This case arises under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. The district court had jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. §§ 2000e-5(f)(1), (3). Following trial, the district court entered final judgment on August 11, 2022. R.310. The Equal Employment Opportunity Commission (“EEOC”) filed a timely notice of appeal on October 7, 2022. R.317; see Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. § 1291.

1. Did the district court wrongly ignore this Circuit’s precedents in favor of contrary Fifth Circuit law, disregard the uniquely offensive nature of the N-word, and ignore genuine issues of material fact in granting summary judgment to Hamilton Pointe regarding fifteen of the EEOC’s claimants?

2. Do the verdict forms require a new trial because they forced the jury to consider supervisory harassment separately from coworker or resident harassment, when the law required it to consider the totality of the circumstances?

3. Did the district court wrongly make inferences in favor of Tender Loving Care Management (“TLC”) and overlook genuine issues of material fact in holding that TLC and The Village at Hamilton Pointe (“Hamilton Pointe”) were neither joint employers nor a single employer?

Statement of the Case [2]

Defendant Hamilton Pointe is a residential nursing home in Indiana. Supp.App.220. Defendant TLC manages Hamilton Pointe and provides it with financial, human resources, and other services. Supp.App.221. The EEOC’s forty-seven claimants worked at Hamilton Pointe as certified nursing assistants (“CNAs”), nurses, qualified medication aides (“QMAs”), and dietary staff. All of the claimants are Black.

The EEOC alleges, in relevant part,[3] that Defendants violated Title VII by creating a racially hostile work environment. Supp.App.41-42. Claimants testified that Hamilton Pointe routinely catered to the racist demands of its residents by making race-based assignments and instructing Black staff to stay out of certain rooms. See infra pp.4-21. Sometimes these instructions were verbal and sometimes in writing. Id. One typewritten assignment sheet, posted for all to see, said, “NO AFRICAN AMERICAN MALES TO PROVIDE CARE.” Supp.App.46-50. Additionally, the claimants testified, residents, coworkers, and supervisors used the N-word and made other racist slurs to and about them, and otherwise mocked them for being Black. See infra pp.4-21.

The district court granted partial summary judgment on the merits to Hamilton Pointe, precluding recovery for forty of the claimants. Short.App.92. The district court also held that TLC was neither a joint employer nor a single employer and granted summary judgment in its favor. Short.App.14. At trial, the jury found in favor of one of the remaining claimants and against the other six. R.301 at PageID#6387-89; Short.App.93-110.

I. Partial Summary Judgment on the Merits

A. Facts

The EEOC seeks reversal on behalf of fifteen individuals whose claims were rejected at summary judgment.

1. Trent Carter

Carter was a Dietary Aide at Hamilton Pointe for four years. Supp.App.44. When residents chose not to go to the dining room, nurses delivered trays to their rooms. Supp.App.56. When they were too busy, dietary aides delivered the food. Supp.App.56. Despite the usual practice within the facility, two nurses told Carter to stay out of residents’ rooms because residents feared theft, and “I guess they thought the blacks had took something out of their room.” Supp.App.56-57. Nurse Annette Brown told him twice that he could not enter rooms because “stuff had came up missing,” and she said White CNAs had told her that none of the Black CNAs went into the rooms. Supp.App.56-57. Nurse James told Carter three times that he could not enter rooms because Black CNAs were not allowed to do so. Supp.App.56. Yet Carter saw White aides taking trays into the rooms. Supp.App.59. Carter had avoided residents’ rooms even before the nurses instructed him to do so because he feared he would be falsely accused of stealing something. Supp.App.57.

Carter also overheard someone in the kitchen saying, “We didn’t want that big-ass n**ger working here no more.” Supp.App.58.

2. Sonja Fletcher

Fletcher was a CNA at Hamilton Pointe for seven months. Supp.App.44. She was “livid” when she saw an assignment sheet stating, “NO AFRICAN AMERICAN MALES TO PROVIDE CARE.” Supp.App.46, 69. She complained to the scheduler, who “didn’t see a problem with that.” Supp.App.67-68. Fletcher also complained to Administrator Lauren Hayden and Director of Nursing Paula Lovell, Supp.App.67, and she called TLC’s complaint hotline, Supp.App.68. Nonetheless, the statement remained on the assignment sheet for three more days before someone posted a new sheet in its place. Supp.App.68. Seeing this statement, Fletcher testified, was one reason she left Hamilton Pointe. Supp.App.67.

3. Amber Johnson

Johnson was a CNA at Hamilton Pointe for fifteen months. Supp.App.44. A nurse told her that resident JT[4] did not want Johnson in her room because of Johnson’s race, and the nurse instructed Johnson to keep out. Supp.App.91-92. The nurse told her it was “no big deal,” Supp.App.102, and explained, “She’s from that generation where that was normal, and ... it’s still fortunate that that generation is dying off,” Supp.App.97.

Another resident suggested that Johnson and a Black coworker get naked and rub Mazola oil on their bodies “because he would love to see our brown bodies oiled up.” Supp.App.92. On a different occasion, this same resident made Johnson uncomfortable because he “felt the need to tell [her] about how much he liked black people and he … wasn’t racist … because he grew up with black people, and he told [her] about multiple black people that have worked for him during his life[.]” Supp.App.92-93, 98.

A third resident called Johnson “stupid” and “lazy,” and said that she “needed to move [her] butt faster.” Supp.App.93. When she subsequently responded to his call light, he said, “Get. You know you are not supposed to be in here. Get.” Supp.App.91. He pointed to the door and kept saying “Get” until she left the room. Supp.App.91.

Nurse Jackie Lamp compounded this hostility by telling Johnson she had gone into a room with the lights off and was startled to see CNA Jo Murray. Supp.App.98. Lamp told Johnson she had told Murray, “Oh, my God, you scared me. You’re so black. It’s dark in here. I didn’t even know you were there.” Supp.App.98.

Johnson testified that the Rehabilitation Unit had four hallways with approximately eighty patients, and it was “impossible” for two people to staff the unit on their own. Supp.App.100. Nonetheless, when she and another Black CNA requested assistance, they were always denied. Supp.App.100. CNAs who were “not of color” who worked on that hall requested and received the help of four CNAs. Supp.App.100.

4. LaShawn Johnson

Johnson was a CNA at Hamilton Pointe for two-and-a-half months. Supp.App.44. He testified that on the halls where he worked, three or four residents did not want Black men to care for them. Supp.App.106. For those residents, he had to switch rooms with a White CNA who was caring for residents on a different hall. Supp.App.110. He saw a White male nurse enter a room from which he was barred. Supp.App.108.

Johnson used to talk with one resident “all the time” about sports until the resident’s wife learned that Johnson was dating a White woman and told a nurse to stop allowing Johnson in her husband’s room. Supp.App.110, 112. The nurse instructed Johnson (who was not assigned to care for the husband) to stay out. Supp.App.107, 109-10, 112. “You’re not allowed in that room,” the nurse told him, “because she don’t want her husband getting took care of from a Black man, from Blacks.” Supp.App.112.

Johnson overheard a different nurse ask his White girlfriend, who was also a Hamilton Pointe CNA, “Why are you with him? Why are you with a black man? Why don’t you have a white man?” Supp.App.109.

Johnson saw a typewritten assignment sheet stating “no Black care” or “no African American care” for his assigned hall. Supp.App.104-06, 111. He left Hamilton Pointe after only three months “because I wasn’t comfortable after that happened.” Supp.App.105.

5. Sara Johnson

Johnson was a CNA at Hamilton Pointe for five-and-a-half months. Supp.App.44. She believed that at least two residents called her a “n**ger” and refused care from her. Supp.App.114-15, 117. When Johnson complained to the nurses, they told her, “Well, you know, that’s the era they came from.” Supp.App.114-15. Johnson had to find a replacement CNA on her own. Supp.App.114, 117.

Johnson saw one or two assignment sheets stating that certain residents did not want Black caregivers. Supp.App.116. She testified that these racist preferences remained posted on the assignment sheets for the duration of a given resident’s stay. Supp.App.116.

6. Raven Langley

Langley was a CNA at Hamilton Pointe for two months in 2015, and one month in 2016. Supp.App.44. One resident called her the N-word three to five times, asked “What is that [n**ger] doing in here,” and stated that she “didn’t want the [n**ger] taking care of [her].” Supp.App.119, 123.

Langley also cared for a resident on a different hall who called her “the help” five to twenty times. Supp.App.120, 122. When Langley complained to Shana, the charge nurse, Shana told her to bring someone in with her. Supp.App.120, 125. Although that was Langley’s preference as well, she told Shana that “sometimes there wasn’t always an extra person that was available to come in there with you.” Supp.App.120. Shana had no other suggestion. Supp.App.120.

Langley testified that she felt emotional distress when she was called the N-word or “the help,” but not afterwards. Supp.App.124. She stated, “I just wouldn’t want to go through the whole experience again. I wouldn’t want to be subject to that type of atmosphere[.]” Supp.App.125.

