Aug. 13, 2024 – A company that twice promptly reassigned an employee after he’d complained about racial harassment by his supervisors did not create a hostile work environment, the U.S. Court of Appeals for the Seventh Circuit has ruled in Clacks v. Kwik Trip, Inc., No. 23-1983 (July 24, 2024).

In June 2018, Kwik Trip, Inc. (Kwik Trip) hired Stanford Clacks, a Black man, as a truck driver at its distribution center in La Crosse.

Clacks’s second trainer, Tom Roerkohl, used racial slurs, probed about the racial identity of Clacks’s wife, and talked up his links to white supremacists.

Clacks reported Roerkohl’s behavior to Sean Clements, a supervisor. Clacks didn’t specify the racial nature of Roerkohl’s behavior.

More Harassment

Clements reassigned Clacks to Brett Nechkash. Nechkash also used racial slurs with Clacks and threatened him.

Clacks reported Nechkash’s harassment to Clements. This time, Clacks was specific about the racial nature of the harassment.

Clements reassigned Clacks to a fourth trainer.

A Third Harasser

From time to time, Clacks would encounter Nechkash at Kwik Trip’s distribution center, and Nechkash would make derogatory remarks to him.

Laren Kruse, who worked as a shuttle driver at the distribution center, also used racial slurs to refer to Clacks.

Pandemic Leave

Clark went on voluntary pandemic leave in March 2020.

Near the end of the leave period, Clacks sent an email to Kwik Trip’s human resources department complaining about the racial harassment he’d experienced at the company.

Kwik Trip hired a third-party investigator to look into Clacks’s claims.

Third-party Investigator

The investigator substantiated Clacks’s claims, and Kwik Trip fired Roerkohl, Nechkash, and Kruse.

When Kwik Trip offered Clacks a return to his original position, he said he was afraid the fired employees would retaliate against him.

Kwik Trip and Clacks talked about him maybe returning to a different job. The company offered Clacks a severance package, but he turned it down.

Kwik Trip concluded that Clacks had resigned because he’d said he was afraid to return to his original position and because he’d turned down the severance package.

Lawsuit Follows

Clacks sued Kwik Trip in the U.S. District Court for the Western District of Wisconsin under 42 U.S.C. section 1981.

Clacks claimed Kwik Trip had maintained a hostile work environment, retaliated against him by firing him for complaining about the harassment, and passed him over for promotion in favor of white drivers.

The district court deemed one of Clacks’s affidavits partially inadmissible under the sham affidavit rule and granted Kwik Trip’s motion for summary judgment.

Clacks appealed.

Sham Affidavit Rule

Writing for a three-judge panel, Judge Thomas Kirsch explained that the sham affidavit rule bars a litigant from submitting an affidavit that contradicts his or her deposition or other sworn testimony.

The purpose of the rule, Kirsch noted, was to prevent a litigant from creating a genuine issue of material fact from nothing.

Clacks argued that the district court abused its discretion by declining to consider his affidavit regarding his complaints about Roerkohl.

But Judge Kirsch pointed out that the affidavit stated that Clacks gave Clements details about the racial harassment, but in the deposition, Clacks testified that he’d only told Clements that Roerkohl was an awful trainer.

“Clacks’s affidavit therefore directly contradicted his earlier testimony on what he told Clements about Roerkohl, and the district court did not abuse its discretion in disregarding it,” Kirsch wrote.

Clacks argued that the district court should have considered his affidavit regarding his complaints about Nechkash. In that affidavit, Clacks said that he’d complained to Clements about Nechkash during the early part of his training period.

But Judge Kirsch noted that in a deposition, Clacks testified that he complained to Clements about Nechkash only in the last few days of the training period, after which Clements reassigned him to a fourth trainer for the last day of training.

“Thus, even if not directly contradicting his deposition testimony, Clacks’s affidavit … added new, inconsistent details regarding his complaints about Nechkash that painted Kwik Trip as wholly negligent in handling and redressing his complaints,” Kirsh wrote.

Thus, Judge Kirsch concluded, the district court was right to exclude the applicable parts of the affidavit.

No Hostile Environment

Regarding the district court’s grant of summary judgment, the panel concluded that Clacks had failed to show that Kwik Trip had created a hostile work environment.

“With respect to each episode of harassment in the record, Kwik Trip either was never put on notice of racial harassment or, when it was on notice, promptly implemented an adequate remedy that discharged its legal duty,” Kirsch wrote.

Kwik Trip may have been on notice that Clacks and Roerkohl weren’t getting along, Judge Kirsch reasoned, but it wasn’t on notice about a hostile environment because Clacks never told Clements about the racial nature of Roerkohl’s behavior.

“And even if Clacks’s complaint about Roerkohl provided adequate notice of a hostile work environment, Kwik Trip discharged its legal duty by promptly reassigning Clacks to a new trainer,” Kirsch wrote.

The same was true for Nechkash’s harassment, Judge Kirsch concluded, because Kwik Trip replaced Nechkash as Clacks’s trainer upon learning of Nechkash’s racial harassment.

Regarding the fact that Clacks would later sometimes encounter Nechkash at the distribution center, “the law does not require Kwik Trip to eliminate all possible contact between the two employees,” Kirsch wrote.

No Retaliatory Motive

The panel concluded that no jury could find that Kwik Trip harbored a retaliatory motive against Clacks.

“The record suggests just the opposite,” Judge Kirsch wrote. “Kwik Trip consistently remedied Clacks’s issues with his coworkers … And finally, Kwik Trip asked Clacks to return to work after the investigation and discharge of the employees.”