Skiba v. Canadian National Railway Company et al

Filing 77

MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 4/12/2017: Defendant' s motion for summary judgment 50 is granted. All pending motions are stricken. Civil case terminated. [For further details see statement.] Mailed notice(is, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
Mark Skiba,

)
Plaintiff,
)
)
v.
)
)
Canadian National Railway Company, )
Illinois Central Railroad, and Canadian )
National Transportation, Ltd.,
)
Defendants.
)

No: 15 C 5353

Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
For the reasons stated below, Defendant’s motion for summary judgment [50] is granted.
All pending motions are stricken. Civil case terminated.
STATEMENT
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
1

While Canadian National Railway Company and Canadian National Transportation,
Ltd. are named defendants, they have not been served nor has counsel entered an appearance for
either of them. Canadian National Railway Company and Canadian National Transportation,
Ltd. are dismissed for lack of service.

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 suboffice 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,
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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.
Age
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.’”
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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 Plaintiff’s age. Specifically, Plaintiff
notes that:
C

CN Director Voytechek asked Plaintiff about his age in February 2011 at
his interview for the Supervisor in the Motive Power Department and
purportedly said to Plaintiff, “I shouldn’t have asked you that question,
right?”

C

Human Resources Director Rothwell described Plaintiff as a “later career
person” to his superior in explaining Plaintiff’s reassignment to the clerk
position

C

In rejecting Plaintiff from certain positions to which he applied after being
terminated from the Motive Power Department, IC personnel stated that:
Plaintiff “would not respond well to the need for additional training”; a
younger employee who was hired would be “quick[er]” to grasp certain
parts of the job; Plaintiff was “low energy”; and one hiring manager was
concerned about the “retirement” age of candidates.

Voytechek’s inquiry about Plaintiff’s age (which was 58) at his February 2011 interview
does not support a finding of intentional discrimination for the termination of his position and his
transfer to the non-management clerk position in January and February 2013. “A particular
remark can provide an inference of discrimination when the remark was (1) made by the decision
maker, (2) around the time of the decision, and (3) in reference to the adverse employment
action.” Crotteau v. St. Coletta of Wis., No. 14-CV-652-JDP, 2016 WL 4133598, at *5 (W.D.
Wis. Aug. 3, 2016). Here, Voytechek’s question about Plaintiff’s age was not made at the time
of his termination, nor was it in reference to the adverse employment action. Indeed, Voytechek
promoted Plaintiff to the Motive Power Supervisor position when Plaintiff was 58, weakening
Plaintiff’s claim of age discrimination. See Victor v. Vill. of Hoffman Estates, No. 13 C 00921,
2016 WL 232420, at *7 (N.D. Ill. Jan. 20, 2016) (“[W]hile the fact that the Village first extended
2