7. L’Sheila Lewis

Lewis, a CNA, worked for Hamilton Pointe for seven weeks. Supp.App.44. Twice, she was not allowed to enter a resident’s room because of her race. Supp.App.129-30. CNAs told her that the resident did not want any Black people there, and a nurse explained, “We have to respect their rights if they don’t want a certain person to care for them, a certain type of person.” Supp.App.130. On her last day of work, when Lewis was in another resident’s room, the resident called her “a black B” and a “n**ger.” Supp.App.127-28. Lewis sometimes considered the work environment to be “racially offensive.” Supp.App.131.

8. Tamara McGuire

McGuire, a CNA, has been employed at Hamilton Pointe since 2012. Supp.App.44. She saw a typed assignment sheet stating, “No blacks allowed.” Supp.App.137. She did not provide care for the individual in question because “we couldn’t.” Supp.App.137.

CNAs told McGuire at shift change what rooms not to go in “because they didn’t want the black caregivers.” Supp.App.146. “[I]f that light comes on,” one CNA said, “you get somebody else.” Supp.App.138. McGuire was aware that White men went into rooms where Black men were not allowed, and she sometimes had to substitute for Black men who were prohibited from entering rooms. Supp.App.135-36.

McGuire testified that “certain residents … would scream out racial slurs to us.” Supp.App.147. JS yelled at her, “I don’t want you [n**gers] in here. Leave me alone.” Supp.App.141. Another time, she overheard JS loudly call a CNA “that black [n**ger] bitch.” Supp.App.144. She heard a different resident call a CNA a “black bitch” as the CNA was leaving the room, and then witnessed a nurse telling Black employees not to go into that room. Supp.App.142-43. McGuire also heard one resident call another resident a “black bitch.” Supp.App.142. Resident CN’s daughter told McGuire that she did not want any Black men taking care of her mother. Supp.App.148.

McGuire testified that QMA Crystal Brown and CNA Cosette Beliles “had problems with the blacks” and “always made it difficult for every black employee that worked evening or night shift.” Supp.App.139. She added that Brown “pretty much writes up on any black associate within Assisted Living or Memory Care.” Supp.App.139.

9. Charah Milan

Milan, a CNA, worked at Hamilton Pointe for three-and-a-half months. Supp.App.44. In that time, she heard residents use the N-word “in passing by.” Supp.App.152. One resident told another, “That [n**ger”] ... was in here.” Supp.App.152. Milan testified that it was “a normal term” for residents and staff to describe Black employees as “that colored girl.” Supp.App.152-53. Milan heard staff say “that colored girl” approximately ten times and found it offensive. Supp.App.153. Although she did not see it herself, a CNA told Milan about an assignment sheet that said “no colored,” “no African American” or “no black” care. Supp.App.154.

10. Vanessa Miles [5]

Miles was a CNA at Hamilton Pointe for two-and-a-half years. Supp.App.44. The assignment sheet stating “NO AFRICAN AMERICAN MALES TO PROVIDE CARE” applied to the hall on which she was working. Supp.App.46, 158.

Although she personally was not subjected to derogatory racial language, Miles witnessed other employees who were. Supp.App.156. She complained to the Director of Nursing that darker-skinned Black workers were treated worse than lighter-skinned ones. Supp.App.156. For example, she testified, a White nurse berated a dark-skinned CNA for a mistake, but said, “Oh, ok,” and walked off when Miles, who had lighter skin, said the mistake was hers. Supp.App.160. At Hamilton Pointe, she said, “The darker you were, the more often you would be in the office.” Supp.App.160.

One resident told Miles that she smelled like pork. Supp.App.156. Miles understood this to be a racist insult similar to others she had previously heard. Supp.App.156.

Nurses regularly warned CNAs, “Oh, you know, that [resident]... might be a little bit racist, so just a heads up.” Supp.App.157. These warnings were “kind of like a joke,” Miles testified. Supp.App.157. They made her feel ”belittled” and “degraded.” Supp.App.161.

11. Naim Muhammad

Muhammad was a CNA at Hamilton Ponte for six months. Supp.App.44. He did not see any written directives prohibiting Black employees from entering certain rooms, but he heard about them. Supp.App.167. QMA Ruth Washington, another claimant in this case, once told him not to enter a room because the resident did not want Black caregivers. Supp.App.166. In addition, Nurse Lamp told a charge nurse, in the presence of many other people, that Muhammed could not work on the service hallway. “That boy can’t work down that hall there,” she said. Supp.App.163. Muhammed also heard a nurse tell a coworker not to work on the service hallway because of her race, stating that no Black caregivers were allowed there. Supp.App.164. Despite these comments, the scheduler sometimes assigned Muhammad to rooms on that hall. Supp.App.164-65. Even though everyone was responsible for responding to call lights, “more than a couple” of times nurses, including Lamp, told Muhammad not to enter rooms to which he was not assigned because of his race, even when the call lights came on. Supp.App.165-66.

At times, Muhammad was assigned to care for more than thirty residents in the Rehabilitation Unit, which was impossible to do without help. Supp.App.165. Muhammad never had assistance, he testified, but whenever anyone else was assigned there, they did. Supp.App.165.

12. Taki-a Roberts

Roberts was a Dietary Cook at Hamilton Pointe for eight months. Supp.App.44. Two or three times per day, she heard four or more residents use the N-word. Supp.App.187-88. On multiple occasions, the same residents said, “I don’t want to be taken care of by that [n**ger].” Supp.App.189-90. Every few days, she heard a resident call one of her kitchen coworkers “boy.” Supp.App.187-89. Although she testified that she did not experience emotional harm, Supp.App.191, she also testified that the residents’ language offended her, Supp.App.188. She did not complain because “nothing really gets done.” Supp.App.188.

13. Montoya Smith

Smith was a QMA at Hamilton Pointe for fourteen months. Supp.App.44. She heard several residents use the N-word. Supp.App.198. She heard residents call Black men “boys,” and once or twice they called her “boy” as well. Supp.App.198. Several times, residents called Smith “the server” or “the help.” Supp.App.200. When Smith complained, nurses told her, “Oh, it’s of their era. You know, they just do that. You know, they have their rights. ... [G]o out and smoke a cigarette.” Supp.App.198-99. Often, Smith testified, the person to whom she complained would respond with a story about a racist person in their own family rather than trying to help. Supp.App.201. Once, a nurse warned Smith to be careful entering a resident’s room because the resident had told another aide he had probably owned her grandmother. Supp.App.202.

Smith heard a White employee say Black people “all look alike … I get you girls mixed up all the time.” Supp.App.201. She also heard employees say, “African Americans have funny names,” and “Oh, I was expecting a black girl with a name like that. You know, Shakita, Shamika.” Supp.App.201. A White QMA said “she didn’t understand why the black girls didn’t like” her dating a Black man, and “it wasn’t her fault that [her boyfriend’s] black mother had all of those children and didn’t do anything for them.” Supp.App.201. White employees said, “I’m not racist. I have four black friends.” Supp.App.201.

14. Bianca Toliver

Toliver was a Dietary Cook at Hamilton Pointe for two years and eight months. Supp.App.44. A charge nurse instructed her not to enter one resident’s room for any reason and to bring food trays to the nurses’ station instead. Supp.App.205. Although the nurse did not mention Toliver’s race, several CNAs had told Toliver that this resident did not want Black individuals in her room. Supp.App.209-10. A CNA also told Toliver that she had personally been barred from a room on that unit because of her race. Supp.App.204-05.

On Toliver’s first day of work, Belinda, the cook who was training her, spotted a mess in the back of the kitchen and told Toliver, “she was not cleaning up after these [n**gers].” Supp.App.206. After Toliver complained to Chef Calvin, Belinda apologized. Supp.App.206. When Toliver said an apology was inadequate, Calvin said, “Belinda didn’t mean it that way,” Supp.App.206, and then “he kind of just swept it under the rug,” Supp.App.208.

A couple of months later, Belinda rubbed her hands through Toliver’s hair without permission and compared the texture of Toliver’s hair to her own. Supp.App.206, 208. Given the lack of response to her previous complaint, Toliver did not complain about this incident. Supp.App.206-08. However, she tried to get different shifts from Belinda and started looking for a new job. Supp.App.206, 208. “I shouldn’t have to feel uncomfortable when I’m coming to work,” Toliver testified. ”[W]ho wants to work with someone when you really know they don’t like you ... because of the color of [your] skin.” Supp.App.208.

15. Ruth Washington

Washington was a QMA at Hamilton Pointe for one-and-a-half years. Supp.App.44. Nurse Jackie Lamp prohibited her from entering resident LE’s room, explaining that LE “didn’t want colored people.” Supp.App.216. When Washington did enter the room, LE told her, “You’re not supposed to be in here.” Supp.App.216.

Washington testified that multiple nurses made racist comments to her. Three or four times, Lamp told Washington, “Oh, I didn’t see you in the dark.” Supp.App.215-16. Nurse Cindy Rector frequently referred to Black individuals as “you people,” especially when commenting on Black skin tone and hair and said she did not believe biracial couples should have children. Supp.App.215. She also questioned the legitimacy of Washington’s requests on behalf of patients but did not question White CNAs’ similar requests. Supp.App.218. Nurse Laura Williams told Washington that if Williams’s daughter came home with a Black man, Williams would disown her. Supp.App.217.

B. District Court’s Decision

The district court held that, as a matter of law, forty claimants had not been subjected to a hostile work environment. Short.App.92. Its reasoning was similar with respect to each individual.

