Nabors v. Clement Manor Inc

Filing 44

ORDER signed by Chief Judge Pamela Pepper on 3/12/2025. 17 Defendant's motion for summary judgment GRANTED as to plaintiff's third, fourth, fifth, sixth causes of action, those causes of action DISMISSED WITH PREJUDICE; motion DENIED as to plaintiff's first, second causes of action and punitive damages claim. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

TERESA D. NABORS,
Plaintiff,
Case No. 22-cv-24-pp
v.
CLEMENT MANOR, INC.,
Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (DKT. NO. 17)

On January 10, 2022, the plaintiff filed a complaint against the
defendant, her former employer, alleging harassment, discrimination and
retaliation because of her race in violation of Title VII of the Civil Rights Act of
1964 and 42 U.S.C. §1981. Dkt. No. 1. On March 17, 2023, the defendant filed
a motion for summary judgment on all claims. Dkt. No. 17. That motion has
been fully briefed since May 2023. Dkt. Nos. 22, 30, 38. The court will grant
the defendant’s motion as to the plaintiff’s discriminatory discharge and
retaliation claims and deny the motion as to the remaining claims.
I.

Background
The following facts are undisputed unless otherwise noted.
A.

The Plaintiff’s Employment

The defendant is a senior living facility that provides independent and
assisted living services, health care and other services to elderly residents. Dkt.

1

No. 32 at ¶¶3–4. The plaintiff worked for the defendant from December 28,
2015 to June 7, 2016, and again from October 16, 2016 to March 16, 2020. Id.
at ¶1. In 2020, the plaintiff worked as a certified nursing assistant (CNA) in the
defendant’s skilled nursing/health center division. Id.
Nurse Manager Trisha Atkinson was the plaintiff’s supervisor while the
plaintiff was a CNA on the rehab unit in the health center. Id. at ¶¶2, 12.
Residents on the rehab unit are there to receive therapy prior to discharge. Id.
at ¶16. Each resident had a care plan summarized on a “care card” containing
information about caring for that resident, including behavioral issues, how the
resident is to be transferred, what assistance the resident may need with
activities of daily living, whether the resident is in therapy, whether the
resident uses a walker and preferred radio or tv channels. Id. at ¶17. CNAs
were expected to review the care card before entering a resident’s room each
time. Id.
In December 2019, Atkinson completed an annual performance review
for the plaintiff in which she rated the plaintiff as meeting or exceeding the
expectations of her position as a CNA. Dkt. No. 36 at ¶3. Atkinson did not rate
the plaintiff as anything less than “meets expectations” for her work with the
residents. Id. at ¶4. The defendant does not dispute this, but states that the
written comment section of the performance review stated that the plaintiff
should “[r]emember to follow the care card to ensure proper interventions are
in place.” Id. at ¶5.

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B.

February 7, 2020 Complaint

On February 7, 2020, the plaintiff worked on the rehab unit from 6:00
a.m. to 2:30 p.m. with two other CNAs, Lolitha Abdur Rahim Mohammad and
Tiffany Jackson. Dkt. No. 32 at ¶¶20–21. That morning, the plaintiff and
Mohammad spoke with Atkinson about a resident, J.G., who was making racial
slurs and comments to CNAs, which the plaintiff alleges included using the nword on multiple occasions. Id. at ¶22; Dkt. No. 36 at ¶9. The parties dispute
whether this was the first time the plaintiff reported J.G.’s comments to
Atkinson. Dkt. No. 32 at ¶22. The plaintiff asserts that she had been
complaining to Atkinson about racial slurs throughout 2019 and that nothing
was done about it. Id. Mohammad testified that she also had previously
reported J.G.’s use of racial slurs. Id. The defendant states that J.G. had
“mental health and developmental disability type problems” that the social
services staff was trying to work with him on. Id. at ¶24. The plaintiff disputes
the implication that J.G.’s health issues caused him to be confused or not
understand what he was saying. Id. The plaintiff asserts that J.G. appeared to
know exactly what he was saying when he would use racial slurs or would refer
to the African American CNAs as “dumb,” “slow,” “you idiot” and “incompetent.”
Id.
The parties dispute how Atkinson responded to the plaintiff and
Mohammad’s report. The defendant asserts that Atkinson apologized and
stated that if J.G. used racial slurs or other inappropriate language toward
them, they should bring it to her or their unit nurse to address the situation in
3

