has been the subject of some
form of adverse employment action (or that he
has been subjected to a hostile work environ‐
ment), and [3] that the employer took this ad‐
verse action on account of the plaintiff’s mem‐
bership in the protected class.
Abrego v. Wilkie, 907 F.3d 1004, 1012 (7th Cir. 2018), quoting
Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013). Subject‐
ing an employee to a hostile work environment counts as an

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No. 17‐3143 9
adverse action (“unlawful employment practice”) within the
meaning of Title VII’s prohibition of race discrimination in 42
U.S.C. § 2000e‐2(a). E.g., Alexander v. Casino Queen, Inc., 739
F.3d 972, 980, 982 (7th Cir. 2014).
To prove that an employment environment was actiona‐
bly hostile, a plaintiff must show that “(1) he was subject to
unwelcome harassment; (2) the harassment was based on race
(or another protected category); (3) the harassment was severe
or pervasive to a degree that altered the conditions of employ‐
ment and created a hostile or abusive work environment; and
(4) there is a basis for employer liability.” Robinson v. Perales,
894 F.3d 818, 828 (7th Cir. 2018), citing Meritor Savings Bank,
FSB v. Vinson, 477 U.S. 57, 66–72 (1986), Johnson, 892 F.3d at
900–01, and Alamo v. Bliss, 864 F.3d 541, 549 (7th Cir. 2017); see
also Johnson, 892 F.3d at 900. 4 Relevant to this inquiry are “the
severity of the alleged conduct, its frequency, whether it [wa]s
physically threatening or humiliating (or merely offensive),
and whether it unreasonably interfere[d] with the employee’s
4 “Sometimes our cases phrase the test differently, looking instead for
evidence that the workplace was both subjectively and objectively offen‐
sive—either in lieu of the first prong—that the employee was subject to
unwelcome harassment—or the third prong—whether the harassment
was severe or pervasive enough to rise to the level of a hostile work envi‐
ronment.” Johnson, 892 F.3d at 900, citing Cole v. Board of Trustees of North‐
ern Illinois University, 838 F. 3d 888, 896 n.6 (7th Cir. 2016); see also Alexan‐
der, 739 F.3d at 982 (requiring plaintiffs to show “(1) that the work envi‐
ronment was both subjectively and objectively offensive; (2) that the har‐
assment was based on membership in a protected class; (3) that the con‐
duct was severe or pervasive; and (4) that there is a basis for employer
liability.”). “In the end, we have concluded that the inquiry is the same”
under these different phrasings of the test. Johnson, 892 F.3d at 900, citing
Cole, 838 F.3d at 896 n.6.

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10 No. 17‐3143
work performance.” Robinson, 894 F.3d at 828; see Jackson, 474
F.3d at 499; see Whittaker, 424 F.3d at 645. To withstand sum‐
mary judgment, Gates needed to provide evidence sufficient
to allow a reasonable jury to find that Rivera’s conduct “was
severe or pervasive enough to constitute a hostile work envi‐
ronment.” Robinson, 894 F.3d at 828.
The district court identified these inquiries properly but
erred in their application. Most important, the court incor‐
rectly stated that “the threshold for plaintiffs is high, as “[t]he
workplace that is actionable is one that is ‘hellish.’” Gates, 2017
WL 4310648, at *13, quoting Perry, 126 F.3d at 1013 (alteration
in original). While a “hellish” workplace is surely actionable,
plaintiffs’ evidence need not show a descent into the Inferno.
In 2007, we rejected the so‐called “hellish” standard in Jackson
v. County of Racine, 474 F.3d at 500, and in other decisions after
the district court’s decision in this case, such as Johnson v. Ad‐
vocate Health and Hospitals Corp., 892 F.3d at 901, we have again
made the point. In Jackson we said that language in our earlier
opinions indicating that an environment must reach the point
of “hellishness” before becoming actionable is impossible to
reconcile with Harris v. Forklift Systems, Inc., where the Su‐
preme Court wrote:
Title VII comes into play before the harassing
conduct leads to a nervous breakdown. A dis‐
criminatorily abusive work environment, even
one that does not seriously affect employees’
psychological well‐being, can and often will de‐
tract from employees’ job performance, discour‐
age employees from remaining on the job, or
keep them from advancing in their careers …
The appalling conduct alleged in Meritor, and