Notwithstanding testimony to the contrary, the court rejected numerous claimants’ contentions that they had been subjected to race-based assignments. Short.App.42, 44-45, 61, 67, 73. The court held that the assignment sheet stating “NO AFRICAN AMERICAN MALES TO PROVIDE CARE” did not apply to various claimants because they were female, because they provided care to the particular residents anyway, and/or because they were not assigned to those residents. Short.App.32, 37, 40, 44. 80. In any event, the court said, Hamilton Pointe took down the assignment sheet after three days. Short.App.32.

The court also discounted the impact of racist slurs. Often, the court said, racist insults were not directed at the claimants. Short.App.42, 56-57, 61-62. Even when they were, it said, not all of the insults were connected to race. Short.App.39, 78.

Use of the N-word and other racist slurs, the court said, “came not so much from co-workers but from residents who suffered from mental decline.” Short.App.23. Looking to the Fifth Circuit for guidance, the court reasoned that some resident harassment is unavoidable in a nursing home. Short.App.23. Such harassment weighs less in the hostile-work-environment analysis, the court concluded. See, e.g., Short.App.59 (“Given the unique circumstances of her employment, the court finds Smith was not subjected to a racially hostile work environment.”); Short.App.47 (“In the context of caring for an individual with dementia, the phrase [‘the help’] is not the type of comment which is so severe as to alter the conditions of her work environment.”).

As to two claimants – Fletcher and Toliver – the court also said that even if they had endured a hostile work environment, there was no basis for employer liability. Short.App.33 (Fletcher); Short.App.62 (Toliver). On this point, the court did not explain its reasoning.

Finally, the court discounted certain evidence as inadmissible hearsay. Short.App.41, 80. In so doing, it did not distinguish between evidence being offered for the truth of the matter and evidence being offered to show that individuals experienced their work environment as racially hostile.

II. Summary Judgment on TLC’s Liability

A. Facts

The EEOC alleged that management company TLC was liable for the discrimination at Hamilton Pointe either because it and Hamilton Pointe were joint employers, or because they were a single employer. R.1 at PageID#4. The same individuals owned and operated both TLC and Hamilton Pointe, and a single family controlled both companies. Supp.App.170-72, 243-50. They shared the same corporate officers and principal office address in Marion, Indiana. Supp.App.243-50.

TLC performed a substantial portion of the human resources functions that applied to claimants, including authoring and administering numerous policies (such as the anti-discrimination policies), drafting job descriptions and interviewing candidates, operating the complaint hotline, and investigating and acting on discrimination complaints. Supp.App.72, 76-77, 169, 175, 178-79, 184, 224, 234, 238, 252-57. TLC’s Vice President of Human Resources, Steven Ronilo, testified that “we do not allow anyone to [provide racist staffing instructions] in facilities … if we knew it was happening, we’d stop it immediately.” Supp.App.194.

TLC hired, supervised, and fired Hamilton Pointe’s administrators who, in turn, supervised claimants. Supp.App.52, 73, 87, 173, 183, 212-13. Administrators described TLC’s management as hands-on, requiring regular reporting and approval of everything from budgeting to pay scales. Supp.App.84, 223.

TLC retained ultimate authority over many employment decisions affecting claimants. Hamilton Pointe’s disciplinary forms—which TLC drafted—provided that final warning, discharge, and termination decisions “must be reviewed by” TLC’s regional directors of operation and its vice presidents of human resources. Supp.App.75 (emphasis added); see also Supp.App.224. In practice, this required not mere consultation, but approval. Supp.App.75, 89, 224.

TLC also provided Hamilton Pointe’s accounting, payroll, and IT services, and sometimes filled Hamilton Pointe’s temporary vacancies with its own employees. Supp.App.61, 74, 85, 169, 176, 180-82, 224. TLC offered a group health-benefits plan to Hamilton Pointe employees, paid their college expenses, and offered them vendor discounts. Supp.App.88, 177, 185, 224, 229.

Finally, Hamilton Pointe employees were told that they worked for TLC, TLC’s name appeared on employee paystubs, and TLC referred to Hamilton Pointe as a TLC facility. Supp.App.79, 88, 150. As a result, former and current Hamilton Pointe employees testified either that they thought they worked for TLC or that TLC owned Hamilton Pointe. Supp.App.54, 63, 79-80, 82, 133, 193, 196.

B. District Court’s Decision

The district court held that TLC was not a joint employer because TLC merely offered “recommendations” and did not exercise sufficient control and supervision over claimants, Short.App.8-10; Hamilton Pointe was responsible for its own costs of operations, Short.App.10-11; and Hamilton Pointe paid for employee benefits, whereas TLC merely offered a scholarship program, Short.App.11. The court determined that the EEOC could not pierce the corporate veil because Hamilton Pointe and TLC were separate legal entities with separate locations, bank accounts, and managers; TLC did not have an ownership interest in Hamilton Pointe; and integration between TLC and Hamilton Pointe was legally insufficient. Short.App.14. Thus, the court granted summary judgment to TLC. Short.App.14.

III. Trial

The seven claimants who remained at trial (DeLoris Cook, Amber Cottrell, Angela Gilbert, Donna Grissett, Roshaun Middleton, Yana Shelby, and Aleshia Smith) testified that nurses regularly gave them written and verbal instructions to stay out of certain rooms and not to care for residents who did not like Black people. See, e.g., Supp.App.46-50, 262-63, 280. These instructions were sometimes verbal and sometimes written. E.g., Supp.App.262-63, 279. Several claimants observed an assignment sheet with the typewritten notation “NO AFRICAN AMERICAN MALES TO PROVIDE CARE” or other similar assignment sheets. E.g., Supp.App.46-50, 262, 278, 284. Residents, both with and without dementia, Supp.App.270, called the claimants “n**gers” and other racial slurs. E.g., Supp.App.265-66, 268-69, 271, 275. Nurses also used the N-word and mocked the claimants because of their race. E.g., Supp.App.264-65, 267, 272, 276-77.

Hamilton Pointe acknowledged that residents sometimes used racial slurs but asserted that the only ones who did so had dementia and no impulse control. R.327, Closing Arg. at 891-92. For its own part, Hamilton Pointe argued, it did not make race-based assignments, condone residents’ racist behavior, permit employees to racially harass colleagues or subordinates, or post the assignment sheet saying “NO AFRICAN AMERICAN MALES TO PROVIDE CARE” for more than a few days. Id. at 888-89, 892.

The parties vigorously disputed the role of nurses vis-à-vis CNAs, with the EEOC introducing evidence that they were supervisors, Supp.App.272-74, 280, 285-86, and Hamilton Pointe introducing evidence that they were not, Supp.App.281-83. During closing arguments, both parties asked the jury to find in their favor on this point. Supp.App.288-89 (EEOC); 290-91 (Hamilton Pointe).

A. Jury Instructions on Hostile Work Environment

The district court issued one pattern instruction regarding harassment by coworkers or residents and another regarding harassment by supervisors. Supp.App.295-99. Each instruction referred to separate “claims,” without indicating that the jury should consider all harassment by all individuals when assessing the existence of a hostile work environment. Supp.App.295, 298. The EEOC had proposed including the coworker/resident and supervisor instructions, R.218, PageID#4645-46, but had also proposed an instruction that “the entire context of the workplace must be taken into account to determine whether a hostile work environment existed,” Supp.App.293. The district court rejected this proposal without explanation and did not tell the jury what to do if a claimant was harassed by both coworkers/residents and supervisors.

B. Verdict Forms

The EEOC proposed a verdict form asking, “Do you find that the [EEOC] has established by a preponderance of the evidence that Defendant Hamilton Pointe subjected the claimants to a racially hostile or offensive work environment?” Supp.App.301. Hamilton Pointe proposed asking, instead, whether a claimant had been subjected to a hostile work environment from supervisors or, separately, from coworkers or residents. Supp.App.304. The EEOC objected, stating:

[T]he verdict forms divide “supervisor harassment” from “co-worker or resident harassment” as if the jury is supposed to consider one piece of harassment separately from another. But the jury is to consider whether Defendant subjected the class member to racial harassment; the evidence is to be considered as a whole, not piece by piece. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016) (“[e]vidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself”).

The verdict forms do not tell the jurors what to do when both supervisor and co-worker harassment is present.

Supp.App.307-08. The district court agreed with Hamilton Pointe without providing any explanation. The verdict forms submitted to the jury separated out supervisor harassment from coworker/resident harassment. Short.App.93-110.

C. Jury Verdicts

The jury found that claimant Roshaun Middleton experienced discriminatory job assignments and a hostile work environment from residents and/or coworkers and awarded him $45,000. R.301, PageID#6387-89. The jury also found that claimants Yana Shelby and Aleshia Smith experienced a hostile work environment from residents and/or co-workers but did not award them any damages. Short.App.105-10. It found that claimants DeLoris Cook, Amber Cottrell, Angela Gilbert, and Donna Grissett had not been subjected to discrimination. Short.App.93-104.

