### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 3143

F RED G ATES

, Plaintiff

‐ Appellant

,

v.

B OARD OF E DUCATION OF THE C ITY OF C HICAGO

, Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:15

‐ CV

‐ 1394

— Robert M. Dow, Jr.

, Judge

.

____________________

A RGUED S EPTEMBER 20, 2018

— D ECIDED F EBRUARY 20, 2019

____________________

Before M ANION

, H AMILTON

, and S CUDDER

, Circuit Judges

.

H AMILTON

, Circuit Judge

. Plainti ff Fred Gates testi fi ed that

his direct supervisor, Rafael Rivera, addressed him with the

N

‐ word twice, and once threatened to write up his “black

ass.” The district court granted the employer’s motion for

summary judgment on Gates’s claim for a racially hostile

work environment under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e

‐ 2. In granting summary judgment for

the defendant

‐ employer, the district court noted that Gates2 No. 17

‐ 3143

faced a high bar, “as ‘[t]he workplace that is actionable is one

that is ‘hellish.’” Gates v. Board of Education of the City of Chi

‐

cago

, No. 15

‐ CV

‐ 1394, 2017 WL 4310648, at *13 (N.D. Ill. Sept.

28, 2017), quoting Perry v. Harris Chernin, Inc.

, 126 F.3d 1010,

1013 (7th Cir. 1997) (alteration in original). The court ulti

‐ mately decided that Rivera’s comments were not severe or

pervasive enough to rise to the level of a hostile work envi

‐

ronment, an adverse employment action that could entitle

Gates to relief under Title VII. Id. at *15.

The district court’s analysis erred in two respects. First, it

relied on the “hellish” standard, which is not a standard a

plainti ff must satisfy. See Jackson v. County of Racine

, 474 F.3d

493, 500 (7th Cir. 2007); Johnson v. Advocate Health and Hospitals

Corp.

, 892 F.3d 887, 901 (7th Cir. 2018), quoting Harris v. Fork

‐ lift Systems, Inc.

, 510 U.S. 17, 21–22 (1993) (“Title VII comes

into play before the harassing conduct leads to a nervous

breakdown.”). Second, the district court failed to focus on the

di ff erence in our hostile environment cases between having

the plainti ff ’s co

‐ workers show racial hostility and having the

plainti ff ’s supervisor show racial hostility, especially in using

such poisonous racial epithets as shown in the evidence here.

See, e.g., Robinson v. Perales

, 894 F.3d 818, 828–29 (7th Cir.

2018); Rodgers v. Western

‐ Southern Life Insurance Co.

, 12 F.3d

668, 675 (7th Cir. 1993). While we a ffi rm all other portions of

the district court’s judgment, we reverse on the claim for a ra

‐ cially hostile environment.

I

. Factual and Procedural Background

A

. Facts Relevant to Summary Judgment

Our account of the facts re fl ects the defendant Board’s

choice to move for summary judgment. As required, we giveNo. 17

‐ 3143 3

plainti ff Gates the bene fi t of con fl icts in the evidence and

make reasonable inferences in his favor. Terry v. Gary Commu

‐ nity School Corp.

, 910 F.3d 1000, 1004 (7th Cir. 2018); Johnson

,

892 F.3d at 893. The Board and its witnesses will be free to

o ff er their own con fl icting evidence at trial, and we do not

vouch for the objective truth of Gates’s testimony that we

must credit in this appeal.

Gates is an African

‐ American male born in 1965. He has

been a building engineer with the Chicago Board of Educa

‐

tion since 2004. In 2010, Gates was hired to fi ll the sole engi

‐

neer position at William C. Goudy Technology Academy. He

reported to school Principal Pamela Brandt until December

2012, when Rafael Rivera became his supervisor. Rivera was

a facilities engineer who oversaw engineering work at sixteen

schools, including Gates’s. Because Rivera supervised so

many schools, he and Gates saw each other in person only

three times or so per month.

Gates’s issues with Rivera began in June 2013. Gates testi

‐

fi ed that at a performance meeting that month, Rivera told

him: “you will not be promoted because of your age and be

‐

cause you’re black[.]” Despite Rivera’s comment, Gates still

applied for a promotion in July and August of 2013, which he

did not receive. Gates testi fi ed that Rivera prevented him

from ge tt ing a be tt er job.

