Employment – National origin discrimination

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U.S. Court of Appeals For the Seventh Circuit

Civil

Employment – National origin discrimination

Where an employee was insubordinate, he did not meet his employer’s legitimate expectations, even if his work performance did.

“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 October 2011 incident accomplishes nothing, since Stosic’s warning did not lead to a loss in pay or change in job status and thus was not an adverse employment action. See Cole v. Illinois, 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 admitted he was meeting its expectations concerning this incident. What the defendant actually said in responding to his administrative complaint was that Sklyarsky’s ‘work performance as a janitor meets its expectations,’ though he ‘repeatedly’ had violated the company’s disciplinary rules ‘by committing repeated acts of insubordination.’ In his appellate brief Sklyarsky selectively quotes this language to obscure Harvard’s point: Sklyarsky had repeatedly broken company rules, even though satisfactorily performing his custodial work. And though Sklyarsky is correct that company 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 Harvard’s office. Further, by the time of his discharge in 2013, Sklyarsky had incurred five reprimands (including two suspensions) 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.’”

Affirmed.

13-3302 & 14-2768 Sklyarsky v. Means-Knaus Partners, L.P.

Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., Rovner, J.

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