Summary of Argument

The district court erred in granting partial summary judgment to Hamilton Pointe and rejecting the EEOC’s claims for the fifteen individuals identified above. First, the court wrongly incorporated Fifth Circuit precedent that does not apply in this Circuit. The Fifth Circuit instructs that nursing-home employees must expect some resident harassment, and that such harassment is generally insufficient to create a hostile work environment. This Court, in contrast, has held that there is no assumption-of-the-risk defense to a hostile-work-environment claim, and that resident harassment can contribute to a hostile work environment. Nothing in this Court’s precedent suggests that harassment is inherently less offensive when it comes from residents. Applying the proper standards and considering all the evidence in the light most favorable to the EEOC, a reasonable jury could find that the fifteen claimants endured a hostile work environment in violation of Title VII.

The court also committed reversible error in submitting verdict forms that required the jury to analyze supervisor harassment separately from coworker/resident harassment. A hostile work environment must be assessed based on the “totality of the circumstances,” which, for claimants here, included race-based assignments as well as harassment from nurses, coworkers, and residents. Contrary to binding precedent, the verdict forms required the jury to disaggregate this evidence, potentially changing the trial’s outcome.

Finally, the court erred by granting summary judgment in favor of TLC. Whether analyzed under the joint-employer standard or the veil-piercing standard, TLC is liable for the harassment at Hamilton Pointe.

Standard of Review

This Court reviews an award of summary judgment de novo, viewing all facts in the light most favorable to the non-moving party and drawing all reasonable inferences in that party’s favor. See Donaldson v. Johnson & Johnson, 37 F.4th 400, 405-06 (7th Cir. 2022).

The Court reviews a district court’s formulation of questions on verdict forms for abuse of discretion. Malone v. Reliastar Life Ins. Co., 558 F.3d 683, 692 (7th Cir. 2009). A court abuses its discretion by stating the law inaccurately. Id. at 693. Unless the error is harmless, this Court must reverse and remand for a new trial. Id. at 694.

Argument

I. The partial summary judgment award on the merits is legally and factually erroneous.

Title VII bars discrimination because of race in the “terms [or] conditions ... of employment.” 42 U.S.C. § 2000e-2(a)(1). Because it is intended “to strike at the entire spectrum of disparate treatment ... in employment,” the statute prohibits “requiring people to work in a discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation omitted). Title VII is violated “[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Id. (citations omitted).

Whether harassment is sufficiently severe or pervasive to create a hostile work environment “is generally a question of fact for the jury.” Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 901 (7th Cir. 2018). The answer turns on the “totality of the circumstances.” Paschall v. Tube Processing Corp., 28 F.4th 805, 815 (7th Cir. 2022). Relevant considerations may include 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.” Harris, 510 U.S. at 23. “[N]o single factor is required.” Id.

A. The district court applied out-of-Circuit precedent that is contrary to Circuit law.

The district court wrongly looked to Fifth Circuit precedent to discount the impact of residents’ racist statements and behavior. See Short.App.23-25 (citing Cain v. Blackwell, 246 F.3d 758 (5th Cir. 2001); EEOC v. Nexion Health at Broadway, Inc., 199 F. App’x 351 (5th Cir. 2006)). In those cases, the Fifth Circuit held that resident harassment was not severe or pervasive because the harassers’ conduct was “unacceptable but pitiable,” Cain, 246 F.3d at 760-61, and “[a]bsorbing occasional verbal abuse from such patients was . . . an important part of the [plaintiff’s] job.” Nexion Health, 199 F. App’x at 354.

The Fifth Circuit’s approach runs afoul of this Court’s precedent, which has never suggested that harassment is inherently less serious when it comes from individuals with cognitive disabilities. Indeed, in Chaney v. Plainfield Healthcare Center, this Court rejected a nursing home’s concern about liability for residents’ racially harassing behavior not by downplaying such behavior’s seriousness, but by suggesting reasonable steps the facility could take to “allow[] all employees to work in a race-neutral, non-harassing work environment.” 612 F.3d 908, 914-15 (7th Cir. 2010). Thus, under this Court’s precedent, an employer’s ability to prevent or correct harassment may differ depending on the harasser’s ability to self-regulate, but this is relevant only to liability, not to severity or pervasiveness. See id. at 915. And this Court has also rejected the Fifth Circuit’s suggestion that employees can somehow assume the risk of harassment due to their chosen profession. See Smith v. Sheahan, 189 F.3d 529, 535 (7th Cir. 1999) (“There is no assumption-of-risk defense to charges of workplace discrimination.”).

In any event, unlike the cases relied on by the district court, where the plaintiffs alleged a hostile work environment based entirely on the statements and conduct of individuals with cognitive impairments, the claimants here allege not only resident harassment, but also race-based assignments, coworker harassment, and supervisor harassment. As the district court observed, “[c]ontext matters.” Short.App.23.

B. The district court wrongly minimized evidence of a hostile work environment.

Adding to the racial hostility was the typewritten assignment sheet stating “NO AFRICAN AMERICAN MALES TO PROVIDE CARE,” posted for all to see. Supp.App.46-50. Addressing a similar assignment sheet distributed in another nursing home, this Court explained that such an assignment sheet “unambiguously, and daily, remind[s] [Black employees] that certain residents preferred no black CNAs.” Chaney, 612 F.3d at 912 (quoting assignment sheet: “Prefers No Black CNAs”). As in Chaney, where this Court found a jury question on the issue, a jury could find that the assignment sheet at Hamilton Pointe created “a racially-charged workplace that poisoned the work environment.” See id. at 915.

Significantly, many claimants repeatedly heard the N-word, “perhaps the most offensive and inflammatory racial slur in English,” Bennett v. Metro. Gov’t of Nashville & Davidson Cnty., 977 F.3d 530, 543 n.7 (6th Cir. 2020) (citation omitted). Because that word is “egregious,” its one-time use “can in some circumstances warrant Title VII liability.” Scaife v. U.S. Dep’t of Veterans Affairs, 49 F.4th 1109, 1116 (7th Cir. 2022) (citations omitted). The word’s impact is more severe coming from a supervisor than from a coworker or resident, Paschall, 28 F.4th at 814-15, but “a plaintiff’s repeated subjection to hearing that word could lead a reasonable factfinder to conclude that a working environment was objectively hostile,” Johnson, 892 F.3d at 903 (citation omitted).

The district court also wrongly discounted racist comments that were not directed at an individual claimant. As long as an individual is aware of such comments, they may contribute to a hostile work environment. Johnson, 892 F.3d at 902; Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1046 (7th Cir. 2000). What matters is whether the individual is within their “target area,” as when, for example, “a group of which one was a member was being vilified.” Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007).

C. A reasonable jury could find in favor of fifteen claimants rejected at summary judgment.

1. Trent Carter

Carter testified that he was prohibited from entering resident rooms. Supp.App.56-57. Although the officially stated reason was that residents feared theft, Nurse Brown informed Carter twice that, according to White CNAs, none of the Black CNAs went into the rooms either. Supp.App.56-57. Nurse James told him three times that because the Black CNAs were not allowed to enter the rooms, neither was he. Supp.App.56.

The district court wrongly rejected this evidence as inadmissible hearsay. Short.App.41-42. James expressly directed Carter to stay out of the rooms because of his race. Supp.App.56. Nothing about this order implicates the hearsay rule. See Fed. R. Evid. 801(c) (defining “hearsay”). With respect to the rest of James’s and Brown’s statements, what mattered for purposes of the hostile environment claim was that their statements about Black CNAs contributed to Carter’s perception that his work environment was racist. See Johnson, 892 F.3d at 903 (third-party statements not hearsay because they were offered not for their truth, but to prove that plaintiff “understood [his] environment to be one in which derogatory statements were pervasive”).

The district court also gave short shrift to Carter’s experience of hearing the N-word. Although he heard the word only once, and it was not directed at him, Short.App.42, the N-word is uniquely offensive, Scaife, 49 F.4th at 1116. A reasonable jury could find that Carter experienced a hostile work environment from hearing the N-word, being told to stay out of rooms because of his race, and having nurses tell him five times that Black CNAs were also not allowed to enter the rooms. See Supp.App.56-57.

2. Sonja Fletcher

The district court stated that because the assignment sheet saying, “NO AFRICAN AMERICAN MALES TO PROVIDE CARE” was not directed at Fletcher, this “lessen[ed] its impact.” Short.App.32. However, Fletcher testified that she was “livid” when she saw it and that it was one of the reasons she left Hamilton Pointe. Supp.App.67, 69. She complained to the scheduler, the Administrator, the Director of Nursing, and TLC’s complaint hotline. Supp.App.67-68. Still, Hamilton Pointe left the assignment sheet up for three more days, which added to her distress. Supp.App.68. The district court suggested that this three-day delay was reasonable. Short.App.32. A jury could find otherwise. Cf. Daniels v. Essex Grp., Inc., 937 F.2d 1264, 1275 (7th Cir. 1991) (employer was “less than diligent in taking remedial action” where it left dummy hanging in doorway for at least eighteen hours).

The district court also stated, without explanation, that even if Fletcher was subjected to a hostile work environment, “there is no basis for employer liability.” Short.App.33. The court’s failure to explain this statement violates Circuit Rule 50, which requires judges to provide reasons for their rulings. As this Court has explained, “[c]onclusory rulings are inadequate material for the tools of the appellate bench,” even when review is de novo. Pasquino v. Prather, 13 F.3d 1049, 1051 (7th Cir. 1994).

