No. 09-3661 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ____________________________________________ BRENDA CHANEY, Plaintiff-Appellant, v. PLAINFIELD HEALTHCARE CENTER, Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court For the Southern District of Indiana, No. 1:08-00071-cv-SEB-DML The Honorable Sarah Evans Barker, Judge ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL ____________________________________________ JAMES L. LEE DORI K. BERNSTEIN Deputy General Counsel Attorney VINCENT J. BLACKWOOD U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 M Street, N.E., Room 5NW10R Assistant General Counsel Washington, D.C. 20507 (202) 663-4734 Dori.Bernstein@EEOC.gov TABLE OF CONTENTS Page TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . .2 DISTRICT COURT DECISION. . . . . . . . . . . . . . . . . . . . 12 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 I. Principles Of Federal Supremacy Dictate That Indiana Law Cannot Absolve Plainfield Of Liability For Subjecting Chaney To Racially Discriminatory Terms And Conditions Of Employment, In Violation Of Title VII. . . . . . . . . . . . . . . . . . . . . . . . . . . 16 II. Evidence Raising A Suspicion Of Mendacity About The Reason Plainfield Fired Chaney, Together With Proof Of The Racially Charged Work Environment, Would Support A Jury Finding That Race Was A Motivating Factor In Her Discharge.. . . . . . . . . . . . . . 24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF SERVICE TABLE OF CITATIONS Page CASES Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) . . . . . . . . . . . . . . . . . . . . 23 Fernandez v. Wynn Oil Co., 653 F.2d 1273 (9th Cir. 1981) . . . . . . . . . . . . . . . 18 Gordon v. United Airlines, Inc., 246 F.3d 878 (7th Cir. 2001). . . . . . . . . . . . . . 27, 28 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . . . . . . . . . . . . . . . . . 21 Haywood v. Drown, 129 S. Ct. 2108 (2009). . . . . . . . . . . . . . . . . . . 23 Johnson v. Zema Systems Corp., 170 F.3d 734, 744 (7th Cir. 1999) . . . . . . . . . . . . . 17 Knight v. Nassau County Civil Serv. Comm'n, 649 F.2d 157 (2d Cir. 1981) . . . . . . . . . . . . . 18, 20 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). . . . . . . . . . . . . . . . . . . . . 21 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . 27 Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1972). . . . . . . . . . . . . . . . 17 Rucker v. Higher Educational Aids Board, 669 F.2d 1179 (7th Cir. 1982) . . . . . . . . . . . . . . . 18 St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) . . . . . . . . . . . . . . . . . . . . 27 Page Troupe v. The May Department Stores Co., 20 F.3d 734 (7th Cir. 1994) . . . . . . . . . . . . . . 24, 25 Village of Bellwood v. Dwivedi, 895 F.2d 1521 (7th Cir. 1990) . . . . . . . . . . . . . . . 17 UNITED STATES CONSTITUTION U.S. CONST. art VI, cl. 2. . . . . . . . . . . . . . . . . . . 23 STATUTES 42 U.S.C. § 1981 . . . . . . . . . . . . . . . . . . . . . .1, 12 Title VII of the Civil Rights Ace of 1964, 42 U.S.C. §§ 2000e et seq.. . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e-2(a)(1) . . . . . . . . . . . . . . . . . 17 42 U.S.C. § 2000e-2(a)(2) . . . . . . . . . . . . . . . . . 17 RULES AND REGULATIONS Fed.R.App.P. 29(a) . . . . . . . . . . . . . . . . . . . . . . .2 Fed.R.App.P. 32(a)(7). . . . . . . . . . . . . . . . . . . . . 29 410 Ind. Admin. Code 16.2-3.1-3. . . . . . . . . . . . . . . . 14 410 Ind. Admin. Code 16.2-3.1-3(n)(1). . . . . . . . . . . 14, 21 410 Ind. Admin. Code 16.2-3.1-3(t) . . . . . . . . . . . . 14, 21 410 Ind. Admin. Code 16.2-3.1-3(u)(3). . . . . . . . . . . 14, 21 Page ADMINISTRATIVE GUIDANCE EEOC Compliance Manual, Section 15: Race and Color Discrimination, No. 915.003 (April 19, 2006). . . . . . . . . . . . . . . . 19 EEOC Decision No. 72-0697, CCH EEOC Decisions 1971, P 6317 . . . . . . . . . . . . . . 18 STATEMENT OF INTEREST The Equal Employment Opportunity Commission (EEOC) is the agency established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., which prohibits employment discrimination because of race. The district court granted summary judgment against the claims of Brenda Chaney that Plainfield Healthcare Center subjected her to a hostile work environment and fired her because of her race, African-American, in violation of Title VII and 42 U.S.C. § 1981. R.38 (Order).<1> In particular, the court held that an Indiana law providing certain rights to residents of comprehensive care facilities absolves Plainfield from liability for subjecting Chaney to racially discriminatory terms and conditions of employment, in violation of Title VII. Id. at 13-15. In rejecting Chaney's discriminatory discharge claim, the court discounted the probative value of evidence raising a suspicion of mendacity in the circumstances surrounding her discharge, and failed to consider the racially charged context in which it occurred. Id. at 16-19. The decision of the district court conflicts with Circuit precedent and EEOC administrative guidance and, if affirmed, will impede effective enforcement of Title VII. For these reasons, the EEOC offers its views to this Court. As a federal agency, the EEOC is authorized to participate as amicus curiae on appeal. See Fed.R.App.P. 29(a). STATEMENT OF THE ISSUES I. Whether principles of federal supremacy dictate that Indiana law cannot absolve Plainfield of liability for subjecting Chaney to racially discrimin- atory terms and conditions of employment, in violation of Title VII? II. Whether evidence raising a suspicion of mendacity about the reason Plainfield fired Chaney, together with proof of the racially charged work environment, would support a jury finding that race was a motivating factor in her discharge? STATEMENT OF THE FACTS Plainfield Healthcare Center, a 189-bed healthcare facility in