UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JAMES NICHOLS, )

)

 Plaintiff, )

)

 v. ) Case No. 3:12-cv-042 

)

MICHIGAN CITY PLANT )

PLANNING DEPT., )

)

 Defendant. )

OPINION AND ORDER

James Nichols was hired as a substitute janitor by Michigan City Plant Planning

Department in early January 2011, and a few weeks later, he was placed on a temporary

assignment at Springfield Elementary School. The posting was an uncomfortable mess

from the outset. He says that staff and students alike were hostile to him; according to

his allegations, they created messes for the sole purpose of making him clean them up,

treated him with constant suspicion, and on one occasion, called him an inflammatory

racial epithet. Finally, after a few weeks on the job, the Planning Department informed

Nichols that he was no longer needed at the school and ultimately declined to place him

on another assignment.

Nichols responded to this treatment by filing a lawsuit asserting Title VII claims

for racial harassment and discrimination.1

 He primarily alleges that he was harassed and

1

 In a subsequent filing, Nichols advised me that he wished to add a defamation claim to his

lawsuit, citing a position statement filed by the Planning Department in a subsequent EEOC proceeding. 

(DE 16.) As the Planning Department correctly notes, even if I were inclined to consider it, this state law

claim is barred by principles of absolute immunity because the statement was made in the context of a

quasi-judicial proceeding. See Hartman v. Keri, 883 N.E.2d 774, 779-80 (Ind. 2008).

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treated poorly by members of the Springfield Elementary staff, and that rather than

intervene, his supervisor dismissed him “under racially motivated circumstances.” The

case is now before me on the Planning Department’s summary judgment motion.

I can sympathize with Nichols to some degree. If you believe him, the staff at

Springfield Elementary seems to have treated him quite poorly. But professional

misconduct – even of the most egregious nature – isn’t Title VII harassment or

discrimination, at least not necessarily. It has to be motivated by some sort of racial bias. 

And in this case, once I parse through the mistreatment that Nichols thinks was racially

motivated but doesn’t have any tangible basis for his belief, I’m left with a single racial

slur used by a non-supervising co-worker. And while that theoretically could be enough

to support a Title VII harassment claim (though as I’ll explain below, I actually don’t

actually think it is here), the fact is that he didn’t tell the Springfield Elementary principal

or his employer until it was much too late for them to do anything to remedy the

situation. That’s fatal to his lawsuit. Therefore, and for the reasons discussed below, the

Planning Department’s summary judgment motion (DE 27) is GRANTED. 

BACKGROUND

Nichols began working for the Planning Department as a substitute custodian on

January 5, 2011. (DE 1-1 at 2). Nichols’ supervisors there were Doug Schroeder and

John Yeakey, both of whom are white. (DE 30-3 at 14). He was initially assigned to Joy

Elementary, where he worked for three days and was not used for a brief time thereafter. 

(DE 30-3 at 4.) Nichols’ second assignment was to Springfield Elementary on January

19, 2011. (DE 30-3 at 4.) 

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As I alluded to above, things started to go wrong pretty much from the moment

that Nichols walked in the door. He alleges that when he arrived at the school he asked

two students and two teachers (I think – it’s a little unclear in the record whether it was

two teachers and two students, or whether it was two young teachers) where the janitor’s

closet was, but they falsely claimed not to know. (DE 30-3 at 6.) There is also a vague

suggestion that Bette Johnston, the food service manager at Springfield Elementary,

acted frightened towards him on multiple occasions. (DE 30-3 at 10.) Nichols also

claims that on his second day at the school, someone left a purse out, ostensibly with the

purpose of entrapping him into stealing it (DE 1-1 at 2-3; DE 30-3 at 15-17), and that

Johnston routinely left the cash register open when he was present (again, with the

implication that she was trying to bait him into stealing money). (DE 30-3 at 20-21.)

Nichols alleges that on his third day on the job, two staff members (including

Johnston) at Springfield Elementary threw food and garbage on the floor after he had

cleaned it. (DE 1-1 at 2.) He claims that he was called a “boy” by school personnel on

more than one occasion, which he believes was racially motivated. (DE 30-3 at 43.) 

