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Skiba v. Canadian National Railway Co.

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

April 12, 2017

Mark Skiba, Plaintiff,
Canadian National Railway Company, Illinois Central Railroad, and Canadian National Transportation, Ltd., Defendants.


          Ronald A. Guzmán United States District Judge.

         For the reasons stated below, Defendant’s motion for summary judgment [50] is granted. All pending motions are stricken. Civil case terminated.


         Defendant Illinois Central Railroad Company (“IC” or “Defendant”) is Plaintiff Mark Skiba’s employer.[1] (Pl.’s Resp. Def’s. Stmt. Facts, Dkt. # 62, ¶ 1.). Plaintiff is a citizen of the United States of America, was born in December 1952, and is currently employed by IC as a Material Handler. (Id.) Plaintiff brings claims against IC under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”') and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), alleging national origin discrimination as well as retaliation. Plaintiff began working for IC in 2008. (Id. ¶ 4.) In February 2011, Jim Voytechek (Director, Systems Network Operations) promoted Plaintiff to the position of Motive Power Supervisor, after Plaintiff interviewed with Voytechek, Daniel Clermont (Senior Manager, Motive Power), and Angela Lee (Recruiter). (Id.) Despite his title as Motive Power Supervisor, Plaintiff did not actually supervise any employees when he was in the Motive Power department. (Id.) At the time Plaintiff was promoted to the Motive Power department in 2011, he was 58 years old. (Id.)

         As a Motive Power Supervisor, Plaintiff reported to Clermont. (Id. ¶ 5.) Clermont in turn reported to Voytechek, who reported to Albert Nashman (Assistant Vice President of Network Operations). (Id.) Plaintiff’s claim of national origin discrimination is based on the fact that he is American and the “management hierarchy” to whom he reported when he worked in the Motive Power department – Clermont, Voytechek, and Nashman – was Canadian. Plaintiff’s Charge of Discrimination filed with the Equal Employment Opportunity Commission (“EEOC”) states that he “was treated dissimilarly in job reclassification among younger employees and employees of Canadian citizenship.” (Compl., Ex. A, Dkt. # 1-1.) In June 2012, one of Plaintiff’s co-workers complained that Clermont had used profanity and screamed “when addressing [him] and [his] co-workers.” (Pl.’s Resp. Def.’s Stmt. Facts, Dkt. # 62, ¶ 6.). Human Resources Associate Veronica Loewy interviewed Plaintiff as part of her investigation into the complaint. (Id.) At the time of her investigation, Loewy reported to Duane Spears (Senior Manager of Compliance), who in turn reported to Allan Rothwell (Director of HR). (Id.) In late June or early July 2012, Plaintiff spoke to Loewy on the telephone about Clermont’s behavior. (Id. ¶ 7.) On July 4, 2012, he then sent a follow-up email to Loewy, in which he complained that Clermont had continued to engage in “abusive conduct” towards all of his direct reports in the form of “berating, badgering, and disrespect.” (Id.)

         On September 16, 2012, Plaintiff sent an email to Loewy, Spears, and the Office of the Ombudsman, complaining that Clermont had again behaved in an “abusive” manner towards Plaintiff earlier that month, and requesting to be placed in another department. (Id ¶ 8.) In his September 16, 2012 email, Plaintiff characterized his problems with Clermont as a “personality conflict.” (Id.) By letter dated September 21, 2012, Loewy advised Plaintiff of the outcome of her investigation into Clermont’s behavior and further advised Plaintiff that he could apply for open positions posted on the Company’s ePortal Site if he wanted to leave the Motive Power department. (Id. ¶ 9.) Plaintiff responded to Loewy’s letter by email on September 28, 2012, stating that he had not intended his September 16th email to be a complaint and reiterating that his difficulty with Clermont was a “personality conflict with [a] superior.” (Id.)

         On October 14, 2012, Plaintiff made a “formal complaint” against Clermont in an email to Loewy and Spears. (Id. ¶ 10.) Plaintiff’s email states, “so the basis of complaint reasoning is four-fold: 1) Mr. Clermont providing a continual hostile environment, 2) Mr. Clermont retaliation against me for previous complaints, as well as, testimony requested by HR, 3) disrespecting me, by publicly mocking and ridiculing my medical condition, 4) discrimination – by nature of holding only me accountable with written negative consequences – for alleged errors that everyone else makes – without any such punitive actions taken against them.” (Id. ¶ 10.) Nashman and Voytechek testified that In late December 2012 and early 2013, they decided to downsize the Motive Power department by consolidating the Homewood location into the sub-office in Edmonton to centralize the motive power function in one place. (Id.. ¶ 11.) In January 2013, Clermont was reassigned to other duties in Canada, leaving only three people in the Homewood Motive Power department: Plaintiff, Dwain Henderson (who had a supervisor role as second-in-command under Clermont), and Ed Polacek. (Id. ¶ 12.)

