Logan v. Sabre Manufacturing LLC

Filing 30

OPINION AND ORDER granting 18 MOTION for Summary Judgment OF DEFENDANT filed by Sabre Manufacturing LLC. ***Civil Case Terminated. Signed by Magistrate Judge Christopher A Nuechterlein on 10/8/13. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TRAVIS LOGAN,
Plaintiff,
v.
SABRE MANUFACTURING, LLC,
Defendant.

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CAUSE NO. 3:12-cv-338-CAN

OPINION AND ORDER
On June 22, 2012, Plaintiff, Travis Logan (“Logan”), filed a complaint against his former
employer, Defendant Sabre Manufacturing, LLC (“Sabre”) alleging violations of Title VII of the
Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §2000e et seq.,for racial
discrimination, harassment and hostile work environment, and retaliation. On September 7,
2012, the parties consented to have this case adjudicated by the undersigned. On May 10, 2013,
Sabre filed its Motion for Summary Judgment. On June 14, 2013, Logan filed a response. On
June 26, 2013, Sabre filed a reply. On October 1, 2013, the Court held oral argument on the
motion for summary judgment. The Court issues the following opinion as discussed below
pursuant to the consent of the parties and 28 U.S.C. § 636(c).
I.

RELEVANT BACKGROUND
The following facts are primarily not in dispute. Where the facts are in dispute, this

Court has determined that the disputes are either not material or has chosen to address such
disputes in the Court’s substantive analysis of the issues.
Sabre operates a factory in Knox, Indiana, where it manufactures frac tanks, large
railroad car size tanks used to store liquid hazardous waste. Sabre maintained extremely high

standards for its welders’ performance, requiring functionally flawless welds because even a tiny
leak in a tank could be very dangerous. Sabre used a temporary employment agency that
referred welders to Sabre for 90-day temporary assignments. Before any referred welder began a
90-day temporary assignment, he had to pass a welding test from which Sabre determined
whether to accept the referral and where any acceptable referrals would be placed to work in the
factory. Only about 70% of the referred welders passed Sabre’s welding test.
Sabre supervisors and managers carefully observed and evaluated referred welders
throughout the 90-day assignment. If there were performance deficiencies, Sabre would inform
the referred welder and provide training to address the deficiencies. At the end of the 90-day
assignment, a team of Sabre supervisors and managers determined whether to offer the referred
welder a full-time position with Sabre or to return the worker to the agency. If the team was not
unanimous in its decision, Sabre would usually extend the referral’s temporary assignment to
allow for further evaluation of the referral.
In 2010, the agency returned 55% of the 167 referred welders to the agency for reasons
including inability to meet the Sabre’s high performance standards, attendance, criminal
behavior, job abandonment, drug related issues, insubordination, and company rule or policy
violations. Logan numbered among those to whom Sabre did not offer full-time employment
upon completion of the 90-day temporary assignment.
On November 10, 2010, Logan began his temporary assignment upon referral from the
agency and after passing the welding test. Based on his performance on the welding test, Sabre
placed Logan in the “weld out” department. “Weld out” is the final and most critical step in the
manufacturing of the tanks because it is where assembly is completed and where the tank is

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welded up inside and out to prevent leaking of the hazardous materials that the tanks will hold.
Logan was assigned to the second shift where Production Manager Marvin Hurt, Quality Control
Managers Jeff James and Robert Bruce, and Second Shift Supervisors Brad Doty and Bryan
Rose oversaw Logan’s work.
Logan and Hurt agree that Logan performed his job well early in his tenure. However,
Logan contends that supervisor Doty “nitpicked” his work almost every day he worked. Doc.
No. 25-3 at 4. Then, on December 17, 2010, Doty issued the first warning to Logan verbally
citing his bad welds on a tank, poor quality of work, and poor work performance. Doc. No. 20-2
at 17. On January 3, 2011, Hurt evaluated Logan’s work as part of the regular agency referral
process. In the evaluation report, Hurt stated: “Travis needs to pick his game up or he won’t be
here much longer. At some point something’s got to click!” Doc. No. 20-2 at 16. Based on the
company form and grading scale for the evaluation, Logan’s work earned him 86 points, which
equated to “poor job performance.” Id. On January 7, 2011, Doty issued a second warning to
Logan, this time in writing, based on poor job performance, violations of company procedure,
and for walking around doing nothing while on the job. Doc. No. 20-2 at 18. On February 8,
2011, a third warning was issued to Logan because he had rushed his work that night, which led
to errors requiring repairs taking 35 minutes with the help of two additional employees. Doc.
No. 20-2 at 20; 27-1 at ¶ 4.
Throughout Logan’s 90-day temporary assignment, Sabre managers and supervisors
worked with Logan to help him improve his work quality like they did with other referrals in
whom they found potential despite some shortcomings. James Henry, Third Shift Supervisor,
became particularly frustrated with Logan’s work after his Third Shift crew checked Logan’s