Perhaps most explicitly, he says that on a single occasion, Johnston or another cafeteria

worker (it’s a little unclear which) walked by him and called him “a black [racial

epithet].” (DE 30-3 at 22-23.) Notably, Nichols didn’t report that incident to the school

principal or his superiors at the Planning Department. (DE 30-3 at 25.) 

Matters finally came to a head on February 7, 2011, when, according to Nichols,

he was harassed by Johnston, who claimed he had taken a shovel and then tried to give

him unwanted lunch trays. (DE 30-3 at 27-28.) After this dust up, Johnston went to

school principal Lisa Emshwiller to discuss Nichols’ behavior. (DE 30-6 at 1.) 

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Emshwiller then met with Nichols to discuss the concerns Johnston had raised; Nichols

explained how and why he believed Johnston had been harassing him. (DE 30-6 at 1-2.) 

Notably, according to Nichols’s own account of the conversation, when he informed

Emshwiller that he had been called a racial epithet, the principal indicated that this was

the first she had heard of the allegation. (DE 30-3 at 32.) Following this meeting,

Emshwiller spoke with Nichols’ supervisors, Schroeder and Yeakey, who made the

decision to remove Nichols from his assignment at Springfield Elementary. (DE 30-5 at

1.) They claim that no decision had been made at that point with regard to whether

Nichols would be used as a substitute custodian in the future. (DE 30-4 at 3; DE 30-5 at

2-3.) In any event, the Planning Department never placed Nichols at another job site. 

(DE 30-4 at 3-4.)

Nichols filed the pending complaint alleging race-based harassment and

discrimination. (DE 1.) Michigan City Plant Planning Department has since moved for

summary judgment.2

 (DE 27.) 

DISCUSSION

Summary judgment is proper “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A genuine dispute about a material fact exists only “if the evidence

is such that a reasonable jury could return a verdict for the non-moving party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this determination, I must

construe all facts and draw all reasonable inferences from the record in the light most

2

 There is also a Rule 56 Motion to Strike pending. (DE 33.) However, my decision to grant

summary judgment is the same whether or not I consider the exhibits attached by that motion, so the

Motion to Strike is DENIED AS MOOT.

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favorable to the nonmoving party. Id. at 255. But the nonmoving party is not entitled to

the benefit of “inferences that are supported by only speculation or conjecture.” 

Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008) (citations and quotations

omitted).

Title VII Harassment

Nichols first contends that Michigan City Plant Planning Department harassed

him because of his race in violation of Title VII of the Civil Rights Act (as amended). In

order to defeat summary judgment on this claim, he must point me to sufficient evidence

to show: “(1) the work environment must have been both subjectively and objectively

offensive; (2) his race must have been the cause of the harassment; (3) the conduct must

have been severe or pervasive; and (4) there must have been a basis for employer

liability.” Montgomery v. American Airlines, Inc., 626 F.3d 382, 390 (7th Cir. 2010)

(citing Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 912 (7th Cir. 2010)).

Let’s set aside the racial epithet for a minute and look at the remaining alleged

misconduct he describes in his complaint. It’s probably fair to characterize this

mistreatment as subjectively and objectively offensive, and it’s certainly plausible that a

jury might find that it was severe or pervasive. The problem for Nichols is that there

doesn’t seem to be any evidence that it was racially motivated. With respect to a Title

VII harassment claim, “[t]he complained of conduct must have ... [a] racial character or

purpose.” See Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345 (7th Cir. 1999)

(citing Malhotra v. Cotter & Co., 885 F.2d 1305, 1308 (7th Cir. 1989)); accord Vance v.

Ball State Univ., 646 F.3d 461, 470 (7th Cir. 2011). In other words, even severe or

pervasive conduct that’s subjectively and objectively offensive won’t support a Title VII

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race-based harassment claim if there isn’t any indication that racial animosity is the

driving force behind it.

So does the conduct cited by Nichols have such a racial character or purpose? It’s

hard to see how it does. Being rude to a temporary janitor by not telling him where to go

or by making messes for him to clean up is deplorable conduct. The same goes for trying

to bait him into stealing a purse or money from the cash register. I’m certainly not

condoning this behavior. But there’s simply no indication that it was motivated by race. 

