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Skiba v. Illinois Central Railroad Co.

United States Court of Appeals, Seventh Circuit

March 8, 2018

Mark Skiba Plaintiff-Appellant,
v.
Illinois Central Railroad Company, Defendant-Appellee.

          Argued February 23, 2018

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:15-cv-5353 - Ronald A. Guzmán, Judge.

          Before Flaum, Sykes, and Hamilton, Circuit Judges.

          Flaum, Circuit Judge.

         Plaintiff-appellant Mark Skiba alleges his former employer, defendant-appellee Illinois Central Railroad ("IC"), unlawfully discriminated against him on the basis of age and national origin, as well as retaliated against him for complaining about a superior, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2000e-17. The district court granted summary judgment in favor of IC. Plaintiff now appeals. For the reasons stated below, we affirm.

         I. Background

         A. Factual Background

         IC is a subsidiary of the Canadian National Railway Company ("CN"), a Canadian corporation that operates rail and transportation businesses in the United States and Canada. In June 2008, IC hired plaintiff, a United States citizen, as an en- try-level management trainee in its Railroader Trainee Pro- gram. At the time, plaintiff was fifty-five years of age. Plaintiff completed the Railroader Trainee Program in 2009 and subsequently served in multiple management-level positions, including Mechanical Officer-Special Projects and Car Mechanical Supervisor.

         In February 2011, at the age of fifty-eight, plaintiff applied for a promotion to Motive Power Supervisor in IC's Motive Power Department in Homewood, Illinois. Plaintiff alleges that during his interview, Jim Voytechek, IC's Director of Systems Network Operations, asked him his age. Voytechek denies this claim. He acknowledges, however, that plaintiff had "a good interview, " "spoke very confidently, " and appeared "orderly and focused." As a result, plaintiff was awarded the promotion. In his new role, plaintiff reported to Daniel Clermont, the Senior Manager of the Motive Power Department, who in turn reported to Voytechek. Clermont and Voytechek are both Canadian citizens.

         In June 2012, one of plaintiff's co-workers filed a com- plaint with IC's Human Resources Department regarding Clermont's workplace conduct. Specifically, the employee alleged Clermont was "verbally abusive, " "used profanity, " and "insulted employees." Veronica Loewy, an IC Human Resources Associate, was assigned to investigate the com- plaint.

         In an email to Loewy sent on July 4, 2012, plaintiff con- firmed Clermont's "abusive conduct" and stated Clermont frequently "berat[ed], badger[ed], and disrespect[ed]" his subordinates. Plaintiff further alleged Clermont's "continual personal abuse and belittling" created a "stressful" work environment that caused him to "have nightmares." Notably, however, plaintiff did not claim that any protected class status under the ADEA or Title VII (i.e., race, color, religion, sex, national origin, or age) served as the impetus for Clermont's conduct.[1]

         Plaintiff sent another email to Loewy on September 16, 2012. In it, plaintiff recounted that Clermont was "abusive/argumentative" towards him on September 9, 2012. Plaintiff alleged that as a result of Clermont's behavior, he experienced "shortness of breath" and "a dull chest pain" and was taken to the hospital. He further stated that the high stress induced by Clermont's management style caused a "ventricular arrhythmic condition" and high blood pressure. Once again, plaintiff did not mention a protected class. Instead, he characterized the situation as a "personality conflict."

         Regardless, plaintiff told Loewy he could not "further risk [his] mental and physical health" by working under Clermont and requested reassignment to another department. Plaintiff noted he had "been putting in" for other IC management positions since January 2012, but had thus far been unsuccessful.

         On September 17, 2012, the day after plaintiff's email to Loewy, Clermont contacted Allan Rothwell, a Director of Human Resources, and informed him of "performance issues" with plaintiff. In response, Rothwell notified Clermont of plaintiff's complaints and request for a transfer.

         Loewy responded to plaintiff's September 16 email via letter on September 21, 2012. She acknowledged Clermont had "not act[ed] consistent with IC's expectations regarding his managerial actions, methods of communications, or interactions with IC employees" and stated IC would "take appropriate corrective measures to ensure that similar conduct [was] not repeated."[2] She further informed plaintiff that his requested reassignment had to be "based on a merit selection process" pursuant to IC's regular hiring and promotion practices. She encouraged him, however, to "continue to apply for other positions."

         According to the record, IC's personnel decisions are usu- ally the result of departmental decision-making rather than top-down mandates from company-wide leadership. One or more senior managers within a relevant department, often referred to as "hiring managers, " independently control the interview and selection process, with advice and consultation from Human Resources.