J.G.’s care plan. Id. at ¶25. According to the plaintiff, Atkinson laughed and
told them not to take the racist comments seriously because the residents did
not know what they were saying half the time. Id. The plaintiff says she then
asked Atkinson what the CNAs should do about the harassment and Atkinson
responded, “[d]eal with it.” Id. The plaintiff asserts that Atkinson never
“apologized” for J.G.’s behavior or said anything to the plaintiff or Mohammad
about addressing J.G.’s unacceptable behavior in his care plan. Id. The parties
also dispute whether the plaintiff told Atkinson that she felt threatened by J.G.
Id. at ¶26. The parties agree that the plaintiff told Atkinson that she intended to
file a complaint but disagree about whether Atkinson challenged her right to do
so. Id. at ¶28. The plaintiff asserts that Atkinson told her that an EEOC
complaint “was not going to go anywhere.” Id.
The parties also dispute whether the plaintiff refused to provide care to
J.G. The defendant alleges that the plaintiff told Atkinson she would not
provide care to J.G. and that other CNAs already were refusing to enter J.G.’s
room or answer his call light. Id. at ¶29. The plaintiff says that she never
refused to care for J.G. Id. The plaintiff also disputes that any other African
American CNAs refused care for J.G. Id. at ¶30. The parties agree that refusing
to provide care to a resident could meet the definition of neglect under state
law and would violate the defendant’s policies. Id.
After the February 7 meeting, Atkinson adjusted J.G.’s care plan to
include behavior monitoring and recording the frequency of inappropriate
language and racial slurs. Id. at ¶31. The care plan included notes instructing
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CNAs to ignore or redirect J.G.’s inappropriate comments and remind him that
racial slurs are not appropriate. Id. at ¶¶32–34. The care plan also directed
CNAs to leave the room if J.G. continued or exhibited verbally abusive
behavior. Id. at ¶36. The parties dispute whether Atkinson discussed these
changes with the plaintiff or any other African American CNAs. Id. at ¶37. The
defendant asserts that the social work team also approached J.G. about these
issues and informed him that his behavior was not acceptable. Id. at ¶¶39–40.
The plaintiff says she never was informed of these conversations. Id. J.G. was
discharged from the rehab unit on February 24, 2020, and the parties agree
that the plaintiff made no further complaints to Atkinson about J.G. during
that time. Id. at ¶38.
Atkinson told Nursing Director Roberta Banach about the plaintiff’s
complaints of racial harassment and the plaintiff’s stated intent to file a
complaint of racial harassment with the EEOC. Dkt. No. 36 at ¶38. The plaintiff
contends that Atkinson also told Director of Social Work Jeanne Aliota about
the plaintiff’s statements, but the defendant disputes this. Id.
C.

March 11, 2020 Complaint and Investigation

On March 11, 2020, a nurse notified Atkinson about a complaint another
resident, E.L., had made regarding the plaintiff. Dkt. No. 32 at ¶41. The parties’
accounts of this complaint differ significantly. According to the defendant,
when Atkinson spoke with E.L. on March 11, 2020, E.L. explained that (1) on
March 10, 2020 she had wanted to use a bedpan but was made to get up and
use the toilet; (2) she was upset because on March 7, 2020 the plaintiff had
5

made her get up earlier than she had wanted to; and (3) that the plaintiff had
transferred her alone on March 10, 2020 and had done so before, in spite of
the fact that E.L.’s care plan required a two-person transfer. Id. at ¶42. The
defendant alleges that E.L. was not cognitively impaired and did not have a
reputation for lying or trying to get CNAs in trouble. Id. at ¶45.
The plaintiff disputes E.L.’s account of their interactions. Id. at ¶42.
According to the plaintiff, E.L. initially had asked to use a bedpan but the
incision on her thigh was draining and the plaintiff said it was best if she got
up so the nurse could change her bandage; E.L. agreed and said, “no problem.”
Id. As to the second allegation, the plaintiff states that E.L. had an
appointment that day for which she had to get up early. Id. The plaintiff also
states that she never transferred E.L. by herself—not on March 10, 2020 or on
any other day. Id. The plaintiff states that “E.L. was a large woman weighing at
least 240 pounds and plaintiff was physically incapable of transferring her by
herself” and that she would never violate directives in a resident’s care card. Id.
The plaintiff alleges that Seara Jones, who worked with her on March 10, 2020,
verified that the plaintiff never transferred E.L. by herself on March 10, 2020
nor was the plaintiff in the room by herself with E.L. Id.
The plaintiff adds that there were “quite a few residents who did not like
African American CNAs.” Id. The plaintiff alleges that residents would use
racial slurs and make statements such as, “I’m going to get so-and-so fired,”
referring to the African American CNAs. Id. The plaintiff states that CNAs were
afraid that these residents would make false allegations to get them in trouble
6

