Yaroslav Sklyarsky v. Means-Knaus Partners , 777 F.3d 892 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3302
YAROSLAV S. SKLYARSKY,
Plaintiff-Appellant,
v.
MEANS-KNAUS PARTNERS, L.P.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 6707 — Joan B. Gottschall, Judge.
______________________
No. 14-2768
YAROSLAV S. SKLYARSKY,
Plaintiff-Appellant,
v.
HARVARD MAINTENANCE, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 859 — Charles P. Kocoras, Judge.
2 Nos. 13-3302 & 14-2768
____________________
NO. 13-3302 SUBMITTED AUGUST 18, 2014
NO. 14-2768 SUBMITTED OCTOBER 30, 2014 *
DECIDED JANUARY 29, 2015
____________________
Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. For thirteen years Yaroslav Sklyarsky
worked as a custodian at a Chicago office building. His em-
ployer changed several times during that period, and in
April 2010 he began working for Harvard Maintenance
when that company was awarded the building’s contract for
janitorial services. Almost immediately Harvard supervisors
began disciplining Sklyarsky. He complained to the Equal
Employment Opportunity Commission (EEOC) and the Illi-
nois Department of Human Rights (IDHR) that Harvard was
treating him unfairly because of his Ukrainian national
origin. Sklyarsky was fired in January 2013, and after ex-
hausting his administrative remedies, he filed a pro se law-
suit against Harvard alleging discrimination and retaliation.
See 42 U.S.C. §§ 1981, 2000e-2, e-3, e-5(f). 1 During discovery
* We consolidated these related appeals for resolution. After examining
the briefs and records, we have concluded that oral argument is unnec-
essary. See FED. R. APP. P. 34(a)(2).
1 Sklyarsky already was an experienced pro se litigator; previously he
had filed discrimination suits against two of Harvard’s predecessors.
See Sklyarsky v. ABM Janitorial Servs.-N. Cent., Inc., 494 F. App’x 619 (7th
Cir. 2012) (affirming grant of summary judgment for defendant),
Nos. 13-3302 & 14-2768 3
Sklyarsky concluded that the building’s management com-
pany, Means-Knaus Partners, had been involved in Har-
vard’s discriminatory conduct, and he sought leave to join
Means-Knaus as a defendant. Judge Kocoras, who presided
over the suit against Harvard, denied that motion, telling
Sklyarsky that Means-Knaus had “nothing to do with the
employment contract” and that, if he wanted to sue Means-
Knaus, he would have to file a separate action. Sklyarsky did
that. Judge Gottschall, who was assigned to the new suit
against Means-Knaus, screened Sklyarsky’s pro se complaint
and dismissed the action sua sponte. See 28 U.S.C.
§ 1915(e)(2)(B);Rowe v. Shake, 196 F.3d 778, 783 (7th Cir.
1999). She reasoned that, because Sklyarsky was suing Har-
vard, the doctrine of claim preclusion foreclosed a separate
suit against Means-Knaus. Judge Gottschall did not discuss
the lack of finality of the Harvard litigation or
Judge Kocoras’s admonishment that Sklyarsky could sue
Means-Knaus only in a separate action. Judge Kocoras would
not reconsider after learning about Judge Gottschall’s deci-
sion, so Sklyarsky appealed the dismissal of his suit against
Means-Knaus. While that appeal was being briefed, Harvard
and Sklyarsky filed cross-motions for summary judgment.
Judge Kocoras decided those motions in favor of Harvard,
and Sklyarsky again appealed. We have consolidated his
appeals, and we conclude that any procedural missteps were
harmless.
Sklyarsky v. The Millard Group, Inc., No. 06 C 1590 (N.D. Ill. 2007) (dis-
missed after settlement).
4 Nos. 13-3302 & 14-2768
The following background is drawn from the evidence at
summary judgment in Sklyarsky’s suit against Harvard. We
recount the evidence in the light most favorable to
Sklyarsky. See Kvapil v. Chippewa County, Wis., 752 F.3d 708,
712 (7th Cir. 2014); Chaib v. Indiana, 744 F.3d 974, 981 (7th Cir.
2014).
Sklyarsky first received a written warning for insubordi-
nation in August 2010. His supervisor at the time, Vio-
leta Stosic, had gotten pushback from Sklyarsky after assign-
ing him extra work on a day the staff was shorthanded.