According to Gates, in the late summer of 2013, Rivera’s

behavior became increasingly o ff ensive. Gates testi fi ed that

on several occasions Rivera u tt ered racial epithets against

him. Gates described one meeting with Rivera at his school in

July or August of 2013. Rivera passed gas and then asked

Gates why he did not laugh in response. Gates responded that

he did not know why he should laugh or why it was funny.4 No. 17

‐ 3143

Rivera said “you know what they call that[?]” Gates asked

“call what?” and Rivera responded “[w]hen someone fart and

a black guy’s si tt ing there.” Gates said “no,” and Rivera an

‐

swered, “you call that a shit

‐ sni ffi ng nigger.” Gates claimed

that he complained about this incident to Rivera’s supervisor

at the time, Ms. Bilqis Jacob

‐ El. Gates testi fi ed that Jacob

‐ El

asked him whether he had told anyone else about the com

‐

ment. He said no. She then instructed Gates to keep to himself

the details of his encounter with Rivera.

Gates also claimed that in November 2013, Rivera again

came to Gates’s school and spoke with him. At this meeting,

Rivera yelled at Gates, telling him “you will kiss the princi

‐ pal’s ass to make her happy” or Rivera “would write [him]

up, which would cause [Gates] to get low work evaluations

and get fi red.” Gates testi fi ed later that Rivera speci fi cally

threatened to write Gates’s “black ass up.” Gates also testi fi ed

that in a March 2014 meeting, Rivera ordered him to sit down,

prompting the following exchange:

I said I don’t want to sit down, Rafael. He said,

well, I’m your boss. I’m ordering you to sit

down. So I said I’m not going to sit down. He

said I’m tired of you people. I said who are you

referring to? He said, nigger, you know what

I’m talking about. So I walked out of the library.

On appeal, the Board argued that Rivera could not have

exposed Gates to a racially hostile work environment because

his interactions with Gates were too infrequent. The Board

noted that Rivera made his o ff ending comments over the

course of six months, Gates saw Rivera only three times or so

per month, and from November 2013 to November 2014,

Gates worked only eleven days. (Gates was absent so oftenNo. 17

‐ 3143 5

because during that year he took multiple approved leaves

from work, including bereavement leave for his father’s

death, a one

‐ month sick leave, leave under the Family Medi

‐

cal Leave Act to care for his grandfather, and then a nearly

one

‐ month military leave.) Gates testi fi ed that he used the

one

‐ month sick leave in December 2013 to seek medical a tt en

‐

tion for homicidal thoughts he was experiencing towards Ri

‐

vera, Principal Brandt, and his school’s vice principal. The

homicidal thoughts, Gates testi fi ed, were brought on by the

discrimination he faced at work.

Rivera began to prepare a pre

‐ discipline notice for Gates

in December 2013 citing uncompleted work orders at Gates’s

school. 1 Rivera did not actually give this notice to Gates. Ri

‐

vera later wrote up and issued Gates a di ff erent pre

‐ discipline

notice on March 17, 2014, just before the library incident. The

notice told Gates to report to a pre

‐ discipline hearing to ad

‐

dress the issues with his performance on March 20, 2014. Ac

‐ cording to Gates, the library incident in which Rivera called

him the N

‐ word for a second time happened on March 17 or

18 of 2014. Rivera issued Gates a second pre

‐ discipline notice

on March 19, 2014 citing insubordination. The second notice

scheduled a pre

‐ discipline hearing on March 25, 2014. At the

fi rst pre

‐ discipline hearing on March 20, Gates and a repre

‐

sentative from his union met with Rivera. Gates told his union

representative that he believed he was being discriminated

against at work, and the representative advised him to hire an

a tt orney. Gates did not a tt end the March 25 hearing because

1 Pre

‐ discipline notices notify employees that there is a problem with

their work or behavior and that pre

‐ discipline hearings will be held with

employees and their union representatives to decide whether discipline is

warranted.6 No. 17

‐ 3143

he had been injured on the job in the meantime. No formal

disciplinary action was taken against Gates. After his injury,

Gates went on workers’ compensation leave, and during that

time began working a second job at the University of Illinois

‐ Chicago. Rivera informed an employee with the Board’s legal

department that Gates had taken several extensive leaves and

then found a second job. Gates believed that Rivera took this

action to have him fi red.