and, for this reason, they always made sure that there were two CNAs when
entering certain residents’ rooms, including E.L.’s room. Id. She alleges that
E.L. had a reputation for lying and trying to get African American CNAs in
trouble. Id. at ¶45. She also alleges that she and CNA Mohammad heard E.L.
use racial slurs on multiple occasions. Dkt. No. 36 at ¶¶10, 12.
The defendant states that the failure to follow a resident’s care plan is an
allegation of neglect, any report of which the defendant alleges it was required
to submit to the state. Dkt. No. 32 at ¶43. The plaintiff disputes that there was
a basis for an allegation of neglect because none of the nursing staff
substantiated E.L.’s complaint. Id. The plaintiff argues that Jones’s statement
contradicts E.L.’s statement and supports the plaintiff’s claim that she never
transferred E.L. alone in violation of E.L.’s care plan. Id. The defendant cites a
memo prepared by Atkinson after she interviewed Jones on March 13, 2020.
Id. at ¶49. That memo does not state anything about whether the plaintiff
transferred E.L. alone. Id. The plaintiff responds that the memo was not signed
by Jones and does not accurately reflect what Jones told Atkinson during that
interview.
On March 11, 2020, Atkinson contacted Banach about E.L.’s complaint
and Banach began an investigation. Id. at ¶44. The defendant placed the
plaintiff on paid administrative leave pending the investigation. Id. at ¶46.
Banach asked Aliota to interview E.L. and other residents that the plaintiff
cared for to determine whether the same thing had happened to other
residents. Id. at ¶47. The plaintiff concedes that even if the defendant
7

determined that E.L.’s allegation was not true, the defendant still would be
required to report the allegation to the state. Id. at ¶48.
Aliota interviewed E.L. and stated that E.L. reiterated the same
complaints and details to her that E.L. had provided to Atkinson. Id. at ¶51.
Aliota spoke with another resident, J.W., who stated that the plaintiff was
“unpleasant, nasty and she hates [J.W.’s] guts.” Id. at ¶53. J.W. also stated
that the plaintiff refused to move J.W.’s bedside table when asked. Id. The
plaintiff disputes this, arguing that the table incident involved a different CNA.
Id. Resident M.P. told Aliota that she did not have concerns about the plaintiff’s
care, but that the plaintiff was “loud” and “very strong,” so sometimes the
plaintiff “is able to transfer [M.P.] alone.” Id. at ¶55. M.P.’s care plan required a
two-person transfer; the plaintiff disputes that she ever transferred M.P. alone.
Id. Aliota also spoke with residents F.R., G.K., S.P. and J.K., who expressed no
concerns about the plaintiff. Id. at ¶¶54, 56–58.
D.

The Plaintiff’s Termination

On March 12, 2020, the plaintiff met with Aliota, Banach, Atkinson and
Human Resources Coordinator Emma Paul to discuss the concerns raised by
E.L., J.W. and M.P. Id. at ¶59. The plaintiff denied all E.L.’s allegations. Id. at
¶¶61–63. The plaintiff denied J.W.’s allegation about refusing to move the
bedside table, stating that she didn’t remember that happening. Id. at ¶65.
Regarding M.P.’s statement that the plaintiff had transferred her alone, the
plaintiff stated that she follows a resident’s care plan and does not go into a
resident’s room without two people. Id. at ¶67.
8

Even though the plaintiff denied transferring E.L. and M.P. alone,
because there were two competent residents who reported the same care plan
violation, Banach found the reports credible. Id. at ¶70. Banach determined
that the plaintiff had violated the defendant’s policies and procedures three
times. Id. at ¶71. After consulting with the defendant’s CEO, Banach made the
decision to terminate the plaintiff effective March 16, 2020. Id. That same day,
Banach submitted a misconduct incident report to the Wisconsin Department
of Health Services. Id. at ¶74. On July 1, 2020, the Department of Health
Services determined that there was insufficient evidence to substantiate the
allegations. Id. at ¶76. The plaintiff contends that there was no credible
evidence that she committed any misconduct and that the defendant’s
allegations of resident neglect were pretextual, giving rise to an inference that
the plaintiff’s race, her February 7, 2020 report about J.G. and her statement
that she was going to file a complaint with the EEOC were the true reasons for
Banach filing the Misconduct Incident Report and terminating the plaintiff’s
employment. Id. at ¶77.
II.

Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Federal Rule of Civil Procedure 56(a). “Material
facts” are those that, under the applicable substantive law, “might affect the
outcome of the suit.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

9

(1986). A dispute over a material fact is “genuine” “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id.
A moving party “is ‘entitled to a judgment as a matter of law’” when “the
nonmoving party has failed to make a sufficient showing on an essential
element of [its] case with respect to which [it] has the burden of proof.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Still,
a party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a
genuine issue of material fact.
Id. (internal quotation marks omitted).
To determine whether a genuine issue of material fact exists, the court
must review the record, construing all facts in the light most favorable to the
nonmoving party and drawing all reasonable inferences in that party’s favor.
See Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003) (citing Liberty Lobby, 477
U.S. at 255). “However, [the court’s] favor toward the nonmoving party does not
extend to drawing inferences that are supported by only speculation or
conjecture.” Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (quoting
Harper v. C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)). That is, “to
survive summary judgment, the non-moving party must establish some
genuine issue for trial ‘such that a reasonable jury could return a verdict’ in
her favor.” Fitzgerald, 707 F.3d at 730 (quoting Makowski v. SmithAmundsen
LLC, 662 F.3d 818, 822 (7th Cir. 2011)).