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welds during the quality control stage of production. Logan’s welds were consistently poor
requiring considerable extra work to check, correct, and recheck Logan’s work. Logan was even
transferred for a short time to the “floors” section, where the demands on welders were less, to
refresh his welding skills. His work was good on “floors,” and so the company returned him to
the “weld out” department within a couple days.
As Logan’s 90-day assignment came to an end, Rose wrote a report on February 10,
2011, recommending that Logan be terminated for poor quality of welds despite additional
training from the company. Rose stated that multiple supervisors and managers had “worked
with Travis on his weld quality, Travis could not or chose not to listen and improve. Very poor
quality.” Doc. No. 21. Deficiencies in Logan’s work included lack of consistent quality of
welds and inability to keep up with the pace and process of welding per Sabre guidelines as
evidenced by his failure to prepare weld surfaces properly before laying welds, inefficient work
flow due to bouncing around from spot to spot, and failure to lay good, penetrating welds. Sabre
supervisors and managers Hurt, James, Bruce, and Rose considered Logan’s full record and
unanimously agreed to return Logan to the agency and not offer him a permanent welding
position at Sabre. Logan’s termination was effective on February 10, 2011. Logan filed a
Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) on
March 22, 2011, alleging discrimination based on race and retaliation.
During his 90-day tenure at Sabre, Logan encountered race-based comments and conduct
on multiple occasions from co-workers and supervisors. For example, near the time Logan
began working at Sabre, a co-worker named Johnny asked Logan if he liked fried chicken.
Logan told him he liked both fried chicken and watermelon. Soon thereafter Johnny told Logan

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a story about his father beating a black man in Winamac who had a white girlfriend. About the
same time, Johnny informed Logan that “we don’t play that nigger shit out here” in Knox,
Indiana. Doc. No. 20-3 at 7. There is no record in Logan’s personnel file that he reported these
comments to any Sabre authority. Separately, a co-worker named Lars Gustafson made racist
comments to show Logan that he was personally opposed to interracial relationships that
produce bi-racial children like Logan’s. Gustafson also made racial jokes that Logan found to be
“stupid.” Again, nothing in Logan’s personnel file shows that Logan notified any Sabre
authority about Gustafson’s conduct.
While Logan was working at Sabre, graffiti was found in the bathroom including racial
slurs and epithets, union campaign messages, and derogatory statements regarding Plant
Manager Jason Ries. Logan knew about the graffiti, but did not report it “because everyone
knew about it.” Doc. No. 20-3 at 11. Even without Logan’s report, Manager Hurt found the
graffiti and had it promptly removed. Company investigations never determined who the graffiti
artist was, but the company continued to remove it each time it returned. Logan also observed
confederate flags displayed on vehicles in Sabre’s parking lot. Logan did not report this to Sabre
authorities either. Another race-based incident developed when a co-worker arrived wearing
clothing displaying a swastika and a steel swastika was displayed in the work bay next to
Logan’s. Sabre authorities learned of the swastika displays and had them removed from the
workplace.
Logan also overheard Manager Hurt referring to “nigger rap music” on a couple of
occasions when he entered the Sabre break room. Another co-worker, Shawn Stout, claims to
have heard Hurt and Manager James use racial slurs in referencing African American and

