Court of Appeals of Illinois, First District, Sixth Division
from the Circuit Court of Cook County, No. 13-L-11488; the
Hon. Margaret A. Brennan, Judge, presiding.
Office of William M. Walsh (William M. Walsh, of counsel),
and Law Office of Paul Luka, P.C. (Paul Luka, of counsel),
both of Chicago, for appellant.
Drye & Warren, LLP, of Chicago (Matthew C. Luzadder and
John C. Pirra, of counsel), for appellees.
JUSTICE DELORT delivered the judgment of the court, with
opinion. Presiding Justice Rochford and Justice Hoffman
concurred in the judgment and opinion.
1 Plaintiff Anthony Vulpitta sued defendants Walsh
Construction Company (Walsh) and The Walsh Group, Ltd. (Walsh
Group), for retaliatory discharge and discrimination on the
basis of a work-related disability. The main issue presented
in this appeal is whether Vulpitta filed his original
underlying charges with the Department of Human Rights
(Department) within 180 days of his termination as required
by law. Vulpitta claims the defendants terminated him on July
11, 2012, which would make his charges timely; the defendants
contend they terminated Vulpitta on May 24, 2012, which would
make his charges untimely. The trial court granted summary
judgment to the defendants, finding that Vulpitta was
terminated on May 24, 2012. The court also found there were
no material issues of fact supporting Vulpitta's
retaliatory discharge claim. Vulpitta appeals, contending
that the trial court made improper factual findings to
resolve these claims. We disagree and therefore affirm.
3 The facts established by the depositions and pleadings in
the record are as follows. Vulpitta worked for defendants as
a carpenter and carpenter foreman from around June 2000 until
May 24, 2012, when he was laid off due to a slowdown in
construction activity. He testified that, as a foreman on
small Walsh construction projects, he was able to hire a
construction worker "for a week or so" but observed
that requirements in the employee handbook made it difficult
to do so and that a prospective employee was no longer a
"Walsh guy *** if you missed 30 days." In other
words, "If you were laid off for 30 days, you had to
re[-]sign up with Walsh."
4 Around March 7, 2008, Vulpitta suffered a work-related
injury to his left bicep and wrist. He received treatment and
returned to work in August or September 2008 with various job
restrictions recommended by his physician (primarily in the
form of weight limitations and daily break periods), which
defendants provided. Vulpitta testified that Patrick
Easterday, his friend and supervisor, told him to take breaks
as needed and that he was never denied a work break. He filed
a workers' compensation claim as to these injuries on
August 20, 2009. He did not dispute that defendants employed
him on nine different construction projects from the time he
filed the claim until his layoff on May 24, 2012.
5 Around August 15, 2011, Vulpitta suffered a work-related
injury to his left hip and went to the hospital for an
evaluation. He was examined and discharged to return to
unrestricted work the following day. He went to his primary
care physician the day after (August 17), but that physician
also approved his return to work without restrictions.
6 On October 31, 2011, Vulpitta began working at
defendants' construction project at the Spring Grove
apartment complex, and Easterday was again his supervisor. In
December 2011, defendants offered Vulpitta $80, 000 to settle
his 2009 workers' compensation claim, but he rejected the
offer the following March.
7 Easterday testified at his deposition that, on May 24,
2012, Vulpitta was laid off from the Spring Grove project
because the carpentry work was complete. Easterday further
noted that Vulpitta was the last carpenter to be laid off.
Easterday's secretary Michelle Griffin, who handled
payroll for the project, stated that because no carpenters
were paid after that date, carpentry work must have stopped
at that time.
8 Vulpitta testified that, on May 24, Easterday had told him
"Walsh was slow but that things would be breaking."
Easterday did not recall making this statement to plaintiff.
Vulpitta and Easterday, however, agreed that Vulpitta was the
last carpenter to be laid off at the Spring Grove project,
Easterday did not promise to rehire Vulpitta, and Easterday
never indicated to Vulpitta that his layoff was only
"temporary." Easterday further testified that,
after May 24, he had no work for a carpenter foreman and did
not hire any carpenters or carpenter foremen for the rest of
2012. Vulpitta, however, testified that he had heard from
other carpenters that there was still carpentry work to be
done at the Spring Grove project. Vulpitta admitted that he
only "heard rumors" and "believed" that
there was a carpenter foreman still working on the Spring
9 Vulpitta further admitted that, following the May 24
layoff, he no longer received any compensation or benefits
from defendants. He also testified that he filed for
unemployment benefits between May 24 and June 3, 2012, and
listed the reason for being unemployed as "lack of
work." He testified, however, that he believed that he
was still "employed" by defendants because
Easterday told him that "there would be something
10 On July 2, 2012, Vulpitta went to a third physician, Dr.
Robert Fink, for treatment of his left hip pain. Dr. Fink
ordered Vulpitta to undergo an X-ray examination that same
day, the results of which indicated no fractures or
dislocations. Dr. Fink then ordered an MRI of Vulpitta's
pelvis, including both hips.
11 Vulpitta contacted Griffin the same day and told her that
Dr. Fink needed the medical records and information relating
to his August 15, 2011, treatment at Central DuPage Hospital
for his "workmen comp claim." According to
Vulpitta, Griffin retrieved that information for him that
day, and Vulpitta passed it along to Dr. Fink. Griffin
testified during her deposition, however, that she never had
a conversation with Vulpitta regarding any information his
doctor needed so that he could pursue a workers'
compensation claim regarding his August 2011 injury. Griffin
added that it was against company policy to provide any
medical or injury documentation to anyone, even if it were an
employee requesting his own documentation; instead, Griffin
said she would "[p]erhaps" refer the employee to
the insurance department. Griffin further confirmed that she
never had a conversation with Easterday regarding
Vulpitta's termination or workplace injuries, although
she would ordinarily "apprise" Easterday of an
employee's call regarding a workplace injury. Easterday
testified that he was unaware as to whether Griffin and
Vulpitta spoke regarding the need for plaintiff to obtain
information about his August 2011 injuries. Easterday further
noted that it was "doubtful" that Griffin would
have told him of the conversation, because she would not have
asked Easterday about any employee seeking his personal
12 On July 6, 2012, Vulpitta filed a workers'
compensation claim for his August 2011 hip injury. Four days
later, he underwent the MRI that Dr. Fink had ordered. The
next day, July 11, 2012, Vulpitta and Easterday met for
lunch. Easterday said that he had never met a laid-off
employee for lunch before, but he and Vulpitta had been
friends for many years. Vulpitta agreed that Easterday was a
friend of his and added that they played on a hockey team
together, that their families had spent holidays together,
and that he and Easterday had met for lunch "a couple
hundred times" before. According to Vulpitta, Easterday
told him, "I have to let you go, " and "I
don't want to do this. You know I have to do this.
It's not coming from me, but I have to do this."
Easterday did not recall making any of those statements.
According to Easterday, he informed Vulpitta ...