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III.

Motion for Summary Judgment (Dkt. No. 17)
The defendant moved for summary judgment on all claims, arguing that

the plaintiff was not subject to a hostile work environment and that she was
terminated due to three reported care violations, not due to her race. Dkt. No.
22 at 2.
A.

Hostile Work Environment Harassment
1.

Parties’ Arguments

The defendant argues that the plaintiff cannot establish that she suffered
a hostile work environment due to J.G.’s comments. Dkt. No. 22 at 11. The
defendant likens this case to E.E.O.C. v. Vill. at Hamilton Pointe LLC, Case No.
17-cv-00147, 2020 WL 13568924 (S.D. Ind. Sept. 29, 2020). Id. In Hamilton
Pointe, the district court relied on two Fifth Circuit cases to determine that
offensive racial comments made by cognitively impaired nursing home
residents could not form the basis for a hostile work environment claim. Id. at
11–12 (quoting Hamilton Pointe, 2020 WL 13568924, at *4). The defendant
asserts that “J.G. had mental health and developmental disability type
problems” and that the defendant took steps to correct his behavior once the
plaintiff informed Atkinson of the issue. Id. at 13. The defendant argues that
“caring for a resident with a mental disability who may use racial slurs was a
part of [the plaintiff’s] job” and cannot establish a hostile work environment. Id.
The plaintiff responds that this case is different because J.G. and E.L.
used the n-word toward her. Dkt. No. 30 at 2–3. The plaintiff argues that being
subjected to serious racial slurs, even if it only occurs a few times, can be
11

enough to establish that the workplace harassment was severe. Id. at 3. She
argues that she was subject to multiple instances where two different residents
called her the n-word and other derogatory race-based comments. Id. The
plaintiff says that unlike in the residents in Hamilton Pointe, J.G. and E.L. did
not have severe mental disabilities that interfered with their ability to
understand what they were saying. Id. at 3–4. She argues that Atkinson did not
take her report seriously and that none of the CNAs were informed that the
defendant had taken any action to address J.G.’s behavior. Id. at 4. She also
argues that the defendant did not offer her a transfer to avoid being subjected
to such comments and that the defendant actively discouraged her from filing
an EEOC charge about the behavior. Id. at 4–5.
2.

Analysis

To survive summary judgment on a racially hostile work environment
claim, an employee must provide sufficient evidence that demonstrates: “(1)
that 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.”1 Alexander v. Casino Queen, Inc., 739 F.3d 972, 982 (7th Cir. 2014).
The parties do not dispute that the residents’ race-based comments were
offensive or based on membership a protected class. The parties primarily
1 The same framework applies to both Title VII and §1981 claims. Morgan v.

SVT, LLC, 724 F.3d 990, 995 (7th Cir. 2013) (quoting McGowan v. Deere & Co.,
581 F.3d 575, 579 (7th Cir. 2009) and stating that “the methods of proof and
elements of [a Section 1981] case are essentially identical” to those in a Title VII
case.”).
12

focus on the third element: whether the residents’ conduct was severe or
pervasive.
In May 2024, about a year after the defendant filed its motion, the
Seventh Circuit affirmed Hamilton Pointe. EEOC v. Vill. at Hamilton Pointe
LLC, 102 F.4th 387 (7th Cir. 2024). The Seventh Circuit upheld the district
court’s ruling that Black CNAs were not subjected to a hostile work
environment due to racial slurs and insults levied at them by residents of the
nursing home they worked in. Id. at 417. The Seventh Circuit based its ruling
on the fact that most of the comments came from residents suffering from
severe mental impairments:
[A] resident’s racist statement, although still very offensive, is not
entitled to the same weight as would be warranted if the same
statement was made by a co-worker. This conclusion is especially
true when the speaker is or could be perceived to be suffering from
a medical condition.
Id. (citing Cain v. Blackwell, 246 F.3d 758, 760 (5th Cir. 2001)). The Seventh
Circuit found that even though a resident’s repeated use of the n-word “was
certainly offensive,” the comments were not severe or pervasive enough to
establish a hostile work environment “given the nursing home context.” Id. at
421. The court also determined that there was no basis for employer liability in
a few situations where the employee did not report the offensive comments to
the employer. Id. at 422.
Hamilton Pointe requires that this court view J.G.’s comments in “the
nursing home context,” but even so, summary judgment on this claim is
premature. Although the undisputed facts show that J.G. made several racist
13

