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Gaines v. K-Five Constr. Corp.

United States Court of Appeals, Seventh Circuit

January 3, 2014

DIEGO GAINES, Plaintiff-Appellant,

Argued: December 5, 2012.

Page 257

Appeal fro the United States District Court for the Northern District of Illinois, Eastern Division. No. 11-cv-03496 -- George W. Lindberg, Judge.

For DIEGO GAINES, Plaintiff - Appellant: Timothy J. Coffey, Attorney, Chicago, IL.

For K-FIVE CONSTRUCTION CORPORATION, Defendant - Appellee: Ian Hugh Morrison, Attorney, SEYFARTH SHAW LLP, Chicago, IL.

Before MANION and SYKES, Circuit Judges, and DARROW, District Judge.[*]


Page 258

Darrow, District Judge.

In the final days of his employment at K-Five Construction, Diego Gaines questioned the road-worthiness of two different trucks that he was assigned to drive. Management took steps to address Gaines's concerns, but the trucks never reached the level of safety sought by Gaines. On his last Friday, he informally discussed an alleged steering problem with a K-Five mechanic. He later misreported what he was told. Gaines claims that he honestly believed he was accurately relaying the information obtained from the mechanic but that he botched the details. Citing the false report and various instances of alleged insubordination, K-Five fired Gaines.

Gaines argues that the events leading up to his termination prove that he was fired due to his national origin and/or because he complained about safety issues. He also claims that he is owed unpaid overtime. The district court entered summary judgment against Gaines on all counts. We find that Gaines has presented a triable issue of fact as to whether he was fired for complaining about safety issues. Accordingly, we remand for further proceedings consistent with this opinion.

I. Background

Diego Gaines had been a seasonal semi-dump truck driver for K-Five Construction Corporation for roughly five years on May 4, 2010, the day he was fired. Gaines's duties at K-Five, a heavy highway paving contractor, primarily entailed hauling asphalt and other road building materials to and from job sites.

Throughout the 2007 to 2010 construction seasons, Gaines drove truck number 4275 most of the time. For several reasons, among them safety, K-Five made an effort to assign drivers to the same truck everyday. On Wednesday, April 28, 2010, however, K-Five supervisor Bob Schwarz assigned Gaines to truck number 4279. A simple visual inspection of the truck convinced Gaines that the truck was unsafe because he saw that the tail pan was covered in asphalt. Not only did this violate a K-Five work rule that required drivers to keep their tail pans clean, but the pins were also not fully locking the gate due to the mess--Gaines worried that the unsecured

Page 259

gate could open during transit. After Gaines informed Schwarz of the problem, Schwarz personally attempted to scrape away the asphalt. Schwarz believed his efforts addressed the problem. Gaines did not. Although Schwarz largely removed the loosened asphalt, hardened asphalt remained. Gaines believed that the hardened asphalt could cause serious injury to persons or property if chunks of it broke up and fell off during transit.

Schwarz never mentioned that Gaines's refusal to drive truck number 4279 violated any work rule. Instead, Schwarz apprised another supervisor, Steve Radtke, of the situation and then simply reassigned Gaines to truck number 4289, another available truck. The newly-assigned truck had rolled over in the summer of 2006 but had since been sufficiently repaired such that it passed its State of Illinois safety inspection less than two months prior. Gaines took the wheel for the day, and was nearly involved in an accident when truck 4289 pulled hard to the left. He informed Schwarz and a truck maintenance supervisor of the incident.

On Thursday, the next day, Gaines was again assigned to truck 4289, although his normal truck--truck number 4275--was now available. Gaines complained to Radtke that truck 4289 had a bad seat, a door that did not close properly, a steering problem, and a faulty tarp. This time, management did not reassign Gaines to a new truck. Instead, Gaines drove truck 4289 for the second day in a row.[1] At the end of his shift, Gaines recorded the alleged problems with truck 4289 in his Daily Driver's Report (" DDR" ).[2]

On Friday, Gaines was again assigned to truck 4289, although his normal truck was available. Gaines did not believe that the truck was roadworthy--even though at least one mechanic examined the truck the night before--because the problems that he had identified in his Thursday DDR remained unfixed. Gaines did not want a repeat of Wednesday's close call so he radioed Radtke to discuss the unsafe condition of the truck. Gaines requested that, at the very least, another driver take it for a test drive. Apparently annoyed, Radtke ordered Gaines to wash and wax the truck while another driver was located. Gaines initially refused but then started washing the truck. Whether Gaines refused to wax the truck or whether he ran out of time is disputed.