While IC also argues that many of the alleged adverse actions of discrimination are
time-barred, the Court need not address this argument with respect to the age discrimination
claim as the claim fails on the merits.
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her to a full-time status at age 55 undermines any inference that in returning her to part-time
status two years later the defendants acted because she had aged two years.”) (citing Ripberger v.
Corizon, Inc., 773 F.3d 871, 880-81 (7th Cir. 2014) (“[T]he notion that [defendant] desired to
eliminate [plaintiff] because of her age is unlikely given that he had hired [plaintiff]. . . just two
years before when she was 57 years old.”); Rand v. CF Indus., Inc., 42 F.3d 1139, 1147 (7th Cir.
1994) (“It seems rather suspect to claim that the company that hired him at age 47 ‘ad suddenly
developed an aversion to older people’ two years later.”)).
Nor are the comments that Plaintiff would “not respond well to additional training” and
was “low energy” evidence of age-based discrimination, particularly when viewed in context. As
to the former comment, Derrell Ross, Manager, Safety & Compliance, attests that Plaintiff was
selected to interview for two openings as a Safety Officer, who would “perform a significant
amount of training.” (Ross Decl., Dkt. # 53-18, ¶ 5.) After a first interview, Ross “determined
that [Plaintiff] was among the more qualified candidates for the Safety Officer position based on
his experience.” (Id. ¶ 6.) However, after asking Plaintiff back for a second interview, which
required Plaintiff to prepare and present a 10-minute PowerPoint presentation, Ross determined
that Plaintiff’s “presentation style was limited and did not naturally invite participation or
questions.” (Pl.’s Resp. Def.’s Stmt. Facts, Dkt. # 62, ¶ 53; Ross Decl., Dkt. # 53-18, ¶ 7.) Ross
further stated that Plaintiff “presented as somewhat over-confident regarding his own knowledge
and abilities,” and that he “was worried that [Plaintiff] would not respond well to the need for
additional training.” (Pl.’s Resp. Def.’s Stmt. Facts, Dkt. # 62, ¶ 53; Ross Decl., Dkt. # 53-18, ¶
7.) Thus, it is clear that the concern about Plaintiff’s response to additional training was based
on his demeanor and personality and not his age. Plaintiff disputes the “subjective viewpoints”
stated in Ross’s declaration, and points out that interview notes taken by IC personnel regarding
other positions Plaintiff applied for indicate that Plaintiff has a “deep history” in safety and
management. Indeed, Ross acknowledged Plaintiff’s many years’ experience in the area of
safety, but rejected him from the Safety Officer position because he believed Plaintiff lacked the
presentation and communication skills necessary to succeed in the job, not because he lacked
experience in the relevant field.
The comment related to “low energy” was purportedly made by Craig Dettman, who
interviewed Plaintiff for a position of Benefits Administrator–Attendance Management.
Dettman testified that he did not “recall that there was much energy in the interview,” and
Plaintiff’s counsel then asked Dettman, “Tell me what you remember about that, no energy in the
interview.” (Dettman Dep., Dkt. # 63, at 131-32.) Dettman responded, “Well, I mean, just
conversation was just very plain and . . . . ,” when counsel asked Dettman what he meant,
Dettman said, “That’s all, just in tone and response.” (Id. at 132.) Nothing in this testimony
indicates that Dettman’s statement regarding the energy level in Plaintiff’s interview was related
to age.
Plaintiff’s reliance on the use of the term “retirement age” by a hiring manager is
inapposite because the record support he cites to is an email regarding a different
candidate–Michael Mowen. (Pl.’s Ex. 78, Dkt. # 66-1, PageID #:2645.) Plaintiff fails to point to
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any evidence demonstrating that the hiring manager’s comment is any way relevant to Plaintiff,
the elimination of his position, or the fact that he did not receive offers for any of the
management positions for which he applied.
Martyn Peterson, who interviewed but rejected Plaintiff for the position of Manager,
Truck Owner-Operator, testified that “it was [his] impression that [another candidate] would
grasp some of the aspects of the job a little faster than [Plaintiff] and [fellow applicant] Scott
[Carver].” (Def.’s Ex. 19, Peterson Dep., Dkt. # 53-19, at 140.) When Plaintiff’s counsel asked
Peterson what his impression was based on, Peterson responded, “Based on, well again, my
overall impression on how they would do,” and noted that there are “[a] lot of aspects to this job,
a lot of different things that you have to be able to manage and accomplish, and my impression
was that Mr. Lopez would be slightly more quick in grasping all these different parts of the job,
as opposed to Scott and [Plaintiff] [who] I thought would take a little bit more time.” (Id.)
Plaintiff’s assumption that Peterson’s comments were based on Plaintiff’s age versus his
intelligence, skills, or simply Plaintiff’s behavior during the interview has no basis in the record.
Indeed, Peterson testified that he had the feeling that Plaintiff was more interested in Peterson’s