Stosic again cited Sklyarsky for insubordination in Octo-
ber 2011 when he searched for a seniority list in Harvard’s
office despite being told to stay out. After each written warn-
ing, Sklyarsky filed an administrative complaint with the
EEOC and the IDHR, the first time claiming discrimination
on the basis of national origin and the second time, retalia-
tion.
In February 2012, John Karpierz replaced Stosic as
Sklyarsky’s supervisor. Twice that year Karpierz disciplined
Sklyarsky for poor performance. The first time was in March
when Karpierz issued a written warning for not adequately
cleaning desks in the offices. Then in June, Karpierz gave
Sklyarsky a one-day suspension, again for inadequate clean-
ing but also for being “loud and disrespectful.” After this
suspension Sklyarsky signed a “Last-Chance Agreement”
conceding that he had displayed “poor performance and
conduct” and acknowledging that he would be fired imme-
diately if he did so again within a year. Even so, Sklyarsky
submitted another administrative complaint to the EEOC
and IDHR. Then around November 2012, in front of
Nos. 13-3302 & 14-2768 5
Sklyarsky’s co-workers, Karpierz mocked his mixed use of
Ukrainian and Polish.
The last straw for Harvard was in January 2013 when
Sklyarsky and co-worker Anders Kusper were disciplined
by Karpierz for discussing personal matters on the job.
Kusper received a warning, but Sklyarksy was suspended
and then told by Harvard’s general manager that he was
fired because of poor performance and the several discipli-
nary infractions. Once more Sklyarsky submitted an admin-
istrative complaint to the EEOC and IDHR; again he asserted
discrimination and retaliation. After receiving notice of his
right to sue, Sklyarsky sued first Harvard and then Means-
Knaus under Title VII of the Civil Rights Act of 1964 and 42
U.S.C. § 1981.
As noted, Sklyarsky appeals the adverse decision in each
of his lawsuits. We begin with the case against Means-
Knaus. Sklyarsky should have been permitted to join Means-
Knaus as a defendant with Harvard because Sklyarsky ac-
cused the management company of participating with Har-
vard in the alleged discriminatory conduct. The district court
relied on the absence of an employment contract in refusing
to allow Sklyarsky to join Means-Knaus, but there were open
fact questions on this point. In any case the absence of an
employment contract would not have been a sound reason
for cabining Sklyarsky’s lawsuit against Means-Knaus. A Ti-
tle VII plaintiff might have joint employers. See Tamayo v.
Blagojevich, 526 F.3d 1074, 1088 (7th Cir. 2008); Heinemeier v.
Chemetco, Inc., 246 F.3d 1078, 1082–83 (7th Cir. 2001); Arculeo
v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2d Cir. 2005).
And even if Means-Knaus was not Sklyarsky’s employer and
did not have a contractual relationship with him, the com-
6 Nos. 13-3302 & 14-2768
pany might still have faced liability under Title VII if it was
affiliated with Harvard. See Alam v. Miller Brewing Co., 709
F.3d 662, 667–68 (7th Cir. 2013); Tamayo, 526 F.3d at 1088;
Worth v. Tyer, 276 F.3d 249, 259–60 (7th Cir. 2001). And, simi-
larly, a third party can be liable under § 1981 for interfering
with the plaintiff’s relationship with his employer.
See Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008);
Thanongsinh v. Bd. of Educ., 462 F.3d 762, 782–83 (7th Cir.
2006).
As for the suit against Means-Knaus, dismissal on the
ground of claim preclusion was in error. The suit against
Harvard was still pending and thus the interim ruling deny-
ing leave to add Means-Knaus as a defendant was not a final
decision having preclusive effect. See Amcast Indus. Corp. v.
Detrex Corp., 45 F.3d 155, 158 (7th Cir. 1995); AVX Corp. v.
Cabot Corp., 424 F.3d 28, 31–32 (1st Cir. 2005). Moreover, final
or not, that ruling could not have precluded Sklyarsky from
acting on the district court’s encouragement to pursue
Means-Knaus in a later action. See Central States, Se. & Sw.
Areas Pension Fund v. Hunt Truck Lines, Inc., 296 F.3d 624, 629
(7th Cir. 2002) (explaining that res judicata will not apply “if
the court in an earlier action expressly reserves the litigant’s
right to bring those claims in a later action”). Thus the error
directing Sklyarsky to bring a second suit was compounded
by dismissing that new suit as barred by the doctrine of
claim preclusion.
