Stanford Clacks v. Kwik Trip, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1983
STANFORD C LACKS ,
Plaintiff-Appellant,
v.
KWIK T RIP, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:21-cv-611-jdp — James D. Peterson, Chief Judge.
____________________
A RGUED A PRIL 15, 2024 — D ECIDED J ULY 24, 2024
____________________
Before KIRSCH , P RYOR , and KOLAR , Circuit Judges.
KIRSCH , Circuit Judge. In 2018, Stanford Clacks, an African
American man, began working as a truck driver for Kwik
Trip, Inc. During his employment, he was racially harassed
by fellow employees. While Clacks was on COVID-19 pan-
demic leave, Kwik Trip investigated his complaints and veri-
fied the harassment allegations. In response, Kwik Trip fired
the offending employees. Kwik Trip then asked Clacks to re-
turn to his previous job, or alternatively, to accept a severance

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2 No. 23-1983
package. Clacks refused both offers. Clacks then sued Kwik
Trip under 42 U.S.C. § 1981, alleging that Kwik Trip (1) sub-
jected him to a hostile work environment, (2) failed to pro-
mote him based on his race, and (3) retaliated against him.
The district court granted summary judgment to Kwik Trip
on all claims. In doing so, it applied the sham-affidavit rule to
disregard an affidavit submitted by Clacks in his opposition
to summary judgment. Clacks now appeals the grant of sum-
mary judgment as to his hostile work environment and retal-
iation claims. Because the district court properly applied the
sham-affidavit rule, and because Clacks did not present suffi-
cient evidence for either of his substantive claims, we affirm.
I
Although we ordinarily take the facts in the light most fa-
vorable to the party opposing summary judgment, as we dis-
cuss further below, the district court properly excluded por-
tions of Stanford Clacks’s affidavit under the sham-affidavit
rule. Therefore, we do not take those facts as true on appeal.
Clacks began training as a semi-truck driver for Kwik
Trip, Inc. in June 2018. As part of his training, Clacks shad-
owed a series of veteran drivers on delivery routes. Clacks
completed the first stint of his training without incident, but
problems arose between Clacks and his second trainer, Tom
Roerkohl.
It is undisputed that Roerkohl racially harassed Clacks
during his training. Roerkohl degraded Clacks with racial ep-
ithets, probed about the race of Clacks’s wife, and touted his
connections to white supremacists around Clacks. Clacks
eventually reported Roerkohl to his supervisor, Sean Clem-
ents. Clacks described Roerkohl as an awful person to work

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No. 23-1983 3
with and requested a different trainer, but he did not detail
the racial undertones of Roerkohl’s misconduct. In response
to Clacks’s request, Clements reassigned him to another vet-
eran driver, Brett Nechkash. Clacks never again crossed paths
with Roerkohl.
Problems began immediately between Nechkash and
Clacks. Nechkash, like Roerkohl, degraded Clacks with racial
epithets and otherwise threatened him. Again, Clacks com-
plained to Clements, but this time he specified that the har-
assment was based on his race. And again, Clements reas-
signed Clacks to another trainer for one final day of training,
which Clacks completed without issue.
After Clacks completed training and began working his
route independently, he continued to sporadically encounter
racial harassment on the job. For example, he would some-
times still see Nechkash at the start of his shift in Kwik Trip’s
distribution center, and Nechkash would make derogatory
remarks. Further, at an employee meeting in 2019, Nechkash
handed Clacks a note that said, “[Y]oure [sic] the only one
here leave,” which he believes referred to his race, as he was
the only African American driver at the meeting. Clacks
brought the note to the attention of some other supervisors,
Jason Pitts and Jeremy Renner, though there is no evidence
that he expressed to either of them his belief that the note was
racially motivated. Renner was apologetic, and he told Clacks
that it was probably just a distasteful joke that he should ig-
nore. Clacks had problems with another coworker too: Laren
Kruse, a shuttle driver who worked at the distribution center,
would also refer to Clacks with racial epithets, though Clacks
testified that he did not “have a huge issue” with Kruse. Ulti-
mately, this conduct led Clacks to set up a meeting with