job, and felt that Plaintiff had been “almost insulting” by implying that Peterson did not know
what he was doing. (Id. at 110, 163, 166). Absent more, Plaintiff’s speculation is insufficient
evidence on which to ground a finding of intentional discrimination. See Sanford v. Walgreen
Co., No. 08 C 6325, 2010 WL 380907, at *8 (N.D. Ill. Jan. 27, 2010) (“[A]n employer is entitled
to award promotions based on purely subjective criteria, and [Plaintiff] fails to offer any evidence
that [the decisionmaker’s] individual consideration of candidates is merely a ‘mask for
discrimination.’”) (citation omitted).
On February 22, 2013, Allan Rothwell e-mailed his superior at the time, Canadian Senior
Human Resources Director, Johanne Batistta, stating that:
Mr. Skiba is a later career person who joined CN in 2008 in the
RRTP. . . . He presents poorly to hiring managers and has a personal view of his
skills and abilities which is inconsistent to how others see him and I have
counseled him on this. Our offer to keep him as clerk is reasonable - he has the
skills and it will likely be a better fit. That said, Mark is not one who takes
feedback well so I am sharing this with you in case he escalates the matter to
yourself.
(Def.’s Resp. Pl.’s Stmt. Add’l Facts, Dkt. # 75, ¶ 17.) Rothwell’s reference to Plaintiff as a
“later career person” is not evidence that Plaintiff’s position was abolished because of his age.
As recently noted by the Seventh Circuit, “[b]ecause age and years of service are analytically
distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to
say that a decision based on years of service is necessarily ‘age based.’” David v. Bd. of Trustees
of Cmty. Coll. Dist. No. 508, No. 15-2132, 2017 WL 129114, at *8 (7th Cir. Jan. 13, 2017)
(citation and internal quotation marks omitted). Plaintiff points to no evidence that Rothwell’s
statement to Batistta relates to Plaintiff’s age versus his years of service.
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Plaintiff also argues that substantially younger employees were “systematically” treated
better than him. In support, he refers to a chart listing approximately 37 younger employees who
apparently were offered positions Plaintiff had applied for and who “compared to Plaintiff at the
time of the [relevant] job action.” (Def.’s Resp. Pl.’s Stmt. Facts, Dkt. # 75, ¶ 110.) It is true
that circumstantial evidence of discrimination can include “evidence, whether or not rigorously
statistical, that similarly situated employees outside the protected class received systematically
better treatment.” Vaughn v. CA Techs., Inc., 169 F. Supp. 3d 833, 840 (N.D. Ill. 2016).
However, “[s]imilarly situated employees must be directly comparable to the plaintiff in all
material respects, [though] they need not be identical in every conceivable way.” Coleman v.
Donahoe, 667 F.3d 835, 846 (7th Cir. 2012) (citation and internal quotation marks omitted). The
“analysis calls for a ‘flexible common sense’ examination of all relevant factors.” Id. (citation
omitted). The purpose of making the comparison “is to eliminate other possible explanatory
variables, ‘such as differing roles, performance histories, or decision-making personnel, which
helps isolate the critical independent variable’—discriminatory animus.” Id. (citation omitted).
Even assuming that all of the individuals listed were many years younger than Plaintiff,
he makes no effort to demonstrate that they were directly comparable to him “in all material
respects.” As a result, no reasonable factfinder could rely on the fact that these younger
individuals were offered positions over Plaintiff as evidence that Plaintiff’s age was the but-for
cause of the failure to hire him.
Plaintiff also asserts that the inconsistencies and implausibilities in the reasons Defendant
relied upon for its various employment actions provide a basis upon which a jury could infer
intentional discrimination. Plaintiff claims that Defendant failed to follow its internal policy to
interview “all qualified candidates” because he was not interviewed for all positions for which he
says he was qualified. This purported policy, referenced in an email by a human resources
employee, was disputed by both the Human Resources Manager Stephanie Rogers and the
Director of Human Resources Allan Rothwell. (Def.’s Resp. Pl.’s Stmt. Add’l Facts, Dkt. # 75, ¶
92.) In any event, Plaintiff, who indicated in discovery that he applied for 82 management
positions after his Motive Supervisor position was abolished, fails to show that he was qualified
for all of the positions he applied for or that the reasons he was not interviewed for certain of
those positions were not honest.3 A number of Plaintiff’s purported examples of pretext are
premised on alleged “conflicting testimony” or “inexplicable ratings” regarding Plaintiff’s skills,
experience, and demeanor during the interviews. But when an individual applies to 82 positions,
conflicting impressions about Plaintiff’s experience or abilities with respect to different positions
is hardly unexpected and cannot support a basis for finding intentional discrimination. Although
the Court must draw inferences in Plaintiff's favor as the nonmoving party, the Court may not
“draw[ ] inferences that are supported by only speculation or conjecture.” Brown v. Advocate S.
3