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No. 17‐3143 11
the reference in that case to environments “so
heavily polluted with discrimination as to de‐
stroy completely the emotional and psychologi‐
cal stability of minority group workers,” merely
present some especially egregious examples of
harassment. They do not mark the boundary of
what is actionable.
510 U.S. at 22, quoting Meritor Savings Bank, FSB v. Vinson, 477
U.S. 57, 66 (1986). In Jackson, pointing to this same passage
from Harris, we clarified: “The Supreme Court’s decision in
Harris established that something short of the Ninth Ring”
may violate Title VII. Jackson, 474 F.3d at 500; see also Alamo
v. Bliss, 864 F.3d 541, 550 (7th Cir. 2017) (“a workplace need
not be ‘hellish’ to constitute a hostile work environment”), cit‐
ing Jackson, 474 F.3d at 500.
The issue is whether the discriminatory conduct Gates tes‐
tified to qualifies as sufficiently severe or pervasive to alter the
conditions of his work environment. The principal racial har‐
assment Gates described was at the hand of Rivera. Three in‐
cidents are key: (1) the 2013 “joke” in which Rivera called
Gates the N‐word; (2) the 2013 meeting in which Rivera
threated to write up Gates’s “black ass”; and (3) the 2014 “you
people” comment in which Rivera again addressed Gates us‐
ing the N‐word.5 The district court decided at summary judg‐
ment that as a matter of law, this level of harassment from a
5 Gates pointed to additional harassing conduct including the pre‐dis‐
ciplinary notices that Rivera issued him, racially offensive conduct by
Principal Brandt, and Rivera’s general pattern of speaking to Gates in a
“demeaning and unprofessional manner.” However, the three incidents
discussed here are the most severe comments actually considered by the
district court at summary judgment and are sufficient for us to decide that

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12 No. 17‐3143
supervisor was not severe or pervasive enough to render an
employee’s work environment hostile. The court concluded
that our precedents showed generally “that one or two utter‐
ances of the N‐word are not severe or pervasive enough to rise
to the level of establishing liability absent an unusually se‐
vere, physically threatening, or humiliating incident.” Gates,
2017 WL 4310648, at *14. The district court’s analysis is
flawed, however, because it overlooked the fact that in most
of the cases it cited rejecting hostile work environment claims,
a co‐worker as opposed to a supervisor uttered the racially of‐
fensive language. This distinction is critical in general, and in
this case. See Nichols v. Michigan City Plant Planning Dep’t, 755
F.3d 594, 601 (7th Cir. 2014) (affirming summary judgment for
employer; one use of racial epithet and several other incidents
of harassment by co‐workers were not severe or pervasive
enough to establish hostile work environment); Smith v.
Northeastern Illinois University, 388 F.3d 559, 562 n. 2, 566–67
(7th Cir. 2004) (affirming summary judgment on one of plain‐
tiff’s hostile environment claims where that plaintiff heard de‐
fendant—who may or may not have been her supervisor—
utter only one racist comment not directed at her); Rodgers v.
Western‐Southern Life Insurance Co., 12 F.3d 668, 675 (7th Cir.
1993) (multiple instances of supervisor using the N‐word in
employee’s presence established actionable hostile work en‐
vironment); Shanoff v. Illinois Dep’t of Human Services, 258 F.3d
696, 698–99, 705–06 (7th Cir. 2001) (hostile work environment
claim should have withstood summary judgment motion
the district erred in granting summary judgment to the Board on Gates’s
Title VII hostile work environment claim. They are also the only three
comments that Gates used on appeal to argue that his work environment
was offensive enough subjectively and objectively to be actionable.