Plainfield, Indiana, "provides various levels of care, including skilled care, traditional care, and respite and hospice care, primarily to long-term residents." R.38 at 1. Brenda Chaney worked for Plainfield as a Certified Nursing Assistant (CNA) from June 2006 until she was fired on September 7, 2006. Id. at 2. Chaney's duties included "assisting residents to the bathroom and with bedpans; changing and cleaning residents; changing bed linens; stabilizing residents; and generally watching over residents," id., and, in Chaney's words, "treating them with dignity and respect." R.32-1 at 27 (Chaney dep. 104). Plainfield maintains a practice of acceding to the racial biases of residents. See R.38 (Order) at 11-12. Each day, Plainfield distributes to each nursing aide a "CNA Assignment Sheet," specifying the medical needs and physical limitations of each resident on the CNA's assigned unit. See R.28-13 (CNA Assignment Sheet). Every day Chaney worked at Plainfield, she received an assignment sheet that included the directive "PREFERS NO BLACK CNAS" next to the name of Marjorie Latshaw, one of the 13 residents assigned to her care. Id.; see also R.32- 1 at 47, 49 (Chaney dep. 181-83, 189-90). In the course of performing her job duties, moreover, Chaney's coworkers would periodically inform or remind her that she could not work with particular residents, solely because of her race. See R.32-1 at 32-34, 47, 55 (Chaney dep. 123-25, 128-29, 181-83, 213-15). Although Chaney's assignment sheet specified an explicit racial restriction for only one resident, see id. at 49 (Chaney dep. 189- 90), there were other residents – "about three" in all – whom Chaney was directed not to assist because she is black. Id. at 47, 55 (Chaney dep. 182-83, 213-14). Chaney recalls: The one that was adamant about it, they put it on the assignment sheet for her. The other one[s] it was just [another] CNA would, you know, tell me, I'll get her. I was like, I can do her. No, she don't want you doing her because you black. Id. Chaney found it difficult to express how she felt "seeing an assignment sheet" directing her "not to assist a resident on [her] unit because that resident preferred no black CNAs": It didn't make me feel good. … It's not something that you can really describe. It's just something that you feel inside, like you done something wrong. It's not a good feeling, and it comes from inside. … I don't even wanna think about how that made me feel. It don't feel good; it's not a good feeling. R.32-1 at 55 (Chaney dep. 216). Plainfield's policy of enforcing residents' racial preferences limited Chaney's ability to perform her job. R.32-1 at 50 (Chaney dep. 194-95). Chaney recalled an instance when the policy prevented her from assisting a resident who had fallen, and instead required her to find a white staff member to help her up: I seen Miss Latshaw on the floor and I wanted to go in there and pick her up so bad, but if I went in there, [there was a] chance of me getting fired, not going by the assignment sheet. I had to go all the way around that building to go in and out of the rooms to find somebody to help get her up off the floor when I could have easily went in there and got Miss Latshaw off the floor and helped assist her ….. I had to go in and out of rooms just to find somebody white to go in there and help this woman. How did that make me feel? Id. Plainfield's policy, Chaney explained, "interfered with my work because I was hired to help people, and when someone tell[s] you you can't come in the room … I couldn't help her." Id. On another occasion, Chaney was preparing to give a shower to a resident who refused Chaney's assistance when a white aide entered the room. R.32-1 at 50 (Chaney dep. 195). The resident told Chaney, "I don't want you to give me my shower now. I want her to give me the shower." Id. Although the resident was on Chaney's assignment sheet and Chaney was "suppose[d] to give [her] the shower," Chaney "had to abide by what she don't want." Id. Chaney also encountered racial animosity from some of her coworkers at Plainfield. One white CNA named Audria yelled at Chaney and called her "the black B word," i.e., "a bitch." R.32-1 at 57-58 (Chaney dep. 120-21). Another CNA, Theresa Wilson, witnessed the incident and told Audria she was wrong and that Chaney should report her conduct. Id. (Chaney dep. 121-22). Wilson then reported Audria's behavior to Unit Manager Loretta Askew. Id. Askew, who is African-American, approached Chaney to discuss the matter. Id. Chaney recalls, "She asked me did I feel comfortable here, and I was honest with her. I told her no." Id. Askew assured Chaney that she would "take care of it," but the racial hostility persisted. Id. After Chaney spoke with Askew, Audria "didn't call [Chaney] the B word no more," but she continued to remind Chaney of the race-based restrictions on her job duties. Id. (Chaney dep. 123-24). When the call light outside Marjorie Latshaw's room indicated a request for assistance, Audria told Chaney, "You know you can't go in there because you're black." Id. On another occasion, when Chaney and Audria were in the room of a resident whose assignment sheet did not indicate a racial preference, Audria told Chaney: "Well, they should have put her name down too because she don't like black people coming in here helping her just as well. … Since they putting the name down for who they don't like … I don't know why they got you in this room helping her either." Id. at 33-34 (Chaney dep. 124-25). Once again, Chaney discussed the problem with Askew: I told Loretta, I'm not feeling this. This lady and everything that come out they mouth got to be because you black. I'm like, What difference does it make? We all here to do a job. Id. at 33 (Chaney dep. 125). Askew again assured Chaney that she knew "what's going on" and would "fix