To the contrary, it looks to me – if you believe Nichols – like a few members of the staff

at Springfield Elementary just took an immediate and intense disliking to him. They may

have acted completely unprofessionally towards him, but that’s not sufficient to show a

racial motivation as required under the applicable law. See Hardin, 167 F.3d at 345

(“Obviously, we agree with the district court that it is unfortunate that [the plaintiff] was

subjected to such [abusive] behavior. Nevertheless, we cannot conclude that these actions

constituted sexual or racial harassment.”); see also Luckie v. Ameritech Corp., 389 F.3d

708, 713 (7th Cir. 2004) (granting summary judgment where “[n]one of these [alleged

harassing] incidents are sufficiently connected to race so as to satisfy the second element

of the hostile environment analysis”).

That takes me to the incident alleged by Nichols in which either Johnston or

another cafeteria worker (it’s a bit unclear which one) called him the “n word.” That’s

very troubling on its face. The Seventh Circuit has suggested that even one incident can

be the basis for a Title VII harassment claim if it’s sufficiently severe – and specifically

if it involves the same inflammatory racial epithet at issue in this case. See Cerros v.

Steel Techns., Inc., 288 F.3d 1040, 1047 (7th Cir. 2002) (opining that a single incident

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involving a racial epithet might be sufficient to support a Title VII harassment claim);

Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (holding

same with respect to two incidents); see also Smith v. Sheahan, 189 F.3d 529 (7th Cir.

1999) (holding the same with respect to a Title VII sex-based harassment claim).

But Nichols has two main problems. First and foremost, as I noted above, he

didn’t go to the principal or to his superiors at the Planning Department to inform them

of the incident. Indeed, the first time any of them became aware of the allegation was at

the meeting a few days later in which Nichols was told he was no longer needed at the

school. That’s important because neither Johnston nor the other cafeteria worker were

Nichols’s supervisor. As a recent Supreme Court decision recently clarified, a supervisor

for Title VII harassment purposes is someone who has “the authority to effect a tangible

change in a victim’s terms or conditions of employment.” Vance v. Ball State Univ., 133

S. Ct. 2434, 2448 (2013). Here, Nichols has pointed me to zero evidence that Johnston

or the unidentified cafeteria worker who (he says) called him a racial slur had the power

to change the terms or conditions of his employment – and indeed, I suspect that’s

probably due to the fact that a school’s cafeteria services manager generally doesn’t have

the authority to hire and fire janitors.

The distinction between supervisors and non-supervising co-workers makes a

world of difference in this case. Courts are much more willing to impose vicarious

liability on an employer for harassment when the offender is the plaintiff’s supervisor. 

Id. at 2441. When it’s just an ordinary co-worker, however, an employer will only be

liable for harassment “if the employer was negligent with respect to the offensive

behavior.’” Id.; accord Cerros, 288 F.3d at 1045.

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And there’s the rub for Nichols. How could Springfield Elementary or the

Planning Department be negligent in stopping the continued use of racial slurs (and

similar outrageous conduct) if the people up the chain of command didn’t know that was

going on until they had already decided to remove Nichols from the job site? Obviously

they couldn’t. Now, it’s possible that Nichols could argue that he was removed in

retaliation for complaining about the racial epithet. But he hasn’t brought that type of

claim. He’s asserting a harassment claim against his employer. And there’s just no

evidence that – with respect to the sole alleged incident clearly involving racial animus –

his employer was even aware of his co-workers’ purported misconduct, much less that it

was negligent in preventing it. Summary judgment is warranted on the claim for this

reason alone.

That’s not all. Even severe race-based harassment must do more than offend the

victim. It instead must be “so severe or pervasive that it alters the conditions of the

plaintiff’s employment.” Thompson v. Memorial Hosp. of Carbondale, 625 F.3d 394, 401

(7th Cir. 2010) (emphasis added); accord Dear v. Shinseki, 578 F.3d 605, 611 (7th Cir.

