Seventh Circuit Finds No Retaliation or Discrimination

May 2015

By Andrew R. Makauskas

Sklyarsky v. Harvard Maintenance, Inc., 14-2768 (7th Cir. 2015), involved claims brought by a custodian, Yaroslav S. Sklyarsky, a custodian at a Chicago office building. In April of 2010, he began working for Harvard Maintenance when that company was awarded the building's contract for janitorial services. Sklyarsky was disciplined five times between August 2010 and his firing in January 2013. Discipline was administered for the following alleged activities:

• Insubordination after being assigned extra work on a day the staff was short-handed;
• Insubordination when he searched for a seniority list in Harvard's office despite being told to stay out;
• Poor performance for not adequately cleaning desks in the offices;
• A one-day suspension for inadequate cleaning and for being "loud and disrespectful;"
• Discussing personal matters on the job.

After the last incident, the plaintiff was told that he was fired because of poor performance and the several disciplinary infractions. On each occasion, Sklyarsky submitted an Administrative Complaint to the EEOC and IDHR, asserting discrimination (because of his Ukrainian national origin) and retaliation. Judge Kocoras granted Harvard's motion for summary judgment in the District Court.

Addressing the discrimination claim, the Seventh Circuit found that Sklyarsky could not establish discrimination under the direct method of proof because his only relevant evidence - that his supervisor ridiculed his mixed use of Polish and Ukrainian - was not enough for a jury to reasonably find discriminatory animus.

The Seventh Circuit also found that Sklyarsky could not prevail under the indirect method for proving discrimination. In order to establish a prima facie case of discrimination under the indirect method, the plaintiff was required to show the following:

• Membership in a protected class;
• That he was meeting his employer's legitimate expectations;
• That he suffered an adverse employment action;
• That he was treated less-favorably than similarly-situated employees outside of the protected class.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The Court focused on the undisputed evidence that Plaintiff had not been meeting Harvard's legitimate employment expectations.

Similarly, regarding the claim of retaliation, the Seventh Circuit found that Plaintiff did not produce sufficient evidence to defeat the motion for summary judgment. Plaintiff's retaliation claim proceeded under the direct method, which required evidence of the following:

• That he engaged in statutorily protected activity;
• That he suffered a materially-adverse action;
• That his employer's desire to retaliate was the "but-for" cause of an adverse action.

Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S. Ct., 2517, 2528 (2013).

The Court noted that the only evidence of causation that Plaintiff presented was suspicious timing between the reprimands, suspension, and dismissal and the administrative complaints that he filed. He did not identify any other evidence suggesting his repeated administrative complaints motivated the discipline he received. Suspicious timing by itself was not sufficient to create a question of fact. Thus, summary judgment in favor of Harvard Maintenance was affirmed.