this." Id. (Chaney dep. 127). Chaney surmised that Askew then spoke with Audria, "because I could tell the way she was acting. She was distant; she made sure she didn't talk to me. … She seen me and she'll just go another way." Id. at 36 (Chaney dep. 138-39). Another white CNA, whose name Chaney did not recall, also reminded Chaney of the racial restriction on the assignment sheet. Id. at 33-34 (Chaney dep. 128- 29). Chaney recounted how she felt when a white coworker would tell her, "You know you can't go in [to help] that resident": Why would they even put me on a hall that I couldn't even go in the room to make me feel bad and give them something to talk about, the other aides …. Why would they even do that to me? You know you can't go in the room. The [call] light is on. I have to look up at the room number before I can go in there. You know you can't go in there. That was her. She said, I know you read that paper. I mean, everybody was just rubbing that paper in your face, with me anyway. Id. Chaney observed that other newly hired black aides left Plainfield after only a few days on the job. Id. at 33, 34, 45 (Chaney dep. 125-26, 129, 174-75). An older white CNA, who had also apparently noticed the quick turnover, commented, while "looking dead at [Chaney]," "Why are they keep on hiring all of these black niggers? They're not gonna stay anyway." Id. at 45-46 (Chaney dep. 173-78). Chaney discussed the incident with Unit Manager Loretta Askew: I told Loretta, [] I never been in [an] environment like that. … I said, What's going on here? Why are they hiring us and they're not respecting us as a person? Why are they hiring us? Id. at 45 (Chaney dep. 176). Chaney felt as if Askew "was always saying excuses. She would say she was working with the problem, but the problem would always be there …." Id. Chaney spoke with Askew on three separate occasions and reported her continuing discomfort. Id. at 34 (Chaney dep. 129-30). Once she earned enough money to quit, Chaney told Askew, "I'm gonna just look for something else. … You know, I'm just not feeling comfortable here." Id. Each time Chaney reported another racial incident to Askew, it would appear that Askew spoke with the offending employee and that particular behavior would not recur. See id. at 36-37, 47 (Chaney dep. 139-41, 181-82). Nonetheless, the racial restrictions remained "on the paper," i.e., the CNA Assignment Sheet, and in practice. Id. Some nurses even apologized to Chaney for adhering to a policy that subjected her to blatant discrimination on a regular basis: [W]hen the nurses need to go in the room when they needed help, I'm on the unit and then she look at me and they apologize, Brenda, I am so sorry. … The nurse … would go into the lady['s] room that need help lifting her. She couldn't walk; she couldn't do nothing. … They had to have help and I was on the unit … I couldn't go in her room, but they needed help with this lady. Brenda, I am so sorry. Id. at 47 (Chaney dep. 181-82). Chaney recalled "times when I walked out of there I felt teary eyed" and "not with a good taste in my mouth." Id. at 36 (Chaney dep. 138). On September 6, 2009, Mandy Cafouras, a licensed practical nurse (LPN), reported a complaint about Chaney's performance to Unit Manager Loretta Askew. See R.32-5 at 14 (Cafouras statement, 9/8/06); R.32-4 (Askew affidavit) at 2 ¶ 6(a). According to Askew, LPN [] Cafouras (Caucasian) reported to me that the call light was on [and] a resident tried to get out of bed and that Chaney supposedly said "she is not my patient and she'll just have to wait." Cafouras reported to me that Chaney did assist with the resident but then got ticked off and said (referring to the resident) "Oh, she's shitting." R.32-4 (Askew affidavit) at 2 ¶ 6(a). Askew "was surprised by Cafouras' claim that Chaney used profanity because [she] had never heard Chaney curse before nor had there been any previous reports of Chaney cursing." Id. at ¶ 6(b). As Unit Manager, Askew typically investigated complaints of this sort, and questioned the resident's roommate. Id. at ¶ 6(c). Askew asked whether the roommate "had heard Chaney say anything inappropriate, curse or call any names," and learned she "did not hear anything of that sort." Id. at ¶ 6(d). Askew "reported this to [Director of Nursing John] Reyes and also told him that [she] believed Nurse Cafouras made it up." Id. at ¶ 6(d). In response, Reyes halted Askew's investigation and told her that he had decided to terminate Chaney "and that [Askew] was overstepping [her] bounds." Id. at ¶ 6(c), (e). In reporting the incident, Cafouras recounted that two CNAs were standing at the nurses' station while the resident's bed alarm was sounding, and "they stated ‘In a minute'" when Cafouras "asked if one of them were going" to respond. R.32-5 at 14 (Cafouras Statement); see also R.28-4 at 7 ("asked CNAs to [check] on bed alarm Stated ‘just a minute.'"). Yet Cafouras completed a "Performance Improvement Notice" citing only Chaney for, among other infractions, failing to respond promptly to a resident's call for help, although Chaney, and not the other CNA, ultimately assisted the resident in need. See R.28-4 at 7 (Performance Improvement Notice). Further, Reyes did not even question C.J. Hart – the white CNA assigned to the resident who was assisted by Chaney and Cafouras – until September 19, 2006, nearly two weeks after Cafouras's report and Chaney's discharge. See R.32-5 at 4 (Statement from CJ Hart). Hart stated she "would never turn down a request to help, unless [her patient] was undressed," and she "had no info to add about the incident regarding Brenda." Id. Reyes imposed no discipline on Hart in connection with the incident. See id. On the evening of September 6, 2006, Chaney arrived at Plainfield to work her regular night shift, but the nurse on duty told