When Gates returned from his leave in November 2014, he

was assigned to the Far South Side or Southwest Collabora

‐

tive, a group of traveling building engineers who work at dif

‐

ferent schools throughout the southwest side of Chicago. In

the position at William C. Goudy Technology Academy that

Gates held before his leaves, he was a Class 3 engineer (the

lowest

‐ paid of three classes), earning around $82,000 to

$87,000 a year. 2 When Gates testi fi ed at his deposition in 2016,

he was a Class 2 engineer with the Southwest Collaborative

earning between $94,000 and $97,000 a year.

B. Proceedings in Civil Rights Agencies and the District Court

Gates never fi led a formal internal complaint with the

Board about the discrimination he says he su ff ered. Instead,

on April 14, 2014, he fi led a formal charge of discrimination

with the Illinois Department of Human Rights and the United

States Equal Employment Opportunity Commission. The

EEOC issued Gates a notice of his right to sue. Gates then fi led

a fi ve

‐ count complaint against the Board in the district court

2 The term Chief Engineer was abolished in 2012 under the terms of a

collective bargaining agreement. When the title was in use, it applied au

‐ tomatically to any building engineer appointed to a school with only one

engineer—so Gates was the Chief Engineer at Goudy.No. 17

‐ 3143 7

alleging age and race discrimination and retaliation. The

Board eventually moved for summary judgment on all claims,

and the district court granted the motion. Gates v. Board of Ed

‐

ucation of the City of Chicago

, No. 15

‐ CV

‐ 1394, 2017 WL

4310648, at *1 (N.D. Ill. Sept. 28, 2017).

As the district court noted, neither Gates’s complaint nor

his answers to the Board’s interrogatories said that Rivera had

ever used the terms “black,” “black ass,” “age,” or the N

‐

word. Id. at *7. Those speci fi cs surfaced for the fi rst time dur

‐ ing Gates’s deposition testimony. The district court carefully

considered whether to treat those portions of his testimony as

part of the summary judgment evidence and ultimately de

‐

cided to consider this testimony. That was probably the cor

‐

rect decision, and in any event that point is not disputed on

appeal. Still, the district court concluded that Gates could not

su ffi ciently establish that he su ff ered a racially hostile work

environment in violation of Title VII. The court explained that

“the threshold for plainti ff s is high, as “[t]he workplace that

is actionable is one that is ‘hellish.’” Id. at *13, quoting Perry v.

Harris Chernin, Inc.

, 126 F.3d 1010, 1013 (7th Cir. 1997). The

harassing conduct, the court continued, must be severe or per

‐

vasive and Rivera’s behavior towards Gates was neither. Id. at

*14–15. 3

3 The district court also granted summary judgment for the Board on

Gates’s other claims for age and race discrimination based on a denial of

a promotion and the pre

‐ discipline notices plus a negative performance

review, as well as his retaliation claims based on a denial of a promotion

and the pre

‐ discipline notices plus a negative performance review. Gates

,

2017 WL 4310648, at *13, *17 –18. Gates does not challenge those aspects of

the judgment on appeal.8 No. 17

‐ 3143

II. Analysis

A. Standard of Review

We review de novo the district court’s grant of summary

judgment. Jackson v. County of Racine

, 474 F.3d 493, 498 (7th

Cir. 2007); Johnson v. Advocate Health and Hospitals Corp.

, 892

F.3d 887, 894 (7th Cir. 2018); Whitaker v. Wisconsin Dep’t of

Health Services

, 849 F.3d 681, 684 (7th Cir. 2017). Summary

judgment is proper where “the movant shows that there is no

genuine dispute as to any material fact and the movant is en

‐

titled to judgment as a ma tt er of law.” Fed. R. Civ. P. 56(a). In

our review, we “constru[e] all facts, and draw[] all reasonable

inferences from those facts, in favor of the nonmoving party.”

Whi tt aker v. Northern Illinois University

, 424 F.3d 640, 644–45

(7th Cir. 2005), quoting Telemark Development Group Inc. v.

Mengelt

, 313 F.3d 972, 976 (7th Cir. 2002).

