In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3661
B RENDA C HANEY,
Plaintiff-Appellant,
v.
P LAINFIELD H EALTHCARE C ENTER,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No.1:08-cv-00071-SEB-DML—Sarah Evans Barker, Judge.
A RGUED A PRIL 27, 2010—D ECIDED JULY 20, 2010
Before R OVNER, W ILLIAMS, and SYKES, Circuit Judges.
W ILLIAMS, Circuit Judge. This case pits a health-care
worker’s right to a non-discriminatory workplace
against a patient’s demand for white-only health-care
providers. Plainfield Healthcare Center is a nursing
home that housed a resident who did not want assist-
ance from black certified nursing assistants. Plainfield
complied with this racial preference by telling Brenda
Chaney, a black nursing assistant, in writing everyday
2 No. 09-3661
that “no black” assistants should enter this resident’s
room or provide her with care.
Chaney brought this action under Title VII of the 1964
Civil Rights Act. She claims that Plainfield’s practice of
acceding to the racial biases of its residents is illegal and
created a hostile work environment. She also asserts
that Plainfield fired her because she was black. The
Equal Employment Opportunity Commission, as amicus,
agrees, and together they urge reversal of the district
court’s grant of summary judgment to Plainfield. Because
the racial preference policy violates Title VII by creating
a hostile work environment and because issues of fact
remain over whether race motivated the discharge, we
reverse the district court’s order.
I. BACKGROUND
Since Plainfield Healthcare Center (“Plainfield”) pre-
vailed on summary judgment, we recount the facts in the
light most favorable to Brenda Chaney, the non-movant.
Plainfield hired Chaney as a nurse aide or certified
nursing assistant (“CNA”). As a CNA, she was respon-
sible for monitoring patients, responding to their re-
quests for service, and generally assisting with their daily
living needs. Plainfield detailed Chaney’s daily shift
duties on an assignment sheet that she and other em-
ployees received upon arriving at work. The assignment
sheet listed the residents in Chaney’s unit and their
corresponding care needs. It also featured a column
with miscellaneous notes about each resident’s condition.
In the case of Marjorie Latshaw, a resident in Chaney’s
No. 09-3661 3
unit, the sheet instructed nurse aides that Latshaw “Prefers
No Black CNAs.”
Plainfield acknowledges its policy of honoring the
racial preferences of its residents in assigning health-care
providers. Plainfield maintains it expected its employees
to respect these racial preferences because it otherwise
risked violating state and federal laws that grant
residents the rights to choose providers, to privacy, and
to bodily autonomy. Indeed, in its reply brief to the
district court on summary judgment, Plainfield acknowl-
edged that the assignment sheet for Chaney “banned” her
from assisting Latshaw.
For fear of being fired, Chaney went along with the
policy. Although Latshaw remained on her assignment
sheet, Chaney reluctantly refrained from assisting her,
even when she was in the best position to respond. Once,
Chaney found Latshaw on the ground, too weak to
stand. Despite wanting badly to help, Chaney had to
search the building for a white CNA. Plainfield housed
at least two other residents with a similar distaste for
black CNAs. One refused Chaney’s assistance in the
shower, asking for a different nurse aide instead. On a
separate occasion, a co-worker warned Chaney that
another resident does not care for blacks. Emotionally,
these race-based limitations depressed Chaney, who
routinely left work “teary eyed.”
Plainfield’s practice of honoring the racial preferences
of residents was accompanied by racially-tinged com-
ments and epithets from co-workers. For instance, in the
presence of a resident, a white nurse aide named Audria
4 No. 09-3661
called Chaney a “black bitch.” Another time, a white co-
worker looked directly at Chaney and asked why Plain-
field ”. . . keep[s] on hiring all of these black niggers?
They’re not gonna stay anyway.” The epithets were
reported to the unit supervisor, Loretta Askew, who
promised to address them. Although the epithets
ceased, co-worker Audria continued to remind Chaney
that certain residents were off limits because she was
black. Chaney reported these comments to Askew, who
renewed her promise to take care of it. Audria eventually
left Chaney alone, but Plainfield’s racial preference
policy remained in place and continued to surface in
conversations with other employees.
