The opinion of the court was delivered by: Judge David H. Coar
MEMORANDUM OPINION AND ORDER
Plaintiff Bryce Paul Sabin ("Plaintiff") is suing his former employer, Defendant Yellow Transportation, Inc. ("Defendant" or "Yellow"), for retaliatory discharge. Defendant is counter-suing Plaintiff for breach of duty of loyalty, breach of contract, conversion, unjust enrichment, and promissory estoppel. Before this Court is Defendant's motion for summary judgment in its favor on Plaintiff's retaliatory discharge claim and on its breach of duty of loyalty and breach of contract counterclaims. For the following reasons, Defendant's motion is DENIED on all three counts.
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When reviewing a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Schuster v. Lucent Technologies, Inc., 327 F.3d 569, 573 (7th Cir. 2003).
The movant bears the burden of establishing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the non-movant must set forth specific facts demonstrating that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. To successfully oppose the motion, the non-movant must designate these facts in affidavits, depositions, answers to interrogatories, or admissions; the non-movant cannot rest on the pleadings alone. Celotex, 477 U.S. at 324. "A scintilla of evidence in support of the non-movant's position is insufficient," Anderson, 477 U.S. at 252, and the non-movant "must do more than simply show that there is some metaphysical doubt as to the material fact." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Weighing evidence, determining credibility, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Anderson, 477 U.S. at 255.
Plaintiff's Termination Defendant is a national trucking company that employed Plaintiff as a "casual" city driver at various terminals in Chicago from 1995 until 1997, and as a "regular" city driver at its Chicago Ridge Terminal from 1997 until 2001.
On February 12, 2001, Defendant terminated Plaintiff for alleged insubordination. Plaintiff filed a grievance challenging the termination through his union, Teamsters Local 705 ("Union"), under the collective bargaining agreement ("CBA") that governed the terms and conditions of his employment. A joint management-labor committee ("Committee") reinstated Plaintiff without back pay or, benefits effective April 1, 2001.
Plaintiff also filed a complaint, on March 27, 2001, with the U.S. Department of Labor, Occupational Health and Safety Administration ("OSHA") under the Surface Transportation Assistance Act ("STAA"), 49 U.S.C. § 31105 ("the 2001 STAA Claim"). Plaintiff alleged that Defendant terminated him because he had engaged in protected activity (namely, reporting a fault with his truck). On April 16, 2001, after an investigation, the U.S. Secretary of Labor ("the Secretary") dismissed Plaintiff's claim on the grounds that the allegations lacked merit.
Plaintiff's Subsequent Termination
Meanwhile, in accordance with the Committee's decision, Defendant prepared for Plaintiff to return to work on Monday, April 2, 2001. Defendant scheduled Plaintiff to work Monday, Tuesday, and Wednesday of that week. On each of those three days, however, Plaintiff called to inform Yellow dispatcher Michael Flanagan ("Flanagan") that he would not report to work. In accordance with the CBA, Plaintiff received paid time-off, with benefits, during this three-day period. Plaintiff then returned to work at Yellow on Thursday, April 5, 2001. He also worked at Yellow on April 6 and 9, 2001.
A few months later, in June 2001, Plaintiff called the Illinois State Police to inspect a Yellow truck that he was driving. This was one of Plaintiff's many public complaints about the safety hazards created by Defendant's operations. One dispute between the parties, for example, is whether Plaintiff received a "warning letter" from Defendant's Regional Linehaul Manager for calling the police about safety issues.
Later in the summer of 2001, Defendant learned for the first time that Plaintiff had worked for another trucking company, VSA of Illinois ("VSA"), from the last week of March 2001-shortly before he was scheduled to return to work at Yellow-until August 20, 2001. Shortly thereafter, Defendant learned that Plaintiff was driving a truck for VSA on April 2, 3, and 4, 2001-the same days he called off work from Yellow. Defendant also learned that, during the week of April 2, 2001, Plaintiff had driven in excess of sixty hours in a seven-day rolling period, exceeding the maximum hours of service a truck driver can perform under the U.S. Department of Transportation ("DOT") regulations. Plaintiff's driving time for VSA combined with his driving time for Defendant during the week of April 2, 2001 resulted in Plaintiff's violation of DOT regulations.
On September 13, 2001, upon request, Flanagan completed a written statement recalling that Plaintiff called in sick on April 2, 3, and 4, 2001. Immediately thereafter, Defendant sent Plaintiff three different termination letters. The letter dated September 13, 2001 stated that Plaintiff was terminated for proven dishonesty because he called in sick April 2-4 and accepted sick pay for those days when he instead drove a truck for VSA. The letter dated September 27, 2001 stated that Plaintiff was terminated for proven dishonesty because he reported to work at Yellow on April 6 and 9 after having been on duty for too many hours (including Plaintiff's hours with VSA) the previous seven days in violation of DOT regulations. The letter dated September 28, 2001 stated that Plaintiff was terminated for proven dishonesty because he failed to report to work on August 20, 2001 (an unexplained, unexcused absence) and instead drove a truck for VSA that day. Under the CBA, "proven dishonesty" is a "cardinal infraction" that allows for immediate termination. See Def.'s L.R. 56.1 Statement, Tab M at 72.
Also under the CBA, an employee's four sick or personal days per year are not treated differently. An employee's sick or personal day does not cost Defendant any more money than an employee's actual workday. Furthermore, employees do not have to tell Yellow why they are using their personal days (Plaintiff did not), and Yellow did not inform drivers that there were restrictions on their activities during personal or sick days. Likewise, there is nothing in Defendant's policy or in the employment contract that prohibits an employee from moonlighting.*fn2 Finally, Plaintiff emphasizes that Yellow drivers were not and are not required to report hours worked outside of Yellow. In fact, Yellow's Director of Labor Relations is not aware of any drivers prior to Plaintiff's termination who actually reported moonlighting hours to Yellow.
Plaintiff Challenges the Termination Decision
After his September 2001 termination, Plaintiff filed a Union grievance alleging that Defendant terminated him because he engaged in protected activity. The Committee heard his grievance and upheld the termination on October 12, 2001.
Plaintiff also filed a complaint with OSHA under the STAA in March 2002 ("the 2002 STAA Claim"). As before, the Secretary investigated and dismissed the claim, finding that Defendant terminated Plaintiff on September 13, 2001 for dishonesty, not for protected whistleblower activity. Plaintiff appealed the decision to an Administrative Law Judge ("ALJ").
During discovery in the STAA Appeal, Defendant learned that Plaintiff had taken copies of other drivers' daily logs from Defendant's premises without permission There are two copies of each log: Defendant retains a white copy and the individual driver retains a yellow copy. Plaintiff took yellow drivers' copies only, and submitted them to the DOT in an attempt to substantiate a complaint about Yellow. Plaintiff returned some of the logs he took the next day, but threw away others that were at least seven days old.
The Settlement Conference
The parties voluntarily attended a settlement conference presided over by ALJ Jansen on May 22, 2003. Defendant's counsel, Anderson Scott ("Scott") and Matt Brazeal ("Brazeal"), attended, as did Plaintiff and his attorney, Paul Taylor ("Taylor").
At the beginning the conference, the parties signed an agreement stating, in relevant part: "No party shall be bound by anything said or done during settlement judge proceedings unless a settlement is reached. If a settlement is reached, the agreement shall be written and executed and shall be binding ...