B. Racially Hostile Work Environment

The district court ruled that Gates provided insu ffi cient

evidence to establish that he was subject to a hostile work en

‐

vironment. To prevail on a Title VII claim, a plainti ff must

show that

[1] he is a member of a class protected by the

statute, [2] that he has been the subject of some

form of adverse employment action (or that he

has been subjected to a hostile work environ

‐

ment), and [3] that the employer took this ad

‐

verse action on account of the plainti ff ’s mem

‐ bership in the protected class.

Abrego v. Wilkie

, 907 F.3d 1004, 1012 (7th Cir. 2018), quoting

Morgan v. SVT, LLC

, 724 F.3d 990, 995 (7th Cir. 2013). Subject

‐ ing an employee to a hostile work environment counts as anNo. 17

‐ 3143 9

adverse action (“unlawful employment practice”) within the

meaning of Title VII’s prohibition of race discrimination in 42

U.S.C. § 2000e

‐ 2(a). E.g., Alexander v. Casino Queen, Inc.

, 739

F.3d 972, 980, 982 (7th Cir. 2014).

To prove that an employment environment was actiona

‐ bly hostile, a plainti ff must show that “(1) he was subject to

unwelcome harassment; (2) the harassment was based on race

(or another protected category); (3) the harassment was severe

or pervasive to a degree that altered the conditions of employ

‐

ment and created a hostile or abusive work environment; and

(4) there is a basis for employer liability.” Robinson v. Perales

,

894 F.3d 818, 828 (7th Cir. 2018), citing Meritor Savings Bank,

FSB v. Vinson

, 477 U.S. 57, 66–72 (1986), Johnson

, 892 F.3d at

900–01, and Alamo v. Bliss

, 864 F.3d 541, 549 (7th Cir. 2017); see

also Johnson

, 892 F.3d at 900. 4 Relevant to this inquiry are “the

severity of the alleged conduct, its frequency, whether it [wa]s

physically threatening or humiliating (or merely o ff ensive),

and whether it unreasonably interfere[d] with the employee’s

4 “Sometimes our cases phrase the test differently, looking instead for

evidence that the workplace was both subjectively and objectively offen

‐

sive—either in lieu of the first prong—that the employee was subject to

unwelcome harassment—or the third prong—whether the harassment

was severe or pervasive enough to rise to the level of a hostile work envi

‐

ronment.” Johnson

, 892 F.3d at 900, citing Cole v. Board of Trustees of North

‐

ern Illinois University

, 838 F. 3d 888, 896 n.6 (7th Cir. 2016); see also Alexan

‐

der

, 739 F.3d at 982 (requiring plaintiffs to show “(1) that the work envi

‐

ronment was both subjectively and objectively offensive; (2) that the har

‐

assment was based on membership in a protected class; (3) that the con

‐

duct was severe or pervasive; and (4) that there is a basis for employer

liability.”). “In the end, we have concluded that the inquiry is the same”

under these different phrasings of the test. Johnson

, 892 F.3d at 900, citing

Cole

, 838 F.3d at 896 n.6.10 No. 17

‐ 3143

work performance.” Robinson

, 894 F.3d at 828; see Jackson

, 474

F.3d at 499; see Whi tt aker

, 424 F.3d at 645. To withstand sum

‐

mary judgment, Gates needed to provide evidence su ffi cient

to allow a reasonable jury to fi nd that Rivera’s conduct “was

severe or pervasive enough to constitute a hostile work envi

‐

ronment.” Robinson

, 894 F.3d at 828.

The district court identi fi ed these inquiries properly but

erred in their application. Most important, the court incor

‐ rectly stated that “the threshold for plainti ff s is high, as “[t]he

workplace that is actionable is one that is ‘hellish.’” Gates

, 2017

WL 4310648, at *13, quoting Perry

, 126 F.3d at 1013 (alteration

in original). While a “hellish” workplace is surely actionable,

plainti ff s’ evidence need not show a descent into the Inferno.

In 2007, we rejected the so

‐ called “hellish” standard in Jackson

v. County of Racine

, 474 F.3d at 500, and in other decisions after

the district court’s decision in this case, such as Johnson v. Ad

‐

vocate Health and Hospitals Corp.

