In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3661

BRENDA CHANEY,

Plaintiff-Appellant,

v.

PLAINFIELD HEALTHCARE CENTER,

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.

ARGUED APRIL 27, 2010—DECIDED JULY 20, 2010

Before ROVNER, WILLIAMS, and SYKES, Circuit Judges.

WILLIAMS, 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 assistance 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”) prevailed 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 responsible for monitoring patients, responding to their requests 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 employees 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 acknowledged 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 comments 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 coworker looked directly at Chaney and asked why Plainfield ”. . . 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 complaints 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 profanity. 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, informing 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” exclusion 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 concluded 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 review 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 workplace, 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 considering the entire context of the workplace. 523 U.S. 75,

81 (1998). Here, over the course of three months, coworkers 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 employment 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 subordinates.”) (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 residents preferred no black CNAs. Unlike white aides,
8 No. 09-3661

At oral argument, counsel for Plainfield denied that Plainfield 1

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 evidence 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.

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 subsequent 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 preferences 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
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 segregated sales force supported Title VII claim); Ferrill v. The

Parker Group, Inc., 168 F.3d 468, 477 (11th Cir. 1999) (employer’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) (rejecting customer preference defense in sex discrimination context and relying on EEOC holding that Title VII

does not permit the accommodation of the racially discriminatory policies of foreign nations ). Plainfield argues

that this well-settled reading of Title VII does not apply—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 provider 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, according 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 accommodating patients’ privacy interests. It does not follow,

however, that patients’ privacy interests excuse

disparate treatment based on race. Title VII forbids employers 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 tolerates 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 regulations governing long-term care facilities, residents have a

right to “choose a personal attending physician and

other providers of services.” 410 IND. ADMIN. CODE 16.2-

3.1-3(n)(1). If Plainfield’s reading of the regulation (requiring 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 prevails. 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.ADMIN.CODE

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 employs trumps Plainfield’s duty to its employees to

abstain from race-based work assignments.

Plainfield’s reading of Indiana regulations is also untenable 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 compelling 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 persuasive. 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 beneficiaries 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 liability. 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 discharging 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 nondiscrimination 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 raceneutral 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, LONG TERM

CARE AND THE LAW 16-18 (Feb. 27, 2008) (American

Health Lawyers Association, Seminar Materials). Plainfield 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 employees 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 reasonable 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 poisoned the work environment. In less than three months,

Chaney reported at least three specific incidents of harassment, 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 fundamentally, 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 humiliation 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 circumstantial 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 employees outside the protected class received better treatment can help support a circumstantial showing of discrimination. See Henry, 507 F.3d at 566. Her first comparable 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 comparison 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 investigation, 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 REVERSED and

REMANDED for further proceedings.

7-20-10