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4 No. 23-1983
fellow drivers to address some of his issues at work. Accord-
ing to Clacks, this meeting went well, and his situation at
Kwik Trip improved as a result.
In March 2020, Clacks went on voluntary pandemic leave.
As the leave neared its end, Clacks sent an email to Kwik
Trip’s Human Resources department complaining of the ra-
cial harassment he suffered throughout his employment. A
member of the department, Ashley Callaway, followed up
with Clacks, leading to a phone call that included Callaway,
Clacks, and a transportation director, Mike Krajewski. During
this phone call, Clacks discussed the use of racial epithets by
his colleagues and the crude note he received at the employee
meeting. Shortly thereafter, Clacks sent a letter to Kwik Trip
summarizing his complaints. This letter prompted Kwik Trip
to hire a third-party investigator, Mindy Rowland, to verify
Clacks’s claims of racial discrimination. While the investiga-
tion was pending, Kwik Trip pushed back Clacks’s original
July 31 return date. Rowland completed the investigation in
early August.
Rowland’s investigation substantiated Clacks’s claims
against Roerkohl, Nechkash, and Kruse. Accordingly, Kwik
Trip fired all three employees. Callaway and Krajewski then
called Clacks to discuss his future at Kwik Trip. They offered
Clacks the opportunity to return to his original position, but
Clacks indicated that he was scared to do so, fearing retalia-
tion from the discharged employees. The parties then dis-
cussed the possibility of Clacks returning to a different role,
though Clacks testified that Kwik Trip ultimately did not pro-
vide him with additional information about these roles. Kwik
Trip also offered Clacks a severance package, but he declined.
Kwik Trip interpreted Clacks’s fear of returning to work and

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No. 23-1983 5
his rejection of a severance package as a resignation. Thereaf-
ter, Clacks did not return to Kwik Trip in any capacity.
Clacks sued Kwik Trip under 42 U.S.C. § 1981, alleging
that (1) he was a victim of a hostile work environment; (2)
Kwik Trip wrongly retaliated against him by ending his em-
ployment following his complaints; and (3) he was wrong-
fully passed up for promotion in favor of white drivers. Kwik
Trip moved for summary judgment on all claims. In his re-
sponse opposing summary judgment, Clacks submitted an af-
fidavit that the district court deemed partially inadmissible
under the sham-affidavit rule. The district court then granted
summary judgment in full for Kwik Trip, and Clacks ap-
pealed.
II
We first address Clacks’s argument that the district court
misapplied the sham-affidavit rule. As a preliminary matter,
Kwik Trip argues that Clacks has waived his argument on ap-
peal because he did not file a surreply to Kwik Trip’s sum-
mary judgment reply, wherein the sham-affidavit issue was
first raised. But “[w]e have previously held that, when local
rules do not permit filing a surreply as of right, a party does
not waive an argument for purposes of appeal by failing to
seek leave from the district court to raise the argument in a
surreply.” Bourgeois v. Watson, 977 F.3d 620, 631 (7th Cir.
2020). Here, the district court’s local rules did not allow for
the filing of a surreply as a matter of right, instead requiring
permission from the court that would only be granted in
“rare, unusual situations.” W.D. Wis. Judge-Specific Proce-
dures for Judge Peterson, at 6. Therefore, Clacks has not
waived his challenge to the district court’s application of the
sham-affidavit rule.

