Shannon Warren-Higgins v. Indiana University Health, Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 6, 2021*
Decided October 7, 2021
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 21-1351
SHANNON WARREN-HIGGINS,
Plaintiff-Appellant,
v.
INDIANA UNIVERSITY HEALTH, INC.
and INDIANA UNIVERSITY HEALTH
CARE ASSOCIATES, INC., doing
business as IU HEALTH PHYSICIANS,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana,
Indianapolis Division.
No. 1:19-cv-02083-RLY-MJD
Richard L. Young,
Judge.
O R D E R
Shannon Warren-Higgins, who believes that her supervisor harassed her because
of her diabetes, sued her employer under the Americans with Disabilities Act, 42 U.S.C.
§ 12112(a), for allowing a hostile work environment. The district court ruled that her
employer was not liable for her supervisor’s misconduct, which Warren-Higgins admits
* We granted the parties’ joint motion to waive oral argument, and this appeal is
therefore submitted on the briefs and the record. FED. R. A PP. P. 34(f).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 21-1351 Page 2
ceased after she complained about it to her employer. Because no reasonable factfinder
could find a basis for employer liability, we affirm.
Warren-Higgins began working in 2016 at the patient call center for what is now
Indiana University Health, Inc. During her first year of work, her diabetes led to
unexcused absences and time away from her desk. After discussions with IU Health
about these problems in October 2017, it accommodated her diabetes by allowing her
time off for doctors’ appointments and snack breaks to manage her blood-sugar levels.
Once IU Health granted these accommodations, her supervisor, Cierre Maxey,
harassed her about her health until she formally complained to the human-resources
department. According to Warren-Higgins, Maxey joked about her allergy to a diabetes
medication, rummaged through her lunch, and mocked her food choices and work ethic
to co-workers. Warren-Higgins asserts that Maxey made three disparaging remarks:
Warren-Higgins “[is] not the first bitch with diabetes and she [is] not the last;” she
should “lose some weight … [or] get gastric bypass,” and she is “crazy” because “[s]he's
got diabetes and can’t come into work.” Warren-Higgins spoke informally to Maxey’s
boss in October 2017, but she does not recall the details of that conversation. She
formally complained in February 2018 to Human Resources, and among other things,
she discussed Maxey’s behavior. This complaint yielded a prompt response. Within a
week of her formal complaint, Maxey’s managers interviewed Maxey, Warren-Higgins,
and co-workers about Maxey’s behavior toward Warren-Higgins. According to Warren-
Higgins, Maxey stopped all harassment against her after these interviews.
This lawsuit followed. As relevant to this appeal, Warren-Higgins alleged that
IU Health ignored Maxey’s creation of a hostile work environment. IU Health moved
for summary judgment on this claim. The district court granted the motion after
excluding as hearsay parts of the three disparaging comments. The court then ruled,
citing Silk v. City of Chicago, 194 F.3d 788, 804 (7th Cir. 1999), that based on the
remaining evidence no reasonable jury could find in favor of Warren-Higgins.
On appeal, Warren-Higgins argues that the district court made an evidentiary
error about hearsay and a substantive error about what constitutes a hostile work
environment. We review the court’s evidentiary decision for an abuse of discretion, and
its judgment de novo. Igasaki v. Ill. Dep’t of Fin. & Pro. Regul., 988 F.3d 948, 955 (7th Cir.
2021). We may affirm on any ground supported by the record. See Vargas v. DeJoy,
980 F.3d 1184, 1190 n.6 (7th Cir. 2020).

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No. 21-1351 Page 3
We first address her contention that the district court wrongly excluded Warren-
Higgins’s testimony about Maxey’s three remarks. If Warren-Higgins heard Maxey (an
agent of a party opponent, see FED. R. EVID. 801(d)(2)(D)), make them, then the
comments would be admissible to prove that Maxey said them, regardless of their
truth. But Warren-Higgins failed to lay a foundation that she had “personal
knowledge” of Maxey’s utterances. See FED. R. EVID. 602. In her deposition, she was
unable to distinguish which comments she heard from Maxey “on the floor” and which
she heard secondhand from other coworkers. See Mahran v. Advoc. Christ Med. Ctr., No.
19-2911, --- F. 4th ----, 2021 WL 3907888, at *6 (7th Cir. Sept. 1, 2021) (upholding
exclusion of co-worker comments). Under these circumstances, the court could have
admitted the comments only for the limited purpose of “showing their effect” on
Warren-Higgins as the listener, not for their truth or identifying who originally said
them. See Boutros v. Avis Rent A Car Sys., LLC, 802 F.3d 918, 923 (7th Cir. 2015).
But even if the court wrongly excluded the remarks, the ruling was harmless for
the same reason that Warren-Higgins’s substantive argument—that IU Health is liable
for allowing a hostile work environment—does not warrant reversal: there is no basis
for employer liability. Warren-Higgins contends that the district court should have
asked whether Maxey’s conduct was severe and pervasive, and found IU Health liable
solely on that basis. We will assume that Maxey did create a hostile work environment
for Warren-Higgins. See Ford v. Marion Cnty. Sheriff's Off., 942 F.3d 839, 851 (7th Cir.
2019) (recognizing hostile work environment claims under the ADA). Even so, an
employer is not liable for a supervisor’s creation of a hostile work environment if the
employer “exercised reasonable care to prevent and promptly correct any harassing
behavior” once notified. Vance v. Ball State Univ., 570 U.S. 421, 430 (2013). That occurred
here. Warren-Higgins admits that she first formally complained about Maxey’s
disability-based harassment in February 2018. (She informally approached management
earlier, but she cannot recall what she discussed, so that meeting is not evidence of
notice to the employer. See Hrobowski v. Worthington Steel Co., 358 F.3d 473, 479 (7th Cir.
2004).) Within a week of her complaint, managers interviewed Warren-Higgins, Maxey,
and co-workers. She concedes that right after these meetings, Maxey’s harassment
stopped and did not recur. On these facts, no reasonable jury could find IU Health
liable for failing to respond promptly to and correct Maxey’s conduct. See Johnson v.
Advoc. Health & Hosps. Corp., 892 F.3d 887, 904 (7th Cir. 2018).
AFFIRMED

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