February 23, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:15-cv-5353 -
Ronald A. Guzmán, Judge.
Flaum, Sykes, and Hamilton, Circuit Judges.
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.
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.
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.
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.
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.
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
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
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.
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." 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
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.
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."
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.
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"; 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.
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.
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
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
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.
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."
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
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.
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.