Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—S.D. Ind.: Gay employee’s HWE claim proceeds against assisted living facility, (Sep 12, 2025)

By Ursula Furi-Perry, J.D., MBA

A reasonable jury could conclude that ongoing comments by his supervisor, coupled with baseless and manufactured write-ups, were sufficiently pervasive to support his claim.

In a lawsuit in which a gay man who worked as a dietary manager for an assisted living center alleged his former employer subjected him to a hostile work environment and constructive discharge, including repeated instances of harassment by his direct supervisor, an Indiana federal court denied the employer’s motion for summary judgment. It concluded that a reasonable jury could determine that the alleged conduct at issue here was sufficiently pervasive to support the hostile work environment claim. The court noted a series of ongoing comments by the supervisor, indicating that she not only harbored hostility towards him because of his sexual orientation but also openly expressed her disapproval to the plaintiff and his peers. Moreover, a reasonable jury could conclude that the supervisor targeted the plaintiff with baseless and manufactured write-ups, including accusations of resident abuse, which were neither investigated nor reported to the appropriate state agency (Zollman v. Magnolia Health Systems XI, LLC, No. 4:24-cv-00071-SEB-KMB (S.D. Ind. Sept. 10, 2025)).

A dietary manager for an assisted living facility in Indiana that was operated by Magnolia Health Systems XI, LLC, who began there working in January 2022, alleged repeated instances of harassment based on his sexuality, most involving his direct supervisor. According to the record, the supervisor questioned whether the employee’s marriage to his husband was “real,” suggested replacing him with a “Christian” or “straight person,” and made disparaging comments such as asking him “what are you, a little housewife?” when he struggled with a maintenance task.

Witness testimony confirmed additional remarks, including the supervisor’s belief that “gay people will go to hell” and questions about “who is more of the man” in the dietary manager’s marriage. Coworkers also testified that the supervisor criticized the dietary manager’s cooking by attributing it to his sexual orientation and generally maintained a hostile demeanor toward him.

Hung up on by HR. Although the employer’s employee handbook outlined anti-discrimination procedures and a hotline for complaints, the employee testified that when he tried to use these channels he was brushed aside, including once being hung up on by the HR director. He nonetheless reported several concerns to the corporate dietary manager, who corroborated that the employee consistently described harassment beginning early in his tenure.

Write-ups. During 2023, the plaintiff received three disciplinary write-ups—one for refusing a food request that was unavailable, another for discarding reheated eggs, and others vaguely tied to “resident abuse.” The employer’s policy required suspension and state reporting of abuse allegations, but neither occurred. The third write-up, issued October 19, 2023, recommended termination. That same day, the employee resigned, stating that he felt termination was imminent.

The employee filed an EEOC charge in November 2023, later amended, naming similarly situated employees who were allegedly treated better by the employer, including two activities directors who were in management roles. After receiving a right-to-sue letter, he filed suit in the U.S. District Court for the Southern District of Indiana, New Albany Division, alleging that he was subjected to a hostile work environment and that he was constructively discharged because of his sexual orientation, in violation of Title VII. The employer counterclaimed for attorney’s fees, arguing that the employee’s claims were frivolous, but the counterclaim was dismissed. The employer then moved for summary judgment.

Repeated comments. The only element in contention in the employee’s claim was whether the alleged harassment was so severe or pervasive as to constitute a hostile work environment. The employer argued that because the employee had not been physically threatened or humiliated, the conduct was not severe enough. The court rejected this narrow reading, noting that while isolated offensive remarks may not suffice, the employee presented evidence of repeated derogatory comments from his supervisor, pressure to resign, interference with his job duties, and potentially manufactured disciplinary actions, which were corroborated by coworkers. The court concluded that a reasonable jury could determine that the alleged conduct was sufficiently pervasive to support the employee’s hostile work environment claim. “Indeed, the record reveals a series of ongoing comments by [the supervisor], indicating that she not only harbored hostility towards him because of his sexual orientation but also openly expressed her disapproval to [the employee] and his peers,” the court explained.

Manufactured write-ups. Moreover, the employee adduced evidence from which a reasonable jury could determine that he was targeted by the supervisor “with baseless and manufactured write-ups, including accusations of resident abuse, which [the supervisor] confirms in her deposition testimony were neither investigated nor reported to the appropriate state agency, as [the employer’s] policies require.”

On the constructive discharge claim, the court noted two possible theories: resignation due to unbearable harassment or resignation because termination was imminent. The court emphasized the undisputed fact that the employee resigned the same day that his supervisor issued his third disciplinary write-up, which, by company policy, warranted termination. A jury could reasonably conclude that resignation was forced because discharge was inevitable, the court held.

Lastly, the court rejected the employer’s argument for judicial estoppel, noting no legal or factual basis.

The case is No. 4:24-cv-00071-SEB-KMB.

Judge: Barker, S.

Attorneys: Andrew Dutkanych, III (Biesecker Dutkanych & Macer) for Douglas Zollman. Richard Bernard Kaufman (Richard B. Kaufman Attorney at Law) for Magnolia Health Systems XI, LLC.

Companies: Magnolia Health Systems XI, LLC

Cases: Discrimination SexDiscrimination Discharge IndianaNews