, 892 F.3d at 901, we have again

made the point. In Jackson we said that language in our earlier

opinions indicating that an environment must reach the point

of “hellishness” before becoming actionable is impossible to

reconcile with Harris v. Forklift Systems, Inc.

, where the Su

‐

preme Court wrote:

Title VII comes into play before the harassing

conduct leads to a nervous breakdown. A dis

‐ criminatorily abusive work environment, even

one that does not seriously a ff ect employees’

psychological well

‐ being, can and often will de

‐

tract from employees’ job performance, discour

‐

age employees from remaining on the job, or

keep them from advancing in their careers

... The appalling conduct alleged in Meritor

, andNo. 17

‐ 3143 11

the reference in that case to environments “so

heavily polluted with discrimination as to de

‐

stroy completely the emotional and psychologi

‐

cal stability of minority group workers,” merely

present some especially egregious examples of

harassment. They do not mark the boundary of

what is actionable.

510 U.S. at 22, quoting Meritor Savings Bank, FSB v. Vinson

, 477

U.S. 57, 66 (1986). In Jackson

, pointing to this same passage

from Harris

, we clari fi ed: “The Supreme Court’s decision in

Harris established that something short of the Ninth Ring”

may violate Title VII. Jackson

, 474 F.3d at 500; see also Alamo

v. Bliss

, 864 F.3d 541, 550 (7th Cir. 2017) (“a workplace need

not be ‘hellish’ to constitute a hostile work environment”), cit

‐ ing Jackson

, 474 F.3d at 500.

The issue is whether the discriminatory conduct Gates tes

‐

ti fi ed to quali fi es as su ffi ciently severe or pervasive to alter the

conditions of his work environment. The principal racial har

‐

assment Gates described was at the hand of Rivera. Three in

‐

cidents are key: (1) the 2013 “joke” in which Rivera called

Gates the N

‐ word; (2) the 2013 meeting in which Rivera

threated to write up Gates’s “black ass”; and (3) the 2014 “you

people” comment in which Rivera again addressed Gates us

‐ ing the N

‐ word. 5 The district court decided at summary judg

‐

ment that as a ma tt er of law, this level of harassment from a

5 Gates pointed to additional harassing conduct including the pre

‐ dis

‐ ciplinary notices that Rivera issued him, racially offensive conduct by

Principal Brandt, and Rivera’s general pattern of speaking to Gates in a

“demeaning and unprofessional manner.” However, the three incidents

discussed here are the most severe comments actually considered by the

district court at summary judgment and are sufficient for us to decide that12 No. 17

‐ 3143

supervisor was not severe or pervasive enough to render an

employee’s work environment hostile. The court concluded

that our precedents showed generally “that one or two u tt er

‐

ances of the N

‐ word are not severe or pervasive enough to rise

to the level of establishing liability absent an unusually se

‐

vere, physically threatening, or humiliating incident.” Gates

,

2017 WL 4310648, at *14. The district court’s analysis is

fl awed, however, because it overlooked the fact that in most

of the cases it cited rejecting hostile work environment claims,

a co

‐ worker as opposed to a supervisor u tt ered the racially of

‐

fensive language. This distinction is critical in general, and in

this case. See Nichols v. Michigan City Plant Planning Dep’t

, 755

F.3d 594, 601 (7th Cir. 2014) (a ffi rming summary judgment for

employer; one use of racial epithet and several other incidents

of harassment by co

‐ workers were not severe or pervasive

enough to establish hostile work environment); Smith v.

Northeastern Illinois University

, 388 F.3d 559, 562 n. 2, 566–67

(7th Cir. 2004) (a ffi rming summary judgment on one of plain

‐

ti ff ’s hostile environment claims where that plainti ff heard de

‐

fendant—who may or may not have been her supervisor—

u tt er only one racist comment not directed at her); Rodgers v.

Western

‐ Southern Life Insurance Co.

, 12 F.3d 668, 675 (7th Cir.