3. Amber Johnson

A nurse prohibited Johnson from entering a resident’s room because of her race. Supp.App.91-92. The district court wrongly focused on the resident’s dementia, relying on Fifth Circuit precedent deeming harassment less severe when coming from individuals with dementia, rather than on the law of this Circuit, which does not consider dementia relevant to the severe-or-pervasive analysis. Short.App.23-25, 78-79; see supra pp.34-35. Nor did the court mention that, when Johnson complained, a nurse told her it was “no big deal,” Supp.App.102, and that the resident was “from that generation where that was normal,” Supp.App.97.

Johnson also testified that a resident suggested that she and another Black CNA get naked and rub Mazola oil on their bodies “because he would love to see our brown bodies oiled up.” Supp.App.92. The district court characterized this incident as being “sexually inappropriate,” Short.App.78, completely ignoring the emphasis on Johnson’s “brown bod[y].” Moreover, the court suggested that by telling Johnson he was not racist, the resident mitigated any harm. Short.App.79. Johnson testified, in contrast, that this statement itself felt “very odd and uncomfortable.” Supp.App.98.

The district court stated as fact that when another resident called Johnson “lazy” and “stupid,” it was not based on race. Short.App.78. A jury could disagree and find that this dim view of Johnson’s drive and intelligence arose from racial stereotypes. See, e.g., McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1109 (9th Cir. 2004) (racially demeaning comments included calling Black man “stupid”); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 66 (2d Cir. 2000) (coworker told plaintiff, “Blacks … are lazy and don’t want to work.”).

The court also made light of Johnson’s testimony that nurse Jackie Lamp told her an offensive joke about not being able to see another Black CNA in the dark. Short.App.78-79. A jury could find it reasonable that such casual racism by one’s supervisor would contribute to a hostile work environment. See Gates v. Bd. of Educ., 916 F.3d 631, 637-38 (7th Cir. 2019) (racist joke by supervisor carries more weight than racist joke by coworker).

Finally, the court did not mention Johnson’s testimony that she was assigned to a hall with an overwhelming number of patients but, unlike White CNAs, was never able to obtain assistance when she requested it. Supp.App.100. Under the totality of the circumstances, a jury could find that this difference in treatment was race-based. See Cole v. Bd. of Trs., 838 F.3d 888, 896 (7th Cir. 2016) (“[F]orms of harassment that might seem neutral in terms of race … can contribute to a hostile work environment claim if other evidence supports a reasonable inference tying the harassment to the plaintiff’s protected status.”).

4. LaShawn Johnson

The court failed to acknowledge the impact on Johnson of seeing the assignment sheet saying “NO AFRICAN AMERICAN MALES TO PROVIDE CARE.” See Supp.App.46, 104-06, 111. Johnson testified that he left Hamilton Pointe three months after seeing this sheet “because I wasn’t comfortable after that happened.” Supp.App.105; see Chaney, 612 F.3d at 912 (discussing humiliation of seeing race-based assignment sheet). Additionally, the district court stated that, notwithstanding the assignment sheet, Johnson did provide care to one of the residents to whom the statement applied; one of the residents only objected to male care; and one of the residents was on a unit to which Johnson was not assigned. Short.App.44-45. This analysis failed to acknowledge Johnson’s testimony that the patient who allegedly objected only to male care allowed a White male nurse to enter her room “with no problem.” Supp.App.108.

Moreover, the court mischaracterized Johnson’s testimony regarding the resident to whom he was not assigned. Prior to being instructed not to enter that resident’s room, Johnson had talked with the resident “all the time.” Supp.App.110. Once the resident’s wife learned that Johnson was dating a White woman, however, she told the nurse not to allow Johnson into her husband’s room, and the nurse complied. Supp.App.110, 112. A jury could find that when another nurse subsequently questioned his White girlfriend about why she was dating a Black man, Supp.App.109, this also reinforced to Johnson the racial hostility of his work environment.

5. Sara Johnson

Johnson believed that at least two residents called her the N-word and refused care from her. Supp.App.114-15, 117. The district court ignored that when Johnson complained to the nurses, they told her, “Well, you know, that’s the era they come from,” and took no action. Supp.App.114-15. A jury could find that the nurses amplified the effect of the N-word by telling Johnson that, regardless of how offensive it was, she should excuse it from older individuals.

Moreover, the district court was wrong that Johnson “did not allege that she was banned from residents’ rooms.” Short.App.71. Johnson testified that residents did refuse care from her, and she had to find her own substitutes. Supp.App.114, 117.

The district court also downplayed the assignment sheets that Johnson saw stating that certain residents did not want Black caregivers. Short.App.71. Johnson testified that the assignment sheets remained posted for as long as a racist patient remained in the room. Supp.App.116. The court discounted this evidence because Johnson “could not remember any details …, including how many she saw, when they were posted, what they said, and what resident(s) they applied to.” Short.App.71. The law does not require that level of specificity. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1457 (7th Cir. 1994) (“Although Dey’s case would certainly be stronger if she could remember more about these and other incidents, what she does recall supports her charge that Chernoff’s conduct was consistently offensive and abusive.”).

6. Raven Langley

The district court mentioned that Langley was subjected to “inappropriate language,” Short.App.47, without recognizing that, in the span of only three months, one resident called her the N-word three to five times, asked “What is that [n**ger] doing in here,” and stated that she “did not want the [n**ger] taking care of her, Supp.App.119, 123. Another resident called her “the help” five to twenty times. Supp.App.120, 122. A jury could find that these incidents were far more severe than the court suggested.

The court also failed to view the evidence in the light most favorable to the EEOC in stating that Langley “did not consider the work environment to be offensive.” Short.App.47. To the contrary, Langley testified, “I just wouldn’t want to go through the whole experience again. I wouldn’t want to be subject to that type of atmosphere[.]” Supp.App.125.

7. L’Sheila Lewis

In seven weeks, Lewis was twice forbidden from entering a resident’s room because of her race. Supp.App.129-30. Other CNAs told her that the resident did not want Black people in his room, and a nurse told her, “We have to respect their rights if they don’t want a certain person to care for them, a certain type of person.” Supp.App.130 (emphasis added). The district court quoted only a portion of this statement, stating that “the resident had refused care from ‘a person.’” Short.App.52. A jury could find, however, that telling Lewis the resident did not want “a certain type of person” was the same as telling her that she could not enter the room because she was Black.

The court acknowledged that a resident called Lewis “racial epithets,” Short.App.52, but did not specify that one of these epithets was the deeply offensive N-word, Supp.App.127-28. The district court thought it was relevant that Lewis was suspended that same day and never saw the resident again, Short.App.52, but a jury could find that this coincidence did not make the experience any less hostile.

8. Tamara McGuire

The district court did not mention that CNAs told McGuire she could not enter certain rooms because of her race, even if a resident’s call light went off. Supp.App.138, 146. Nor did the court mention McGuire’s knowledge that White men, but not Black men, were welcome in certain rooms. Supp.App.135-36. The difference was race, not sex—putting McGuire within the “target area” of the discrimination. See Yuknis, 481 F.3d at 554.

McGuire saw an assignment sheet saying “no Blacks allowed.” Supp.App.137. The district court treated this as insignificant because McGuire saw it “only once … and it did not affect her assignment.” Short.App.37. However, McGuire testified that she did not care for that resident because “we couldn’t.” Supp.App.137. A reasonable jury could infer that the assignment sheet did, therefore, affect her assignments. Moreover, downplaying her experience because she saw the sheet only once ignores Chaney’s observation that such a sheet is an “unambiguous[]” and devastating reminder “that certain residents preferred no black CNAs.” Chaney, 612 F.3d at 912.

The district court asserted, contrary to evidence, that McGuire heard “inappropriate racial language” only four times during her more than six-year tenure. Short.App.37. In fact, McGuire testified that some residents “would scream out racial slurs to us,” including JS, who repeatedly said things including “I don’t want you [n**gers] in here.” Supp.App.141, 147. McGuire also overheard JS loudly call a CNA “that black [n**ger] bitch,” and heard a different resident call a CNA a “black bitch.” Supp.App.143-44.

McGuire also testified that a White QMA and a White CNA made it harder for Black employees on their shifts, including herself, by always writing them up for things not getting done. Supp.App.139. The district court said that this testimony was “vague and speculative,” and did not establish that their conduct was based on race. Short.App.37. However, a reasonable jury could find that issuing written reprimands for Black employees but not for White employees is race-based.

9. Charah Milan

The district court ignored that Milan heard residents use the N-word. See Supp.App.152 (“That [n**ger] … was in here.”). The court did acknowledge that residents and staff described Black employees as “that colored girl,” but did not acknowledge how frequently this happened. Short.App.80. Nor did the court acknowledge how offensive the term was. The court likened “that colored girl” to “that white girl,” which residents also said, Short.App.80, but overlooked widespread recognition that the word “colored” is a “racist slur.” Jackson v. Quanex Corp., 191 F.3d 647, 651 (6th Cir. 1999).