After Chaney had worked at Plainfield for just three
months, Plainfield fired her. In the early morning on
September 6, 2006, according to Nurse Cafouras who
lodged the complaint that led to Chaney’s discharge, a
resident struggling to get out of bed had signaled a call
light. Chaney and another CNA, C.J. Hart, were both
positioned to respond but both initially refused. When
Chaney ultimately came to the resident’s room, Cafouras
alleged that Chaney used profanity while lifting the
resident onto her bedside commode—“she’s shitting,”
Chaney supposedly said.
Cafouras’s complaint was investigated concurrently by
Askew, who normally investigated misconduct com-
plaints in her unit, and John Reyes, the Director of
Nursing. Askew was skeptical of the allegation, having
never before heard Chaney use profanity at work. She
investigated and learned that the resident’s roommate,
No. 09-3661 5
a witness to the incident, did not hear Chaney use pro-
fanity. The record is silent as to whether the resident
who signaled the call light heard Chaney use profanity.
Askew relayed her findings, along with her skepticism, to
Reyes. Although a full day had yet to pass since Cafouras
filed her complaint, Reyes had resolved to fire Chaney.
Hart, who heard the alarm but never responded, was not
interviewed until two weeks after the incident. Hart
was not disciplined even though the resident who
signaled the alarm was in her unit, not Chaney’s.
On the evening of September 6, 2006, Chaney was sent
home when she arrived to work her regular night shift. The
next morning, she received a short phone call from
Plainfield’s human resources manager, Donna Gray, in-
forming her that she was terminated. At a post-termination
meeting a few days later, Chaney alleges that Plainfield
told Chaney that it fired her because she said the word
“shitting” in the presence of a resident, and gave no
other grounds for the firing. At this meeting, Chaney
denied the charge and was invited to write her version
of the events, but her termination was not overturned.
Plainfield has since focused on other, independent
grounds for her discharge: “bed alarm and call light
infractions” and “not doing a shift change.”
The district court entered summary judgment in favor
of Plainfield on the claims of hostile workplace and
discriminatory discharge. Although the court recognized
that the comments from Chaney’s co-workers had created
a hostile work environment, it concluded that Plainfield
avoided liability by responding promptly each time it
6 No. 09-3661
received a complaint. Treating the racial preference policy
as a separate claim of a hostile work environment, the
court concluded that the note on Chaney’s assignment
sheet advising her of the “Prefers No Black CNAs” ex-
clusion was reasonable given Plainfield’s good-faith
belief that ignoring the resident’s preferences would
have violated Indiana’s patient-rights laws. As for
Chaney’s discriminatory-discharge claim, the court con-
cluded that Chaney had failed to produce evidence
from which an inference could be drawn that racial
animus motivated Reyes’s decision to fire her.
II. ANALYSIS
On appeal, Chaney and the EEOC argue that Plainfield’s
policy of acceding to the racial biases of its residents is an
unlawful employment practice that, along with racial
animosity from her co-workers, created an unremediated,
racially hostile workplace. They also contend that she
presented sufficient evidence to create a triable question
of whether racial animus motivated her firing. We re-
view the grant of summary judgment de novo, with the
familiar standard that summary judgment should be
granted if there is no genuine issue of material fact and
the record shows that the law entitles the moving party
to judgment. Chaklos v. Stevens, 560 F.3d 705, 710 (7th
Cir. 2009).
A. Racially Hostile Workplace Claim
Title VII prohibits employers from discriminating against
any individual “with respect to his compensation, terms,
No. 09-3661 7
conditions, or privileges of employment, because of such
individual’s race. . . .” 42 U.S.C. § 2000e-2(a)(1). In order
to impose Title VII liability for a racially hostile work-
place, a plaintiff must show: (1) the work environment
was both subjectively and objectively offensive; (2) that
the harassment was based on membership in a protected
class; (3) that the conduct was severe or pervasive; and
(4) that there is a basis for employer liability. Mendenhall
v. Mueller Streamline Co., 419 F.3d 686, 691 (7th Cir.