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No. 17‐3143 13
where plaintiff’s supervisor repeatedly harassed him with de‐
rogatory comments about his race and religion). 6
We have repeatedly treated a supervisor’s use of racially
toxic language in the workplace as much more serious than a
co‐worker’s. See, e.g., Robinson, 894 F.3d at 828–29; Rodgers, 12
F.3d at 675; see also Dandy v. United Parcel Service, Inc., 388
F.3d 263, 271 (7th Cir. 2004) (use of the N‐word by supervisors
has particularly severe impact on work environments). This is
particularly true when supervisors address these derogatory
and humiliating remarks directly to the employees in ques‐
tion. See Johnson, 892 F.3d at 902 (“Comments made to non‐
plaintiff co‐workers carry less weight in the evaluation of a
hostile environment claim, but they are not irrelevant.”);
Dandy, 388 F.3d at 271 (in evaluating whether offensive lan‐
guage created hostile work environment, it is necessary to
note “whether the remarks were stated directly to the plaintiff
or whether the plaintiff heard them secondhand[.] That is not
to say that racial epithets must be stated directly to a plaintiff
to create an objectively hostile work environment. Repeated
use of such highly offensive terms … may create an objec‐
tively hostile work environment, even if they are heard
secondhand.”), citing McPhaul v. Board of Commissioners of
6 The district court found more direct support in Roberts v. Fairfax
County Public Schools, 858 F. Supp. 2d 605, 609 (E.D. Va. 2012), where a
supervisor (a teacher) threatened her subordinate and called her by the N‐
word. The case came before the Eastern District of Virginia court on De‐
fendant Fairfax County Public School’s motion for summary judgment. Id.
at 606–07. The court held that this conduct was not severe or pervasive
enough to create a hostile work environment. Id. at 609–11. But this deci‐
sion runs contrary to our circuit’s precedents that distinguish between su‐
pervisor and co‐worker conduct as well as between direct and indirect
harassment.

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14 No. 17‐3143
Madison County, 226 F.3d 558, 567 (7th Cir. 2000), overruled on
other grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir.
2013).
In Rodgers v. Western‐Southern Life Insurance Co., we af‐
firmed a verdict for an employee where his supervisor used
the N‐word multiple times in his presence and made several
other racially offensive comments. Rodgers, 12 F.3d at 671,
676–78. We explained: “Perhaps no single act can more
quickly ‘alter the conditions of employment and create an
abusive working environment,’ than the use of an unambigu‐
ously racial epithet such as ‘nigger’ by a supervisor in the
presence of his subordinates.” Id. at 675, quoting Meritor, 477
U.S. at 67. “[A] supervisor’s use of the [N‐word] impacts the
work environment far more severely than use by co‐equals.”
Id. at 675.
In Johnson v. Advocate Health and Hospitals Corp., we evalu‐
ated plaintiffs’ claim that their “supervisors subjected [them]
to offensive and derogatory racial comments, creating a hos‐
tile work environment.” 892 F.3d at 893. Plaintiffs testified
that their supervisors made racially‐charged comments di‐
rectly to them and others and used the N‐word in their pres‐
ence. Id. at 901–03. We held that evidence that supervisors en‐
gaged in this atrocious conduct “should allow a reasonable
jury to find that each of the plaintiffs experienced a racially
hostile working environment.” Id. at 904.
In Robinson v. Perales, we considered a hostile work envi‐
ronment claim where Robinson, a biracial police officer with
the University of Illinois at Chicago presented evidence that
Perales, his lieutenant and supervisor, used the N‐word in his
presence on two occasions, once in reference to Robinson him‐
self. 894 F.3d at 823–24. The district court granted defendant

