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Sklyarsky v. Harvard Maintenance, Inc.

United States District Court, N.D. Illinois, Eastern Division

July 15, 2014



CHARLES P. KOCORAS, District Judge.

Pro se Plaintiff Yaroslav Sklyarsky ("Sklyarsky"), brought this action against his former employer Defendant Harvard Maintenance Inc. ("Harvard") alleging discrimination based on national origin and retaliation in violation of Title VII and 42 U.S.C. § 1981. Sklyarsky moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. Harvard cross-filed for summary judgment. For the following reasons, Harvard's motion is granted, and Sklyarsky's motion is denied. Harvard's motion for sanctions is denied.


The following facts are derived from the parties' respective statements and exhibits filed pursuant to Northern District of Illinois Rule 56.1 ("Local Rule 56.1"). The Court reviews each Local Rule 56.1 statement and disregards any argument, conclusion, or assertion unsupported by the evidence in the record.

Sklyarsky is a male United States citizen of Ukrainian national origin. Sklyarsky began working as a custodian with ABM Janitorial Service in Chicago, Illinois in 1999, exclusively working at the 300 S. Riverside Plaza building in Chicago, Illinois. After his building's contract for janitorial services was transferred to Harvard, Sklyarsky began employment with Harvard on April 1, 2010. Harvard is a corporation which provides janitorial services to owners and operators of commercial buildings. Harvard's janitorial employees are represented by the Service Employees International Union Local 1, which negotiated a Standard Agreement Contractors contract ("Union Agreement") with Harvard. The Union Agreement governs wages, hours, working conditions and other conditions of employment, including discipline. The Union Agreement sets forth the requirement that all discipline must be accorded in a progressive manner. Harvard is required to abide by the contractual terms of the Union Agreement in the treatment of their employees. Aside from the Union Agreement, Harvard maintained their own set of Company Work Rules which categorized disciplinary offenses into two separate groups based on their severity; Major and Minor Rule Violations. Sklyarsky received a copy of these rules and signed the Company Work Rules prior to beginning with Harvard in 2010.

On August 2, 2010, Sklyarsky received his first written warning from his immediate supervisor Violeta Stosic ("Stosic") for insubordination. Under Harvard's Company Work Rules, insubordination is a Major Rule Violation. Stosic sent a letter to Harvard's Management on the same day of the infraction detailing Sklyarsky's opposition to being assigned extra work when the janitorial staffing was short, due to other individuals calling off work. Sklyarsky threatened to sue Stosic for assigning him more work. Following Stosic's written reprimand, Sklyarsky filed a complaint on August 11, 2010, with the U.S. Equal Employment Opportunity Commission ("EEOC") claiming discrimination based on his national origin.

On October 28, 2011, Stosic issued a secondary written warning to Sklyarsky for insubordination. Harvard's written incident report of the October 2011 encounter between Stosic and Sklyarsky describes how Sklyarsky wanted to take a picture of an employee seniority list placed on the wall of Harvard's office. After being warned that he was not allowed to take a photograph, Sklyarsky still proceeded to take a picture of the list. After the picture was taken, a brief exchange between Stocis and Sklyarsky ensued and Sklyarsky was issued a written warning for insubordination. Sklyarsky filed a grievance with the Union concerning the written warning, but the Union declined to take the dispute to arbitration. Sklyarsky filed a retaliation charge with the EEOC on December 7, 2011 because he felt that he was being retaliated against for filing the earlier August 2010 discrimination claim with the EEOC. On January 3, 2012, the EEOC issued a Notice of Right to Sue stating that they were unable to determine that a violation of Title VII occurred as described in the August 2010 discrimination claim.

John Karpierz ("Karpierz") took over as Sklyarsky's supervisor in February 2012. At some point soon after Karpierz assumed his position as a manager, Sklyarsky attests that Karpierz laughed at his mixed use of Polish and Ukrainian. On March 22, 2012, Sklyarsky was issued a written warning for inadequate job performance by Karpierz. The written warning specifies that Sklyarsky did not adequately clean the desks assigned to him. Sklyarsky tried to remedy the inadequate cleaning, but his attempt was deemed to be poor and a secondary janitor had to finish the job. Under Harvard's rules of conduct, poor work performance is a Minor Rule Violation. Shortly after his reprimand on March 25, 2012, Sklyarsky sent a "Complaint about Discriminatory Actions" to Harvard's Human Resource Manager Tatiana Domliaja ("Domliaja"). In the complaint Sklyarsky detailed his distaste for Karpierz, his ineffective management style, and also disclosed that he felt as though he was a victim of discrimination. Sklyarsky filed a grievance with the Union, concerning the written warning; however the Union declined to take the dispute to arbitration.