2005) (citations omitted).
We have no trouble finding that a reasonable person
would find Plainfield’s work environment hostile or
abusive. In Oncale v. Sundowner Offshore Services, Inc., the
Supreme Court emphasized the importance of con-
sidering the entire context of the workplace. 523 U.S. 75,
81 (1998). Here, over the course of three months, co-
workers called Chaney a “black bitch” and a “nigger” on
multiple occasions. Cf., Rodgers v. Western-Southern Life
Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (“Perhaps no
single act can more quickly alter the conditions of em-
ployment and create an abusive working environment
than the use of an unambiguously racial epithet such as
“nigger” by a supervisor in the presence of his subordi-
nates.”) (citations omitted). And in her deposition, Chaney
alleges that more subtle racial slights and comments
continued even after management was notified of the
problem. Most importantly, Plainfield acted to foster
and engender a racially-charged environment through
its assignment sheet that unambiguously, and daily,
reminded Chaney and her co-workers that certain resi-
dents preferred no black CNAs. Unlike white aides,
8 No. 09-3661
Chaney was restricted in the rooms she could enter, the
care that she could provide, and the patients she could
assist.1
Plainfield argues there is no basis for employer
liability because its response to the racial epithets was
adequate in stopping the harassment and that any subse-
quent comments were mere reminders of a particular
resident’s preference and not racially offensive. While it
is true that Plainfield’s actions stopped the use of the
most vulgar racial epithets, we cannot agree that any
further comments to Chaney about patients’ racial prefer-
ences were innocent and objectively unoffensive. Nor
can we agree that Plainfield’s policy of acceding to
patient preference, and expecting Chaney to adhere to
its instructions, was reasonable. Plainfield claims this
policy was necessary to comply with state and federal law.
It is now widely accepted that a company’s desire to
cater to the perceived racial preferences of its customers
1
At oral argument, counsel for Plainfield denied that Plainfield
prohibited Chaney from treating Latshaw. “The chart does not
say,” he explained, “Brenda Chaney, you can never treat this
patient.” Counsel’s pro-defendant interpretation of the evi-
dence violates the rules of inference on its motion for summary
judgment, and flatly contradicts Plainfield’s earlier judicial
admission in its reply brief on summary judgment, where
Plainfield maintained that “Chaney was not banned from
doing her job, only from attending to Marjorie Latshaw.” Dkt. 35
at 8. And counsel’s statement also contradicts Plainfield’s brief
on appeal, where it similarly told us that Chaney had to keep
away from Latshaw so that Plainfield could comply with
federal and state law.
No. 09-3661 9
is not a defense under Title VII for treating employees
differently based on race. See, e.g., Johnson v. Zema Sys.
Corp., 170 F.3d 734, 744 (7th Cir. 1999) (evidence of segre-
gated sales force supported Title VII claim); Ferrill v. The
Parker Group, Inc., 168 F.3d 468, 477 (11th Cir. 1999) (em-
ployer’s practice of assigning “get-out-the-vote” phone
calls based on race violated Title VII); see also Fernandez
v. Wynn Co., 653 F.2d 1273, 1276-77 (9th Cir. 1981) (re-
jecting customer preference defense in sex discrimina-
tion context and relying on EEOC holding that Title VII
does not permit the accommodation of the racially dis-
criminatory policies of foreign nations ). Plainfield argues
that this well-settled reading of Title VII does not ap-
ply—or should not apply—in the long-term care setting.
It contends that long-term care facilities have obligations
to their clients that place them in a different position
from most employers. Plainfield is both a medical pro-
vider and a permanent home for hundreds of residents.
The rights of those residents are secured by federal and
state laws and a vast network of regulations that, ac-
cording to Plainfield, it must honor before considering
its Title VII obligations to its employees.
For support, Plainfield cites a line of Title VII cases
permitting sex discrimination in the health-care setting.