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Hispanic employees. Stout also witnessed other employees using racial slurs to describe Logan
and making threats. Logan even told Stout that he was afraid to be living in the area as an
African American and stayed at Stout’s home overnight on occasion to avoid returning to his
motel alone. Despite his concerns, Logan never reported any of these incidents to Sabre
authorities.
The most serious incident that Logan encountered involved two co-workers, named Trigg
and Pachowicz, who directed racial epithets at Logan, turned off Logan’s welding machine, and
rocked a tank while Logan was welding inside the tank on January 20, 2011. Logan’s equipment
had been similarly turned off before, but he could never identify the culprits because he was
wearing his welder’s hood. On January 21, 2011, however, Supervisor Rose reported the
incident to Hurt who interviewed Logan, Trigg, and Pachowicz. Based on the interviews, Hurt
contacted Ries and Human Resources Manager Linda Craig about the situation. Ries then
personally interviewed Logan, Trigg, and Pachowicz and determined that the conduct was racebased and incompatible with Sabre’s anti-discrimination and anti-harassment policy. Trigg and
Pachowicz were fired within two working days of the incident. Ries also met personally with
Logan a second time to reassure him that Sabre would not tolerate such conduct and to
encourage him to report any questionable future conduct directly to him or Linda Craig.
Logan believes that all these race-based incidents created distractions from his work that
affected his work performance at Sabre. However, Logan also stated in his deposition more than
once that he did excellent work at Sabre. Logan lacked faith that Sabre management, including
Ries, would address race-based discriminatory and harassing conduct meaningfully if he
reported more incidents to them. Logan even felt ostracized by other Sabre employees after

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Trigg and Pachowicz were fired sensing that no one wanted to get close to him for fear of being
fired.
Perceiving a race-charged work environment that affected his ability to succeed and led
to his termination, Logan filed his Charge of Discrimination alleging discrimination based on
race and retaliation with the EEOC and subsequently his complaint in this Court after receiving a
Right to Sue letter from the EEOC. Sabre now seeks summary judgment on Logan’s racial
discrimination, retaliation, hostile work environment, and First Amendment claims.
II.

ANALYSIS
A.

Summary Judgment Standard of Review

Summary judgment is proper where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); Lawson v. CSX Transp., Inc., 245 F.3d 916, 922 (7th Cir. 2001). In
determining whether a genuine issue of material fact exists, this Court must construe all facts in
the light most favorable to the nonmoving party as well to draw all reasonable and justifiable
inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
King v. Preferred Technical Group, 166 F.3d 887, 890 (7th Cir. 1999).
To overcome a motion for summary judgment, the nonmoving party cannot rest on the
mere allegations or denials contained in its pleadings. Rather, the nonmoving party must present
sufficient evidence to show the existence of each element of its case on which it will bear the
burden at trial. Celotex v. Catrett, 477 U.S. 317, 322–23 (1986); Robin v. Espo Eng’g Corp.,
200 F.3d 1081, 1088 (7th Cir. 2000). Where a factual record taken as a whole could not lead a

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rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In other words,
“[s]ummary judgment is not a dress rehearsal or practice run; it is the put up or shut up moment
in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to
accept its version of the events.” Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th
Cir. 2005) (quotations omitted).
B.

Logan’s First Amendment claim fails as a matter of law because Sabre is not
a state actor.

In his complaint, Logan alleges that Sabre unlawfully retaliated against Logan when it
terminated him less than one month after Logan complained to Hurt about continuous and severe
racial harassment in the plant. In addition to his straight Title VII claim for retaliation, Logan
asserts that his First Amendment rights were violated by this retaliation. However, “[t]he
Fourteenth Amendment, and, through it, the First and Fifth Amendments, do not apply to private
parties unless those parties are engaged in activity deemed to be ‘state action.’” Nat’l Broad.
Co., Inc. v. Commc’ns Workers of Am., AFL-CIO, 860 F.2d 1022, 1024 (11th Cir. 1988) (citing
Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974)). At the oral argument on October 1,
2013, Logan conceded that there is no state action in this situation to justify the First
Amendment claim. Therefore, Logan’s First Amendment claim fails.
C.

