Download Regular Type; Download Large Type; Read after the jump. Due in class next Wednesday, April 9.
You have excerpts of an Affiadvit; the paragraphs are numbered. You have excerpts of a Deposition; the questions and corresponding answers are numbered (Q1 + A1; Q2 + A2; etc.). Please cite to evidence and be specific.
Pay attention to the role you are told to play.
Essay # 7: (Sec. B):
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
STANFORD CLACKS, )
Plaintiff )
v. ) 25-cv-0714
KWIK TRIP, INC., )
Defendant )
Complaint
* * *
7. Plaintiff suffered racial harassment at the hands of his co-employees, who used racist epithets, threatened him, and touted their connections to white supremacists.
8. Defendant failed to take sufficient or appropriate action in response to that harassment.
* * *
Cause of Action: 42 U.S.C. § 1981
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Substantive Law
42 U.S.C. § 1981:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens.
(b) “Make and enforce contracts” defined
For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
Yannick v. Hanna Steel Corp. (7th Cir. 2011):
“Make and enforce contracts” in § 1981 includes freedom from racial harassment. To prevail on a claim of racial harassment under § 1981, plaintiff must show: 1) the work environment was objectively and subjectively offensive; 2) the harassment was because of the plaintiff’s race; 3) the conduct was severe or pervasive; and 4) there is a basis for employer liability. To survive summary judgment on a § 1981 racial harassment claim, plaintiff must show a genuine dispute of fact as to each element.
Pachall v. Tube Processing Corp. (7th Cir. 2022):
Employer liability for co-worker harassment under § 1981 attaches when the employer is negligent in discovering, responding to, or remedying harassment. The employer discharges its legal duty—the employer is not liable—if it takes reasonable steps to discover and rectify racial harassment by one employee against another employee. Reasonable steps must protect the victim from further harassment at the hands of the problematic co-workers and must be proportionate to the harm the employee suffered.
Parkins v. Civil Constructors of Ill., Inc. (7th Cir. 1998)
Because employers cannot be aware of every impropriety by every low-level employee, notice or knowledge of harassment is a prerequisite for liability. The employee must provide to a person in a supervisory position enough specific information, such that a reasonable employer would be aware that the employee was harassed, that the harassment was racial in nature, and that the employer is able to act to rectify the harassment.
Cooper-Schut v. Visteon Auto Sys. (7th Cir. 2004)
It is not enough that the employer (or a supervisor) knows of general friction or conflict between employees; it must be on notice of serious and severe harassment that is racial in nature.
Record Evidence
Undisputed Facts
1. Stanford Clacks began training as a semi-truck driver for Kwik Trip, Inc. in June 2018.
2. As part of the training, trainees shadow a series of drivers on delivery routes for one-month periods. Clacks participated in this aspect of training.
3. Clacks completed his first stint of training without incident in July 2018.
4. Clacks encountered problems during his second stint, with Tom Roerkohl, beginning in August 2018.
5. Upon learning of conflicts between Clacks and Roerkohl, Supervisor Sean Clements reassigned Clacks to another veteran driver.
6. Clacks never crossed paths with Roerkohl again.
7. Clacks was assigned to drive with Brett Nechkash in August 2018.
8. Clacks encountered problems with Nechkash, who also engaged in racial harassment.
9. Following reports of Nechkash’s racial harassment, Clements reassigned Clacks to another trainer for his final day of training in September 2018.
10. Kwik Trip commenced an investigation of Nechkash in September 2018, immediately after transferring Clacks to a new driver; it completed the investigation in November 2018. The investigation confirmed Clacks’ allegations of racial harassment, and Kwik Trip terminated Nechkash’s employment in November 2018.
11. After completing training in October 2018, Clacks began working his delivery route independently and without incident.
Deposition of Stanford Clacks (Excerpt—relevant provisions only)
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Q1; What did you tell Clements when you reported problems with Roerkohl?
A1: I said he was an awful trainer.
Q2: Did you mention or provide details of racial harassment or the racial nature of his statements?
A2: No.
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Q3: How long were you scheduled to shadow Nechkash?
A3: For about a month, starting sometime in August 2018. It was supposed to go from August into September.
Q4: Did you ever complain to a supervisor about Nechkash’s behavior?
A4: Yeah. I told Clements about it. And I described how the comments and abuse were racist.
Q5: When did you tell him about this?
A5: During the last two or three days of that training period, so sometime in early September 2018.
Q6: What did Clements do?
A6: He reassigned me to trail a different driver for my final day of training.
Q7: At that point, did you believe that Nechkash was in your rearview mirror?
A7: Yes.
Affidavit of Stanford Clacks
1. When I reported Tom Roerkohl’s misconduct to Sean Clements, I detailed the racially motivated and explicit nature of that harassment. I told him Roerkohl used racist epithets, threatened me, touted his connections to white supremacists, and asked questions about my wife’s race.
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16. I told Sean Clements about my problems with Brett Nechkash three days after I started driving with him.
17. Clements and I had almost-daily conversations about Brett Nechkash and his racial harassment for almost the entire month-long period during I was assigned to shadow Nechkash.
18. Clements told me to put up with Nechkash’s abuse until the end of my month-long training period with him.
19. Clements finally moved me away from Nechkash for the final day of that round of training.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
STANFORD CLACKS, )
Plaintiff )
v. ) 25-cv-0714
KWIK TRIP, INC., )
Defendant )
Defendant’s Motion for Summary Judgment on Plaintiff’s Claim
Defendant concedes there is a genuine dispute as to the first three elements of a § 1981 racial harassment claim. But there no genuine dispute on the fourth element, as to whether there can be employer liability. Defendant is therefore entitled to summary judgment on the claim.
Plaintiff has offered no competent evidence showing Kwik Trip was on specific notice of racial harassment or that it failed to reasonably discover and appropriately and immediately rectify that racial harassment. Because plaintiff fails on this fourth element, summary judgment should be granted.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
STANFORD CLACKS, )
Plaintiff )
v. ) 25-cv-0714
KWIK TRIP, INC., )
Defendant )
Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment
Plaintiff identifies two instances of racial harassment. The summary judgment record allows a reasonable jury to find that Plaintiff reported each incident of racial harassment to a supervisory employee and that the supervisor failed to take appropriate remedial steps given awareness of the racial harassment.
The incidents are:
1) Harassment by Tom Roerkohl. Defendant imposed an insufficient punishment, given the egregious racist nature of the harassment.
2) Harassment by Brett Nechkash. Defendant waited almost a full month to act in response to the harassment and imposed an insufficient sanction given the long-term and egregious racist nature of the harassment.
Defendant concedes there is a genuine dispute as to the other elements. Given the genuine dispute as to this fourth element, summary judgment should be denied.
For the court, decide the motion.