remarks to the plaintiff, including using the n-word toward her, the parties
dispute the extent to which J.G. had “mental health and developmental
disability type problems.” The Seventh Circuit relied on the fact that the
residents in Hamilton Pointe were suffering from “severe mental impairments”
when making the racist comments. Id. at 417. Here, the defendant’s proposed
facts are vague, stating only that J.G. “had mental health and developmental
disability type problems.” Dkt. No. 32 at ¶24. The defendant makes no
assertions about the severity of J.G.’s impairments. The plaintiff argues that
any impairments were not so severe as to render J.G. incapable of
understanding his own words. If J.G. was not suffering from a “severe mental
impairment,” a reasonable jury might determine that his multiple uses of the
n-word and other racial insults were severe or pervasive enough to establish a
hostile work environment. See Hrobowski v. Worthington Steel Co., 358 F.3d
473, 477 (7th Cir. 2004) (finding a work environment objectively hostile when
the plaintiff’s coworkers and supervisor used the n-word repeatedly); see also
Paschall v. Tube Processing Corp., 28 F.4th 805, 815 (7th Cir. 2022) (“There
may well be a situation in which the one-time use of the N-word can be found
to be severe enough to warrant liability.”).
The plaintiff also alleges that E.L. made racist comments to her, and the
undisputed facts show that E.L. was “cognitively intact.” Dkt. No. 32 at ¶¶51–
52. The parties dispute whether the plaintiff ever complained about E.L.’s
comments. If the plaintiff failed to do so, there would be no basis for employer
liability. But whether the plaintiff reported E.L.’s comments to the defendant is
14

a disputed material fact that that the court cannot resolve at summary
judgment.
Because a reasonable factfinder could find that J.G. and E.L.’s racebased comments were sufficiently severe or pervasive, the court will deny
summary judgment on the plaintiff’s hostile work environment claims.
B.

Discriminatory Discharge
1.

Parties’ Arguments

The defendant argues that the plaintiff cannot establish that she was
terminated for discriminatory reasons. Dkt. No. 22 at 13. It argues that the
defendant must establish that “1. She was a member of a protected class; 2.
She was meeting [the defendant’s] legitimate expectations; 3. She suffered an
adverse employment action; and 4. Similarly situated employees who were not
members of the protected class were treated more favorably.” Id. (citing Abebe
v. Health & Hosp. Corp. of Marion Cnty., 35 F.4th 601, 606 (7th Cir. 2022)).
The defendant contends that the plaintiff did not identify a proper
comparator—a similarly situated individual outside of the plaintiff’s protected
class who was treated more favorably than her. Id. at 14. The defendant states
that Banach’s investigation uncovered that the plaintiff committed three policy
violations, so the plaintiff was not meeting the defendant’s legitimate work
expectations. Id. The defendant argues that even if the plaintiff established a
prima facie case of discrimination, the policy violations were a legitimate, nondiscriminatory reason to terminate her, and the plaintiff cannot prove that that
reason was pretextual. Id. at 14–15. The defendant argues that the plaintiff
15

needed to present evidence that the defendant’s stated reasons for terminating
her were not true, but that she failed to do so. Id. at 15.
The plaintiff argues that she needs to present only enough circumstantial
evidence from which a reasonable jury could find that the defendant
discriminated against her because of her race. Dkt. No. 30 at 5 (citing Phillips
v. Int’l Bhd. of Elec. Workers, Case No. 08-cv-307, 2008 WL 5423188, at *5
(W.D. Wis. Dec. 30, 2008)). The plaintiff argues that her evidence includes the
suspicious timing of her termination. Id. at 5–6. She alleges that she worked
for the defendant for over four years and consistently received positive annual
reviews, but that one month after she complained about J.G.’s racist
comments, she suddenly was placed under investigation and terminated. Id.
The plaintiff argues that the defendant’s reasons for terminating her are
“factually baseless.” Id. at 6. She disputes all E.L.’s allegations and argues that
another CNA, Seara Jones, corroborated her. Id. at 6–9. She argues that the
allegation that she moved M.P. alone in violation of M.P.’s care card is not
supported by any evidence other than M.P.’s statement. Id. at 9–10. And the
plaintiff argues that she was not working on the day J.W. alleged that she
refused to assist J.W. by moving the bedside table. Id. at 10.
The plaintiff argues that when viewing together the suspicious timing
and factually baseless reasons for her termination, the facts give rise to an
inference that her race was a factor in her discharge. Id. at 10–11. She argues
that she need not provide particular pieces of evidence, such as a comparator
employee, in order to survive summary judgment. Id. at 11.
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2.