On June 4, 2012, another incident occurred where Karpierz imposed a one-day suspension for Sklyarsky's failure to adequately clean the areas assigned to him and insubordination. The Harvard incident report details that Sklyarsky failed to clean multiple areas that he was assigned, which required Karpierz to finish the work himself. When Sklyarsky was confronted with the need to timely finish his assigned responsibilities, or alternatively inform the supervisor ahead of time of his inability to complete the job, Sklyarsky stated that he was being discriminated against because he was Ukrainian. Harvard's incident report states that Karpierz informed Sklyarsky that he did not care if he were "Blue, Green, or Purple, " all he wanted was cooperation. In conjunction with Sklyarsky receiving a written notification of a suspension, he signed a Last Chance Agreement on June 8, 2012, specifying "[t]hat the employee acknowledges and understands that if he demonstrates any further job performance related deficiencies or displays poor conduct within twelve (12) months of the date of this Last Chance Agreement, his employment with the [Harvard] will be terminated." Sklyarsky filed a grievance with the Union, concerning the suspension; however the Union declined to take the dispute to arbitration. Sklyarsky filed a discrimination and retaliation claim with the EEOC on July 2, 2012.

On January 2, 2013, Karpierz issued a secondary suspension to Sklyarsky for participating in personal conversations with another employee during work hours. Both Sklyarsky and the other employee, Andres Kusper ("Kusper"), were disciplined. On January 7, 2013, Sklyarsky and the Union were notified in writing by Harvard's General Manager, Jim Postelnik, that Sklyarsky's employment would be terminated on January 18, 2013, pursuant to the terms of the Union Agreement, for a history of poor job performance and other disciplinary infractions culminating with the events that occurred on January 2, 2013. Sklyarsky filed a grievance concerning this suspension with the Union, which declined to take the dispute to arbitration. On January 30, 2013, the EEOC issued a Notice of Right to Sue concerning Sklyarsky's July 2, 2012 discrimination claim.

On April 17, 2013, Sklyarsky filed another charge of discrimination and retaliation with the EEOC concerning his termination from Harvard. On April 30, 2013, the EEOC issued a Notice of Right to Sue concerning Sklyarsky's termination claim.

On February 15, 2013, Sklyarsky filed a two-count complaint alleging: discrimination in violation of 42 U.S.C. § 1981 (Count 1); and discrimination in violation of Title VII (Count 2). On July 12, 2013, Harvard filed an abuse of judicial process counterclaim under Federal Rule of Civil Procedure 11 ("Rule 11"). On February 6, 2014, Sklyarsky moved for summary judgment under Federal Rule of Civil Procedure 56. Soon after, on April 9, 2014, Harvard moved for summary judgment.


Summary judgment is appropriate when the pleadings, discovery, disclosures, and affidavits establish that there is no genuine issue of material fact, such that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56 (a); Winsley v. Cook Cnty., 563 F.3d 598, 602-03 (7th Cir. 2009). The moving party bears the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the non-moving party to show through specific evidence that a triable issue of fact remains on issues on which the non-movant bears the burden of proof at trial. Id. The non-movant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; he must go beyond the pleadings and support his contentions with proper documentary evidence. Id. The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The Court bears "a special responsibility" to construe a pro se litigant's complaints liberally. Donald v. Cook County Sheriff's Dept., 95 F.3d 548, 555 (7th Cir. 1996). It is the "well-established duty of the trial court to ensure that the claims of a pro se litigant are given a fair and meaningful consideration." Palmer v. City of Decatur, Ill., 814 F.2d 426, 428-29 (7th Cir. 1987). However, "[a] lawsuit is not a game of hide the peanut." Greer v. Board of Educ. City of Chicago, Ill., 267 F.3d 723, 728 (7th Cir. 2001). Employment discrimination cases are very fact-intensive, and district courts are not required under our "adversary system to scour the record looking for factual disputes..." Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1994).


Sklyarsky alleges in his complaint that Harvard violated Title VII and 42 U.S.C. § 1981 over the course of his employment. Sklyarsky's cryptic complaint alleges discrimination in violation of 42 U.S.C. § 1981 in Count 1. Thereafter, Sklyarsky incorporates his Title VII discrimination and retaliation claims into a single count, Count 2. The Court will initially review the merits of Sklyarsky's Title VII claims then proceed with his 42 U.S.C. § 1981 claim. Finally, the Court will address Harvard's Rule 11 abuse of process claim.

At the onset of our analysis, the Court notes that Sklyarsky intertwines the overwhelming majority of his disciplinary citations with the permissibility of those censured actions under his Union Agreement. Sklyarsky's February 4, 2013, Complaint specifically designates Title VII and 42 U.S.C. § 1981 as the only causes of action he seeks relief under, as evidenced in its title, "Complaint of Employment Discrimination." The Court determines that Sklyarsky has not brought a separate and independent state law claim for wrongful termination. Therefore, for the purpose of resolving the instant ...

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