The court also said that calling a Black woman “that colored girl” “does not rise to the level of severe or pervasive conduct.” Short.App.80. “[C]onduct that is not particularly severe but that is an incessant part of the workplace environment may, in the end, be pervasive enough and corrosive enough that it meets the standard for liability.” Jackson v. Cnty. of Racine, 474 F.3d 493, 499 (7th Cir. 2007). In any event, the court should not have addressed this derogatory language in isolation. “[C]ourts should not carve up the incidents of harassment and then separately analyze each incident, by itself, to see if each rises to the level of being severe or pervasive.” Hall v. City of Chi., 713 F.3d 325, 331 (7th Cir. 2013) (citation omitted).

Milan heard about an assignment sheet stating “no colored,” “no African American,” or “no black” care. Supp.App.154. The district court declined to consider this evidence, wrongly calling it “inadmissible hearsay.” Short.App.80. Such evidence is not hearsay when offered to show only that the plaintiff “understood their environment to be one in which derogatory statements were pervasive.” Johnson, 892 F.3d at 903.

10. Vanessa Miles

The district court downplayed the effect on Miles of the assignment sheet stating “NO AFRICAN AMERICAN MALES TO PROVIDE CARE.” The court overlooked that, even though it was not directed at her, the sheet singled out Black employees, and was posted on the hall where Miles worked. Supp.App.158.

The court also ignored that Miles witnessed other employees being called racial slurs. Supp.App.156. Racist comments to Miles would have carried more weight, but a jury could find that the comments she heard about others contributed to her assessment that racism “was just … a way of life at work.” Supp.App.159; see Johnson, 892 F.3d at 902 (comments to and about others may be relevant to hostile work environment).

A jury could also credit Miles’s testimony that she witnessed lighter-skinned Black employees being treated more favorably than darker-skinned ones. Supp.App.156, 160. In that context, a jury could find that Miles was not “simply speculat[ing]” about the nurse’s motives, but was observing their effects directly. Supp.App.160.

The court also erred in trivializing the comment, “You smell like pork.” Supp.App.156. Even though the comment is not “facially racial,” Short.App.39, a jury familiar with racist stereotypes could find that Miles’s interpretation was reasonable. See Wallace v. DM Customs, Inc., No. 8:04-cv-115-T-23TBM, 2006 WL 2882715, at *2 n.7 (M.D. Fla. Oct. 6. 2006) (coworker told plaintiff, “black people always smell”). It is irrelevant that the comment by itself was not “so offensive as to alter the terms and conditions of [Miles’s] employment.” Short.App.39. Whether harassment is sufficiently severe or pervasive to create a hostile work environment turns on “the totality of the circumstances.” Paschall, 28 F.4th at 815.

Finally, the district court stated that the nurses warned Miles about racist patients but did not prohibit her from caring for them. Short.App.39. While true, the court ignored Miles’s testimony that the nurses gave these warnings as “kind of a joke.” Supp.App.157. Their behavior made Miles feel “belittled … or degraded.” Supp.App.161; see Harris, 510 U.S. at 23 (humiliation can contribute to hostile work environment).

11. Naim Muhammad

The district court erroneously stated that Muhammad was never subjected to race-based assignments. Short.App.73. To the contrary, QMA Ruth Washington once told him not to enter a room because the resident did not want Black caregivers. Supp.App.166. Also, he heard nurse Lamp tell the charge nurse in front of multiple people, “That boy can’t work down that hall there,” specifically referring to him. Supp.App.163. A jury could find that this statement not only revealed a race-based assignment policy, but also described Muhammad in a racist, offensive manner. See Ash v. Tyson Foods, Inc., 546 U.S. 454, 46 (2006) (depending on context, the word “boy” may be “probative of bias”); Hawkins v. Groot Indus., Inc., No. 01- C-1731, 2003 WL 1720069, at *3 (N.D. Ill. Mar. 31, 2003) (“Calling an adult black man ‘boy’ strikes the court as an objectively, inherently offensive comment.”).

A jury could further find that the insult was especially egregious because a supervisor said it in front of witnesses. See Gates, 916 F.3d at 638 (“We have repeatedly treated a supervisor’s use of racially toxic language in the workplace as much more serious than a coworker’s”); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1277 (11th Cir. 2002) (comments are especially “humiliating and degrading” when they are made in front of others).

The court asserted that “the prohibition [from working on the service hallway] did not affect [Muhammad’s] job assignments at any time,” Short.App.73, but a jury could disagree. Even when the scheduler assigned Muhammad to work on the service hallway, the nurses banned him from entering particular rooms because of his race. Supp.App.164-66. Their directive applied even when the residents turned on their call lights, notwithstanding the general rule that everyone was responsible for responding to call lights, no matter which room they belonged to. Supp.App.165-66.

The court also ignored that, even though Muhammad did not personally see any written directives prohibiting Black employees from entering certain rooms, he did hear about notes to that effect. Supp.App.167. Such evidence is not hearsay, because it is relevant to his perception of racism in his work environment. See Johnson, 892 F.3d at 902.

12. Taki-a Roberts

Roberts heard the N-word from residents “daily,” and “multiple times” she heard residents say, “I don’t want to be taken care of by that [n**ger].” Supp.App.187-90. “Every few days” she heard one resident refer to her coworker as “boy,” Supp.App.187-89, and residents called her “boy” once or twice as well, Supp.App.198. Roberts testified that she was offended. Supp.App.188. The court stated that neither the N-word nor the word “boy” were directed at Roberts and concluded that therefore the derogatory statements were not severe. Short.App.57. This analysis was factually and legally incorrect: Residents called Roberts herself “boy,” and this Court has recognized that “repeated subjection to hearing [the N-word] could lead a reasonable factfinder to conclude that a working environment was objectively hostile,” Johnson, 892 F.3d at 903 (citation omitted).

The district court also considered it significant that Roberts did not complain to management, Short.App.57, but Roberts testified that she did not do so because “nothing really gets done,” Supp.App.188. A jury could find that, regardless of whether this belief was correct, her failure to complain did not negate the hostility of her work environment.

Finally, the court read too much into Roberts’s statement regarding emotional harm. See Short.App.57. When asked, “Do you feel like you had any emotional or physical harm that happened to you while you were at Hamilton Pointe?” Roberts responded, “No.” Supp.App.191. Considered in juxtaposition with her testimony about feeling offended, Supp.App.188, a jury could conclude that Roberts was understanding the term “emotional harm” to mean something more than the law requires. See Harris, 510 U.S. at 22 (Title VII does not require “concrete psychological harm”).

13. Montoya Smith

Smith heard residents use the N-word and call Black men “boys.” Supp.App.198. The district court discounted these slurs on the ground that the residents had dementia. Short.App.23-25, 45. As discussed supra pp.34-35, however, residents’ cognitive impairments are irrelevant to the severity or pervasiveness of harassment. Moreover, the court ignored that when Smith complained about being exposed to the N-word, the nurses trivialized the problem and told her to “[G]o out and smoke a cigarette.” Supp.App.198-99. The court further ignored Smith’s testimony that often, the person to whom she complained would respond with a story about a racist person in their own family, adding to her negative experiences. Supp.App.201. A jury could find that the nurses’ dismissive attitude towards Smith’s complaints about hearing the N-word increased the hostility of her work environment.

Viewing the remainder of the evidence separately, and not as part of “the totality of the circumstances” as required, see Paschall, 28 F.4th at 815, the court said it was insufficient that residents called Smith “the server” and “the help,” or that coworkers made “insensitive” comments such as joking about Black names or stating, “all Black people look alike.” Short.App.59. A jury could find the cumulative effect of these comments to be significant. Also, a jury could disagree with the court’s assessment that coworker statements such as “I’m not racist” are “not objectively hostile.” Short.App.59. The court omitted that the employees who said, “I’m not racist,” followed up that statement by explaining, “I have four black friends.” Supp.App.201. That comment is offensive, Smith testified, “because you don’t hear African Americans say, ‘I got three white friends.’” Smith.App.201.

The court placed undue emphasis on the fact that Smith was not physically threatened. Short.App.59. Although physical threats certainly contribute to a hostile work environment, “no single factor is required.” Harris, 510 U.S. at 23; see also Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1047 (7th Cir. 2002) (physical threats unnecessary).

14. Bianca Toliver

The charge nurse who instructed Dietary Cook Toliver not to enter a particular resident’s room did not mention Toliver’s race, but several CNAs had told her that this resident did not want Black people in her room. Supp.App.209-10. Moreover, a CNA had told her that she personally had been barred from a room on that unit because of her race. Supp.App.204-05. Thus, Toliver had reason to believe that the charge nurse’s directive was race-based. The district court had no basis for concluding that she was wrong. See Short.App.61.

The district court acknowledged that the cook who was training Toliver said the N-word to her but emphasized that it was not directed at her and she heard it only once. Short.App.71. The fact that the word was directed elsewhere is of little import; as this Court explained in the context of sex discrimination, “[T]he line that runs between ‘you are a bitch’ and ‘all women are bitches [and you are a woman (understood)]’ is quite a fine one[.]” Yuknis, 481 F.3d at 554. Moreover, the court ignored that when Toliver complained about this statement, her supervisor told her, “Belinda didn’t mean it that way,” and then “he kind of just swept it under the rug.” Supp.App.206, 208.