1993) (multiple instances of supervisor using the N

‐ word in

employee’s presence established actionable hostile work en

‐

vironment); Shano ff v. Illinois Dep’t of Human Services

, 258 F.3d

696, 698–99, 705–06 (7th Cir. 2001) (hostile work environment

claim should have withstood summary judgment motion

the district erred in granting summary judgment to the Board on Gates’s

Title VII hostile work environment claim. They are also the only three

comments that Gates used on appeal to argue that his work environment

was offensive enough subjectively and objectively to be actionable.No. 17

‐ 3143 13

where plainti ff ’s supervisor repeatedly harassed him with de

‐

rogatory comments about his race and religion). 6

We have repeatedly treated a supervisor’s use of racially

toxic language in the workplace as much more serious than a

co

‐ worker’s. See, e.g., Robinson

, 894 F.3d at 828–29; Rodgers

, 12

F.3d at 675; see also Dandy v. United Parcel Service, Inc.

, 388

F.3d 263, 271 (7th Cir. 2004) (use of the N

‐ word by supervisors

has particularly severe impact on work environments). This is

particularly true when supervisors address these derogatory

and humiliating remarks directly to the employees in ques

‐

tion. See Johnson, 892 F.3d at 902 (“Comments made to non

‐ plainti ff co

‐ workers carry less weight in the evaluation of a

hostile environment claim, but they are not irrelevant.”);

Dandy

, 388 F.3d at 271 (in evaluating whether o ff ensive lan

‐

guage created hostile work environment, it is necessary to

note “whether the remarks were stated directly to the plainti ff

or whether the plainti ff heard them secondhand[.] That is not

to say that racial epithets must be stated directly to a plainti ff

to create an objectively hostile work environment. Repeated

use of such highly o ff ensive terms

... may create an objec

‐ tively hostile work environment, even if they are heard

secondhand.”), citing McPhaul v. Board of Commissioners of

6 The district court found more direct support in Roberts v. Fairfax

County Public Schools

, 858 F. Supp. 2d 605, 609 (E.D. Va. 2012), where a

supervisor (a teacher) threatened her subordinate and called her by the N

‐

word. The case came before the Eastern District of Virginia court on De

‐

fendant Fairfax County Public School’s motion for summary judgment. Id.

at 606

– 07. The court held that this conduct was not severe or pervasive

enough to create a hostile work environment. Id. at 609

– 11. But this deci

‐

sion runs contrary to our circuit’s precedents that distinguish between su

‐ pervisor and co

‐ worker conduct as well as between direct and indirect

harassment.14 No. 17

‐ 3143

Madison County

, 226 F.3d 558, 567 (7th Cir. 2000), overruled on

other grounds by Hill v. Tangherlini

, 724 F.3d 965 (7th Cir.

2013).

In Rodgers v. Western

‐ Southern Life Insurance Co.

, we af

‐

fi rmed a verdict for an employee where his supervisor used

the N

‐ word multiple times in his presence and made several

other racially o ff ensive comments. Rodgers

, 12 F.3d at 671,

676–78. We explained: “Perhaps no single act can more

quickly ‘alter the conditions of employment and create an

abusive working environment,’ than the use of an unambigu

‐ ously racial epithet such as ‘nigger’ by a supervisor in the

presence of his subordinates.” Id. at 675, quoting Meritor

, 477

U.S. at 67. “[A] supervisor’s use of the [N

‐ word] impacts the

work environment far more severely than use by co

‐ equals.”

Id. at 675.

In Johnson v. Advocate Health and Hospitals Corp.

, we evalu

‐

ated plainti ff s’ claim that their “supervisors subjected [them]

to o ff ensive and derogatory racial comments, creating a hos

‐

tile work environment.” 892 F.3d at 893. Plainti ff s testi fi ed

that their supervisors made racially

‐ charged comments di

‐ rectly to them and others and used the N

‐ word in their pres

‐

ence. Id. at 901–03. We held that evidence that supervisors en

‐ gaged in this atrocious conduct “should allow a reasonable

jury to fi nd that each of the plainti ff s experienced a racially

hostile working environment.” Id. at 904.

In Robinson v. Perales

, we considered a hostile work envi

‐

ronment claim where Robinson, a biracial police o ffi cer with

the University of Illinois at Chicago presented evidence that

Perales, his lieutenant and supervisor, used the N

‐ word in his

presence on two occasions, once in reference to Robinson him

‐

self. 894 F.3d at 823–24. The district court granted defendantNo. 17

‐ 3143 15

Perales summary judgment on Robinson’s hostile work envi

‐

ronment claim. We reversed the district court’s judgment

“that a few instances of the use of this particular epithet [the

N

‐ word] were not signi fi cant enough to meet the standard for

hostile environment.” Id. at 828. We emphasized that “Perales

was not simply a co

‐ worker; he was a supervisor with direct

authority over Robinson.” Id. at 828.

