Heyl Royster


Heyl Royster


Discrimination/Retaliation Claims Denied Due to Failure to Articulate Statutorily-Protected Activity


By: Emily Perkins, eperkins@heylroyster.com

In an unpublished case, the Seventh Circuit held that the plaintiff’s discrimination and retaliation claims failed because the plaintiff failed to provide any evidence that he engaged in any statutorily-protected activity. Skiba v. Illinois Central Railroad Company, 884 F.3d 708 (7th Cir. 2018). Employers should note that mere complaints, without an indication of a protected class is insufficient to prove discrimination or retaliation.

Mark Skiba (plaintiff) alleged that his former employer, the Illinois Central Railroad, unlawfully discriminated against him on the basis of age and national origin and retaliated against him for complaining about a superior. When Skiba was hired, he was fifty-five years old. He worked as an entry-level management trainee. After completing the training program, he served in multiple management-level positions. At the age of fifty-eight, he received a promotion. However, while working this new position, his supervisor allegedly became verbally abusive. He notified the human resources department of his supervisor’s behavior, but the behavior continued. After several months of enduring the abuse, he requested reassignment to a different department. At the same time he made the request, his supervisor informed the director of human resources that the plaintiff had issues with his performance. Due to this information, plaintiff’s request for reassignment was denied.

Plaintiff filed a formal complaint with the human resources department against his supervisor and alleged: (1) hostile work environment, (2) retaliation, (3) disrespectful behavior based on plaintiff’s medical condition, and (4) discrimination by holding plaintiff accountable for other people’s errors. After the complaint and several follow-up emails did not provide him relief, plaintiff filed a charge of discrimination with the Equal Employment Opportunities Commission on the basis of age and national origin and unlawful retaliation for reporting his complaints about his supervisor.

The district court granted summary judgment on behalf of Illinois Central Railroad. On appeal, the Seventh Circuit analyzed the retaliation claim, noting that the plaintiff failed to establish that he engaged in any statutorily-protected activity. “Statutorily-protected activity ‘requires more than simply a complaint about some situation at work, no matter how valid the complaint might be. [T]he complaint must indicate [that] discrimination occurred because of sex, race, national origin, or some other protected class. Merely complaining in general terms of discrimination or harassment, without indicating a connection to a protected class or providing facts sufficient to create that inference, is insufficient.’” Skiba, 884 F.3d at 718. (Internal citations omitted.)

The Seventh Circuit concluded that the plaintiff failed to provide any evidence about his supervisor which would suggest that he was protesting discrimination on the basis of his age or national origin. Rather, the issue was a mere “personality conflict” and described his supervisor as one who “‘berate[ed], badger[ed], and disrespect[ed]’ his subordinates.” Id. at 714-15. He never suggested that his supervisor acted with unlawful discriminatory animus. Therefore, the court held that his retaliation claim failed.

In analyzing plaintiff’s age discrimination claim, the Seventh Circuit noted that comments describing the plaintiff as “low energy” or that another candidate would be “a little faster” were not attributed to the plaintiff’s age. The plaintiff also could not provide any evidence that younger employees were given preferential treatment. He failed to provide details of the employees’ qualifications or employment history that would allow the court to deduce that their hiring was a result of discriminatory motive. Because he could not show any younger employee was similarly situated, his age discrimination claim failed.

Similarly, the plaintiff failed to provide sufficient evidence to support a discrimination claim based on national origin claim. Plaintiff’s claim was simply based on the fact that he was American and his supervisors, including the supervisor whom he alleges was verbally abusive, were Canadian. However, plaintiff failed yet again to demonstrate that a particular protected characteristic was a motivating factor for any employment decisions. Therefore, his national origin claim also failed.

In evaluating the facts of the Skiba case, the Seventh Circuit noted the activity did not constitute statutorily-protected activity. In this case, the plaintiff made several allegations, but he failed to articulate a discriminatory motive or base any alleged behaviors on statutorily-protected characteristics. Mere complaints, without an indication of a protected class are insufficient to prove discrimination or retaliation. Statutorily-protected activity requires more than workplace complaints, no matter how valid those complaints might be.

For questions relating to discrimination or retaliation complaints, please contact the attorneys in the Employment & Labor Practice Group.