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Tyler Trevathan v. Urs Corporation

October 17, 2012

TYLER TREVATHAN, PLAINTIFF,
v.
URS CORPORATION, URS CORPORATION, D/B/A URS ENERGY & CONSTRUCTION, INC., AND URS ENERGY & CONSTRUCTION, INC., DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge:

MEMORANDUM and ORDER

On September 1, 2011, Tyler Trevathan filed a three-count complaint against Defendants URS Corporation, URS Corporation d/b/a URS Energy & Construction, Inc., and URS Energy & Construction, Inc., (collectively, URS) in the Circuit Court of the First Judicial Circuit, Pulaski County, Illinois. Served on September 23, 2011, URS timely removed the action to this federal district court on October 21, 2011, pursuant to 28 U.S.C. §§ 1332, 1441 and 1446. Trevathan alleges that URS terminated his employment in retaliation for his exercising his rights under the Illinois Workers' Compensation Act (IWCA). Trevathan seeks compensatory damages (for lost wages, expenses and costs in seeking alternative employment, lost pension rights and fringe benefits, embarrassment and emotional damages) and punitive damages.

On August 15, 2012, URS moved for summary judgment; both a response and reply have been filed (Docs. 33, 53, 58). The matter being fully briefed, the Court begins its analysis with a recitation of the factual background.

I. Factual Background

Trevathan, a member of the Ironworkers' Local 782 union, was employed by URS as an ironworker at the Olmsted Lock and Dam Project. At Olmsted, URS constructed concrete precast shells which would be placed in the river to become part of the dam that is being built. Part of Trevathan's job was to weld base plates to support posts so they could be attached to the shells.

It is undisputed that Trevathan was aware of URS's safety policies and procedures. URS gave Trevathan safety material to review, provided him with a Safety Orientation Handbook which included URS's disciplinary policy for safety infractions. The policy provided progressively more severe discipline for repeated infractions but also provided that "[a]ny blatant and/or willful disregard for safety can be cause for immediate termination regardless of the number of offenses." (Doc. 34, Exh. A, p. 88). The policy was effective as of January 7, 2002. Trevathan received safety training in moving and picking up objects and using tools, as well as receiving the U. S. Army Corps of Engineers' Activity Hazard Analyses (AHAs), which cover various procedures for welding and other hazardous activities on the job. The AHAs were reviewed and discussed at safety meetings. Safety meetings were held each morning before employees began work. Trevathan also received a copy of URS's "Sweet Seventeen Paths to the Gate" policy, which provided: "Violation of any of the 17 safety rules listed will show you the path to the gate, thus preventing injury to you and our other Team Members. This will be Zero Tolerance! Together we can accomplish our goal of Zero Incidents!" (Doc. 34-3, p. 22) (emphasis in original). The 17 violations listed included failure to wear fall protection, refusal or failure to wear protective equipment, being involved in horseplay or fighting, any blatant or willful disregard for safety or AHA requirements and not stopping unsafe work after witnessing it. Id.

On August 18, 2011, Trevathan was welding base plates to the support posts, which are made of hollow steel pipe, about three inches thick.*fn1 The weight of the posts varies between 800 and 1800 pounds, depending on their length. The posts are capped on one end, and when Trevathan began working on a post, it would be standing vertically on the capped end. On the day Trevathan was injured, he was working with Ricky Larrison welding base plates. In order to move the post to the baseplate, Trevathan put a choker around the post, which attaches to the forklift with a picking device. The choker has two eyelets and is wrapped around the post. One end of the choker is pulled through the eyelet on the other end and tightened. The eyelet is hooked onto the picking device so that the forklift can lift the post and lay it on the ground. Once the post is on the ground, the choker is removed and put on the opposite end of the post so it can be lifted, and the uncapped end can be set onto the base plate for welding.

Trevathan and Larrison were working on their fourth support post when the injury occurred. The first three were moved by the forklift operator that Trevathan and Larrison usually worked with, Mike. Mike used the process described above when flipping the posts: picking up the post with the choker and laying it down on its side, and picking the post back up with the choker on the other end to set it on the base plate. Trevathan testified that when flipping a post, it is preferable to lay it down on the ground so that both gussets are touching the ground because that is the most secure position. The forklift operator who assisted with the fourth post was Ben Bolin, who had not flipped a support post for Trevathan before. Trevathan told Bolin how to flip the post, but Bolin suggested that he just knock the post over with the forklift instead of picking it up and laying it down. Trevathan told Bolin that he did not see what that would hurt and that it was okay to do it that way. When Bolin knocked the post over, it fell on its side in the gravel and one of the gussets stuck in the gravel with the other gusset up in the air. Trevathan and Larrison moved the choker so the post could be lifted, but, in doing so, a kink developed in the chain. Trevathan "jerked" the choker to get the kink out and, since the post was balanced on only one gusset, it rolled towards him, onto his right foot, first scraping his shin and then landing on his ankle, driving his heel into the ground. He was able to pull his foot out from under the post. Trevathan testified that he did not notice that both gussets were not on the ground before the post moved.

Larrison, Bolin and Dave Hill (general foreman) filled out accident reports before Trevathan was driven to the hospital by a Safety employee. An investigation of the accident ensued, and management decided that Trevathan and Larrison should be discharged. Trevathan was discharged on August 19, the day after his injury. He filed for workers' compensation benefits on August 25.

II. Summary judgment standard

Summary judgment should be granted when "'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.'" Bevolo v. Carter, 447 F.3d 979, 982 (7th Cir. 2006), quoting Fed. R. Civ. P. 56(c), and citingEzell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005), Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

In assessing whether summary judgment is warranted, the Court must construe all evidence, plus the inferences reasonably drawn from the evidence, in the light most favorable to the non-moving party. Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir. 2007), citing Leaf v. Shelnutt, 400 F.3d 1070, 1078 (7th Cir. 2005). The mere existence of an alleged factual dispute is not sufficient to defeat a summary judgment motion. Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986); Salvadori v. Franklin School District, 293F.3d 989, 996 (7th Cir. 2002). Rather, to successfully oppose summary judgment, the non-movant must present definite, competent evidence in rebuttal. Salvadori, 293 F.3d at 996, citing Vukadinovichv. Bd. of Sch. Trs. of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir. 2002).

III. Discussion

Trevathan claims that he was discharged in retaliation for exercising his rights under the IWCA. Under Illinois law, "[t]o maintain a claim for retaliatory discharge, an employee must prove: '(1) his status as an employee of the defendant before injury; (2) his exercise of a right granted by the Workers' Compensation Act; and (3) a causal relationship between his discharge and the exercise of his right.'" Gordon v. FedEx Freight, Inc. 674 F.3d 769, 773 (7th Cir. 2012), quoting Roger v. Yellow Freight Sys., Inc., 21 F.3d 146, 149 (7th Cir. 1994). URS does not dispute that Trevathan was an employee before his injury and that he exercised a ...


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