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No. 17‐3143 15
Perales summary judgment on Robinson’s hostile work envi‐
ronment claim. We reversed the district court’s judgment
“that a few instances of the use of this particular epithet [the
N‐word] were not significant enough to meet the standard for
hostile environment.” Id. at 828. We emphasized that “Perales
was not simply a co‐worker; he was a supervisor with direct
authority over Robinson.” Id. at 828.
In short, when the harassment involves such appalling
racist language in comments made directly to employees by
their supervisors, we have not affirmed summary judgment
for employers.
The district court also found that the harassment Gates de‐
scribed was too infrequent to be pervasive (three racial slurs
in a sixth‐month period of a four‐year employment), not ob‐
jectively offensive, and not “particularly ‘severe,’ physically
threatening, or humiliating.” Gates, 2017 WL 4310648, at *15.
In support of its holding, the district court cited cases that fit
into one of four distinguishable categories: (1) the alleged ac‐
tions or comments were comparably horrific to using the N‐
word but were done or said by a co‐worker, not a supervisor;
(2) the actions or comments alleged were made by a supervi‐
sor but were more ambiguous or significantly less offensive
than addressing an employee with the N‐word; (3) the alleged
remarks were very offensive and made by a supervisor but
were not spoken directly to the plaintiff; or (4) the conduct or
remarks were evaluated under the now‐rejected “hellish”
standard. Id. at *13–15. See Nichols, 755 F.3d at 601 (co‐worker
using racial epithet); McPherson v. City of Waukegan, 379 F.3d
430, 434–35, 439 (7th Cir. 2004) (several sexually‐suggestive
comments along the lines of asking the colors of plaintiff’s and
others’ bras and underwear did not alone establish hostile

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16 No. 17‐3143
work environment); Patt v. Family Health Systems, Inc., 280
F.3d 749, 751, 754 (7th Cir. 2002) (no actionable hostile work
environment because of eight gender‐based comments by
then surgery department chief, when only two such com‐
ments were made directly to plaintiff and neither referred to
her specifically);7 Baskerville v. Culligan International Co., 50
F.3d 428, 430 (7th Cir. 1995) (applying “hellish” standard,
court did “not think that these incidents [sexually‐harassing
comments], spread over seven months, could reasonably be
thought to add up to sexual harassment.”); North v. Madison
Area Ass’n for Retarded Citizens‐Developmental Centers Corp.,
844 F.2d 401, 409 (7th Cir. 1988) (two or three offensive state‐
ments that at most “might be considered as racial slurs” did
not establish “a sufficiently pervasive atmosphere of racial
harassment”); Poullard v. McDonald, 829 F.3d 844, 858–59 (7th
Cir. 2016) (no actionable hostile work environment where pri‐
mary allegations concerned three incidents of supervisor har‐
assment that had at best “a tenuously arguable connection to
race”; the supervisor comments made “were at worst mild
and ambiguous”);8 Ford v. Minteq Shapes & Services, Inc., 587
F.3d 845, 846–48 (7th Cir. 2009) (co‐worker’s comments refer‐
ring to plaintiff Ford as “black man” and “black African‐
American,” Ford’s supervisor’s comment that “he didn’t have
7 The defendants’ brief in the Patt case made clear that “only two of
the alleged comments were heard by Dr. Patt [plaintiff] directly” and that
“Dr. Patt acknowledge[d] that neither of the references were directed to‐
ward her and admitted that neither statement offended her.” Brief for De‐
fendants‐Appellees at 26, Patt v. Family Health Systems, Inc., 280 F.3d 749
(7th Cir. 2002) (No. 00‐2948).
8 The district court here cited the district court opinion in Poullard. See
Gates, 2017 WL 4310648, at *15, citing Poullard v. Shinseki, No. 12 C 7497,
2015 WL 1428105, at *11 (N.D. Ill. Mar. 26, 2015).