See Jennings v. N.Y. State Office of Mental Health, 786
F.Supp. 376, 383 (S.D.N.Y. 1992); Local 567 Am. Fed’n of
State, County, and Mun. Employees v. Michigan, 635 F.Supp.
1010, 1013 (E.D. Mich. 1986); Backus v. Baptist Med. Ctr., 510
F. Supp. 1191, 1193 (E.D. Ark. 1981); Fesel v. Masonic
Home of Del., Inc., 447 F.Supp. 1346 (D. Del. 1978) (aff’d by
591 F.2d 1134 (3d Cir. 1979)). Taken together, they hold
10 No. 09-3661
that gender may be a legitimate criterion—a bona fide
occupational qualification (“BFOQ”)—for accom-
modating patients’ privacy interests. It does not follow,
however, that patients’ privacy interests excuse
disparate treatment based on race. Title VII forbids em-
ployers from using race as a BFOQ, Rucker v. Higher Educ.
Aids Bd., 669 F.2d 1179, (7th Cir. 1982), and Plainfield’s
cases allowing gender preferences in the health-care
setting illustrate why. The privacy interest that is offended
when one undresses in front of a doctor or nurse of the
opposite sex does not apply to race. Just as the law toler-
ates same-sex restrooms or same-sex dressing rooms, but
not white-only rooms, to accommodate privacy needs,
Title VII allows an employer to respect a preference for
same-sex heath providers, but not same-race providers.
Plainfield argues that even if Title VII does not expressly
contemplate a patient-preference defense to race-based
work assignments, Plainfield’s policy is a reasonable
and good-faith effort to comply with Indiana law and
should be excused on that basis. Under Indiana regula-
tions governing long-term care facilities, residents have a
right to “choose a personal attending physician and
other providers of services.” 410 IND. A DMIN. C ODE 16.2-
3.1-3(n)(1). If Plainfield’s reading of the regulation (re-
quiring it to instruct its employees to honor a patient’s
racial preferences) were correct, it would conflict with
Title VII. When two laws conflict, one state, one federal,
the Supremacy Clause dictates that the federal law pre-
vails. U.S. CONST. art. VI, cl. 2; Crosby v. Nat’l Foreign
Trade Council, 530 U.S. 363, 372 (2000). Had a resident
sued Plainfield under the patient’s rights provision, Title
No. 09-3661 11
VII would have supplied an affirmative defense. See
Howlett v. Rose, 496 U.S. 356, 371-72 (1990); see also Grann
v. City of Madison, 738 F.2d 786, 792 (7th Cir. 1984). Title VII
does not, by contrast, contain a good-faith “defense”
that allows an employer to ignore the statute in favor
of conflicting state law.
In any event, Indiana’s regulations do not require
Plainfield to instruct its employees to accede to the
racial preferences of its residents. The regulations
merely require Plainfield to allow residents access to
health-care providers of their choice. 410 IND. A DMIN. C ODE
16.2-3.1-3(n)(1). If a racially-biased resident wishes to
employ at her own expense a white aide, Indiana law
may require Plainfield to allow the resident reasonable
access to that aide. But the regulations do not say that
a patient’s preference for white aides that Plainfield em-
ploys trumps Plainfield’s duty to its employees to
abstain from race-based work assignments.
Plainfield’s reading of Indiana regulations is also untena-
ble because it puts Plainfield at risk of violating duties
of medical care that it owes its residents. A potential
violation could have occurred when Chaney, adhering
to Plainfield’s policy, reluctantly left Latshaw on the
floor so she could search the building for a white nurse
aide rather than immediately attend to her needs.
Plainfield’s claim of “good-faith” appears less than com-
pelling as a factual matter as well. If Plainfield was
worried that dishonoring race-based work preferences
risked violating Indiana’s regulations, it could have asked
Indiana’s State Department of Health whether state law
12 No. 09-3661
required Plainfield to direct its employees to cater to its
residents’ racial preferences. The record does not show
an attempt to seek such guidance.