Additionally, the court made light of the incident when Belinda ran her fingers through Toliver’s hair without permission and compared the texture of Toliver’s hair to her own. Supp.App.206, 208. The district court criticized Toliver for not complaining about Belinda’s conduct, Short.App.62, but ignored that she did not do so because of the dismissive response she had received when she complained about the N-word, Supp.App.206-08. Moreover, the court did not mention that the incident made Toliver so uncomfortable that she tried to get different shifts from Belinda and started to look for a new job. Supp.App.206, 208.

The district court also stated, without explanation, “nor is there a basis for employer liability.” Short.App.62. Such “[c]onclusory rulings are inadequate material for the tools of the appellate bench,” even when review is de novo. Pasquino, 13 F.3d at 1051; see also 7th Cir. R. 50.

15. Ruth Washington

Washington testified that Nurse Lamp prohibited her from entering resident LE’s room, expressly stating that LE “didn’t want colored people.” Supp.App.216. The district court said that no reasonable jury could find that Washington was barred from the room because of her race because other Black employees did care for LE. Short.App.66-67. The district court was wrong.

First, a jury could credit Washington’s testimony that Lamp told her she could not enter LE’s room because of her race, regardless of whether other Black employees were sometimes assigned to LE’s room. See Connecticut v. Teal, 457 U.S. 440, 453-54 (1982) (Title VII protects individuals, not groups as a whole). Second, the district court did not consider that there may have been other reasons Black caregivers were sometimes assigned to LE, including a shortage of White staff.

The district court also cited a nurse’s single reference to “you people,” holding that this statement was insufficient to create a hostile work environment. Short.App.67. In fact, Washington testified that multiple nurses made racist comments to her on multiple occasions. Supp.App.215-17. Among these comments, Nurse Cindy Rector said she did not believe biracial couples should have children, and Nurse Laura Williams told her that if her daughter came home with a Black man, Williams would disown her. Supp.App.215, 217; cf. Loving v. Virginia, 388 U.S. 1, 11–12 (1967) (prohibition on interracial marriage rests on “invidious racial discrimination,” and its sole purpose is to “maintain White Supremacy”).

Finally, the court ignored that Rector treated Washington differently from White CNAs. When Washington told Rector that a patient wanted Tylenol, Rector expressed doubt and walked down the hall to confirm. Supp.App.218. But whenever a White CNA said a patient needed medicine, Rector would provide it without question. Supp.App.218. In light of Rector’s racist remarks, a jury could find that Rector routinely second-guessed Washington because of Washington’s race. See Cole, 838 F.3d at 896 (“[F]orms of harassment that might seem neutral in terms of race … can contribute to a hostile work environment claim if other evidence supports a reasonable inference tying the harassment to the plaintiff’s protected status.”).

II. The verdict forms wrongly precluded the jury from considering the “totality of the circumstances” by requiring it to evaluate supervisor harassment separately from coworker/resident harassment.

The EEOC advised the court that it was raising a single claim for a hostile work environment. Supp.App.259-60. Nonetheless, the court misunderstood the EEOC to be raising one claim for coworker/resident harassment and a separate claim for supervisor harassment. Consistent with its misunderstanding, the court instructed the jury on two separate harassment “claims”—one for coworker/resident harassment, and another for supervisor harassment. Supp.App.295, 298. Then, over the EEOC’s objection, Supp.App.307-08, the court submitted verdict forms asking, first, whether a claimant had been subjected to supervisory harassment, and then separately whether the claimant had been subjected to coworker or resident harassment. Short.App.93-110. The verdict forms were silent about what to do if a claimant had been subjected to both. Id.

This Court has explained that although the identity of the harasser may be relevant to liability, it does not matter for purposes of determining the existence of a hostile work environment. “If a plaintiff claims that he is suffering a hostile work environment based on the conduct of coworkers and supervisors, then under the Supreme Court’s totality of circumstances approach, all instances of harassment by all parties are relevant to proving that his environment is sufficiently severe or pervasive.” Mason, 233 F.3d at 1044-45 (cleaned up).

By requiring the jury to disaggregate the evidence of a hostile work environment based on the harasser’s identity, the verdict forms instructed it to do the opposite of what the law requires. See Paschall, 28 F.4th at 815 (hostile work environment turns on “the totality of the circumstances”). Necessarily, the court’s decision to submit these forms to the jury was an abuse of discretion. See Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 315 (7th Cir. 2010) (“[I]t’s the judge’s responsibility to get the verdict form right[.]”).

The court’s error was prejudicial. The claimants testified that they were harassed by residents, coworkers, and nurses. The jury heard conflicting evidence about whether nurses were supervisors, compare Supp.App.272-74, 280, 285-86 with Supp.App.281-83, and each side urged the jury to reach a different conclusion. Compare Supp.App.288-89 (EEOC) with Supp.App.290-91 (Hamilton Pointe). If the jury concluded that the nurses were supervisors, then it necessarily failed to consider evidence of harassment as a unified whole. Such an error could be outcome-determinative and requires remand. See Happel v. Walmart Stores, Inc., 602 F.3d 820, 828 (7th Cir. 2010) (reversing and remanding for new trial on damages where plaintiffs “were prejudiced by the use of a verdict form that may have resulted in a lower damage award”).

III. TLC is liable for the discrimination at Hamilton Pointe.

A. TLC and Hamilton Pointe are joint employers.

To determine whether an entity is a joint employer, this Court applies an “economic realities” test, which considers five factors: (1) the extent to which the putative employer controlled or supervised the alleged employee; (2) the kind of occupation and nature of skill required; (3) responsibility for the costs of operation; (4) method and form of payment and benefits; and (5) the length of job commitment and/or expectations. Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 378-79 (7th Cir. 1991). “[T]he employer’s right to control is the most important” and courts “must give it the most weight.” Frey v. Hotel Coleman, 903 F.3d 671, 676 (7th Cir. 2018) (cleaned up). A plaintiff “can survive summary judgment even when not all factors support him.” Love v. JP Cullen & Sons, Inc., 779 F.3d 697, 705 (7th Cir. 2015). The inquiry is “fact-bound” and “necessarily is best addressed by the [factfinder] in the first instance.” Robinson v. Sappington, 351 F.3d 317, 338 (7th Cir. 2003).

In holding that TLC and Hamilton Pointe are not joint employers, the district court improperly credited TLC’s evidence, did not address all relevant evidence to the contrary, and resolved factual disputes in TLC’s favor. Viewing the evidence in the light most favorable to the EEOC, as required at summary judgment, Donaldson, 37 F.4th at 405-06, a reasonable jury could find that the first, third, and fourth factors of the economic-realities test support a finding that Hamilton Pointe and TLC are joint employers.

As to the first factor, TLC wielded substantial direct and indirect control over the claimants. First, TLC retained ultimate authority over a wide range of employment decisions affecting claimants. Hamilton Pointe’s disciplinary forms—which TLC drafted—provided that final warning, discharge, and termination decisions “must be reviewed by” TLC’s regional directors of operation and its vice presidents of human resources.” Supp.App.75 (emphasis added). A Hamilton Pointe administrator, Christina Malvern, also testified that she could not fire, lay off, or suspend employees without TLC’s prior approval, and that decisions regarding promotions and raises had to “go through” TLC as well. Supp.App.224; see Johnson, 892 F.3d at 905 (company was joint employer where it “maintained ultimate control over” hiring and firing decisions and direct employer could not take such action without “prior approval”).

Second, TLC drafted the job descriptions for claimants, participated in hiring interviews, and consulted on hiring decisions. Supp.App.65, 176, 213, 224. It also hired, supervised, evaluated, and fired Hamilton Pointe administrators, who, in turn, supervised claimants. Supp.App.52, 73, 87, 173, 183, 212-13. Thus, TLC exercised indirect control over claimants. See Sanitary Truck Drivers & Helpers Loc. 350 v. NLRB, 45 F.4th 38, 42 (D.C. Cir. 2022) (“[C]ontrol exercised indirectly—such as through an intermediary—may be sufficient to establish joint-employer status.”) (citation omitted).

Third, TLC wrote and often implemented Hamilton Pointe’s employment policies under which administrators and claimants operated. Supp.App.72, 76-77, 175, 178-79, 184, 224, 252-57. When asked about racist staffing instructions, for example, TLC Vice President of Human Resources Ronilo testified: “[W]e do not allow anyone to do that in facilities. . . . TLC doesn’t endorse it. If we knew it was happening, we’d stop it immediately.” Supp.App.194 (emphasis added).

In holding that these facts did not indicate sufficient control or supervision to support joint-employer status, the district court erred in several critical respects. The court incorrectly concluded, for instance, that TLC’s ability to control administrators was “immaterial” because they are not claimants in this case. Short.App.8. As explained above, however, TLC’s supervision of and control over administrators allowed the company to exercise indirect control over claimants, which “may be sufficient to establish joint-employer status.” Sanitary Truck Drivers, 45 F.4th at 42; see also Browning-Ferris Indus. of Cal., Inc. v. NLRB, 911 F.3d 1195, 1216 (D.C. Cir. 2018) (“Traditional common-law principles of agency do not require that control be exercised directly and immediately to be relevant to the joint-employer inquiry.”) (cleaned up).