her to "clock out and call human resources" the following day for an explanation. Id. at 37 (Chaney dep. 142-43). The next day, September 7, 2006, Plainfield human resources manager Donna Gray informed Chaney by telephone that she was fired. Id.; see also R.28-3 (Gray affidavit) at 2 ¶ 7. When Chaney asked why, Gray invited her to come in to meet with the facility's administrator. R.32-1 at 37 (Chaney dep. 143). The phone conversation lasted less than two minutes. Id. A few days later, Chaney came to Plainfield to discuss her discharge, and met with Administrator Joe Pittman, Reyes, and Gray. Id. at 37-38 (Chaney dep. 143-47); see also R.28-4 (Reyes affidavit) at 4 ¶ 27; R.28-3 (Gray affidavit) at 1-2 ¶ 6. Pittman told Chaney she was fired because Cafouras reported that Chaney had "used the word shit in a resident['s] room." R.32-1 at 37 (Chaney dep. 143- 44). Chaney denied having used profanity and described her interaction with Cafouras on September 6, see id. at 37-39 (Chaney dep. 144-46, 150): At the end of my shift I was taking out the trash. I come back in, [a resident's] call light was on, and I asked her can I help her. She said she needed to go to the bathroom, and I noticed that she's a two-person lift. Id. at 38 (Chaney dep. at 145). Chaney asked C.J. Hart, the CNA assigned to the resident's hallway, to help her lift the resident onto her bedside commode, but Hart refused.<2> Id. So Chaney asked Cafouras, who had just arrived for the day shift, if she would help. Id. By the time they reached the resident, the "bowel movement was on her, around her, and we still assist[ed] her to the bedside commode." Id. at 39 (Chaney dep. at 150). Chaney told Pittman that she "didn't use the word shit," and explained that Cafouras "was in a bad mood" and annoyed that Chaney had not found an aide, rather than a nurse, to help her. Id. While assisting the resident, Chaney recounted, some of the waste soiled Cafouras's pants, and "she wasn't pleased with that at all." Id.; see also id. at 34-36 (Chaney dep. 131-37) (recounting events of September 6, 2006). Chaney accepted Pittman's offer to "write a statement of your version of what happened." Id.; see R.32-5 at 10-11 (Chaney statement). Chaney "tried to tell him that [she] didn't use the word shit," both because she recalled having been warned during orientation that an aide had been fired "for using that word," and because she customarily "would say BM" since it was "not even in [her] character" to use profanity. Id. at 37-38 (Chaney dep. 144-45). After hearing Chaney's explanation and reading her statement, Pittman said, "Well, we're gonna have to let you go because [it's] her word that you used shit." R.32-1 at 37 (Chaney dep. 144); see also R.28-4 (Reyes affidavit) at 4 ¶ 27. Chaney filed a charge against Plainfield with the EEOC, alleging racial harassment and discrimination. R.32-5 at 2 (EEOC charge). Following an investigation, the EEOC determined that "the evidence supports [Chaney's] allegation as to harassment and discharge," and that Plainfield "is in violation of Title VII in that they adhered to client preference based on race." R.32-3 (EEOC determination) at 1. Having exhausted the administrative process, Chaney sued Plainfield for race discrimination in violation of Title VII and 42 U.S.C. § 1981. See R.1 (Complaint). DISTRICT COURT DECISION The district court entered summary judgment against Chaney's claims that Plainfield subjected her to a racially hostile work environment and fired her because of her race. R.38. The racially abusive remarks of Chaney's coworkers, the court found, were "serious enough that a reasonable jury could conclude that they were both severe and objectively offensive." Id. at 11. The court further acknowledged the "obvious" "racial character and negative tenor" of the explicit race-based restriction on the CNA Assignment Sheet, and the "repeated reminders" by Chaney's coworkers "that she was prohibited from performing her duties" for those residents with a "racial bias." Id. at 11-12. The court determined that "a reasonable jury could conclude that this conduct, too, was severe and offensive." Id. at 12. The court held, however, that "Plainfield cannot be held liable" for subjecting Chaney to a racially hostile work environment "because its responses were prompt, effective, and reasonable under the circumstances." Id. at 15. After each instance of "racially charged comments" was "reported to Unit Manager Askew," the court observed, "no further use of racial epithets occurred." Id. at 12. While subsequent reminders that Chaney's duties were restricted due to the "racial preferences" of certain residents were "certainly unwelcome,"<3> the court decided that "the truly discriminatory conduct, namely, references to Chaney as a ‘black nigger' and ‘black bitch,' ceased as a result of the efforts of Chaney's supervisors." Id. at 13. Consequently, the court concluded, "there is simply no basis, as a matter of law, for employer liability for these derogatory comments," and "Chaney's claim in this regard ultimately must fail." Id. The court accepted Plainfield's argument that removing "the racial preference notation" on the CNA Assignment Sheet "would have put Plainfield in violation of Indiana law." Id. at 13-14. The court quoted portions of a rule contained in the Indiana Administrative Code, pertaining to the rights of residents in comprehensive care facilities. Id. at 14 (citing 410 Ind. Admin. Code 16.2-3.1- 3).