Lesiv v. Ill. Cent. R.R. Co.

• Decision Date: 13 July 2022
• Docket Number: 21-2496
• Citation: Lesiv v. Ill. Cent. R.R. Co., 39 F.4th 903 (7th Cir. 2022)
• Parties: Nazariy LESIV, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, doing business as Canadian National Railway, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

39 F.4th 903

Nazariy LESIV, Plaintiff-Appellant,

v.ILLINOIS CENTRAL RAILROAD COMPANY, doing business as Canadian National Railway, Defendant-Appellee.

No. 21-2496

United States Court of Appeals, Seventh Circuit.

Argued January 13, 2022

Decided July 13, 2022

Uche O. Asonye, Attorney, Renee C. Fell, Attorney, Asonye & Associates, Chicago, IL, for Plaintiff-Appellant.

Noah G. Lipschultz, Attorney, Littler Mendelson P.C., Minneapolis, MN, for Defendant-Appellee.

Before Hamilton, Brennan, and Jackson-Akiwumi, Circuit Judges.

Hamilton, Circuit Judge.

This appeal presents retaliation claims under Title VII of the Civil Rights Act of 1964.Plaintiff-appellantNazariy Lesiv works for the Illinois Central Railroad Company.His brother, Lyubomir, had also worked there but left shortly after he filed a discrimination and retaliation charge against Illinois Central.Lyubomir later filed a discrimination suit in state court.As a witness in that suit, plaintiffNazariy Lesiv(whom we refer to as Lesiv in this opinion) testified in a deposition in 2018.Then, almost three months after Lesiv testified, his supervisors gave him a dangerous work assignment and suspended him after he refused to complete it.

Lesiv asserts that Illinois Central violated Title VII in two ways.The first is a theory of direct individual retaliation: Lesiv contends his supervisors subjected him to these adverse actions because he testified in his brother's lawsuit.See42 U.S.C. § 2000e-3(a)(unlawful for employer to discriminate against employee because he has "testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter").The second is a theory of third-party retaliation: Lesiv argues his supervisors also took these actions against him as a way to harm his brother in retaliation for his brother's filing of a charge against the company and later suing.SeeThompson v. North American Stainless, LP , 562 U.S. 170, 131 S.Ct. 863, 178 L.Ed.2d 694(2011)(recognizing third-party retaliation claims under Title VII).

The district court granted summary judgment for Illinois Central on both claims.We affirm, but without endorsing all of the district court's reasoning.A retaliation claim requires proof that the employer took a "materially adverse" action against an employee because he engaged in protected activity or because another person close to him did so.A jury could find here that both the dangerous work assignment and the suspension amounted to materially adverse actions.But on this record, a jury could not find retaliatory motives here.Lesiv has not presented evidence that his supervisors took these actions against him because of his or his brother's protected activities.Part I presents the material facts, summarizes the proceedings in the district court, and explains the summary judgment standard that we apply here.Part II addresses Lesiv's individual retaliation claim.Part III analyzes his third-party retaliation claim.

I.Factual and Procedural Background

We present the facts that follow in the light reasonably most favorable to Lesiv, giving him the benefit of conflicts in the evidence and drawing all reasonable inferences in his favor.Palmer v. Franz , 928 F.3d 560, 565(7th Cir.2019), quotingStokes v. Board of Education of the City of Chicago , 599 F.3d 617, 619(7th Cir.2010).

A.Facts for Summary Judgment

Illinois Central employs Lesiv as a carman (a person who repairs railcars, among other tasks).Lesiv's brother Lyubomir also worked for Illinois Central as a carman until sometime in 2016.Before leaving, however, Lyubomir filed with federal and state agencies a charge against Illinois Central for discrimination based on national origin, perceived sexual orientation, and/or race, and for retaliation.After the state agency dismissed the charge, Lyubomir filed a lawsuit in state court in July 2017.Lesiv was a witness in that lawsuit and testified in a deposition in April 2018.Critically, however, Lesiv has not submitted evidence that his supervisors who took action against him in the summer of 2018 were aware of his testimony.

In July 2018, almost three months after his deposition, the events that gave rise to this appeal occurred.To start, on July 6th, Lesiv and supervisor Anthony Grayer got into a heated confrontation over work that was unfinished at the end of Lesiv's shift.By Lesiv's account, Grayer jabbed Lesiv twice in the chest, prompting Lesiv to tell Grayer to "keep his hands off him."Another employee intervened and separated the two of them.That night, Grayer sat down to make work assignments for the next day, including Lesiv's next shift.

