Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 6277--David H. Coar, Judge.
Before POSNER, Chief Judge, BAUER and DIANE P. WOOD, Circuit Judges.
Robert Grottkau appeals the district court's entry of summary judgment in favor of Sky Climber, Inc. Grottkau sued Sky Climber, alleging that it had violated ERISA, 29 U.S.C. secs. 1001 et seq., and then fired him in retaliation for complaining about those ERISA violations. Grottkau also raised a variety of state law claims against Sky Climber and two executives of the company. Grottkau's appeal is limited to his ERISA retaliation claim against the company. We affirm.
Sky Climber sells, rents and maintains moveable scaffolding. Its principal place of business is in Stone Mountain, Georgia. Grottkau managed Sky Climber's Chicago branch office from November 3, 1987 through June 2, 1993. As manager, Grottkau supervised six employees and was responsible for enforcing Sky Climber's personnel policies and procedures. Sky Climber maintained a 401(k) profit sharing plan in which Grottkau participated. Grottkau's monthly contributions were deducted from his salary automatically. Sky Climber contributed a matching amount. In mid-March 1993, Grottkau received his 401(k) statement for the fourth quarter of 1992. The statement revealed that Sky Climber had not made its matching contributions for that quarter. Sky Climber had experienced financial difficulties in the last quarter of 1992 and into 1993. As a result of cash flow problems, executives had decided to delay making 401(k) matching contributions.
Grottkau contacted the Illinois Department of Labor which advised him to send a registered complaint letter to the plan administrator. Grottkau also spoke with other Sky Climber employees, including his direct supervisor, Mike Fisher, about the missing payments. Fisher encouraged Grottkau to send the complaint letter. On April 1, 1993, Grottkau sent such a letter to Robert Morrison, Sky Climber's Chief Financial Officer and a plan trustee. Fisher and several other employees also complained to Morrison, although only Grottkau complained in writing. On April 22, 1993, Morrison sent a memorandum about the missing contributions to all Sky Climber employees. The memorandum indicated that the company would make up for all the missed contributions with interest. Over the next several weeks Sky Climber began to do so. On May 26, 1993, Morrison distributed another memorandum with checks enclosed for the investment income "lost during the time period in which your funds were not promptly invested in the 401(k) program."
According to Grottkau, Sky Climber discharged him in early June 1993 because of his written complaint and because he had contacted the Illinois Department of Labor. However, 401(k) shortages were not the only shenanigans occurring at Sky Climber.
In May 1993, Scott Billish, a sales representative in the Chicago office managed by Grottkau, called John Fields, the national sales director, and told him that Bill Gersch, the shop foreman in Chicago, was performing duties at the office on behalf of an unrelated company called Choice Rentals. According to Billish, Grottkau permitted Sky Climber employees to do Choice Rentals work on company time. In addition, Sky Climber customers had complained to Billish about work being done on behalf of Choice Rentals. Billish further reported that Grottkau had granted the employees an additional unauthorized week of vacation during the holiday season. In fact, Grottkau distributed a memorandum that stated in pertinent part:
If Stone Mountain [corporate headquarters] calls for someone who is not in the office [because of the unauthorized vacation schedule], the typical answer should be--out on job site, errand or delivery etc.
Not surprisingly, this report displeased executives at the corporate headquarters who immediately began to investigate. First, Fields contacted another Chicago sales representative who confirmed the report. Next, Sky Climber sent Fields and Morrison to Chicago to investigate further. They interviewed all of the employees, none of whom contradicted the initial reports. Grottkau acknowledged that he permitted Sky Climber facilities to be used for Choice Rentals business. He also admitted granting unauthorized vacation and directing employees to lie to corporate headquarters. After the investigation, Sky Climber fired Grottkau for "misuse of company property." *fn1
The district court found that Grottkau satisfied the prima facie case for his ERISA retaliation claim, but granted summary judgment for Sky Climber because Grottkau could not establish that Sky ...