<4> In particular, the court cited "the right to ‘choose a personal attending physician and other providers of services,' 410 Ind. Admin. Code 16.2-3.1- 3(n)(1)"; "the right to ‘be cared for in a manner … that' fully recognizes ‘his or her individuality,' [id.] at 16.2-3.1-3(t)"; and "the right to ‘make choices about aspects of his or her life in the facility that are significant to the resident,' [id.] at 16.2-3.1-3(u)(3)." R.38 at 14. In the district court's view, "[t]hese mandates define what can reasonably be expected of an employer like Plainfield." Id. Omitting explicit race-based restrictions from Plainfield's CNA Assignment Sheets, the court reasoned, "would require Plainfield to force a form of care upon the resident that threatens a violation of Indiana regulations." Id. The court recognized that "in most situations ‘Title VII does not allow an employer to discriminate based on race in order to accommodate the actual or perceived invidious biases of its clientele,'" id. (citation omitted), but held nonetheless that "Plainfield cannot reasonably be held liable for adopting a policy that permits a client to espouse racial bias, when that policy clearly represented a good-faith effort to conform to the mandates of Indiana law." Id. "Plainfield's decision to leave the otherwise unfortunate and unwelcome ‘Prefers no Black CNAs' notation on the [] CNA Assignment Sheet," the court thus concluded, "was reasonable under the circumstances." Id. The court also held that Chaney "adduced insufficient circumstantial evidence on the basis of which a reasonable jury could conclude that race entered into Reyes's decision to terminate her employment." See id. at 19. The court discounted the probative value of Unit Manager Askew's testimony that she told Reyes she suspected LPN Cafouras had fabricated the incident for which Chaney was fired, and that Reyes ignored Askew's well-founded concerns and decided to fire Chaney based solely on Cafouras's report, without even questioning Chaney. See id. at 17. In the court's view, "whether [Reyes's] investigation could have been better conducted or whether it ultimately led to the wrong conclusion is irrelevant." Id. at 19. The court thus foreclosed Chaney's effort to raise an inference of discrimination by challenging "the validity of Reyes's investigation," and instead credited Plainfield's explanation that "Reyes's decision to terminate Chaney clearly and reasonably relied on Cafouras's eyewitness account of the events in the resident's room." Id. ARGUMENT I. Principles Of Federal Supremacy Dictate That Indiana Law Cannot Absolve Plainfield Of Liability For Subjecting Chaney To Racially Discriminatory Terms And Conditions Of Employment, In Violation Of Title VII. The district court fundamentally erred in its analysis of Chaney's hostile environment claim. The court recognized that Chaney "adduced sufficient evidence to show that she was subjected to racially harassing behavior," R.38 at 15, that was both "severe and objectively offensive." Id. at 15. In absolving Plainfield from liability, however, the court utterly failed to appreciate that Plainfield's policy of restricting the assignments of black employees to accommodate the racial biases of white residents – which engendered most, if not all, of the racially offensive conduct – is itself an unlawful employment practice and a per se violation of Title VII. The court's holding that Plainfield "cannot be held liable" for the consequent racially hostile work environment because its discriminatory staff assignment "policy clearly represented a good-faith effort to conform to the mandates of Indiana law," id. at 14-15, contravenes bedrock principles of federal supremacy. Plainfield maintained a staff assignment policy that effectuated the racial biases of facility residents. Pursuant to this policy, Plainfield imposed restrictions on Chaney's work assignments by prohibiting her from assisting residents who objected to receiving care from black personnel. Plainfield's race-based disparate treatment "discriminate[d] against [Chaney] with respect to [her] … terms [or] conditions … of employment," and "limit[ed]" her duties and assignments in a way that "adversely affect[ed] [her] status as an employee," in violation of the plain text of Title VII. 42 U.S.C. § 2000e-2(a)(1) and (2); see Johnson v. Zema Systems Corp., 170 F.3d 734, 744 (7th Cir. 1999) (evidence that employer "maintained a segregated sales force" and expected African-American vice president "to manage and befriend only African-American salespersons" demonstrated "race-based limitations" on plaintiff's employment that supported his Title VII discriminatory discharge claim); see also Rogers v. EEOC, 454 F.2d 234, 241 (5th Cir. 1972) (Godbold, J., concurring) (charge that Hispanic-surnamed employee "was permitted or required by her employers to attend or to have contact with only segregated patients … refers to unlawful employment practices consisting, under [42 U.S.C.] § 2000e-2(a)(1), of discrimination against [her] because of her race, color (etc.), and, under § 2000e-2(a)(2), of classification of her because of her race, color (etc.)"). Longstanding Circuit precedent and EEOC guidance establish that client or customer preference cannot excuse or justify race-based disparate treatment of employees. See, e.g., Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1530-31 (7th Cir. 1990) (employer's refusal to "hire black workers … because he believes that his customers do not like blacks" is "discrimination, because it is treating people differently on account of their race"; it is "intentional discrimination, because it necessarily is based on the [employer's] awareness of racial difference and his decision to base employment decisions on that awareness"; and it is "actionable discrimination, regardless of its effects and notwithstanding the [employer's] own freedom from racial animus"); Rucker v. Higher Educational Aids Board, 669 F.2d 1179, 1181 (7th Cir. 1982) ("Customer preference has been repeatedly rejected as a justification for discrimination against women," and "it is clearly forbidden by Title VII, to refuse on racial grounds to hire someone because your customers or