Logan’s Title VII racial discrimination and retaliatory discharge claims fail
as a matter of law.

Logan contends that his termination constituted unlawful race discrimination and
retaliation in violation of Title VII. Title VII prohibits employers from discharging any
individual “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

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§ 2000e-2(a)(1). In addition, Title VII prohibits an employer’s retaliation against his employee
because he “ . . . made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing . . .” under Title VII. 42 U.S.C. § 2000e-3(a). Logan
proceeds using the indirect method, or burden-shifting approach, used in McDonnell Douglas
Corp. v. Green in his attempt to establish his claims of race discrimination and retaliatory
discharge under Title VII. See 411 U.S. 792, 802 (1973); Fane v. Locke Reynolds, LLP, 480
F.3d 534, 538 (7th Cir. 2007).
To establish a prima facie case of discrimination or retaliation by the indirect method, an
employee must show that (1) he was a member of a protected class, (2) he was meeting the
employer’s legitimate expectations, (3) he suffered an adverse employment action, and (4) the
employer treated a similarly situated employee not in the protected class more favorably. Fane,
480 F.3d at 538. Once the employee establishes a prima facie case of discrimination, the burden
then shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse
employment action. Id. After the employer satisfies its burden of production, the employee
must prove that the employer’s stated reasons are pretextual in order to succeed in showing
disparate treatment because of race. Id. “‘The ultimate burden of persuading the trier of fact that
the defendant intentionally discriminated against the plaintiff remains at all times with the
plaintiff.’ ” Id. (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
1.

The prima facie case

Neither party disputes that Logan, an African-American, is a member of a protected
class. Similarly, neither party disputes that Logan’s termination in February 2011 constitutes an
adverse employment action. However, the parties dispute whether Logan was meeting Sabre’s

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legitimate performance expectations. The parties also dispute whether Timothy Sebesta, Jesse
Jewell, Mike Conner, and Lars Gustafson were similarly situated employees such that Sabre’s
more favorable treatment of them would prove the fourth element of Logan’s prima facie case of
race discrimination and retaliation. The Court will address the disputed elements separately
below.
a.

Meeting Employer’s Legitimate Expectations

In determining whether a terminated employee was meeting the employer’s legitimate
expectations, the issue is not the employee’s past performance, but whether the employee was
performing well at the time of the adverse employment action. Dear v. Shinseki, 578 F.3d 605,
610 (7th Cir. 2009); Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002). Logan
acknowledges this legal standard, but pleads with the Court to consider the negative impact of
the alleged hostile work environment on his work when analyzing whether he was meeting
Sabre’s expectations. In particular, Logan suggests that his performance deficiencies can be
attributed to distraction, inattention to detail, and inability to concentrate caused directly by the
alleged harassment and not because he lacked skills or competency as a welder.
Title VII prohibits employers from discriminating or retaliating against employees based
on race assuming they are meeting the employer’s legitimate performance expectations. The
record is clear that Logan did not meet Sabre’s expectations over the course of the 90-day
assignment and was not meeting Sabre’s expectations in February 2011 when he was terminated.
As part of their 90-day review of Logan’s work, Production Manager Hurt, Quality Control
Managers James and Bruce, and Second Shift Supervisor Rose all concluded that Logan’s work
was deficient. They based their conclusion on Rose’s termination report showing unsatisfactory