         Plaintiff sent another email to Loewy on September 28, 2012. His email emphasized that his September 16 transfer re- quest "was not a complaint" and that "this letter [was] not a complaint either." Still, he raised "reservations" about finding a new management position "via [IC's] conventional methods" (plaintiff claimed to have unsuccessfully applied for approximately forty-five different job openings by that point). He further stated that during his time at IC, he had observed "many management employees … who got into a personality conflict with their superior, and were instantly given individual consideration and moved into an open position, " effectively "bypassing the merit based selection process, protocol, and procedure."

         IC acknowledges that, on occasion, a manager qualified for another position may circumvent the normal application process and laterally move to another department without a formal interview. Despite plaintiff's requests, however, no such transfer occurred in his case.

         Plaintiff filed a formal complaint against Clermont via an email to Loewy on October 14, 2012, stating that "things have not gotten better with the personality conflict." Plaintiff stated the basis of his complaint was "four-fold": (1) Clermont "providing a continual hostile work environment"; (2) Clermont's retaliation against plaintiff "for previous complaints" and "testimony" in Loewy's HR investigation; (3) Clermont "disrespecting" plaintiff "by publicly mocking and ridiculing [his] medical condition"[3]; and (4) Clermont "discriminat[ing]" against plaintiff by "holding only [plaintiff] ac- countable with written negative consequences" for "alleged errors that everyone else makes." Once again, his complaint did not assert Clermont's actions were motivated by plain- tiff's age or national origin.

         On October 15, 2012, the day after plaintiff filed his complaint, Clermont wrote a letter to plaintiff claiming his "work performance [was] unsatisfactory." Clermont outlined several instances of plaintiff's workplace failures, and warned if he failed to improve, "disciplinary action may result, up to and including … dismissal." This letter was placed in plain- tiff's personnel file.

         In January 2013, Albert Nashman, IC's Assistant Vice President of Network Operations-also a Canadian citizen- decided to downsize the Homewood Motive Power Department and consolidate its functions at IC's facilities in Edmon- ton. At his deposition, Nashman testified that his decision was part of a company-wide effort to maximize efficiencies at IC's train dispatch centers. As a result, Clermont was reassigned to Canada and plaintiff's position was eliminated. IC informed plaintiff of Nashman's decision on January 15, 2013. At that time, plaintiff was sixty years of age. Although he had remained unsuccessful in securing another IC management position (by that stage, he had supposedly applied to approx- imately sixty management openings), Voytechek offered him a non-management clerical job.

         In a February 4, 2013 email to Voytechek, plaintiff requested that Voytechek review plaintiff's personal circumstances. Once again, he referred to IC's supposed practice "of placing displaced managers almost seamlessly into another department's management team." Also, for the first time, plaintiff referenced the ADEA, stating: "I maybe [sic] a member of a protected class under the Age Discrimination in Employment Act of 1967." The same day, Voytechek emailed Rothwell and asked him to respond to plaintiff on his behalf. Voytechek told Rothwell that "[t]he problem for [plaintiff] is not that there are no jobs in management available … but rather that no one 'wants' him."

         Rothwell attempted to assist plaintiff in his job search. For example, in January 2013, Rothwell sent multiple emails to managers in other IC departments asking about potential job openings. Rothwell went so far as to request that plaintiff be interviewed ahead of other candidates. These efforts, how- ever, proved unsuccessful.

         On February 22, 2013, Rothwell emailed the Senior Human Resources Director in Canada. In his email, Rothwell described plaintiff as "a later career person" who "present[ed] poorly to hiring managers and [had] a personal view of his skills and abilities which [was] inconsistent to how others see him." Rothwell further stated plaintiff was "not one who takes feedback well." Rothwell shared his thoughts "in case [plaintiff] escalate[d] the matter."

         Plaintiff's managerial job search remained unsuccessful and he began working in the clerical position on March 4, 2013. Still, Rothwell's placement attempts continued. On March 11, 2013, for instance, Rothwell told an IC hiring man- ager that plaintiff was still eligible for a management position and that "[i]f he is qualified he should be interviewed." These efforts did not produce any tangible results.

         On March 27, 2013, plaintiff sent another email to Loewy. Plaintiff complained Clermont's October 15th letter concerning plaintiff's job performance was "retaliatory" for plaintiff's prior complaints and was "adversely affecting" his job search.

         In all, plaintiff alleges he applied to approximately eighty-two different management positions, all without success. Plaintiff further claims at least thirty-seven of those positions were filled by substantially younger candidates.

         B. ...


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