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6 No. 23-1983
We review a district court’s application of the sham-affi-
davit rule for an abuse of discretion, James v. Hale, 959 F.3d
307, 314 (7th Cir. 2020), which means that “the district court’s
decision is to be overturned only if no reasonable person
would agree with the trial court’s ruling,” Griffin v. Foley, 542
F.3d 209, 218 (7th Cir. 2008). The sham-affidavit rule “prohib-
its a party from submitting an affidavit that contradicts the
party’s prior deposition or other sworn testimony” so that a
“genuine issue of material fact cannot be conjured out of noth-
ing.” Hale, 959 F.3d at 316 (emphasis in original) (quotation
omitted). Though the rule should be applied with “great
care,” Castro v. DeVry Univ., Inc., 786 F.3d 559, 571 (7th Cir.
2015), “even affidavits that are not directly contradictory may
be excluded under th[e] rule,” Hickey v. Protective Life Corp.,
988 F.3d 380, 389 (7th Cir. 2021). In particular, courts may dis-
regard affidavits that add new factual details not previously
disclosed in deposition testimony when those details seek to
undo the effects of the prior testimony and manufacture a dis-
pute to get past summary judgment. See Buckner v. Sam’s Club,
Inc., 75 F.3d 290, 293 (7th Cir. 1996) (affirming application of
sham-affidavit rule where the plaintiff, who fell after tripping
over an object, described the object vaguely in her initial dep-
osition, but then provided more detail in a subsequent affida-
vit that tied the object directly to the defendant’s store).
Clacks first argues that the district court abused its discre-
tion by not considering his affidavit as to his complaints about
Roerkohl. We disagree. According to his affidavit, when
Clacks reported Roerkohl’s misconduct to Clements, he pro-
vided extensive details as to the racially motivated harass-
ment he suffered. Yet, in his earlier deposition, Clacks testi-
fied that he only told Clements that Roerkohl was an awful
trainer, and he conceded that he withheld additional details

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No. 23-1983 7
of racial harassment. Clacks’s affidavit therefore directly con-
tradicted his earlier testimony on what he told Clements
about Roerkohl, and the district court did not abuse its discre-
tion in disregarding it.
Second, Clacks similarly argues that the district court
should have considered his affidavit as to his complaints
about Nechkash. Specifically, his affidavit described a pro-
longed grievance process, where he began complaining to
Clements about Nechkash early on in his training, and where
Clements essentially brushed aside his concerns and asked
him to “put up” with Nechkash’s abuse. But Clacks’s earlier
deposition testimony told a different story. There, he was
asked whether he ever complained to Clements about
Nechkash. In response, Clacks only testified that he com-
plained to Clements in the last few days of his training and
that Clements then reassigned him to a new trainer for one
final day. And when asked whether Nechkash was in his
“rearview mirror” once he reached out to Clements, Clacks
responded affirmatively. Thus, even if not directly contradict-
ing his deposition testimony, Clacks’s affidavit, like the affi-
davit in Buckner, 75 F.3d at 293, added new, inconsistent de-
tails regarding his complaints about Nechkash that painted
Kwik Trip as wholly negligent in handling and redressing his
complaints. The district court reasonably perceived these in-
consistencies as an attempt by Clacks to skirt summary judg-
ment, particularly on his hostile work environment claim, and
excluded the applicable portions of his affidavit. Here too, the
district court did not abuse its discretion.
III
We turn to the district court’s summary judgment order,
which we review de novo, construing the record (minus the

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8 No. 23-1983
facts excluded under the sham-affidavit rule) in the light most
favorable to Clacks and drawing all reasonable inferences in
his favor. Weaver v. Champion Petfoods USA Inc., 3 F.4th 927,
934 (7th Cir. 2021). Summary judgment is appropriate when
there is no genuine issue of material fact, and the moving
party is entitled to judgment as a matter of law. Id. On appeal,
Clacks only challenges the district court’s grant of summary
judgment for Kwik Trip on his hostile work environment and
retaliation claims.
A
Clacks brought his hostile work environment claim under
42 U.S.C. § 1981. We analyze § 1981 discrimination claims in
the same manner as claims brought under Title VII of the
Civil Rights Act, 42 U.S.C. §§ 2000e et seq. Yancick v. Hanna
Steel Corp., 653 F.3d 532, 544 (7th Cir. 2011). To survive sum-
mary judgment, Clacks needed to show a genuine dispute of
fact on four elements: (1) his work environment was both ob-
jectively and subjectively offensive; (2) race must have been
the cause of the harassment he suffered; (3) the conduct was
severe or pervasive; and (4) there is a basis for employer lia-
bility. Id. The district court found genuine disputes of material
fact as to the first three elements but granted summary judg-
ment to Kwik Trip on the fourth element, finding that no rea-
sonable jury could attach employer liability to Kwik Trip. We
agree.
An employer’s liability for a hostile work environment
claim depends on whether the harasser was the victim’s su-
pervisor or, as here, merely a co-employee. Paschall v. Tube
Processing Corp., 28 F.4th 805, 813 (7th Cir. 2022). When the
harasser is a co-employee, the employer is liable “only when
the employee shows that her employer has been negligent