Compounding this error, the court found that TLC merely offered “its input and recommendation on [Hamilton Pointe’s] employment decisions,” and reasoned that “providing only input and recommendations does not establish the right to control an employee.” Short.App.9 (citing Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 929 (7th Cir. 2017)). In reaching these findings, the court improperly credited the testimony of TLC witnesses, going so far as to say that “[t]he relationship between TLC and Hamilton Pointe on this issue is best addressed by the testimony of Gary Ott,” an owner and executive of both companies. Short.App.8 (emphasis added). Such “credibility determination[s] may not be resolved at summary judgment.” Deets v. Massman Constr. Co., 811 F.3d 978, 982 (7th Cir. 2016). Moreover, as the EEOC explained below, TLC’s affidavits were inadmissible to the extent they made impermissible legal conclusions or conflicted with earlier deposition testimony. R.109 at PageID#1897-99; Fed. R. Civ. P. 56(c)(2); Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 759 (7th Cir. 2006) (court must disregard affidavit where “a conflict arises between a [witness’s] sworn testimony and a later affidavit or declaration”).

Contrary evidence showed that TLC had the final say on many employment matters. The same individuals owned and operated both companies, and what the district court characterized as “input and recommendation,” Short.App.9, came from the same TLC employees who supervised and evaluated Hamilton Pointe administrators. See supra pp.23-25. Given those dynamics, a reasonable jury could infer that administrators were not free to depart from TLC’s guidance. Indeed, when Gary Ott was asked whether TLC regional directors had “authority to terminate someone at the facility,” he answered: “I would say the regional director has more authority, probably, than anybody, because the administrator works for them. So the administrator is going to listen to them.” Supp.App.174 (emphasis added).

As to “whether the putative employer was responsible for the costs of operation,” Love, 779 F.3d at 704, the district court acknowledged that TLC “assumed responsibility” for many such costs, including accounting, payroll, and IT services. Short.App.10. The court held that this fact did not support joint-employer status because “Hamilton Pointe paid TLC for those services.” Short.App.10. But the management agreement between the parties provided that Hamilton Pointe would pay TLC a percentage of its revenue, regardless of TLC’s out-of-pocket costs. Supp.App.234-35, 238-39. Thus, the terms of the management agreement suggest TLC would ultimately bear those costs if Hamilton Pointe’s revenues fell short. Supp.App.180-81. The district court also ignored that TLC occasionally transferred employees to Hamilton Pointe to temporarily fill vacancies, thereby reducing Hamilton Pointe’s expenses. Short.App.10-11; Supp.App.74, 85, 176.

As to “whether the putative employer was responsible for providing payment and benefits,” Love, 779 F.3d at 704, TLC paid for Hamilton Pointe’s employees to attend college and offered them vendor discounts. Supp.App.88, 185. The district court’s characterization of the educational benefits as merely a “scholarship program” rather “education[al] funding,” Short.App.11, inappropriately answers a question of fact best left to a jury. TLC also offered group health insurance benefits to Hamilton Pointe employees. Supp.App.177, 224, 229. Even if the district court were correct that Hamilton Pointe paid for those benefits, a jury would nonetheless be entitled to give some weight to TLC’s administration of Hamilton Pointe’s benefits. See Laurin v. Pokoik, No. 02-cv-1938, 2004 WL 513999, at *9 (S.D.N.Y. Mar. 15, 2004) (”[C]oordinating benefits packages can provide indication of interrelatedness.”).

B. In the alternative, TLC and Hamilton Pointe are a single employer.

The district court also determined that TLC had not forfeited its limited liability through corporate veil-piercing. Short.App.12-14. In so holding, the court improperly credited TLC’s evidence, did not address all relevant evidence to the contrary, and resolved factual disputes in TLC’s favor.

Under Indiana law, which governs here, see Supp.App.243-50, the party seeking to pierce the corporate veil must show (1) that “the corporate form was so ignored, controlled or manipulated that [one company] was merely the instrumentality of another,” and (2) that “the misuse of the corporate form would constitute a fraud or promote injustice,” Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 364 (7th Cir. 2016) (quoting Reed v. Reid, 980 N.E.2d 277, 301 (Ind. 2012)). Stated differently, (1) “there must be such unity of interest and ownership [between the corporations] that the separate personalities no longer exist,” and (2) “circumstances must be such that adherence to the fiction of separate corporate existence would sanction a fraud or promote injustice.” Worth v. Tyer, 276 F.3d 249, 260 (7th Cir. 2001) (alterations added and omitted).^{^[6]}

In deciding whether to treat two companies as a single entity, Indiana courts consider many factors, including whether the companies use similar corporate names; have common officers, directors, and employees; share similar business purposes; or use the same office locations or contact information. Cont’l Cas. Co. v. Symons, 817 F.3d 979, 993-94 (7th Cir. 2016) (citing Smith v. McLeod Distrib., Inc., 744 N.E.2d 459, 463 (Ind. Ct. App. 2000)). Although “veil-piercing is a highly fact-intensive inquiry,” id. at 993, the “key factor” is “the element of control or influence exercised by the entity sought to be held liable for the [other] corporation’s affairs,” Eden United, Inc. v. Short, 573 N.E.2d 920, 932 (Ind. Ct. App. 1991).

For the same reasons a jury could find “control” in the joint employer analysis, see supra pp.65-72, a reasonable jury could find that Hamilton Pointe was merely an instrumentality of TLC.

Further, TLC and Hamilton Pointe shared owners, corporate officers, and a principal office address. Supp.App.170-72, 243-50. TLC was paid a percentage of Hamilton Pointe’s revenue, directly tying TLC’s economic wellbeing to Hamilton Pointe’s success. Supp.App.234-35, 238-39; cf. Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1135 (3d Cir. 1995) (in antitrust case, two companies were “one economic unit” where, among other things, one received fee as percentage of other’s revenue). TLC and Hamilton Pointe also share the same attorneys in this litigation, further confirming their unity of interest. See Howard Indus., Inc. v. BADW Grp., LLC, No. 20-5596, 2021 WL 2328477, at *3 (6th Cir. Mar. 2, 2021) (considering fact that two companies were “represented by the same attorneys” in concluding that veil-piercing was justified).

TLC and Hamilton Pointe also “conducted their various business entities in such a way so as to cause confusion in the mind of any person attempting to deal with any one of [them].” Stacey-Rand, Inc. v. J.J. Holman, Inc., 527 N.E.2d 726, 729 (Ind. Ct. App. 1988). Notably, former and current Hamilton Pointe administrators and employees testified either that they thought they worked for TLC or that TLC owned Hamilton Pointe. Supp.App.54, 63, 79-80, 82, 133, 193, 196.

A reasonable jury could also find that honoring TLC’s and Hamilton Pointe’s corporate separateness would promote injustice. The principal purpose of veil-piercing is to prevent a business entity from using its incorporation “as a cloak to avoid the consequences of” its own illegality or wrongdoing. State v. McKinney, 508 N.E.2d 1319, 1321 (Ind. Ct. App. 1987). Given TLC’s control over the policies and actions at issue in this case, honoring TLC’s corporate separateness would allow it to escape responsibility for its role in creating and failing to remedy a racially hostile work environment.

Conclusion

For the foregoing reasons, the EEOC respectfully urges this Court to reverse the award of partial summary judgment with respect to the fifteen claimants identified above, reverse the jury’s verdict and remand for a new trial regarding the six claimants who received no damages at trial, and reverse the award of summary judgment in favor of TLC.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

DARA S. SMITH

Assistant General Counsel

s/ Gail S. Coleman

GAIL S. COLEMAN

STEVEN WINKLEMAN

Attorneys

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 921-2920

gail.coleman@eeoc.gov

[1] Citations to the short appendix attached to this brief are designated “Short.App.__.” Citations to the EEOC’s supplemental appendix are designated “Supp.App.___.” Citations to the district court’s docket sheet are designated “R.___.”

[2] For purposes of appealing summary judgment orders, we present the facts in the light most favorable to the EEOC. See Donaldson v. Johnson & Johnson, 37 F.4th 400, 405-06 (7th Cir. 2022).

[3] The EEOC also alleged that Defendants engaged in disparate treatment by acceding to residents’ racial preferences and making job assignments based upon race. The EEOC does not challenge the adverse rulings on this claim. As the district court recognized, race-based assignments remain relevant to the existence of a hostile work environment. See Short.App.20, 25-26 (dismissing disparate treatment claims but considering race-based assignments in context of hostile work environment claims).

[4] As the parties did in district court, we refer to residents only by their initials to preserve their privacy.

[5] Miles testified that her name is spelled “Vanessca” on her birth certificate, although she does not normally use that spelling. R.99-10 at PageID#1438.

[6] Although Worth appeared to apply Illinois law, 276 F.3d at 260, this Court has recognized that the veil-piercing standards under Illinois and Indiana law are “virtually the same,” Koch Refin. v. Farmers Union Cent. Exch., Inc., 831 F.2d 1339, 1345 (7th Cir. 1987). Here, the district court acknowledged that Indiana law governs, Short.App.12, but it did not articulate any of the specific factors outlined above and instead relied almost entirely on Papa v. Katy Industries, Inc., 166 F.3d 937 (7th Cir. 1999), which applied federal common law, Short.App.12-14. Nonetheless, the parties agree that Indiana law governs. See R.93 at PageID#753.