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performance in attendance, initiative, job knowledge, quality of work, dependability, work
safety, and management skills and fair performance in cooperation and job productivity. The
same report noted that all four of them had worked with Logan to improve his weld quality, but
that Logan either could not or chose not to listen and improve. Doc. No. 25-7.
Rose’s termination report also followed three warnings and a 45-day evaluation
documenting Logan’s poor work quality starting with Supervisor Doty’s verbal warning about
bad welds on December 17, 2010. See Doc. No. 20-2 at 17. In the 45-day evaluation on January
3, 2011, Manager Hurt noted that Logan was meeting expectations only in the areas of following
company rules and policies, being present and on time, treating coworkers with respect, and
willingly working with others. Id. at 16. Hurt also included a handwritten note advising Logan
to “pick up his game,” or in other words to improve his performance, or “he won’t be here much
longer,” implying that he was at risk of losing his job. Id. At that mid-point of his temporary
assignment, Logan earned 86 points equating to “poor job performance.” Id.
Shortly thereafter on January 7, 2011, Doty issued a written warning to Logan noting his
poor job performance, violations of company procedure, and for walking around doing nothing
while on the job. Doc. No. 20-2 at 18. Logan received his third warning on February 8, 2011,
just two days before Rose’s termination report, because he had rushed his work that night
creating errors requiring substantial time and human resources to repair. Doc. No. 20-2 at 20;
27-1 at ¶ 4.
Logan never challenged any of the four warnings. He has since acknowledged that his
work was of less than perfect quality, but argues that the alleged hostile work environment at
Sabre should excuse his poor performance. In making this argument, Logan admits that his work

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performance was not meeting Sabre’s expectations at the time he was terminated. As such, no
reasonable trier of fact could conclude that Logan was meeting Sabre’s expectations.
Moreover, Logan’s argument for a lenient interpretation of this element of the prima
facie case is a non-starter. To find that Logan was meeting his employer’s expectations would
require a determination that the alleged hostile work environment constituted an adverse
employment action and that Logan was meeting Sabre’s expectations when the hostile work
environment began. In support, Logan cites Hurt’s testimony that Logan was performing well
during his first couple weeks at Sabre and his own belief that the comments and conduct of his
co-workers and a supervisor distracted him from his work negatively affecting his work
performance. However, Logan did not cite any legal authority for his proposed interpretation of
this element. Therefore, Logan has established that his termination, not the hostile work
environment, constituted an adverse employment action under Title VII.
Moreover, the law is clear that the quality of Logan’s performance at the time of the
adverse employment action counts. See Dear, 578 F.3d at 610; Peele, 288 F.3d at 329. Logan
has presented no authority to suggest otherwise. Because Logan was not meeting Sabre’s
expectations when he was terminated, there is insufficient evidence upon which a reasonable
jury could conclude that Logan established the expectations element of his prima facie case of
race discrimination and retaliation.
b.

Treatment of Similarly Situated Employees Not in the
Protected Class

Even if the Court concluded that Logan had satisfied his employer’s expectations,
Logan’s claims would still fail because he cannot establish the similarly situated element of the
prima facie cases of race discrimination and retaliation. Comparator evidence showing more
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favorable treatment of similarly situated employees not in the protected class suggests that an
accused employer either unlawfully discriminated against the protected employee or did not
enforce its own rules or policies on discrimination even-handedly sufficient to support an
inference of intentional discrimination. See Coleman v. Donohoe, 667 F.3d 835, 846, 853 (7th
Cir. 2012). “The similarly-situated analysis calls for a flexible, common-sense examination of
all relevant factors.” Id. at 846 (quotations and citations omitted). The analysis is intended to
eliminate all potential variables besides discriminatory animus to explain unequal or disparate
treatment of employees. Id. Yet the court’s function is not “to question an employer’s decision
to punish some conduct more harshly than other conduct” but to scrutinize how even-handedly
an employer applies its policies and expectations. Gordon v. United Airlines, Inc., 246 F.3d 878,
891 (7th Cir. 1991).
To be effective, the analysis must consider employees who are directly comparable to the
plaintiff in all material respects. Coleman, 667 F.3d at 846. Yet similarly situated employees
need not be identical in every conceivable way. Id. The analysis must consider enough factors
to show that the employees are similar enough to the plaintiff to permit a reasonable inference of
discrimination. Id. at 852. While there is no all-inclusive list of factors to consider, courts often
consider whether the employees and the plaintiff (1) dealt with the same supervisor; (2) were
subject to the same standards of conduct; and (3) engaged in conduct of comparable seriousness.
Id. at 847–52.
Here, Logan identifies Timothy Sebesta, Jesse Jewell, Mike Conner, and Lars Gustafson
as similarly situated employees who Sabre treated more favorably than him. Indeed, all four
worked in the same unit with the same job classification subject to the same supervisors. Logan