Plainfield’s next argument that the racial preference
policy was required under federal law is also not persua-
sive. Plainfield relies primarily on three sections of the
Medicare Act. The first, 42 U.S.C. § 1395, states that
“Nothing in this subchapter” shall interfere with the
practice of medicine. “[T]his subchapter” refers to the
Medicare Act, not, as Plainfield suggests, the federal
employment-rights law. Similarly off the mark is
Plainfield’s reliance on 42 U.S.C. § 1395a. That provision
merely reminds Medicare beneficiaries that federal law
does not preclude them from using providers that
have opted out of Medicare. Finally, Plainfield relies
on 42 U.S.C. § 1395i, which provides that Medicare benefi-
ciaries in long-term care facilities have a right to choose
“a personal attending physician.” The law is silent about
a beneficiary’s right to choose other service providers,
such as CNAs. Moreover, as with the Indiana regulation,
even if the law extended to other service providers, it
would merely require Plainfield to allow residents
access to them, rather than obligate Plainfield to institute
race-based work practices.
Plainfield also defends the racial preference policy on
a practical level: without it, Plainfield risks exposing
black employees to racial harassment from the residents
and, in turn, exposing itself to hostile workplace liabil-
ity. It adds, without providing authority, that discharging
a racially hostile resident to avoid exposing employees
No. 09-3661 13
to the resident is illegal. But without resorting to dis-
charging residents, a long-term care facility confronted
with a hostile resident has a range of options. It can warn
residents before admitting them of the facility’s non-
discrimination policy, securing the resident’s consent in
writing; it can attempt to reform the resident’s behavior
after admission; and it can assign staff based on race-
neutral criteria that minimize the risk of conflict. See
Patrick Gavin & JoAnne Lax, When Residents and Family
Harass Staff: The Tightrope between Regulatory Compliance,
Risk Management and Employment Liability, L ONG T ERM
C ARE AND THE L AW 16-18 (Feb. 27, 2008) (American
Health Lawyers Association, Seminar Materials). Plain-
field could have, for instance, advised its employees that
they could ask for protection from racially harassing
residents. That way, Plainfield would not be imposing
an unwanted, race-conscious work limitation on its
black employees; rather, it would be allowing all em-
ployees to work in a race-neutral, non-harassing work
environment, as is commonly expected of employers. Cf.
Porter v. Erie Foods Int’l, Inc., 576 F.3d 629, 636 (7th Cir.
2009); Herron v. DaimlerChrysler Corp., 388 F.3d 293,
302 (7th Cir. 2005). And even if all these efforts do not
guarantee full racial harmony, they exemplify rea-
sonable measures that an employer can undertake to
avoid liability for known workplace harassment. See, e.g.,
Cooper-Shut v. Visteon Automotive Sys., 361 F.3d 421, 426
(7th Cir. 2004).
Plainfield, however, chose none of these options. Instead,
Plainfield told Chaney that it was excluding her from
work areas and residents solely on account of her race,
14 No. 09-3661
thereby creating a racially-charged workplace that poi-
soned the work environment. In less than three months,
Chaney reported at least three specific incidents of harass-
ment, two of which (i.e., “Black bitch” and “why do
they keep hiring these black niggers?”) involved racial
slurs directed toward her. Although the direct epithets
stopped after Plainfield learned of them, the record
does not show whether the lulls in harassment were
fortuitous or the result of remedial action. See Smith v.
Shehan, 189 F.3d 529, 535 (7th Cir. 1999). More funda-
mentally, Plainfield never corrected the principle source
of the racial hostility in the workplace—its willingness to
accede to a patient’s racial preferences. The hostility that
Chaney described came from daily reminders that
Plainfield was employing her on materially different
terms than her white co-workers. Fueling this pattern
was the racial preference policy, both a source of humilia-
tion for Chaney and fodder for her co-workers, who
invoked it regularly. It was, in short, a racially hostile
environment, and the evidence presented at summary
judgment allows a jury to conclude that Plainfield took
insufficient measures to address it.