In the meantime, Radtke found and asked another driver, Al Lukritz, to test drive truck 4289. Lukritz drove the truck and concluded that although it pulled to the left, it was roadworthy. After hearing about the test drive, and allegedly fearing termination if he refused, Gaines agreed to drive the truck for the third day in a row.

After his 13-hour shift, Gaines returned to the K-Five yard and spoke with mechanic Richard Johnston about truck 4289 pulling to the left. Johnston testified that he told Gaines that the steering wheel was off-center and that there were two possible

Page 260

causes: one, that someone might have taken the steering wheel off and reinstalled it a spline off; or two, that somebody might have changed the drag-link and screwed it farther in or out from the original setting. Thereafter, Gaines recorded in his evening DDR that " I spoke with [Johnston]. He confirmed that steering drag-link is off centered." That statement, however, is inaccurate. Johnston stated that the steering wheel was off-center, not that the drag-link was off-center. Gaines appears to concede that he may have misrepresented what Johnston told him but claims that he was reporting what he honestly but mistakenly believed Johnston to have said about the steering issues.

The following Monday, May 3, Johnston called Radtke to inform him that Gaines falsely attributed a statement to him (i.e., the " drag-link" comment in Gaines's Friday DDR). Also on Monday, Radtke met with K-Five Vice President Robert Krug to discuss the recent events involving Gaines. They agreed to issue Gaines a warning slip for falsifying information in his Friday DDR. According to K-Five's Drivers Manual, a consequence of falsifying information in a DDR can include discharge. Gaines knew, or at least was on notice of, this rule because he previously affirmed in writing that he agreed to abide by all of the rules contained in the 2010 Drivers Manual.

Johnston later presented Radtke with a written statement describing what had transpired between him and Gaines on Friday related to truck 4289's alleged steering problems. After reviewing the statement, Radtke requested that Johnston prepare a condensed version. The condensed version left out the part where Johnston told Gaines that the steering wheel could be off because somebody might have changed the drag-link. Gaines suggests that Radtke wanted that information out of the official report because confusing " the steering wheel could be off centered because of the drag-link" with " the drag-link could be off centered" is understandable.

Krug and Radtke did not just issue Gaines a warning slip for falsifying his Friday DDR. Although neither Schwarz nor Gaines was interviewed or otherwise consulted about the decision, Krug and Radtke concluded that Gaines's refusal to drive truck 4279 (the truck with the hardened asphalt) was unreasonable and consequently issued Gaines a second warning slip. Krug and Radtke further agreed to issue Gaines a third warning slip for refusing to wax truck 4289. Finally, they agreed to issue Gaines a fourth warning slip for delaying his work start time on Friday by refusing to drive truck 4289 until after Lukritz completed his test drive. In total and all at once, Gaines was written up for falsifying his DDR--itself a terminable offense--and for three instances of alleged insubordination. K-Five's Drivers Manual states that after two warnings, the third offense may result in discharge.

On May 4, Radtke called Gaines to tell him not to come to work because he was fired. When Gaines asked why, Radtke informed him that he would get everything in the mail. K-Five then simultaneously mailed Gaines the four warning slips and a discharge slip.

Gaines sued K-Five under Title VII for national origin discrimination and retaliation. He further asserts retaliation in violation of the Surface Transportation Assistance Act (" STAA" ) and a related claim under Illinois common law retaliatory discharge. Finally, he claims K-Five failed to pay him regular and/or overtime wages in violation of the Fair Labor Standards Act (" FLSA" ).

Page 261

II. Discussion

We review de novo a district court's grant of summary judgment, viewing the evidence in the light most favorable to the nonmoving party. Healy v. City of Chicago, 450 F.3d 732, 738 (7th Cir. 2006). Summary judgment is appropriate when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

A. Title VII Discrimination and Retaliation

Gaines alleges that his termination was discriminatory and retaliatory. As to the former, Gaines alleges that K-Five fired him because of his national origin, Mexican. As to the latter, Gaines alleges that K-Five fired him in retaliation ...

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