Analysis

At the summary judgment stage, a plaintiff making a Title VII or Section
1981 claim may use multiple approaches. She may choose to utilize the
McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–04 (1973). A plaintiff using the McDonnell Douglas
framework has the initial burden of establishing that she (1) belonged to a
protected class; (2) met her employer’s legitimate expectations; (3) suffered an
adverse employment action; and (4) was similarly situated to other employees
who were not members of the protected class and were treated better. David v.
Bd. of Trs. of Cmty. Coll. Dist. No. 50, 846 F.3d 216, 225 (7th Cir. 2017). If the
plaintiff satisfies that burden and proves a prima facie case, the burden shifts
to the employer to articulate a legitimate, nondiscriminatory reason for the
adverse employment action. Id. If the employer does so, the burden shifts back
to the plaintiff to show that the employer’s explanation is pretextual. Id.
But the Seventh Circuit has made clear that a plaintiff who eschews
McDonnell Douglas can support her discrimination claim with “direct or
circumstantial evidence that supports an inference of intentional
discrimination.” Joll v. Valparaiso Cmty. Schs.¸953 F.3d 923, 929 (7th Cir.
2020) (quotation omitted). Under this approach, the court “ask[s] whether the
totality of the evidence shows discrimination.” Igasaki v. Ill. Dep’t of Fin. & Pro.
Regul., 988 F.3d 948, 958–59 (7th Cir. 2021) (citing Ortiz v. Warner Enter.,
Inc., 834 F.3d 760, 765 (7th Cir. 2016)). “Evidence must be considered as a
whole, rather than asking whether a particular piece of evidence proves the
17

case by itself.” Ortiz, 834 F.3d at 765. The plaintiff’s brief states that she
intends to proceed with a claim using Ortiz’s “totality of the evidence” approach
rather than the McDonnell Douglas burden-shifting framework.
The plaintiff vigorously disputes the truth of the complaints residents
made about her care, and she presents some corroborating evidence of her
position from other CNAs. But the plaintiff cannot defeat summary judgment
simply by challenging the adequacy of the defendant’s investigation. Kariotis v.
Navistar Int’l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997). The defendant’s
“investigation was the reason given for the discharge, and ‘a reason honestly
described but poorly founded is not a pretext.’” Id. (quoting Pollard v. Rea
Magnet Wire Co., Inc., 824 F.2d 557, 559 (7th Cir. 1987)). The plaintiff needed
to challenge the honesty of the defendant’s stated reason for terminating her,
not the method or results of the investigation. Brill v. Lante Corp., 119 F.3d
1266, 1273 (7th Cir. 1997) (accuracy of employer’s investigation is not relevant
to pretext). The plaintiff did not do so; she disputed only the factual basis of the
investigation, not whether Banach, the decisionmaker, genuinely believed that
the plaintiff had committed multiple policy violations. Al aka-Muhammad v.
Marion Cnty. Juv. Det. Ctr., Case No. 15-cv-01495, 2017 WL 6055508, at *9
(S.D. Ind. Dec. 7, 2017) (quoting McClendon v. Ind. Sugars, Inc., 108 F.3d 789,
799 (7th Cir. 1997)) (“[I]t is not relevant whether [the employee] actually was
insubordinate [or otherwise violated her employer's policies]. All that is relevant
is whether [her] employer was justified in coming to that conclusion.”
(alterations in original)).
18

Because the plaintiff has not presented evidence that the defendant’s
stated reason for terminating her was pretextual, the court will grant summary
judgment for the defendant on the plaintiff’s discriminatory discharge claims.
C.

Retaliation
1.

Parties’ Arguments

The defendant argues that the plaintiff cannot show that her February 7,
2020 complaint or her statement that she intended to file a complaint with the
EEOC had a causal connection to her termination. Dkt. No. 22 at 16. The
defendant recounts that the plaintiff relies on the fact that she was terminated
just six weeks after her complaint but argues that that timing alone is not
enough to create an inference of retaliation. Id. (quoting Gracia v. Sigmatron
Int’l, Inc., 842 F.3d 1010, 1021 (7th Cir. 2016)). The defendant argues that it
terminated the plaintiff due to the complaints residents made about her care
and the associated policy violations revealed by the defendant’s investigation.
Id. at 16–17.
The plaintiff responds that suspicious timing is enough to establish a
reasonable inference of retaliation where, as here, the defendant had not
previously identified issues with the plaintiff’s performance. Dkt. No. 30 at 12
(citing Walker v. Bd. of Regents of the Univ. of Wis. Sys., 300 F. Supp. 2d 836,
844–45, 848, 862–63 (W.D. Wis. 2004)). She argues that she received high
marks on her performance evaluations for four years prior to March 2020. Id.
She maintains that just three months prior to the investigation, the defendant
had praised her performance and resident care in her annual review. Id. at 12–
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13. The plaintiff contends that the suspicious timing of her termination shortly
after her complaint of racial discrimination, combined with her previous
positive performance reviews, indicate that the defendant had a retaliatory
motive for her discharge. Id. at 13.
2.