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contends that they were all written up on one or more occasions for subpar work performance
that slowed productivity or led to leaky tanks just like Logan. However, Logan argues that all
four were treated more favorably than him because Sabre allowed them to continue working at
Sabre considerably beyond the 90-day temporary assignment, which gave them more time than
Logan had to improve their performance and develop their skills.
Sabre admits that all four worked at Sabre longer than Logan. Sabre also admits that all
four received job performance warnings like Logan did. However, Sabre shows that none of the
four had the same volume or types of warnings as Logan during their 90-day temporary
assignment. Their warnings accumulated after becoming permanent Sabre employees. As a
result, no reasonable jury would conclude that Sebesta, Jewell, Conner, and Gustafson were
directly comparable to Logan in all material respects. See Coleman, 667 F.3d at 846. Therefore,
there is insufficient evidence to show that Logan’s four co-workers were similarly situated to
him to create a genuine issue of material fact as to the similarly situated element of Logan’s
prima facie cases of race discrimination and retaliation.
2.

Pretext

Because Logan has not established any genuine issue of material fact as to whether he
was meeting Sabre’s expectations at the time he was terminated and whether his four coworkers, who were allegedly treated more favorably than him, were similarly situated, Logan has
presented a factual record that could not lead a reasonable jury to conclude that he met his
burden to establish a prima facie case of intentional race discrimination and retaliation under
Title VII. However, even making all inferences in favor of Logan and assuming that he did
establish his prima facie case, his claims still fail because he has not established any genuine

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issue of material fact as to pretext.
Sabre has offered a legitimate, nondiscriminatory reason for terminating Logan or
refusing to give him a permanent job following his 90-day temporary assignment from the
employment agency. It claims that his work performance during the 90-day assignment was
poor and that the company’s efforts to provide additional training had not yielded improved
performance. Therefore, Logan must show that Sabre’s articulated reason is pretextual, in short
that the stated reason of poor performance is a lie.
Pretext “means a lie, specifically a phony reason for some action.” Millbrook v. IBP,
Inc., 280 F.3d 1169, 1175 (7th Cir. 2002) (quoting Russell v. Acme–Evans Co., 51 F.3d 64, 68
(7th Cir.1995)). When an employer’s articulated reason is unacceptable work performance, the
dispositive question is whether the employer’s decision makers honestly believed that the
employee was terminated because of unacceptable work performance. Coleman, 667 F.3d at
852. To establish pretext, the employee must “identify such weaknesses, implausibilities,
inconsistencies, or contradictions” in the articulated reason “that a reasonable person could find
[it] unworthy of credence” and infer that the employer did not act for the articulated
nondiscriminatory reason. Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir.
2007). Pretext will not be found even if a decision maker had discriminatory thoughts in mind
when making the termination decision as long as the articulated reason, such as poor work
performance, induced him to take the adverse action. Coleman, 667 F.3d at 853.
Logan has simply not established pretext. Logan discusses many facts in his summary
judgment brief. But when discussing pretext, he simply states that he “has, and can, offered a set
of facts would seem to indicate that SABRE’s actions are in fact pretextual.” Doc. No. 24 at 25.

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He does not direct the Court’s attention to any specific facts. Nor does any part of his brief
address the honest belief of Hurt, James, Bruce, and Rose—the Sabre managers and supervisors
who made the decision to terminate Logan—that Logan was not performing up to company
expectations. He makes no argument that the termination contradicted or was inconsistent with
his performance. He does not even challenge any of the warnings that were issued during the
90-day assignment as discriminatory or retaliatory. Moreover, Logan actually defeats any
argument of pretext by admitting that his work performance was deficient as part of his theory
that the alleged hostile work environment affected his work performance and caused his
termination.
Therefore, Logan’s racial discrimination and retaliation claims cannot succeed under the
indirect method. Even allowing for the unlikely possibility that Logan has established a genuine
issue of material fact as to his prima facie case, he has failed produce evidence sufficient for a
reasonable jury to conclude that Sabre’s legitimate, nondiscriminatory reason for terminating
him was pretextual. Moreover, any disputes of fact between the parties that do exist are not
sufficiently material to allow Logan’s race discrimination and retaliation claims to proceed to a
jury.
D.