Grayer assigned Lesiv to work the "RIP track."Grayer explained later that he gave Lesiv the RIP track assignment because he"had an attitude the day before."Working on the RIP track can be dangerous.It entails heavy repairs, like wheel replacements on railcars, which can weigh over five tons and up to a hundred tons if loaded.Most of the RIP track repairs require more than one carman to complete safely, so people are assigned to work the RIP track in teams of two.

That day, Grayer assigned Lesiv to work the RIP track alone.Illinois Central contends that Lesiv was never actually scheduled to work the RIP track by himself.Its version is that the partner he was supposed to work with called off work at the last minute.Lesiv testified that he was aware that another employee had called off work, but no one told him that that other employee was assigned to work with him on the RIP track.Moreover, Illinois Central agrees that the relief supervisor told Lesiv that he still had to work the RIP track without a partner.When Lesiv asked who his partner was, the supervisor responded, "I have nobody," and that "Anthony Grayer told me that's where you are going to work."Illinois Central further contends that Lesiv did not give the relief supervisor the chance to give Lesiv a new partner or explain the situation.But Lesiv asserted in his deposition that the relief supervisor never clarified throughout their entire interaction that he originally had a partner.On summary judgment, of course, we must credit Lesiv's evidence.¹

Lesiv refused to comply because he thought the assignment was unsafe.He asked the relief supervisor to call Grayer so that he could give Lesiv a different assignment.With Grayer unavailable, Lesiv eventually spoke with Mechanical Manager Dan Duggan and told him about the situation.Duggan suggested Lesiv work the speedy track instead.(The speedy track involves light repairs that one carman can safely do alone.)Lesiv agreed, but that never happened.

Instead, during the call, Lesiv told Duggan about his interaction with Grayer the day before.Lesiv then gave the telephone to the relief supervisor and left to retrieve his equipment.But before he could actually start work on the speedy track, the relief supervisor told him that Duggan wanted him to write a statement about his confrontation with Grayer.Lesiv complied with the request.

Duggan then spoke with Lesiv again and explained that he was being removed from service for being insubordinate.The supposed insubordination was Lesiv's behavior toward the relief supervisor when he refused to work the RIP track by himself and his manner in speaking with Duggan on the telephone.(Lesiv acknowledges that his voice may have been "loud" during his initial conversation with Duggan.)At that time, Lesiv understood the suspension to be without pay and for an indefinite time.Lesiv returned to work on July 12th after missing two days of work and received backpay to compensate him for his lost wages.The parties do not indicate whether the two days of missed pay actually came out of one of Lesiv's paychecks before he received the backpay.In the district court, however, Illinois Central argued only that the suspension did not amount to a materially adverse action because Lesiv received backpay, without offering evidence of how quickly Lesiv received backpay.We will not speculate in favor of the party who moved for summary judgment.It is enough for the purposes of summary judgment that Illinois Central agrees the suspension was for an indefinite period of time, as it confirmed at oral argument, and that Lesiv later received backpay, which means the suspension was not paid from the outset.²

Lesiv was not the only employee who refused a work assignment during these two days.On July 6th, the same day Lesiv had his altercation with Grayer, Paul Barwan was assigned to work the "A yard" with a partner.(The A yard involves both heavy and light repairs.)He objected immediately: "F*** you.I am not doing that job."The relief supervisor informed Duggan of this interaction a few days later.Unlike in Lesiv's case, Duggan did not suspend Barwan.

B.Procedural History

After these events took place, Lesiv sued Illinois Central for retaliation under Title VII and the Illinois Human Rights Act.See42 U.S.C. § 2000e–3(a);775 ILCS 5/101 et seq.He alleged that Illinois Central retaliated against him for testifying in his brother's lawsuit by giving him a dangerous work assignment and suspending him.Lesiv also advanced a theory of third-party retaliation.He asserted that Illinois Central also acted against him to punish his brother for filing a discrimination charge and the later lawsuit against the company, and that Lesiv had standing to bring such a claim under Thompson v. North American Stainless, LP , 562 U.S. 170, 131 S.Ct. 863, 178 L.Ed.2d 694(2011)(recognizing such third-party retaliation claims).

Illinois Central moved for summary judgment.The magistrate judge, presiding by consent under 28 U.S.C § 636(c), granted the motion.The judge found that a reasonable jury could not conclude that Lesiv was subject to a materially adverse action.The judge also found that even if a jury could consider an action materially adverse, it could not find a causal connection between Lesiv's...