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Diego Gaines v. K-Five Construction Corp

May 7, 2012


The opinion of the court was delivered by: Judge George W. Lindberg


Before the Court is defendant K-Five Construction Corporation's ("K-Five") motion for summary judgment as to plaintiff Diego Gaines' ("Gaines") five-count Amended Complaint ("complaint") in its entirety.

I. Introduction

Gaines' complaint alleges claims for national origin discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000 et seq., (Count I); retaliation in violation of Title VII (Count II); retaliation in violation of the Surface Transportation Assistance Act ("STAA"), 49 U.S.C. § 31105, (Count III); Illinois common law retaliatory discharge (Count IV); and failure to pay regular and/or overtime wages in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), (Count V). For the reasons set forth more fully below, the motion for summary judgment is granted and judgment is entered in K-Five's favor as to all of Gaines' pending claims.*fn1

II. Relevant Facts

The following facts are undisputed unless specifically noted below. K-Five is a heavy highway paving contractor with its principal place of business in Lemont, Illinois. Gaines was employed as a seasonal semi-dump truck driver for K-Five from May 2007, until his termination on May 4, 2010. Gaines' primary job responsibility was to haul asphalt and other road building materials to and from job sites. Gaines' national origin is Mexican and during all times relevant to this case, he was a member of Teamsters Local 731 ("Local 731") and was covered by a collective bargaining agreement ("CBA") between K-Five and Local 731.

The CBA prohibited employment discrimination and during all times relevant to this case, K-Five maintained a written Equal Employment Opportunity Policy in its Employee Handbook that also prohibited discrimination based on national origin and prohibited retaliation for reporting alleged discrimination. Gaines received a copy of the Employee Handbook, but did not read the company policies regarding the reporting of harassment and discrimination.

K-Five also maintained a Driver's Manual that set forth the company rules, policies, and expectations for K-Five drivers. At the beginning of each construction season, typically in March, K-Five required all of its drivers to sign an affidavit acknowledging that they understood and agreed to abide by the rules and policies contained in the Driver's Manual. Between 2005 and 2010, Gaines signed the required affidavit at the start of each construction season. The Driver's Manual provided that after two warnings for violations of the rules set forth therein, the third offense in a 12-month period may result in discharge. It also provided that falsifying information on a Driver's Daily Report ("DDR") would result in discharge.

K-Five drivers were required to maintain DDRs, which included, among other things, a driver's start times, times drivers parked their trucks at the end of a shift, delays, accidents, and repair requests. Drivers submitted copies of the DDRs to the mechanic's shop and the main office. The mechanics reviewed the DDRs to identify needed vehicle repairs and to spot issues that may impact the safety of the vehicles. The main office used the DDRs to record employees' hours and to determine pay. At the top of the DDRs, in large, bold print, were boxes for drivers to report their "time start," "time start at job," "time finish at job," "and time parked." The K-Five payroll department only reviewed this top section of the DDRs when calculating the number of hours a driver worked and in determining wages.

Gaines completed a DDR for each day he worked at K-Five. On each DDR for May 24, 2008 through May 4, 2010, Gaines wrote down his assigned start time in the bold "time start" box at the top of each DDR. Except for Gaines' DDR for April 23, 2010, he did not include any notations regarding conducting pre-trip inspections of his assigned vehicle prior to his recorded "time start" at the top of the DDRs. Gaines did include notations regarding "pre-trips" at the bottom of a handful of DDRs between May 24, 2008 and May 4, 2010.

K-Five scheduled drivers to particular shifts and start times based on their seniority under the CBA and the needs of particular projects. Scheduled start times included adequate time for drivers to complete their pre-trip vehicle inspections. Nevertheless, Gaines routinely arrived at his assigned truck 15 minutes prior to his scheduled start time to perform his pre-trip inspections.

Gaines identified two instances during his employment at K-Five, when he felt co-workers made inappropriate comments related to his Mexican national origin. On July 17, 2009, Gaines reported to a K-Five supervisor that a fellow truck driver stated to Gaines over a CB radio that Gaines should get a watch that was "made in America, not a foreign fucking country." K-Five management investigated Gaines' allegation. Management interviewed the fellow truck driver, who denied making any statement regarding the country where Gaines' watch was made. The fellow truck driver claimed that he only stated that his own watch was made in America. Management verbally reprimanded the fellow truck driver and told him to refrain from making potentially inappropriate comments to Gaines or other K-Five employees. Gaines never complained of any further statements by that fellow truck driver regarding Gaines' national origin.

Gaines also reported to K-Five supervisors that on November 30, 2009, while Gaines was working at K-Five's O'Hare plant, he heard a different K-Five driver state over the CB radio that "Mexicans should go back to Mexico." That comment was allegedly made over a public CB radio frequency and could have been made by a non-K-Five employee. Gaines did not visually witness the comment being made, but claims that other co-workers agreed that the voice behind the comment matched the voice of a fellow K-Five driver. Further, K-Five does not equip its trucks with CB radios. In order to have heard the alleged comment, Gaines would have needed to have a personal CB radio in his truck. Unless specifically permitted by a K-Five supervisor, having a personal CB radio in a truck violates K-Five work rules.

K-Five supervisors began investigating the alleged comment on November 30, 2009 by telephoning the driver who Gaines claimed made the comment. That driver denied making the comment and threatened to sue Gaines for defamation. The next day, K-Five supervisors personally met with the driver and he admitted to hearing the comment over the CB radio, but again denied making the comment. K-Five supervisors also interviewed Gaines and other K-Five employees who were working at the O'Hare plant on November 30, 2009. Those employees had different views of the incident. One employee stated that Gaines did not have a CB radio in his truck on November 30, 2009, so he could not have personally heard the alleged comment. Another employee stated that the comment was definitely not made by the driver who Gaines identified as making the comment. A third employee agreed that the comment was made by the driver Gaines identified. In addition to interviewing employees about the comment, K-Five management asked Gaines to submit a ...

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