gave for rejecting him for management positions to which he applied within the limitations period the evidence included shifting explanations for the reasons why skibo is managing the position was  conflicting testimony and inexplicable ratings given to skibo during interviews for positions that occurred within the limitations period statements made by decision makers that when combined with evidence of dishonesty would permit reasonable jurors to infer on lawful motives the unlawful motive or of retaliation and the unlawful motive of discrimination irrational hiring decisions including hiring individuals who unlike schipa were not qualified for the positions that they were given who had been previously demoted who were responsible for causing prior safety violations and discipline unlike who at the time that he applied for these positions had a solid work record with illinois central no discipline much more experience and was never demoted there is conflicting testimony from h r employees about the employment practices and the hiring procedures that illinois central used there are significant unexplained deviations from stated employment practices and there is significant evidence of systematically better treatment of employees who unlike schipa did not oppose and did not complain to h r about unlawful employment practices were his word to mr skibo complain about on law full employment practices as opposed to just arbitrary bullying  he got a letter about his performance and then on march twenty seventh of two thousand and thirteen after he applied for position to five six one he sends an e mail stating that he believes that prior retaliatory acts are preventing from attaining a management position in the time period you know ok maybe i'm not being clear when does he specifically inform char if he believes he's been a victim of  october i'm sorry this is page nine of the opening brief you know on october fourteenth two thousand and twelve ski but you know they charge a formal complaint in which the alleged continuing cosco excuse me continued continual hostile work environment retaliation for previous complaints as well as testimony requested by h r look at how the how does that qualify as protected activity under federal law and it was under coleman in other decisions of this court talking about unlawful conduct and i don't see that here maybe he thought this was illegal but there's i don't see any indication here that this would be illegal for a reader of that would say told he's complaining about something that would violate federal law there's no reference to age or national origin there is no reference to nate excuse me age or national origin in the october fourteenth two thousand and twelve e mail he does reference in retaliation for assisting right because he to reference age or national origin to make the claim that he's making now correct for retaliation he did not do so so there's no protected activity to support your retaliation claim i hear your point on that judge i would point you to two other places in the record where i believe that that standard has been met in march of twenty thirteen he e mails about a letter that is being kept in his file that he believes retaliatory for participating with h r that is preventing him from getting a job in february a month before that the record reflects that he e mails his c n director avoid a check and tells right is there are you still pursuing the national origin argument we raise the national origin argument on appeal on the grounds that it was dismissed on summary judgment or compare issue but the primary focus of this case in my view is retaliation do we need to address the national origin it seems exceedingly thank you and  to your honor's point about what coleman said it is clear from schemas testimony and all of the evidence that what he reasonably and sincerely believed he was doing was opposing unlawful conduct under federal law his complaints were made i or i get that but coleman didn't deal with the problem didn't deal with the plaintiff who had failed to articulate a claim under federal employment law it had to do with whether the claim is valid or not ok and that's well established with respect to retaliation law but if you are subjective belief that you've been in that your rights have been violated if not communicated to the employer does not get you protected activity fair enough judge however i would point out that by the time skibo was making his complaints in october of two thousand and twelve about a hostile work environment he was referring about his manager clarified and that was the bosses are equal opportunity jerks right and that's not a violation of federal law true however if he believes that he was subject to the hostile work environment based on a prohibited factor like his age or his woful conduct in opposing unlawful work practice then it would be protected activity and at the very least purely on his subjective belief not communicated to the employer yes and he got that from which basis w coworkers and himself from an age discrimination while he was clearly trying to protect himself from age seven a shot he didn't communicate that to anybody so he didn't engage in protected activity if it's just in his head it doesn't count fair enough judge sykes however he does say to his supervisor in february of two thousand and twelve i may be a member of the protected class under the age discrimination act one thousand nine hundred sixty and if those are the magic words that need to be stated in order to confer his complaint to be protected activity then he said that can clearly a legit claim of retaliation based on a pattern of retaliatory kind acts which also occurred here one of the unusual facts about this case counsel is is just the sheer number of decisions that are at issue from the time his position is eliminated  but your computer theory seems to require us to or a jury to infer that there was the other company wide conspiracy or agreement to discriminate against him on the basis of age doesn't i wouldn't say it that way judge i don't believe that we've attempted or need to prove a company wide conspiracy however if one discriminator or retaliate or spoils of the soup for the rest of his jobs then that's enough and in this particular case voided check nash men and rockwell the high ranking folks who were involved in the issue of claremont the first time around the high ranking folks who were allegedly trying to as opposed to what it was telling mark schema directly and that's in rockwell's e mail to his supervisor in which he tells a supervisor that skibo is a later career person he doesn't present well in interviews and he's probably better suited to work in a non management position as a clerk if h r is telling that to the hiring managers and to the people who are a stance and charged with making the decision then the message clear retaliation age discrimination is obviously unlawful and nobody would say that explicitly and reasonably safe with me it's the implicit statement that nobody wants him that to check in his email to gnash men and rothwell said nobody wants him and called and it is true that discrimination cases get dismissed on summary judgment because the employer comes forward with legitimate reason and what is the legitimate reason for saying no to an employee with forty years of experience with an