Sklyarsky v. ABM Janitorial Services-North Central, Inc.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 28, 2012*
Decided September 4, 2012
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
Nos. 12-1386 & 12-1639
YAROSLAV S. SKLYARSKY, Appeals from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 09 C 2774
ABM JANITORIAL SERVICES - NORTH
CENTRAL, INC., William T. Hart,
Defendant-Appellee. Judge.
ORDER
Yaroslav Sklyarsky appeals from a grant of summary judgment against him in this
action alleging that his employer, by disciplining him, discriminated against him because of
his national origin and retaliated against him for protesting discrimination. Specifically,
Sklyarsky contends that ABM Janitorial Services discriminated against him because of his
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
Nos. 12-1386 & 12-1639 Page 2
Ukrainian national origin when it issued four reprimands over a 14-month period. See 42
U.S.C. §§ 1981, 2000e-2(a). He also alleges that ABM retaliated against him with these
reprimands because he filed charges with the Equal Employment Opportunity Commission
and sued another employer two years before the first reprimand. See id. § 2000e-3(a).
Because he has not offered sufficient evidence for either claim, we affirm the judgment.
The relevant facts in this appeal are undisputed, and we view them in the light most
favorable to Sklyarsky, the nonmoving party. See, e.g., Lewis v. Mills, 677 F.3d 324, 330 (7th
Cir. 2012). Sklyarsky has been a janitor at the 300 Riverside Plaza building in downtown
Chicago since 1999. The building management hires contractors like ABM for its janitorial
needs. The collective-bargaining agreement between ABM and the union to which
Sklyarsky belongs provides that Sklyarsky’s employment location is tied to 300 Riverside
Plaza rather than the contractors. Thus Sklyarsky has remained at 300 Riverside Plaza even
as the building’s contractors—his employers—have changed several times since 1999.
ABM disciplined Sklyarsky four times within two years. The first discipline
occurred in April 2008 when Violeta Stosic, Sklyarsky’s supervisor, reprimanded him for
refusing to complete a work assignment. Stosic reprimanded Sklyarsky again six months
later, this time for failing to correct deficiencies in his cleaning. Neither of these reprimands
caused Sklyarsky to lose any pay or work time. Stosic reprimanded Sklyarsky a third time
about a half year later for failing to improve his cleaning. Because Sklyarsky had two recent
reprimands with ABM and ABM uses progressive discipline, after this third reprimand
ABM suspended him for one day without pay. Sklyarsky’s fourth reprimand came three
months later for contacting without permission the building management about a tenant’s
complaint. Sklyarsky did not lose any pay or work time as a result of his fourth reprimand,
but ABM sent him a written “final warning” that “[a]ny future attempts to communicate
with the Building Management will result in [your] immediate termination . . . .”
The district court granted summary judgment for ABM, determining that Sklyarsky
had not established a prima facie case for either his discrimination or retaliation claim. The
court first addressed the discrimination claim. It ruled that only the third reprimand
constituted an adverse employment action because the other three had not affected
Sklyarsky’s pay or altered a tangible job benefit. As to that reprimand, the court ruled that
Sklyarsky could not establish two other elements of a prima facie case. First, he offered no
evidence that he was meeting ABM’s legitimate expectations; second, he could not show
that he was treated less favorably than a similarly situated, non-Ukranian coworker.
The court then addressed the retaliation claim. Unlike its analysis of the
discrimination claim, the court ruled that both the third and fourth reprimands were
adverse employment actions; the court reasoned that a “materially adverse action” for a
Nos. 12-1386 & 12-1639 Page 3
retaliation claim can include a reprimand, like the final one here, that threatens the loss of a
job and therefore might dissuade a reasonable worker from protesting discrimination. See
Benuzzi v. Bd. of Educ. of Chi., 647 F.3d 652, 665 (7th Cir. 2011). But the claim still failed, the
court concluded, because Sklyarsky had not submitted sufficient evidence to suggest that
his protected activities caused ABM to reprimand him.
On appeal Sklyarsky first challenges the district court’s dismissal of his
discrimination claim. He argues that ABM’s disciplinary records show that the company
treated him differently than other employees. He also contends that his second reprimand
should have been treated as an adverse employment action because his emotional distress
from receiving that reprimand caused him to be hospitalized and take 12 hours of unpaid
sick leave. Finally, he insists that the court should not have granted summary judgment
because the allegations in his complaint establish a prima facie case of discrimination.
We address these contentions in reverse order. First, mere allegations in a complaint
cannot create an issue of fact to defeat summary judgment. See FED. R. CIV. P. 56(c), (e); BPI
Energy Holdings, Inc. v. IEC (Montgomery), LLC, 664 F.3d 131, 135 (7th Cir. 2011); Burrell v.
City of Mattoon, 378 F.3d 642, 648–49 (7th Cir. 2004); Cardoso v. Calbone, 490 F.3d 1194, 1197
(10th Cir. 2007); Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999). Thus,
the district court properly looked only to the admissible evidence submitted by the parties.
Second, we agree with the district court that Sklyarsky’s second reprimand was not
an adverse employment action for purposes of his discrimination claim. For a claim of
discrimination, an adverse employment action must materially alter the terms or
conditions of employment. See Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 602 (7th Cir. 2009)
(“[W]ritten reprimands without any changes in the terms or conditions of . . . employment
are not adverse employment actions.”); Oest v. Ill. Dep’t of Corr., 240 F.3d 605, 612–13 (7th
Cir. 2001) (finding that written reprimands received under progressive discipline policy
were not adverse employment actions); Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir.