Analysis

Title VII prohibits an employer from retaliating against an employee
“because [s]he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing.” Igasaki, 988 F.3d at 959
(quoting 42 U.S.C. § 2000e-3(a)). To defeat summary judgment, the plaintiff
must present evidence that “(1) [s]he engaged in an activity protected by the
statute; (2) [s]he suffered an adverse employment action; and (3) there is a
causal link between the protected activity and the adverse action.” Lewis v.
Wilkie, 909 F.3d 858, 866 (7th Cir. 2018).
The parties do not dispute that the plaintiff engaged in protected activity
on February 7, 2020 when she reported J.G.’s racist statements to Atkinson
and said that she intended to file a complaint with the EEOC. Nor do they
dispute that the plaintiff suffered an adverse action when the defendant
terminated her. The plaintiff’s claim hinges on whether there is a causal link
between the protected activity and the discharge. The plaintiff needed to offer
evidence that a retaliatory motive was a “but-for cause of the challenged
employment action.” Gracia v. SigmaTron Int’l, Inc., 842 F.3d 1010, 1019 (7th
Cir. 2016) (quoting Univ. of Tex. Sw Med. Ctr v. Nassar, 570 U.S. 338, 352
(2013)). “This requires proof that the unlawful retaliation would not have
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occurred in the absence of the alleged wrongful action or actions of the
employer.” Nassar, 570 U.S. at 360. “‘[R]etaliatory motive may be established
through circumstantial evidence such as suspicious timing, ambiguous
statements, evidence that the stated reason for the employment decision is
pretextual and’ other evidence from which an inference of discriminatory intent
might be drawn.” Gracia, 842 F.3d at 1019. “Although suspicious timing alone
is rarely enough to create an inference of retaliatory motive, it can sometimes
raise an inference of a causal connection, especially in combination with other
evidence.” Id. at 1021 (citing Magyar v. St. Joseph Reg’l Med. Ctr., 544 F.3d
766, 772 (7th Cir. 2008)).
The plaintiff asserts that her retaliation claim is based on “the suspicious
timing of her termination as well as the pretextual reasons given for her
termination, which were given on the heels of a positive performance review, all
of which taken together point directly to a retaliatory motivation for her
discharge.” Dkt. No. 30 at 13.2 The “pretextual” reasons to which the plaintiff
refers are disputed facts—E.L.’s allegation that the plaintiff transferred E.L. by
herself (which the plaintiff disputes); E.L.’s claim that the plaintiff denied her a
bedpan (which the plaintiff disputes); E.L.’s claim that the plaintiff made her
get up early on March 7, 2020 for no reason (which the plaintiff disputes);
M.P.’s claim that the plaintiff transferred her alone (which the plaintiff
2 She also challenges the factual basis for the defendant’s investigation, but as

discussed above, that cannot support a finding of pretext. See Castro v. DeVry
Univ., Inc., 786 F.3d 559, 581 (7th Cir. 2015) (explaining that the plaintiff
must “undermine the honesty” of the defendant’s stated explanation to
establish pretext in the retaliation context).
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disputes); and J.W.’s claim that the plaintiff refused to help move her bedside
table (which the plaintiff disputes). Id. at 6-11.
That leaves the combination of the suspicious timing and the positive
performance reviews. The undisputed facts show that around December 26,
2019, Atkinson completed the plaintiff’s annual performance review, rating the
plaintiff as meeting or exceeding the expectations of her position. Dkt. No. 36 at
¶¶3-4. Atkinson wrote:
[Plaintiff], you are incredibly knowledgeable regarding Clement
Manor Procedures and are such a wonderful resource. Thank you
for takin the lead and ensuring proper workflow and going above
and beyond to care for your residents.
Remember to follow the care card to ensure proper interventions are
in place. Be cognizant of behavior and body language during
uncomfortable situations. Thank you for all of the wonderful care
that you provide.
Id. at ¶5. Although the parties dispute whether the plaintiff reported J.G.’s
racial slurs before the performance review, they do not dispute that on
February 7, 2020—six weeks later—the plaintiff reported J.G.’s conduct to
Atkinson. Dkt. No. 32 at ¶22. Thirty-three days later—on March 11, 2020—a
nurse notified Atkinson about E.L.’s complaints about the plaintiff (complaints
that the plaintiff disputes). Id. at ¶41. Aliota began the investigation the same
day, id. at ¶47, and the defendant terminated the plaintiff on March 16, 2020,
id. at ¶71.
So—the plaintiff was terminated about ten weeks after a generally
positive performance review, about five weeks after she reported J.G.’s racial
slurs and approximately a week after Atkinson was notified of E.L.’s complaint
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against the plaintiff. The plaintiff asserts that “the presumption of pretext
based on suspicious timing of an adverse action is enhanced when the
defendant had not previously expressed displeasure with plaintiff’s
performance.” Dkt. No. 30 at 12 (citing Walker, 300 F. Supp. 2d at 844-45,
848, 862-63); Culver v. Gorman, 416 F.3d 540, 546 (7th Cir. 2005); Lang v. Ill.
Dep’t of Children and Family Serv., 361 F.3d 416, 418 (7th Cir. 2004)).
Although the plaintiff is correct that the appellate court has said that “an
employer’s sudden dissatisfaction with an employee’s performance after that
employee engaged in a protected activity may constitute circumstantial
evidence of causation,” Culver, 416 F.3d at 546 (citing Lang, 361 F.3d at 41921), that does not accurately describe the facts of this case. Unlike the
defendant in Culver, the defendant here did not terminate the plaintiff seventytwo hours after her protected activity, with no intervening events. Here, the
employer terminated the plaintiff five to six weeks after she reported J.G.’s
conduct, but more to the point, in the wake of E.L.’s complaints and an
investigation into those complaints. The event that prompted the investigation
was E.L.’s complaint, which was reported to the defendant weeks after both the
positive performance review and the plaintiff’s report of J.G.’s conduct.
Although the plaintiff disputes E.L.’s claims, under these circumstances the
“suspicious timing” and the prior positive performance reviews combined are
not enough to show a causal link between her report of J.G.’s conduct and her
termination.