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No. 23-1983 9
either in discovering or remedying the harassment.” Id.
(cleaned up). Thus, the employer’s legal duty in co-employee
harassment cases is discharged “if it takes ‘reasonable steps to
discover and rectify acts of [racial] harassment of its employ-
ees.’” Id. (quotation omitted). Because we do not expect em-
ployers to be aware of every impropriety committed by every
low-level employee, “notice or knowledge of the harassment
is a prerequisite for liability.” Parkins v. Civil Constructors of
Ill., Inc., 163 F.3d 1027, 1035 (7th Cir. 1998). And this notice
must be specific. When an employee reports harassment to
the employer, the employee must provide “enough infor-
mation to make a reasonable employer think there was some
probability that she was being sexually [or racially] har-
assed.” Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 426 (7th
Cir. 2004) (alteration in original) (quotation omitted).
Clacks cannot show that Kwik Trip is liable for a hostile
work environment. With respect to each episode of harass-
ment in the record, Kwik Trip either was never put on notice
of racial harassment or, when it was on notice, promptly im-
plemented an adequate remedy that discharged its legal duty.
Beginning with Roerkohl, Clacks never specified that
Roerkohl racially harassed him, instead only noting that
Roerkohl was generally an awful coworker. Thus, while Kwik
Trip was on notice of friction between the pair, it was not on
notice that Roerkohl harassed Clacks based on his race. Cf. id.
at 426–27 (noting that while the employer was on notice of
friction between its employees based on the plaintiff’s reports
of work-related arguments, it was not on notice of more seri-
ous racial harassment). And even if Clacks’s complaint about
Roerkohl provided adequate notice of a hostile work environ-
ment, Kwik Trip discharged its legal duty by promptly reas-
signing Clacks to a new trainer. Paschall, 28 F.4th at 813

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10 No. 23-1983
(concluding that the employer discharged its duty by reas-
signing the plaintiff to a job away from the harassing
coworker); McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 480–
81 (7th Cir. 1996) (same).
Next, as to his training with Nechkash, Clacks put Kwik
Trip on specific notice that Nechkash had consistently har-
assed him based on his race. However, as with Roerkohl,
Kwik Trip discharged its legal duty by immediately removing
Nechkash as Clacks’s trainer and allowing Clacks to finish his
training with another, unproblematic employee. While Clacks
still saw Nechkash in passing at Kwik Trip’s distribution cen-
ter, he does not argue that these interactions contributed to a
hostile work environment. Further, the law does not require
Kwik Trip to eliminate all possible contact between the two
employees. See Sutherland v. Wal-Mart Stores, Inc., 632 F.3d
990, 995 (7th Cir. 2011) (noting that an employer discharged
its legal duty by creating physical separation and minimizing
the time worked together between the plaintiff and her har-
asser).
As to the threatening note Clacks received from Nechkash
at the employee meeting, Clacks did notify a supervisor.
However, there is no evidence that Clacks indicated to his su-
pervisor that he believed the note was racially motivated.
Moreover, even assuming that the supervisor should have
known that the note was racially motivated, a single ambigu-
ous note does not put Kwik Trip on notice of an actionable
hostile work environment, particularly when Kwik Trip ade-
quately responded to Clacks’s other complaints of harass-
ment. See Bombaci v. J. Cmty. Publ’g Grp., Inc., 482 F.3d 979, 985
n.2 (7th Cir. 2007) (noting that isolated incidents of vague har-
assment do not notify the employer because they do “not