2009). In this case, Nichols hasn’t pointed me to any facts indicating that the single –

and seemingly offhand – epithet fundamentally altered the conditions of his employment. 

Instead, it seems like just another example of his (generally non-racially motivated)

alleged mistreatment by the staff at Springfield Elementary, and especially Johnston,

whom Nichols portrays as taking an intense – and probably irrational, if you believe his

allegations – dislike to him.

At the end of the day, the bottom line is that Nichols hasn’t demonstrated that the

(alleged) one-time use of a racial epithet was so severe and so offensive in this particular

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case that it fundamentally changed the terms of his employment. Nor has he shown that

Springfield Elementary or the Planning Department knew that their employees were

harassing him but failed to stop the mistreatment. He needed to do both of those if he

wanted his lawsuit to go to trial. Summary judgment is the time in the litigation process

where a party needs to lay its cards on the table and tell me how its going to prevail on its

claims, assuming the jury believes its evidence. See Siegel v. Shell Oil Co., 612 F.3d

932, 937 (7th Cir. 2010) (“Summary judgment is the ‘put up or shut up’ moment in a

lawsuit.”). Therefore, summary judgment is appropriate on his Title VII harassment

claim.

Title VII Discrimination

Now on to the discrimination claim. Nichols doesn’t really spend much time

explaining this theory; indeed, he mostly just says that he was discriminated against

without identifying the facts that might support the allegation. Presumably he thinks that

either Springfield Elementary told him not to come back because he was AfricanAmerican, or the Planning Department refused to staff him on additional temporary jobs

for the same reason, or perhaps a bit of both.

Given that vagueness and paucity, I’m not inclined to spend much time on this

claim. It should suffice to say, Nichols doesn’t come close to demonstrating that he has a

viable Title VII discrimination claim. “Under the direct3 method [of proving

discrimination], a plaintiff must come forward either with direct or circumstantial

3

 The alternative to the “direct method.” is the “indirect method,” which generally shifts the burden

of proof back to a defendant-employer if the plaintiff can show (among other things) that another employee

not in his or her class was treated more favorably than he or she was. See Plair v. E.J. Brach & Sons, Inc.,

105 F.3d 343, 347 (7th Cir. 1997). This approach is inapplicable in this case because Nichols doesn’t

allege that he was treated different than any other employee.

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evidence that ‘points directly to a discriminatory reason for the employer’s action.’” See

Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 750 n.3 (7th Cir. 2006). Nichols just hasn’t

done that here. He’s pointed me to nothing concrete showing that his race motivated

Springfield Elementary’s decision to tell him not to return to the school, or the Planning

Department’s decision not to staff him on another job. Indeed, it seems pretty much

undisputed that Nichols was removed from Springfield Elementary because he was

involved in a number of confrontations with the school’s staff members, and the Planning

Department didn’t place him on another job site because of the problems he had at the

school.

It very well might be the case that Nichols didn’t do anything to warrant the

mistreatment by the Springfield Elementary staff, and if that’s the case, it’s especially

unfortunate that the Planning Department decided not to staff him on additional projects. 

But getting a raw deal isn’t the same thing as getting a raw deal because you’re a

member of a protected class. Nichols needed to point me to evidence showing that the

latter is what happened if he wanted to get a discrimination claim past the summary

judgment stage, and he simply didn’t do that. Therefore, summary judgment is

warranted on that claim as well.

CONCLUSION

For the foregoing reasons, the court GRANTS the pending Motion for Summary

Judgment (DE 27) in its entirety. Because this ruling disposes of all the issues in this

case, the clerk shall ENTER FINAL JUDGMENT in favor of the Michigan City Plant

Planning Department stating that James Nichols is entitled to no relief on his complaint.

The clerk shall treat this civil action as TERMINATED. All further settings in this

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action are hereby VACATED. Finally, for the reasons noted above, the pending Motion

to Strike (DE 33) is DENIED AS MOOT.

SO ORDERED.

ENTERED: August 1, 2013.

s/ Philip P. Simon __

PHILIP P. SIMON, CHIEF JUDGE

UNITED STATES DISTRICT COURT

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