In short, when the harassment involves such appalling

racist language in comments made directly to employees by

their supervisors, we have not a ffi rmed summary judgment

for employers.

The district court also found that the harassment Gates de

‐

scribed was too infrequent to be pervasive (three racial slurs

in a sixth

‐ month period of a four

‐ year employment), not ob

‐ jectively o ff ensive, and not “particularly ‘severe,’ physically

threatening, or humiliating.” Gates

, 2017 WL 4310648, at *15

.

In support of its holding, the district court cited cases that fi t

into one of four distinguishable categories: (1) the alleged ac

‐

tions or comments were comparably horri fi c to using the N

‐

word but were done or said by a co

‐ worker, not a supervisor;

(2) the actions or comments alleged were made by a supervi

‐

sor but were more ambiguous or signi fi cantly less o ff ensive

than addressing an employee with the N

‐ word; (3) the alleged

remarks were very o ff ensive and made by a supervisor but

were not spoken directly to the plainti ff ; or (4) the conduct or

remarks were evaluated under the now

‐ rejected “hellish”

standard. Id. at *13–15. See Nichols

, 755 F.3d at 601 (co

‐ worker

using racial epithet); McPherson v. City of Waukegan

, 379 F.3d

430, 434–35, 439 (7th Cir. 2004) (several sexually

‐ suggestive

comments along the lines of asking the colors of plainti ff ’s and

others’ bras and underwear did not alone establish hostile16 No. 17

‐ 3143

work environment); Pa tt v. Family Health Systems, Inc.

, 280

F.3d 749, 751, 754 (7th Cir. 2002) (no actionable hostile work

environment because of eight gender

‐ based comments by

then surgery department chief, when only two such com

‐

ments were made directly to plainti ff and neither referred to

her speci fi cally); 7 Baskerville v. Culligan International Co.

, 50

F.3d 428, 430 (7th Cir. 1995) (applying “hellish” standard,

court did “not think that these incidents [sexually

‐ harassing

comments], spread over seven months, could reasonably be

thought to add up to sexual harassment.”); North v. Madison

Area Ass’n for Retarded Citizens

‐ Developmental Centers Corp.

,

844 F.2d 401, 409 (7th Cir. 1988) (two or three o ff ensive state

‐

ments that at most “ might be considered as racial slurs” did

not establish “a su ffi ciently pervasive atmosphere of racial

harassment”); Poullard v. McDonald

, 829 F.3d 844, 858–59 (7th

Cir. 2016) (no actionable hostile work environment where pri

‐

mary allegations concerned three incidents of supervisor har

‐

assment that had at best “a tenuously arguable connection to

race”; the supervisor comments made “were at worst mild

and ambiguous”); 8 Ford v. Minteq Shapes & Services, Inc.

, 587

F.3d 845, 846–48 (7th Cir. 2009) (co

‐ worker’s comments refer

‐ ring to plainti ff Ford as “black man” and “black African

‐

American,” Ford’s supervisor’s comment that “he didn’t have

7 The defendants’ brief in the Patt case made clear that “only two of

the alleged comments were heard by Dr. Patt [plaintiff] directly” and that

“Dr. Patt acknowledge[d] that neither of the references were directed to

‐

ward her and admitted that neither statement offended her.” Brief for De

‐

fendants

‐ Appellees at 26, Patt v. Family Health Systems, Inc.

, 280 F.3d 749

(7th Cir. 2002) (No. 00

‐ 2948).

8 The district court here cited the district court opinion in Poullard

. See

Gates

, 2017 WL 4310648, at *15, citing Poullard v. Shinseki

, No. 12 C 7497,

2015 WL 1428105, at *11 (N.D. Ill. Mar. 26, 2015).No. 17

‐ 3143 17

to worry about losing his job because Minteq [employer]

wanted to appear integrated[,]” another supervisor’s com

‐

ment calling Ford a gorilla, and Minteq not le tt ing Ford bring

his grandchildren to work Christmas parties did not amount

to hostile work environment); Whi tt aker v. Northern Illinois

University

, 424 F.3d 640, 644–45 (7th Cir. 2005) (no actionable

hostile work environment where gender

‐ based comments

were made “outside [plainti ff ’s] presence, and there [was] no

evidence that she was aware of these defendants’ remarks

during her tenure with [employer].”).