B. Discriminatory Discharge Claim
Chaney renews her argument that her discharge was
racially motivated. She proceeds under the direct method
of proof, which may include direct or circumstantial
evidence that race motivated Plainfield’s decision. See
Henry v. Jones, 507 F.3d 558, 566 (7th Cir. 2007). The thrust
of Chaney’s claim is that Reyes’s cursory investigation
No. 09-3661 15
into her alleged misconduct casts doubt on the sincerity
of the reason that he offered for firing her. Evidence of
pretext, by itself, may not always be enough to defeat
summary judgment under the direct method. See
Venturelli v. Arc Cmty. Serv., 350 F.3d 592, 601 (7th Cir.
2002). But Chaney has also presented other circum-
stantial evidence of more favorable treatment of a similarly
situated co-worker suggesting that race figured into
Plainfield’s decision to fire her. Taken together, the two
threads of evidence create a triable issue whether race
motivated Chaney’s discharge.
First, the record contains evidence that Plainfield’s
grounds for firing her were insincere. Reyes had resolved
to fire Chaney within 24 hours of receiving Cafouras’s
complaint, a decision he reached in an unusual way.
Askew ordinarily investigated charges of misconduct
in her unit, but Reyes conducted his own investigation
and decided to fire Chaney without considering Askew’s
evidence that the complaint was unfounded. Reyes
could have easily interviewed Chaney about the incident,
as well as co-worker Hart, who was present when
Chaney’s alleged misconduct occurred. What is more,
Chaney states that at the termination meeting, the only
reason she was given for her discharge was the alleged
use of profanity. During litigation however, Plainfield
has focused attention on other potential grounds for
firing Chaney such as charges of ignoring the call light
and refusing a shift change. A shifting justification for
an employment action can itself be circumstantial
evidence of an unlawful motive. See Rudin v. Lincoln Land
Cmty. Coll., 420 F.3d 712, 723-24 (7th Cir. 2005). Plainfield
16 No. 09-3661
counters that Reyes’s decision to fire Chaney should be
afforded a “presumption of legitimacy” since he was the
official that hired her. This argument was forfeited
because Plainfield made it only on appeal. See Arendt v.
Vetta Sports, Inc., 99 F.3d 231, 237 (7th Cir. 1996). In any
case, the “presumption” is just part of the evidentiary
mix. Herrnreiter v. Chi. Hous. Auth., 315 F.3d742, 747
(7th Cir. 2002).
Chaney has also presented circumstantial evidence of
a disparity in treatment between her and a comparable
white nurse aide. Evidence that similarly situated em-
ployees outside the protected class received better treat-
ment can help support a circumstantial showing of dis-
crimination. See Henry, 507 F.3d at 566. Her first compara-
ble white CNA is Audria, who like Chaney was reported
for swearing in the presence of a resident. This comparison
would be apt if Chaney had evidence that the complaint
went higher up the chain of command than Askew,
her immediate supervisor. Since she does not, the com-
parison is unhelpful, as the decision to discharge
Chaney belonged to Reyes, not Askew.
Chaney has a more promising comparator in Hart, the
CNA whose patient Chaney was assisting when she
allegedly used profanity. Both Chaney and Hart were at
the nurse station when Cafouras asked for help. The
resident who needed help was in Hart’s unit, yet it was
Chaney, not Hart, who ultimately responded to the call.
True, unlike Chaney, Hart was not accused of using
profanity in front of a resident. But the similarly situated
co-worker inquiry is a search for a substantially similar
No. 09-3661 17
employee, not for a clone. Argyropolous v. City of Alton, 539
F.3d 724, 735 (7th Cir. 2008). If, as Plainfield now
contends, failing to respond to a bed alarm is a separate,
terminable offense, it is suspicious that Hart was not
questioned about her inaction until two weeks after the
incident and that, despite her refusal to respond to the
call light from a resident in her unit, she got off without
so much as a warning. When considered in light of the
full account of Reyes’s unusual and limited investiga-
tion, a reasonable jury could conclude from this record
that Plainfield’s grounds for firing Chaney cloaked the
forbidden motivation of race.
III. CONCLUSION
The judgment of the district court is R EVERSED and
R EMANDED for further proceedings.
7-20-10