With hindsight, though, we now know that these errors
did not prejudice Sklyarsky. His decision to sue Means-
Knaus was made based on materials obtained during dis-
covery that led him to conclude that the management com-
pany was involved in the alleged discrimination. But in this
Nos. 13-3302 & 14-2768 7
court Sklyarsky concedes that Means-Knaus had no role in
Harvard’s decision to fire him. Indeed, at his deposition
Sklyarsky acknowledged that Harvard initiated the adverse
employment actions and that Karpierz, his supervisor at
Harvard, was the “main decision-maker.” The evidence
submitted by both sides at summary judgment supports
Sklyarsky’s revised understanding of events: All of the
forms recording his discipline are Harvard documents com-
pleted by Sklyarsky’s supervisors, who were other Harvard
employees. The letter notifying Sklyarsky and his union
about his dismissal was signed by Harvard’s general man-
ager and is explicit that Harvard had decided to dismiss
him. No evidence points to Means-Knaus, and Sklyarsky
does not contend that anything would be accomplished by
remanding his suit against the management company for
further proceedings. For that reason we affirm the dismissal
of the lawsuit against Means-Knaus.
With that we turn to the grant of summary judgment for
Harvard. In ruling against Sklyarsky, the district court ad-
dressed together his claims under Title VII and § 1981, since
the same analysis applies to both theories of liability.
See Hutt v. AbbVie Prods. LLC, 757 F.3d 687, 691 (7th Cir.
2014); Andrews v. CBOCS West, Inc., 743 F.3d 230, 234 (7th
Cir. 2014). The judge first reasoned that Sklyarsky could not
establish discrimination under the direct method of proof,
see Ripberger v. Corizon, Inc., 773 F.3d 871, 877 (7th Cir. 2014),
because his only relevant evidence—Karpierz’s ridicule of
his mixed use of Polish and Ukranian—was not enough for a
jury to reasonably find discriminatory animus. Nor could
Sklyarsky prevail, the judge continued, under the indirect
method of McDonnell Douglas Corp. v. Green, 411 U.S 792
(1973). To establish a prima facie case of discrimination un-
8 Nos. 13-3302 & 14-2768
der that method, Sklyarsky was required to show member-
ship in a protected class and that he was meeting Harvard’s
legitimate expectations, suffered an adverse employment
action, and was treated less favorably than a similarly situat-
ed employee outside of the protected class. See Ripberger, 773
F.3d at 879; Orton-Bell v. Indiana, 759 F.3d 768, 777 (7th Cir.
2014). Judge Kocoras explained that, so far as the undisputed
evidence showed, Sklyarsky had not been meeting Har-
vard’s legitimate employment expectations and was not
treated less favorably than non-Ukranian coworkers with
similar disciplinary problems. And, finally, Judge Kocoras
concluded that Sklyarsky could not prove retaliation because
he lacked evidence that his administrative complaints
prompted the progressive discipline, including the loss of
his job. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2528 (2013).
Sklyarsky contends that disputed issues of material fact
preclude assuming that he was not meeting Harvard’s legit-
imate employment expectations. Sklyarsky explains that he
was one of the best custodians in the building, had worked
there for more than a dozen years, and was never the subject
of complaints from building occupants. As for the warning
Violeta Stosic issued in October 2011, Sklyarsky asserts that
reviewing a seniority roster was not against the rules and
that, concerning this incident, Harvard admitted to the
EEOC and IDHR that he was meeting its expectations.
Sklyarsky’s own opinion about his work performance is
irrelevant. See Sublett v. John Wiley & Sons, Inc., 463 F.3d 731,
740 (7th Cir. 2006); Peele v. Country Mut. Ins. Co., 288 F.3d
319, 329 (7th Cir. 2002). And focusing narrowly on the Octo-
ber 2011 incident accomplishes nothing, since Stosic’s warn-
Nos. 13-3302 & 14-2768 9
ing did not lead to a loss in pay or change in job status and
thus was not an adverse employment action. See Cole v. Illi-
nois, 562 F.3d 812, 816–17 (7th Cir. 2009); O’Neal v. City of
Chicago, 392 F.3d 909, 911–12 (7th Cir. 2004); Oest v. Ill. Dep’t
of Corrs., 240 F.3d 605, 612–13 (7th Cir. 2001). Moreover,
Sklyarsky stretches the record in saying that Harvard admit-
ted he was meeting its expectations concerning this incident.