clientele do not like his race."); see also Knight v. Nassau County Civil Serv. Comm'n, 649 F.2d 157, 162 (2d Cir. 1981) (employer's assignment of African- American personnel specialist, against his wishes, to "minority recruitment," based on belief he "would develop a better rapport than would a white person with the members of minority groups whom the [employer] was trying to recruit," violated Title VII); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir. 1981) (holding that "stereotyped customer preference [does not] justify a sexually discriminatory practice," and relying on EEOC decision holding "that the need to accommodate racially discriminatory policies of other nations cannot be the basis of a valid BFOQ exception") (citing EEOC Decision No. 72-0697, CCH EEOC Decisions 1971, P 6317, at 4569)). The EEOC, in recent guidance on "Race and Color Discrimination," reaffirmed that "Title VII … does not permit racially motivated decisions driven by business concerns – for example, concerns about the effect on employee relations, or the negative reaction of clients or customers." EEOC Compliance Manual, Section 15: Race and Color Discrimination, No. 915.003, at 15-11 (April 19, 2006) (footnotes omitted) (available at http://www.eeoc.gov/policy/docs/race- color.html). In an example illustrative of "Yielding to Customers' Racial Preferences," the guidance portrays a scenario similar in material respects to the circumstances Chaney confronted at Plainfield: The employer is a home care agency that hires out aides to provide personal, in-home assistance to elderly, disabled, and ill persons. It has a mostly White clientele. Many of its clients have expressed a desire for White home care aides. Gladys, an African American aide at another agency, applies for a job opening with the employer because it pays more than her current job. She is well qualified and has received excellent performance reviews in her current position. The employer wants to hire Gladys but ultimately decides not to because it believes its clientele would not be comfortable with an African American aide. The employer has violated Title VII because customer preference is not a defense to race discrimination. Id. at 12-13 (footnote omitted). While Plainfield, unlike the hypothetical employer in the EEOC guidance, hired Chaney as a CNA, the facility limited her patient assignments and restricted her duties based on her race. Chaney felt demeaned and frustrated on occasions when she was unable to assist residents in need of help, when her assistance was rejected, and when she was compelled to find a white staff member willing to perform tasks she was entirely capable of – yet prevented from – performing, solely because of her race. See id. at 33-34, 47, 50 (Chaney dep. 128-29, 181-82, 194-95); see also Knight, 649 F.2d at 162 (assignment of black employee to minority recruitment position, which he considered "racist and demeaning," violated Title VII, "[a]lthough his salary and benefits remained unchanged"). Some Plainfield personnel apologized to Chaney for adhering to the race-based restrictions, while others seemed to taunt her about the limitations on her duties. See R.32-1 at 32-34, 47, 55 (Chaney dep. 123-25, 128-29, 181-83, 213-15). Chaney was hurt and humiliated by these verbal reminders, as well as the racial restriction posted on her daily assignment sheet. Id. at 36, 45, 55 (Chaney dep. 138, 176, 216). The district court recognized the "obvious" "racial character and negative tenor of these reminders," which "a reasonable jury could conclude … [were] severe and offensive." See R.38 at 11-12. In addressing Plainfield's liability for the severe and offensive racial harassment Chaney experienced, the district court disaggregated the evidence and improperly considered the racially offensive epithets uttered by Chaney's white coworkers ("‘Why do they keep hiring these black niggers?,' and a reference to Chaney as a ‘black bitch,'" R.38 at 10), separate and apart from the written and verbal reminders of Plainfield's race-based restriction on her duties. See R.38 at 13 (finding verbal reminder of "resident's racial preferences … is not like the racial slurs in terms of severity and thus is not actionable under Title VII," and deciding "Chaney's [hostile environment] claim in this regard" – i.e., in regard to the racial slurs – "ultimately must fail") (emphasis added); id. at 13-15 (holding Plainfield could not be liable for verbal or written reminders of racial restriction where "policy clearly represented a good-faith effort to conform to the mandates of Indiana law"). The district court's piecemeal approach conflicts with the Supreme Court's repeated admonition that hostile work environment claims must be analyzed holistically, "considering ‘all the circumstances,'" with "careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). A reasonable jury could find that Plainfield's policy of indulging and effectuating the racial biases of residents fostered an atmosphere in which employees with similar attitudes felt free to express them. Under these circumstances, where Plainfield's own facially discriminatory practices may have encouraged the "vulgar race-based comments" of Chaney's coworkers, the court erred in holding "there is simply no basis, as a matter of law, for employer liability for these derogatory comments." R.38 at 13. More fundamentally, the district court erred in holding that "Plainfield cannot reasonably be held liable" for the racially hostile work environment Chaney suffered as a consequence of its discriminatory assignment policy "when that policy clearly represented a good-faith effort to conform to the mandates of Indiana law." See R.38 at 14. In the court's view, a policy of non-discriminatory patient care assignments "would require Plainfield to force a form of