2008); Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). Even though Sklyarksy
alleges that the second reprimand left him ill, it did not change his employment conditions
and therefore cannot support a claim of discrimination. See Burlington Northern & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 62 (2006) (explaining that the terms of the anti-discrimination
provision of Title VII “explicitly limit the scope of that provision to actions that affect
employment or alter the conditions of the workplace.”).
Last, we also agree with the district court that the record contains no evidence that
in imposing discipline ABM treated any other employee similarly situated to Sklyarsky
more favorably. To be “similarly situated,” the employee needs to have roughly the same
Nos. 12-1386 & 12-1639 Page 4
performance, qualifications, and conduct as the plaintiff. See Harris v. Warrick Cnty. Sheriff’s
Dep’t, 666 F.3d 444, 449 (7th Cir. 2012); Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 644
(7th Cir. 2006). Sklyarsky has not identified any such employee. In fact, he told the union
and ABM’s director of human resources that Stosic treated all of the janitors in the same
unfair manner. And the disciplinary records that Sklyarsky cites show simply that Stosic
had given written and verbal warnings to other janitors for various minor infractions; none
shows that a non-Ukranian janitor with at least two recent reprimands engaged in conduct
similar to Sklyarsky’s but was punished less severely.
Sklyarsky also contests the district court’s dismissal of his retaliation claim. His
principal argument seems to be that because he did not actually commit infractions and his
discipline violated the collective bargaining agreement, Stosic’s reprimands had to be a
retaliatory response to his previous suit and EEOC charges. He adds that the time between
his reprimands and protected conduct establishes a causal connection between the two.
We agree that summary judgment was proper on Sklyarsky’s retaliation claim. To
survive summary judgment, Sklyarsky had to provide evidence that his protected activities
caused ABM to reprimand him. See Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698, 703
(7th Cir. 2012); Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 677 (7th Cir. 2011).
Such evidence could be “(1) suspicious timing, ambiguous statements and other bits and
pieces from which an inference of retaliatory intent might be drawn; (2) evidence that
similarly situated employees were treated differently; and (3) evidence that the employer
offered a pretextual reason for an adverse employment action.” Jajeh v. Cnty. of Cook, 678
F.3d 560, 570 (7th Cir. 2012). Here, all three categories of evidence are absent.
First, the timing of Sklyarsky’s prior suit (which closed in January 2007) and his
filing of charges with the EEOC (August and October 2008) is not suspiciously close to his
third and fourth reprimands (March and June 2009). See Kidwell v. Eisenhauer, 679 F.3d 957,
967 (7th Cir. 2012) (finding that periods of five weeks and two months between alleged
retaliatory actions and protected activities “militate against” inference of causation based
on suspicious timing); Healy v. City of Chicago, 450 F.3d 732, 741 n.11 (7th Cir. 2006) (finding
no suspicious timing when events were separated by more than one year). Second, he
conceded in his deposition that neither Stosic nor anyone else at ABM ever criticized him
for filing his EEOC charges or his suit against ABM’s predecessor, and Stosic testified that
at the time of the reprimands she had no knowledge of his charges against ABM. Third, as
with his discrimination claim, Sklyarsky presents no evidence that ABM treated similarly
situated, non-Ukranian janitors more favorably. Finally, Sklyarsky’s contention that he did
not commit infractions does not establish that the reprimands were a pretext for retaliation.
To show pretext, Sklyarsky must present evidence that ABM’s reasons for the discipline
Nos. 12-1386 & 12-1639 Page 5
were not honest, not merely that they were mistaken. See Silverman v. Bd. of Educ. of Chi., 637
F.3d 729, 738, 744 (7th Cir. 2011); Fercello v. Cnty. of Ramsey, 612 F.3d 1069, 1082–83 (8th Cir.
2010); Upshaw v. Ford Motor Co., 576 F.3d 576, 586–87 (6th Cir. 2009). No evidence, however,
suggests that ABM did not believe that Sklyarsky broke workplace rules.
Sklyarsky also argues that the district court erred in awarding approximately
$1,876.41 in costs to ABM under Federal Rule of Civil Procedure 54(d)(1). He does not
dispute that ABM was the “prevailing party,” but insists that the court was prohibited
from awarding costs. He explains that on the form of judgment the court marked a box
entitled “other” rather than a box ordering that “the plaintiff recover nothing, the action be
dismissed on the merits, and the defendant . . . recover costs from the plaintiff . . . .” But
Rule 54(d)(1) provides that costs “should” be awarded unless “a federal statute, these rules,
or a court order provides otherwise,” and a judgment that is silent about costs is not an
order disallowing costs. See Congregation of the Passion v. Touche, Ross & Co., 854 F.2d 219,
221 (7th Cir. 1988). As the district court explained, the judgment neither awarded nor
prohibited costs, so the award to ABM was proper. Sklyarsky also argues that the district
court should have declined to impose costs because of his indigence, but that exception
applies only if a losing party shows that it is incapable of paying court-imposed costs at the
time of judgment or in the future. See Rivera v. City of Chicago, 469 F.3d 631, 635–37 (7th Cir.
2006); McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994). As the court noted, Sklyarsky’s
financial affidavit—which states that he still works at 300 Riverside Plaza and has a
monthly income of over $2,600.00—did not meet that standard.
We have reviewed the remaining contentions in Sklyarsky’s brief and conclude that
none has merit.
AFFIRMED.