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No. 23-1983 11
come close to creating an actionable hostile work environ-
ment”).
On a final note, the district court concluded that Clacks’s
harassment from Kruse was not severe or pervasive enough
to sustain a hostile work environment claim. Clacks does not
challenge this determination on appeal, so it is waived. See
Bradley v. Village of University Park, 59 F.4th 887, 897 (7th Cir.
2023). In any event, Clacks admitted in his deposition that he
“didn’t have a huge issue with [Kruse].” Thus, Clacks did not
subjectively view Kruse’s conduct as particularly abusive or
hostile, which bars his hostile work environment claim based
on that conduct. See McPherson v. City of Waukegan, 379 F.3d
430, 438 (7th Cir. 2004) (noting that a work environment can-
not be hostile if it is not “perceive[d] to be so” by the victim)
(quotation omitted). For these reasons, the district court
properly granted summary judgment to Kwik Trip on
Clacks’s hostile work environment claim.
B
Clacks’s retaliation claim fares no better. Clacks proceeds
with his claim under the direct method of proof, wherein a
plaintiff must prove three elements: (1) he engaged in pro-
tected activity, (2) he suffered an adverse employment action,
and (3) there was a causal connection between the protected
activity and the adverse employment action. Miller v. Polaris
Labs., LLC, 797 F.3d 486, 492 (7th Cir. 2015). “We consider the
evidence as a whole and conduct a ‘straightforward inquiry:
Does the record contain sufficient evidence to permit a rea-
sonable fact finder to conclude that retaliatory motive caused
the [materially adverse action]?’” Abrego v. Wilkie, 907 F.3d
1004, 1014 (7th Cir. 2018) (alteration in original) (quotation
omitted). Clacks contends that Kwik Trip retaliated against

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12 No. 23-1983
him by terminating him following his complaints to human
resources. The district court disagreed, granting summary
judgment to Kwik Trip based on the second element, and con-
cluding that no reasonable jury could find that Clacks suf-
fered an adverse employment action because Kwik Trip of-
fered Clacks his previous job. On appeal, Clacks’s sole argu-
ment is that a genuine dispute exists as to whether he refused
an offer to return to work. We are not persuaded.
It is undisputed that after investigating Clacks’s claims of
harassment, Kwik Trip fired the offending employees—
Roerkohl, Nechkash, and Kruse. It is also undisputed that
Callaway called Clacks to discuss his return to work. While
some details of the call are disputed, Clacks admits in his
opening brief that he raised safety concerns to Callaway about
returning to work. And in his deposition, Clacks was specifi-
cally asked whether he told Callaway that he did not “feel
safe” after Kwik Trip “offered to let [him] come back.” Rather
than dispute Kwik Trip’s offer and his statement to Callaway,
Clacks suggested that Callaway misunderstood him. In his
view, he was only referring to his fear pertaining to the inves-
tigation, though he did not clarify this distinction to Calla-
way. Clacks thus urges that he never expressly refused an of-
fer to return to work and that he never received a “legitimate”
return offer because Kwik Trip never provided him a new
start date.
These arguments do not save Clacks’s claim. A reasonable
jury, on this record, could not find that Kwik Trip harbored a
retaliatory motive against Clacks due to his complaints of ra-
cial harassment. See Chapin v. Fort-Rohr Motors, Inc., 621 F.3d
673, 678 (7th Cir. 2010) (“In determining the significance of
any given act of retaliation, the test is objective but ‘context

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No. 23-1983 13
matters’ and we look at the ‘constellation of surrounding cir-
cumstances, expectations, and relationships ….’”) (quotation
omitted). The record suggests just the opposite. Kwik Trip
consistently remedied Clacks’s issues with his coworkers.
Then, it initiated an investigation into his complaints, which
culminated in the termination of the three harassing employ-
ees. And finally, Kwik Trip asked Clacks to return to work af-
ter the investigation and discharge of the employees. The fact
that Clacks did not expressly refuse a return offer is irrelevant.
Kwik Trip reasonably interpreted Clacks’s fear of returning to
work as a rejection of that offer. Cf. id. at 680 (“Fort–Rohr
made efforts to have Chapin return to work, explained that
Chapin’s employment was not terminated, and expressed a
desire to keep Chapin on as an employee. At that point, Cha-
pin’s decision not to return to work was his own ….”). Fur-
ther, a reasonable jury could not conclude that Kwik Trip did
not offer Clacks his old job simply because it did not give him
a specific return date. Kwik Trip had no need to suggest a re-
turn date after Clacks expressed a fear of returning to work.
Simply, Clacks cannot meet his burden to show that Kwik
Trip was motivated to retaliate against him due to his harass-
ment complaints. The district court thus correctly granted
summary judgment to Kwik Trip on the retaliation claim.
A FFIRMED

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