Gates testi fi ed to quite di ff erent circumstances. His super

‐

visor used race

‐ based epithets including the N

‐ word directly

and in reference to him. The district court acknowledged the

severity of Rivera’s epithets, but its analysis did not address

the signi fi cance of the di ff erences between supervisors and

co

‐ workers and between direct and indirect harassment that

are important in hostile work environment cases. Gates

, 2017

WL 4310648, at *14, citing and quoting Cerros v. Steel Technol

‐ ogies, Inc.

, 288 F.3d 1040, 1047 (7th Cir. 2002) (“there is no

‘magic number of slurs’” needed to show hostile work envi

‐

ronment, and “an unambiguously racial epithet falls on the

‘more severe’ end of the spectrum”); Hrobowski v. Worthington

Steel Co.

, 358 F.3d 473, 477 (7th Cir. 2004) (“Given American

history, we recognize that the word ‘nigger’ can have a highly

disturbing impact on the listener.”).

If the only evidence of racial harassment Gates had was a

co

‐ worker’s use of the three epithets u tt ered by Rivera, we

would likely reach a di ff erent conclusion in this case. Given

Rivera’s position as Gates’s supervisor, however, if a jury

credits Gates’s testimony about Rivera’s comments, it could

reasonably fi nd that Gates su ff ered an actionable hostile work18 No. 17

‐ 3143

environment. Whether conduct is “‘su ffi ciently severe or per

‐

vasive to alter the conditions of employment’

... depends on

‘the severity of the allegedly discriminatory conduct, its fre

‐

quency, whether it is physically threatening or humiliating or

merely o ff ensive, and whether it unreasonably interferes with

an employee’s work performance.’” Johnson

, 892 F.3d at 900,

quoting Scruggs v. Garst Seed Co.

, 587 F.3d 832, 840 (7th Cir.

2009). A jury would likely have a di ffi cult time concluding

that a supervisor calling his employee the “N

‐ word” and

threatening to write up his “black ass” were not examples of

harassing comments motivated by race. Although Rivera’s

conduct was relatively infrequent and not “physically threat

‐ ening” or “humiliating” in a public se tt ing, it was severe and

humiliating. A reasonable jury could also fi nd that it did in

‐

terfere with Gates’s work performance, not least because it led

him to take a leave from work to seek medical treatment. Su

‐ pervisor conduct as severe and direct as described in Gates’s

testimony cannot be deemed insu ffi ciently severe or perva

‐

sive as a ma tt er of law.

C. Waiver & Forfeiture of Remaining Claims

Gates is entitled to a trial on his hostile environment case,

but he waived or forfeited all of his remaining claims. He ar

‐

gues, though, that he did not forfeit his Title VII retaliation

claim in the district court. We disagree. The Board’s motion

sought summary judgment on all claims. In opposing sum

‐

mary judgment in the district court, Gates failed to assert that

he was subject to a hostile work environment in retaliation for

complaining about the discrimination he says he su ff ered. He

did not speci fi cally argue that Rivera or Principal Brandt cre

‐

ated a hostile work environment because he reported theirNo. 17

‐ 3143 19

discriminatory conduct to Jacob

‐ El or the EEOC. Gates did ar

‐

gue that he was retaliated against, but only in the form of not

being promoted and being wri tt en up by Rivera. In his sum

‐

mary judgment memorandum, Gates also discussed two of

the instances of racially

‐ harassing conduct that he used to

support his hostile work environment claim—the incident in

which Rivera threatened to write up his “black ass” and the

library incident in which Rivera used the N

‐ word. However,

he never speci fi cally argued that this conduct was retaliatory.

Perhaps Gates could have linked those incidents to his claims

of retaliation, but he did not. The district court was not re

‐ quired to address a claim or theory that plainti ff did not as

‐

sert.

The district court’s grant of summary judgment on Gates’s

hostile work environment claim is REVERSED and the case is

REMANDED for further proceedings on that claim consistent

with this opinion. In all other respects, the judgment of the

district court is AFFIRMED.