What the defendant actually said in responding to his ad-
ministrative complaint was that Sklyarsky’s “work perfor-
mance as a janitor meets its expectations,” though he “re-
peatedly” had violated the company’s disciplinary rules “by
committing repeated acts of insubordination.” In his appel-
late brief Sklyarsky selectively quotes this language to ob-
scure Harvard’s point: Sklyarsky had repeatedly broken
company rules, even though satisfactorily performing his
custodial work. And though Sklyarsky is correct that com-
pany rules did not explicitly proscribe reviewing a seniority
list, he did not dispute that he was disciplined after calling a
supervisor a “nobody” and insisting that he could do what
he pleased when the supervisor told him not to go into Har-
vard’s office. Further, by the time of his discharge in 2013,
Sklyarsky had incurred five reprimands (including two sus-
pensions) in less than three years. He insists that it would
have been impossible for Karpierz to overhear him talking
with his co-worker when he was disciplined the final time,
but Sklyarsky did not dispute that the incident had occurred
or that Harvard prohibits “interfering with any employee’s
performance of duties by talking or other distractions during
normal work hours.”
Sklyarsky’s inability to show that he was meeting Har-
vard’s legitimate employment expectations is fatal to his re-
liance on the indirect method. See Brown v. Advocate S. Sub-
10 Nos. 13-3302 & 14-2768
urban Hosp., 700 F.3d 1101, 1104–05 (7th Cir. 2012) (plaintiff
must meet each element of a prima facie case to survive
summary judgment under indirect method); Coco v. Elmwood
Care, Inc., 128 F.3d 1177, 1179–80 (7th Cir. 1997) (same). Thus,
we need not address his challenge to the district court’s con-
clusion that he did not identify a similarly situated employee
who was treated more favorably.
Finally, Sklyarsky asserts that his claims of retaliation
should have survived summary judgment because, he main-
tains, he produced sufficient evidence of a causal connection
between his complaints to the EEOC and IDHR and Har-
vard’s discipline. On his retaliation claims Sklyarsky pro-
ceeded under the direct method, which required him to pro-
duce evidence that he engaged in statutorily protected activ-
ity, that he suffered a materially adverse action, and that
Harvard’s desire to retaliate was the but-for cause of the ad-
verse action. See Nassar, 133 S. Ct. at 2528; Milligan v. Bd. of
Trs. of S. Ill. Univ., 686 F.3d 378, 388 (7th Cir. 2012). The dis-
trict court concluded that Sklyarsky could not demonstrate a
causal connection. Suspicious timing alone rarely establishes
causation, but if there is corroborating evidence that sup-
ports an inference of causation, suspicious timing may per-
mit a plaintiff to survive summary judgment. See Coleman v.
Donahoe, 667 F.3d 835, 860–61 (7th Cir. 2012); Culver v. Gor-
man & Co., 416 F.3d 540, 546 (7th Cir. 2005). The only evi-
dence of causation that Sklyarsky presented was suspicious
timing between the reprimands, suspension, and his dismis-
sal and the administrative complaints he filed. He did not
identify any other evidence suggesting that his repeated
administrative complaints motivated the discipline he re-
ceived. The reprimands by themselves did not constitute
materially adverse employment actions. See Chaib, 744 F.3d
Nos. 13-3302 & 14-2768 11
at 986–87; Brown, 700 F.3d at 1109; Harper v. C.R. England,
Inc., 687 F.3d 297, 306 n.31 (7th Cir. 2012). And the six
months that lapsed between his complaint in December 2011
and suspension in June 2012 and his complaint later that
month and his termination in January 2013 is by itself insuf-
ficient to support an inference of causation. See Kidwell v. Ei-
senhauer, 679 F.3d 957, 966–67 (7th Cir. 2012) (concluding
that five-week lapse alone does not support inference of cau-
sation); Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir.
2009) (explaining that adverse action one day after protected
activity was suspicious timing).
Accordingly, we AFFIRM the dismissal of Sklyarsky’s
suit against Means-Knaus Partners and the grant of sum-
mary judgment for Harvard Maintenance.