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The court will grant summary judgment for the defendant on the
plaintiff’s retaliation claims.
D.

Punitive Damages
1.

Parties’ Arguments

The defendant argues that the plaintiff has not established that the
defendant acted with malice or reckless indifference for the plaintiff’s rights
under Title VII and §1981 to justify an award of punitive damages. Dkt. No. 22
at 17. The defendant contends that it acted swiftly to address the plaintiff’s
complaint about J.G., initiating behavior monitoring and sending the social
work team to discuss the racist comments with J.G. Id. at 18. Further, the
defendant says that it completed an independent investigation of the residents’
complaints about the plaintiff’s care and determined that she had violated
company policy. Id. The defendant argues that it had an independent legal duty
to investigate and report complaints of possible abuse and neglect. Id.
The plaintiff asserts that the defendant failed to respond to complaints
about Title VII violations despite knowing its legal obligation to investigate. Dkt.
No. 30 at 14. The plaintiff argues that the defendant also attempted to “chill”
the plaintiff’s right to file an EEOC charge by telling her it would go nowhere.
Id. at 14–15. She argues that the issue of punitive damages should go to trial,
where the defendant would bear the burden of showing that it engaged in good
faith efforts to implement an antidiscrimination policy. Id. at 15.

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2.

Analysis

Because the court is dismissing the plaintiff’s discrimination and
retaliation claims arising out of her termination, the court need address only
whether the plaintiff can seek punitive damages for her hostile work
environment claim. “Punitive damages are available under Title VII when a
plaintiff demonstrates that the defendant engaged in intentional discrimination
‘with malice or with reckless indifference to the federally protected rights of an
aggrieved individual.’” EEOC v. Mgmt. Hosp. of Racine, Inc., 666 F.3d 422,
437–38 (7th Cir. 2012) (quoting 42 U.S.C. §1981a(b)(1)). The plaintiff must
show that “(1) the employer acted with the requisite mental state—i.e., that it
acted ‘in the face of a perceived risk that its actions [would] violate the federal
law’; and (2) the employer’s managerial agent recklessly disregarded the
plaintiff's federally protected rights while acting within the scope of
employment.” Id. at 438 (quoting Kolstad v. Am. Dental Ass’n, 527 U.S. 526,
535–36, 543 (1999)). The burden then shifts to the employer to “show that it
engaged in good faith efforts to implement an anti-discrimination policy.” Id.
(citing Kolstad, 527 U.S. at 545).
The undisputed facts show that Atkinson took steps to address J.G.’s
racist comments on the same day that the plaintiff reported them to her. But
the plaintiff asserts that the defendant failed to respond to her prior complaints
about Title VII violations. The parties dispute whether the plaintiff ever made
any prior complaints. The court cannot resolve that dispute on summary
judgment. If the plaintiff indeed complained about residents using racial slurs
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toward her and the defendant did not respond, a reasonable jury could find
that the defendant acted with reckless indifference towards the plaintiff’s
rights.
The court will deny summary judgment on the plaintiff’s punitive
damages claim.
IV.

Conclusion
The court GRANTS the defendant’s motion for summary judgment as to

the plaintiff’s third, fourth, fifth and sixth causes of action; those causes of
action are DISMISSED WITH PREJUDICE. The court DENIES the defendant’s
motion for summary judgment as to the plaintiff’s first and second causes of
action and her punitive damages claim. Dkt. No. 17.
The court will issue a separate order setting a status conference with the
parties to discuss the next steps in this case.
Dated in Milwaukee, Wisconsin this 12th day of March, 2025.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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