unblemished work record who had been promoted by this very same employer the inference is nobody wants him not for legitimate reasons but for illegitimate reasons and that's an inference that on summary judgment a jury gets to think you are safe sometimes yes time i see i am out of time thank you very much t the court my name is holly robins i represent illinois central railroad company in this suit filed by mark ski beth who is a current employee with the railroad the district court here properly granted summary judgment  when he was only a couple of years younger and that in and of itself goes to the age claim that in twenty thirteen that position was eliminated and that issue is outside of the clerk or excuse me motive power supervisor it's eliminated in two thousand and thirteen and he applies for some other positions also at that time he has told before the statute of limitations start period begins that he is not hired for certain other positions and he has offered a clear position which he accepts he then sort of tries to keep his claim off of actually starting a clerk but that is not the adverse job action to the extent there is one here so i want to be able to put those issues aside because they are outside the statute of limitations as the court has pointed out one of the remarkable things about this case is just the sheer number of jobs that mr skeel applied for some of those jobs he applied for again outside of the stat limitations and was informed outside of the statute of limitations on the result that some of those job he applied for even before he was told that that motor motive power position had been eliminated of counsel so naturally she when he received notice of the various denials i don't think we do there specially with respect that i think there are certain positions for which it is very clear that he had received denials i think there are other positions for which he plainly did not receive denials before the statute of limitations period so i i do think there are certain cut outs for some of those things he does i think try to make them a little bit murky some of these things surrounding the time that he applied for that motive power position but there are e mails in the record that say you didn't or you did get this position to the extent that there are we're not making an issue of the statute of limitations for those particular positions with respect to those eighty jobs there are some that are time barred there are some that actually he applied for in for example twenty fifteen well after he filed his charge in this particular case he's filed several other charges since then so those would be covered perhaps by other charges but they shouldn't be by this one and there is a chart in the record i think that kind of shows some of this timing he was not qualified for some of the positions that he applied for and he admits that so that kind of takes those positions out of the mix and and then there are other positions for which illinois central has provided legitimate non discriminatory reasons this is not in fact a case where there is some kind of a company wide conspiracy or even where the opinions of the three individuals comments that mr boyd check made during that hiring decision but he was hired so too to the extent he asked mr ski about his age during that interview two years before the promoted him so the approach of the plaintiff seems to be that he applied for so many jobs that there must be some kind of a discriminate discrimination and i think there's an argument for a little bit long on grandiose statements and short on actual details about what actually you know what the statements are that are six ozomatli showing discrimination or where is this dishonesty that that wanted to make sure that he was finding a position for somebody who had a longer career let's show you but that's what you might tell a jury why is why is it unreasonable to treatment a euphemism for reference  to well i think there are a couple of different issues the one is that if you met mr stebic it's not it's going to be obvious what is ages anyway so i don't think that there's really that much of an issue with age discrimination cases often like this is an straight remark i can think it indicates that this is i'm trying to find this guy a job and see it doesn't really say it doesn't say age and the district court addressed this issue it rather says this is a person who has a long career there are two different things they may be things that have a correlation but he's not meaning this is an old guy yet true but there are i'll tell you there are railroad workers who started when they were eighteen and they've been working for a long time with the company so you know they that they have twenty year career is and they're still not in a protected camp class in terms of age so i you know and i do think that that is a distinct that would indicate enough areas of intent in making that comment and certainly not in the hall if you look at the totality of the circumstances of mr rockwell and what he tried to do he did attempt to get this fellow a job and the guy got a job too you know he got a job as a clerk it wasn't the job that he wanted but it was a job that he that he got i've always looked at this case it's interesting to hear opposing counsel say that the heart of the this case is a retaliation case because i always kind of looked at it as an age discrimination case primarily and the national origin claim unfortunately we have had to litigate all the way here despite the fact that it really doesn't have much substance the retaliation claim that it has had more focus this morning there are a couple of issues that i want to get to point out on that one is that that claim was never of the claim says nothing about a complaint that is the first element of retaliates claim so her illinois central to know that this was a retaliation claim was not possible at this time because that is not in the claim it's not said anywhere and that may be not surprising because he never made a complaint of age discrimination or national origin discrimination the closest thing we get is a one line that says i may be in a protected status and i think one of the interesting things that we saw is that in the briefing on this matter in the first set of the primary perhaps from palette there is no reference event to that issue so that came in on the second set of briefs from the palin type believe and that particular line i may be in a protected status doesn't tell us i think i'm being discriminated against it tells us i may be in a protected status which again is something that the company knows i think i'm in and in conclusion this is a case where the  if you read those e mails it is equally clear that the inference that can be drawn is that they were not trying to help him find a job they were going through the motions there's nothing in those e mails that talk about his extensive experience look at this employee he's had a lot of work with us he knows the system you shouldn't you should interview with him there is no effort to help him get a job there's an effort to create a paper trail to make it look like he was getting a is that employers when they need somebody to fill a job hire the person they need it's when they have a choice about whether they really need somebody to have a job that they choose improper discriminatory