care upon the [racially biased] resident that threatens a violation of Indiana regulations." Id. The regulations cited by the court are contained in an Indiana administrative rule affording to residents of comprehensive care facilities various rights, including the right to "[c]hoose a personal attending physician and other providers of services," 410 Ind. Admin. Code 16.2-3.1-3(n)(1); "the right to be cared for in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality," id. at 16.2-3.1-3(t); and the right to "[m]ake choices about aspects of his or her life in the facility that are significant to the resident," id. at 16.2-3.1-3(u)(3) (quoted in R.38 at 14). To the extent these provisions of the Indiana administrative code can be construed as requiring healthcare facilities to engage in racially discriminatory employment practices prohibited by Title VII, however, the state regulations are constitutionally preempted by the conflicting mandates of federal civil rights law. Contrary to the opinion of the district court, which held, in effect, that a "threaten[ed] … violation of Indiana regulations" affords Plainfield an absolute defense to liability for conduct that otherwise clearly violates a federal statute, see R.38 at 14, constitutional doctrine dictates that Indiana law must yield to the superseding requirements of Title VII. See Haywood v. Drown, 129 S. Ct. 2108, 2114-15 and note 5 (2009) ("States … lack authority to nullify a federal right or cause of action they believe is inconsistent with their local policies"; "the ‘elements of, and the defenses to, a federal cause of action are defined by federal law'") (citation omitted). Pursuant to the Supremacy Clause,<5> "state law is naturally preempted to the extent of any conflict with a federal statute." Crosby v. National Foreign Trade Council, 530 U.S. 363, 372 (2000) (footnote omitted). The Supreme Court "will find preemption where it is impossible for a private party to comply with both state and federal law, … and where ‘under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Id. (internal citations omitted; brackets in original). Under these bedrock constitutional principles, a state regulation that would require or permit an employer to discriminate against employees or applicants because of race to accommodate the biases of its clientele is necessarily preempted by Title VII. II. Evidence Raising A Suspicion Of Mendacity About The Reason Plainfield Fired Chaney, Together With Proof Of The Racially Charged Work Environment, Would Support A Jury Finding That Race Was A Motivating Factor In Her Discharge. The district court further erred in holding that Chaney presented insufficient evidence for a jury to find her race was a factor in Plainfield's decision to fire her. This Court recognizes multiple avenues to prove discriminatory motive circumstantially, and has identified "[t]hree types of circumstantial evidence of intentional discrimination": The first consists of suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn. … This is the most common type of evidence in an intentional discrimination case, now that employers have taught their supervisory employees not to put discriminatory beliefs or attitudes into words oral or written. Second is evidence, whether or not rigorously statistical, that employees similarly situated to the plaintiff other than in the characteristic (pregnancy, sex, race, or whatever) on which an employer is forbidden to base a difference in treatment received systematically better treatment. … And third is evidence that the plaintiff was qualified for the job in question but passed over in favor of (or replaced by) a person not having the forbidden characteristic and that the employer's stated reason for the difference in treatment is unworthy of belief, a mere pretext for discrimination. … Each type of evidence is sufficient by itself (depending of course on its strength in relation to whatever other evidence is in the case) to support a judgment for the plaintiff; or they can be used together. Troupe v. The May Department Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). The circumstances surrounding Chaney's discharge, the racial tension evidenced by the slurs and other workplace conduct of nursing staff, and the undisputed proof of Plainfield's policy of race-based patient care assignments, "together compos[e] a convincing mosaic of discrimination against" Chaney, "from which a rational trier of fact could reasonably infer that [Plainfield] had fired [her] because" of her race. See id. at 737. The evidence, viewed most favorably to Chaney, would permit a jury to find that John Reyes, Plainfield's white Director of Nursing, decided to fire Chaney, a black CNA, based solely on the uncorroborated report of a white LPN, Mandy Cafouras, that Chaney had failed to respond to a resident's call light, initially declined to assist Cafouras, and used profanity while helping Cafouras lift the resident onto a bedside commode. Cafouras, in her own account, stated that two CNAs had ignored the resident's bed alarm and told her "Just a minute" when she asked them to respond. See R.32-5 at 14 (Cafouras Statement); R.28-4 at 7 (Performance Improvement Notice). Yet Cafouras reported only Chaney, and not the other CNA, for a disciplinary infraction, even though Chaney had ultimately assisted the patient. Reyes, moreover, neglected even to question C.J. Hart, the white CNA to whom the resident was assigned, until 13 days after Chaney was fired, and never disciplined her in connection with the incident. See R.32-5 at 4 (Statement from CJ Hart). Reyes made the discharge decision on September 6, 2006, the same day the incident occurred, without even questioning Chaney, and disregarded the suspicion of Loretta Askew, the black Unit Manager who supervised both LPNs and CNAs, that