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No. 17‐3143 17
to worry about losing his job because Minteq [employer]
wanted to appear integrated[,]” another supervisor’s com‐
ment calling Ford a gorilla, and Minteq not letting Ford bring
his grandchildren to work Christmas parties did not amount
to hostile work environment); Whittaker v. Northern Illinois
University, 424 F.3d 640, 644–45 (7th Cir. 2005) (no actionable
hostile work environment where gender‐based comments
were made “outside [plaintiff’s] presence, and there [was] no
evidence that she was aware of these defendants’ remarks
during her tenure with [employer].”).
Gates testified to quite different circumstances. His super‐
visor used race‐based epithets including the N‐word directly
and in reference to him. The district court acknowledged the
severity of Rivera’s epithets, but its analysis did not address
the significance of the differences between supervisors and
co‐workers and between direct and indirect harassment that
are important in hostile work environment cases. Gates, 2017
WL 4310648, at *14, citing and quoting Cerros v. Steel Technol‐
ogies, Inc., 288 F.3d 1040, 1047 (7th Cir. 2002) (“there is no
‘magic number of slurs’” needed to show hostile work envi‐
ronment, and “an unambiguously racial epithet falls on the
‘more severe’ end of the spectrum”); Hrobowski v. Worthington
Steel Co., 358 F.3d 473, 477 (7th Cir. 2004) (“Given American
history, we recognize that the word ‘nigger’ can have a highly
disturbing impact on the listener.”).
If the only evidence of racial harassment Gates had was a
co‐worker’s use of the three epithets uttered by Rivera, we
would likely reach a different conclusion in this case. Given
Rivera’s position as Gates’s supervisor, however, if a jury
credits Gates’s testimony about Rivera’s comments, it could
reasonably find that Gates suffered an actionable hostile work

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18 No. 17‐3143
environment. Whether conduct is “‘sufficiently severe or per‐
vasive to alter the conditions of employment’ … depends on
‘the severity of the allegedly discriminatory conduct, its fre‐
quency, whether it is physically threatening or humiliating or
merely offensive, and whether it unreasonably interferes with
an employee’s work performance.’” Johnson, 892 F.3d at 900,
quoting Scruggs v. Garst Seed Co., 587 F.3d 832, 840 (7th Cir.
2009). A jury would likely have a difficult time concluding
that a supervisor calling his employee the “N‐word” and
threatening to write up his “black ass” were not examples of
harassing comments motivated by race. Although Rivera’s
conduct was relatively infrequent and not “physically threat‐
ening” or “humiliating” in a public setting, it was severe and
humiliating. A reasonable jury could also find that it did in‐
terfere with Gates’s work performance, not least because it led
him to take a leave from work to seek medical treatment. Su‐
pervisor conduct as severe and direct as described in Gates’s
testimony cannot be deemed insufficiently severe or perva‐
sive as a matter of law.
C. Waiver & Forfeiture of Remaining Claims
Gates is entitled to a trial on his hostile environment case,
but he waived or forfeited all of his remaining claims. He ar‐
gues, though, that he did not forfeit his Title VII retaliation
claim in the district court. We disagree. The Board’s motion
sought summary judgment on all claims. In opposing sum‐
mary judgment in the district court, Gates failed to assert that
he was subject to a hostile work environment in retaliation for
complaining about the discrimination he says he suffered. He
did not specifically argue that Rivera or Principal Brandt cre‐
ated a hostile work environment because he reported their

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No. 17‐3143 19
discriminatory conduct to Jacob‐El or the EEOC. Gates did ar‐
gue that he was retaliated against, but only in the form of not
being promoted and being written up by Rivera. In his sum‐
mary judgment memorandum, Gates also discussed two of
the instances of racially‐harassing conduct that he used to
support his hostile work environment claim—the incident in
which Rivera threatened to write up his “black ass” and the
library incident in which Rivera used the N‐word. However,
he never specifically argued that this conduct was retaliatory.
Perhaps Gates could have linked those incidents to his claims
of retaliation, but he did not. The district court was not re‐
quired to address a claim or theory that plaintiff did not as‐
sert.
The district court’s grant of summary judgment on Gates’s
hostile work environment claim is REVERSED and the case is
REMANDED for further proceedings on that claim consistent
with this opinion. In all other respects, the judgment of the
district court is AFFIRMED.

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