Logan cannot establish employer liability and therefore his hostile work
environment claim fails as a matter of law.

Title VII provides that it “shall be an unlawful employment practice for an employer . . .
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race . . . .” 42 U.S.C. § 2000e–2(a)(1). An employer may be liable
for discrimination under Title VII if an employee is subject to a hostile work environment based
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on his race. Mason v. S. Illinois Univ. at Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000).
To succeed on a hostile work environment claim, an employee must show that: (1) he
was subject to unwelcome harassment that was offensive both subjectively and objectively; (2)
the harassment was based on his race; (3) the harassment was severe and pervasive so as to alter
the conditions of the employee’s work environment by creating a hostile or abusive situation; (4)
there is a basis for employer liability. Yancick v. Hanna Steel Corp., 653 F.3d 532, 544 (7th Cir.
2011); Porter v. Erie Foods Int’l, Inc., 576 F.3d 629, 634 (7th Cir. 2009). In evaluating a hostile
work environment claim, the court “must consider the entire context of the workplace” rather
than focusing on discrete acts of individual employees. Vance v. Ball State Univ., 646 F.3d 461,
470–71 (7th Cir. 2011). Moreover, courts “will not find a hostile work environment for mere
offensive conduct that is isolated, does not interfere with the plaintiff’s work performance, and is
not physically threatening or humiliating.” Yancick, 653 F.3d at 544. Conduct must be extreme
to amount to a change in the terms and conditions of employment. Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998).
Based on the factual record as a whole, Logan has not established any genuine issue of
material fact as to whether the alleged harassing conduct of his co-workers and supervisors was
objectively offensive to him. By choosing not to report all the allegedly race-based conduct and
language that he encountered, Logan demonstrated that he was not sufficiently bothered by it to
be offended. Logan has also failed to present a genuine issue of material fact as to whether all
the language and conduct alleged by Logan would be objectively offensive to other reasonable
people. Even conceding that the Trigg/Pachowicz, graffiti, and swastika incidents would likely
be viewed as offensive, the comments and stories, like those of Lars and Johnny, could

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reasonably be perceived as jokes, isolated statements of opinion, or even friendly warnings.
Furthermore, Logan has not produced sufficient evidence upon which a reasonable jury
could conclude that the alleged harassing language and conduct at Sabre was so severe or
pervasive that it altered the conditions of Logan’s employment. There is no doubt that the
Trigg/Pachowicz incident was physically threatening and humiliating, but a single incident does
not constitute the severity or frequency of harassing conduct necessary to satisfy this element.
More importantly, Logan has not shown that the race-based language and conduct altered the
conditions of his employment at Sabre or interfered with his ability to work. His own conflicting
testimony exposes his weak argument.
Yet the Court must construe the facts in a light most favorable to Logan. Nevertheless,
any factual disputes that do exist regarding the subjective, objective, and severe or pervasive
elements of Logan’s hostile work environment claim are not material because Logan cannot
establish any basis for employer liability. “[A]n employer can avoid liability for coworker
harassment if it takes prompt and appropriate corrective action reasonably likely to prevent the
harassment from recurring.” Porter, 476 F.3d at 636 (quotations and citations omitted). “[A]
prompt investigation is the hallmark of a reasonable corrective action.” Id. (quotations and
citations omitted). In other words, the employee must show that the employer negligently failed
to prevent and correct reported harassment promptly in order to establish a basis for employer
liability for co-worker harassment under Title VII. Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 765 (1998). The employee also has a responsibility to mitigate his damages and must avail
himself of the remedies to harassment made available by the employer. Penn. State Police v.
Suders, 542 U.S. 129, 146 (2004); Faragher, 524 U.S. at 807.