Plaintiff’s assertion that Defendant’s internal policy required that “all qualified
candidates” must be interviewed is questionable given the lack of record support and that at least
one of the positions to which he applied had 500 applicants and another had 64. (Pl.s Resp.
Def.’s Stmt. Facts, Dkt. # 62, ¶¶ 64, 69.)
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Suburban Hosp., 700 F.3d 1101, 1104 (7th Cir. 2012). Finally, Plaintiff’s reference to
Defendant’s failure to comply with a consent decree in an unrelated case, which arose from
allegations of race discrimination, is a nonstarter. The Court concludes that no reasonable jury
could find intentional discrimination based on Plaintiff’s evidence of purported pretext.
Considering the evidence as a whole, the Court concludes that no reasonable factfinder
could conclude that Plaintiff’s age constituted the but-for cause of either the elimination of
Plaintiff’s position in the Motive Power Department, or his inability to secure another
management position despite his having applied for dozens of openings.
National Origin
Plaintiff also alleges that he was discriminated against because he is American, pointing
to the following evidence: (1) Clermont, a senior manager in the Motive Power Department who
is Canadian, was treated more favorably than Plaintiff, (2) IC employs more Canadian
management employees than American management employees, (3) IC’s “superior officers” are
Canadian, and (4) IC gave shifting explanations for its alleged decision to centralize the Motive
Power Department in Canada. (Pl.’s Resp., Dkt. # 63, at 15.) But Plaintiff admits that he
reported to Clermont and fails to indicate how he and Clermont were similarly situated.
Moreover, with respect to the assertions that IC employs more Canadian management employees
than American and more of its “superior officers” are Canadian, Plaintiff fails to point to any
record citation or paragraph in his statement of additional facts to support them, so the Court
disregards these assertions. Finally, even assuming that IC gave shifting explanations for its
decision to centralize the Motive Power Department in Canada, Plaintiff fails to explain how this
decision demonstrates that IC discriminated against him because he is American. Because
Plaintiff has failed to point to any evidence from which a reasonable jury could conclude that he
was discriminated against because he is American, IC’s motion for summary judgment on the
national origin claim is granted.
Retaliation
“To survive summary judgment under the direct method, [Plaintiff] must present
evidence of ‘(1) a statutorily protected activity; (2) a materially adverse action taken by
[Defendant]; and (3) a causal connection between the two.’” Chumbley v. Bd. of Educ. for
Peoria Dist. 150, No. 14-1238, 2016 WL 7188093, at *4 (C.D. Ill. Dec. 9, 2016) (citation and
internal quotation marks omitted). Plaintiff claims that he was retaliated against when Defendant
abolished his position as a Supervisor in the Motor Power Department effective January 21,
2013, after Plaintiff filed a complaint against his supervisor Daniel Clermont. He also appears to
contend that he was not hired for any of the management positions he applied for after his Motive
Power position was eliminated in retaliation for complaining about Clermont.
In the context of employment discrimination and retaliation, claims in the charge and
allegations in the complaint must be alike or reasonably related. See Luevano v. Wal-Mart
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Stores, Inc., 722 F.3d 1014, 1030 (7th Cir. 2013) “Normally, retaliation and discrimination
charges are not considered ‘like or reasonably related’ to one another.” Swearnigen-El v. Cook
Cnty. Sheriff's Dep’t, 602 F.3d 852, 864-865 (7th Cir. 2010). Plaintiff admits that his EEOC
charge does not mention retaliation, and the box associated with retaliation is not checked on the
charge. Plaintiff contends that the narrative letter he sent in support of his EEOC charge and the
EEOC investigator’s notes indicate that he reported retaliation and that the EEOC investigated it.
Assuming without deciding whether Plaintiff exhausted his retaliation claim, the Court
finds it is nevertheless time-barred. “In Illinois, an individual complaining of discriminatory
conduct under the ADA, ADEA, Title VII or the Rehabilitation Act, must file a complaint with
the EEOC within 300 days of the alleged unlawful conduct.” Edwards v. Illinois Dep't of Fin.,
No. 12 C 00371, 2016 WL 5233460, at *5 (N.D. Ill. Sept. 22, 2016). Plaintiff does not dispute
that he learned of the elimination of his Motive Power Supervisor position on or around January
15, 2013 and that the elimination would be effective as of January 21, 2013 (Pl.’s Resp. Def.’s
Stmt. Facts, Dkt. # 62, ¶ 13), which is more than 300 days prior to filing his EEOC complaint on
December 30, 2013. Plaintiff’s contention that the adverse employment action occurred on
March 4, 2013, when he began working as a clerk, is unpersuasive in light of Seventh Circuit
authority to the contrary. See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 453 (7th Cir.
1990) (“[I]t is the date of firing or other adverse personnel action, not the date on which the
action takes effect” that is the date of accrual of injury, “provided it is communicated to the
employee.”).
Moreover, Plaintiff’s assertions that equitable estoppel precludes Defendant from
asserting a statute of limitations defense because it allowed him a paid leave of absence,
continued to discuss his re-employment in a management position, and continued to investigate
his complaint against his supervisor are unavailing. See Hicks v. Medline Indus., Inc., 247
Fed.Appx. 808, 811 (7th Cir. 2007) (“[E]quitable estoppel is inapplicable [where the plaintiff]
has adduced no evidence that [the defendant] took active steps to prevent her from suing.”);
Thelen v. Marc’s Big Boy Corp., 64 F.3d 264, 269 n.4 (7th Cir. 1995) (plaintiff’s claims in age
discrimination case that corporate executives did not respond to his and a friend’s inquiries into
his dismissal could not form basis to apply equitable estoppel to preclude application of statute of
limitations for filing a charge with EEOC); Lever v. Northwestern Univ., 979 F.2d 552, 556 (7th
Cir. 1992) (university was not equitably estopped to assert statute of limitations as defense to
female professor’s employment discrimination claim where university did nothing to dissuade
professor from filing a charge). None of these facts suggest an intentional effort by Defendant to
preclude Plaintiff from filing a claim.

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

Date: April 12, 2017

__________________________________
Ronald A. Guzmán
United States District Judge

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