Cafouras had fabricated the complaint against Chaney. See R.32-4 at 1-2 ¶¶ 3, 6. Askew had good reason to doubt Cafouras's accusation: The resident's roommate told Askew that she did not hear Chaney use profanity or "say anything inappropriate," confirming Askew's own observation that she "had never heard Chaney curse before nor had there been any previous reports of Chaney cursing." Id. at ¶ 6. Although Askew, in her capacity as Unit Manager, "typically conduct[ed] the investigations" of such complaints, Reyes told her she "was overstepping [her] bounds" when she told him she "believed Nurse Cafouras made it up." Id. When Chaney offered her contrary version of events to Reyes and other Plainfield managers several days after her discharge, facility Administrator Joe Pittman sustained the termination based on Cafouras's "word" that Chaney had referred to a resident with profanity. R.32-1 at 37 (Chaney dep. 144); see also R.28-4 (Reyes affidavit) at 4 ¶ 27. Given undisputed evidence that Plainfield was a workplace with an established policy of racial discrimination in staff assignments, where racial animosity was openly expressed, a reasonable jury could find that a white administrator (Reyes) chose to disregard the well-founded "suspicion of mendacity" expressed by a black manager (Askew), and rather than question the veracity of a white LPN (Cafouras), decided to fire a black CNA (Chaney) for an infraction he had reason to believe did not occur. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993) ("The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination"); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000) ("Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive."). To hold on this record, as the district court did, that "Reyes's decision to terminate Chaney clearly and reasonably relied on Cafouras's eyewitness account of the events in the resident's room," R.38 at 19, is to "abandon good reason and common sense in assessing [Plainfield's] actions." See Gordon v. United Airlines, Inc., 246 F.3d 878, 889 (7th Cir. 2001). Because Chaney has produced "specific evidence from which the finder of fact may reasonably infer that the proffered reasons do not represent the truth, [her] case [] turns on the credibility of the witnesses," and presents "a factual issue as to whether [Plainfield's] explanation is credible or merely a pretext for discrimination." Id. CONCLUSION For the foregoing reasons, the EEOC respectfully urges this Court to reverse the summary judgment and remand for trial Brenda Chaney's claims that Plainfield Healthcare Center subjected her to a hostile work environment and fired her because of her race. Respectfully submitted, /s/ Dori K. Bernstein JAMES L. LEE DORI K. BERNSTEIN Deputy General Counsel Attorney VINCENT J. BLACKWOOD U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITYCOMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, N.E., Room 5NW10R Assistant General Counsel Washington, D.C. 20507 (202)663-4734 Dori.Bernstein@EEOC.gov CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7) The undersigned, counsel of record for the plaintiff-appellant, Equal Employment Opportunity Commission, furnishes the following in compliance with Fed.R.App.P. 32(a)(7): I hereby certify that this brief conforms to the rules contained in Fed.R.App.P. 32(a)(7) for a brief produced with a proportionally spaced font. The length of this brief is 6,815 words. Dated: January 25, 2010 U.S. Equal Employment Opportunity Commission Office of General Counsel 131 M Street, N.E., Room 5NW10R Washington, D.C. 20507 /s/ Dori K. Bernstein Dori K. Bernstein Attorney for Amicus Curiae, EEOC (202)663-4734 Dori.Bernstein@EEOC.gov CERTIFICATE OF SERVICE I, Dori K. Bernstein, counsel for amicus curiae EEOC, certify that on January 25, 2010, the foregoing brief was transmitted electronically, and two copies were served by first class U.S. mail, to counsel of record, as follows: Meghan Uzzi Lehner Denise K. LaRue HASKIN & LARUE, LLP 255 N. Alabama Street Indianapolis, Indiana 46204-0000 mlehner@hlllaw.com dlarue@hlllaw.com Janet A. McSharar HARRISON & MOBERLY Suite 700 Ten W. Market Street Indianapolis, Indiana 46204-0000 jmcsharar@h-mlaw.com /s/ Dori K. Bernstein Dori K. Bernstein, Attorney Equal Employment Opportunity Commission Office of General Counsel 131 M Street, N.E., Room 5NW10R Washington, D.C. 20507 (202)663-4734 Dori.Bernstein@eeoc.gov *********************************************************************** <> <1> References to the district court record correspond to numbered entries on the district court’s docket, e.g., “R.__ at __.” <2> In a statement obtained nearly two weeks after Chaney was fired, C.J. Hart maintained that “Brenda never asked me to help [with] Ms. Tate-Pullen.” See R.32-5 at 4 (Statement from CJ Hart). <3> The district court determined that Chaney experienced only “one subsequent reminder by a co-worker that she could not work with a particular resident because of that resident’s racial preferences,” R.38 at 13, but Chaney’s testimony would support a finding that such reminders from coworkers were on-going and concerned more than a single resident. See supra at 3-5 (summarizing Chaney’s testimony); R.32-1 at 32-34, 47, 55 (Chaney dep. 123-25, 128-29, 181-83, 213-15). <4> Title 410 of the Indiana Administrative Code contains regulations promulgated by the Indiana State Department of Health. Article 16.2 governs “Health Facilities; Licensing and Operational Standards,” and includes Rule 3.1, entitled “Comprehensive Care Facilities”; section 3 of Rule 3.1 concerns “Residents’ Rights.” <5> The Supremacy Clause provides: “The Constitution, and the Laws of the United States which shall be made in pursuance thereof … shall be the supreme Law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.” U.S. CONST. art. VI, cl. 2.