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While an employer is liable for a hostile work environment created by the conduct of a
supervisor if the supervisor has immediate, or successively higher, authority over the employee,
the employer may avoid such liability through an affirmative defense proving that “(a) . . . the
employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior,
and (b) . . . the plaintiff employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524
U.S. at 807.
Logan’s argument here fails because Sabre addressed all the racially charged issues that
Logan reported and several that he did not. First, Sabre should be commended because it
maintained an anti-discrimination and anti-harassment policy (“the Company Policy”) that it
promoted to all of its employees, including the temporary employees like Logan, who were
required to read and sign an acknowledgment of receipt of the policy when they were hired.
Logan admits that he received the policy, signed the acknowledgment form, and even heard
management state often that discrimination and harassment would not be tolerated at Sabre. In
addition, Sabre displayed posters advising employees of their right to work in an environment
free of unlawful discrimination and harassment. All employees were encouraged to report any
incidents of concern they observed, but the managers and supervisors were especially
encouraged to remain vigilant and report any suspicious conduct to Production Manager Hurt,
Human Resources Manager Craig, or Plant Manager Ries. And Ries even advised Logan
individually after the Trigg/Pachowicz incident to report any offensive conduct to him directly or
to Craig in human resources.
Second, the system appears to have worked in that numerous complaints were

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consistently investigated and addressed. For instance, Logan did not even have to report the
Trigg/Pachowicz incident himself because Rose, the Second Shift Supervisor, reported it directly
to Hurt the morning immediately after the night of the event. From there, Hurt and Ries
immediately conducted interviews to determine what had happened and within two working
days, both Trigg and Pachowicz were fired. The parties dispute the actual rationale for the
terminations. Even if reasons unrelated to race-based discrimination and harassment were
involved in the decision, the company still handled the situation promptly so as to prevent any
repetition of such conduct by Trigg or Pachowicz specifically and deter such conduct by other
employees. Similarly, Logan did not have to report the graffiti incident himself because
management was promptly made aware of the problem and removed it. These examples show
that the company not only had a policy, but they laudably and regularly enforced it promptly
when faced with discriminatory or harassing situations.
Of course, just because Sabre enforced the Company Policy in these instances does not
automatically preclude liability. Sabre could have selectively enforced its policy by addressing
certain situations and refusing to address others. Logan, however, failed to inform Sabre of all
the incidents against him as required under the Company Policy. For instance, Logan admits
that he never reported Hurt’s racial slurs to upper management. In addition, Logan has provided
no evidence to support his contention that he reported the Lars and Johnny conversations to
Sabre management. His Sabre personnel file does not document any such report and he cannot
even recall when he allegedly reported the conversations to Craig.
Without such evidence, the Court is left with Sabre, an employer that had a company
policy against discrimination and harassment based on race, actively promoted that policy,

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promptly investigated incidents, and enforced its policy with corrective actions. As Logan
admits, Sabre even addressed some incidents that were not directed specifically at him or
reported by him.
In contrast, Logan admits that he did not report incidents of which he now complains.
Moreover, he has not provided sufficient evidence to corroborate his vague claim that he
reported other incidents that Sabre did not address. In short, Logan benefitted from the
corrective action of Sabre and was personally advised to take full advantage of the Policy, but
failed to do so. As such, Logan cannot establish that Sabre negligently failed to prevent and
correct reported harassment promptly. The Court also finds that Logan unreasonably failed to
fulfill his responsibility to mitigate his damages and avail himself of the preventive and
corrective remedies to harassment made available by Sabre through the Company Policy.
Therefore, no reasonable jury could conclude that any basis existed for Sabre to be held liable
for hostile work environment based on co-worker or supervisor conduct under Title VII.
IV.

CONCLUSION
Because there are no genuine disputes of material fact and Logan cannot establish his

claims of race discrimination, retaliation, or hostile work environment under Title VII, Sabre is
entitled to judgment as a matter of law on those claims. Moreover, Logan has conceded that his
First Amendment cannot succeed. Therefore, the Court now GRANTS Sabre’s motion for
summary judgment. [Doc. No. 18]. The Clerk is instructed to enter judgment for Sabre on all
claims.

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SO ORDERED.
Dated this 8th Day of October, 2013.

S/Christopher A. Nuechterlein
Christopher A. Nuechterlein
United States Magistrate Judge

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