         Effective January 21, 2013, Plaintiff’s position was eliminated as part of the downsizing of the Motive Power department. (Id. ¶ 13.) Plaintiff learned about the decision to abolish his position on or around January 15, 2013, and acknowledges that his position was eliminated because he was “the lowest seniority man” in the department. (Id.) Voytechek had authority to decide which employees would fill open spots in the Motive Power department. (Id.) Rothwell, Director of Human Resources, testified that his telephone journal notes of January 11, 2012 indicate that Albert Nashman called the human resources department to say, “Albert [Nashman] is reducing power desk in U.S. to only two positions, ” “Skiba likely to be surplus,” and “timing uncertain.” (Id.)

         Rothwell attempted to assist Plaintiff in finding a new position by reaching out to several managers and setting up interviews for Plaintiff. (Id. ¶ 14.) On January 29, 2013, when Plaintiff had been unable to secure another position, Rothwell verbally conveyed to Plaintiff an offer for an open position as a Clerk, and the offer was memorialized in a formal written offer dated January 31, 2013. (Id. ¶ 15.) According to Plaintiff, he believed that he continued to be considered for management positions despite accepting the clerical job. (Id.) Plaintiff began working in the clerical position on March 4, 2013. (Id. ¶ 16.)

         When Plaintiff spoke with Rothwell in January 2013 after learning that his position was being eliminated, he asked about a “direct transfer” to a management position in another department. (Id. ¶ 18.) Rothwell advised Plaintiff that he was not going to receive a direct placement into a management position, but offered to help Plaintiff with interviews for management jobs. (Id.) Plaintiff knew no later than February 1, 2013 that he was not going to get “direct placement” into a management position, although he still held out hope that he might be hired for one of the positions for which he had interviewed. (Id.) On June 24, 2013, Plaintiff sent an email to Rothwell inquiring about “the possibility of obtaining an accommodation to be placed in one of many jobs [he’d] applied for since late January 2012,” and stating that he understood two previous Motive Power Supervisors, Carrie Roberts and Major Norman, had received such an “accommodation.” (Id. ¶ 17.) Rothwell replied to Plaintiff’s email on June 25, 2012, advising Plaintiff that Roberts and Norman had worked out transfers to other positions “based on their knowledge, skill and ability – not because of any intervention by my office.” (Id.)

         In discovery, Plaintiff identified 82 management positions for which he purportedly applied from 2012 to 3013 and in 2015. (Id. ¶ 44.) No recruiter or hiring manager ever said anything to Plaintiff about his citizenship or national origin. (Id. ¶ 78.) Other than Voytechek’s reportedly asking Plaintiff how old he was before promoting him to the position of Motive Power Supervisor, no hiring manager or recruiter ever made any comments to Plaintiff about his age. (Id. ¶ 79.) Additional relevant facts will be discussed in the text as necessary.


         The ADEA makes it unlawful for an employer to take an adverse employment action against an individual “because of such individual’s age.” 29 U.S.C. § 623(a)(1); Ripberger v. Corizon, Inc., 773 F.3d 871, 880 (7th Cir. 2014). ADEA protections extend to individuals who are 40 years of age and older. 29 U.S.C. § 631(a). “The inquiry that must be considered, . . . is ‘whether the evidence would permit a reasonable factfinder to conclude that the plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the . . . adverse employment action.’” Memon v. W Tech. Coll., No. 16-1814, 2016 WL 7228688, at *2 (7th Cir. Dec. 12, 2016) (quoting Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016)). “In the age discrimination context, it is not enough for [Plaintiff] to show that h[is] age was a motivating factor in [the] . . . decision; []he must demonstrate that ‘but for’ h[is] age, [IC] would not have eliminated h[is] position.” Mayenschein v. WS Packaging Grp. Inc., No. 15-C-858, 2016 WL 6989785, at *5 (E.D. Wis. Nov. 29, 2016) (citing Martino v. MCI, 574 F.3d 447, 455 (7th Cir. 2009)).[2]

         Plaintiff first contends that statements made by the senior management and decisionmakers establish discriminatory intent based on ...

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