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Arias v. Citgo Petroleum Corp.

United States District Court, N.D. Illinois, Eastern Division

September 27, 2019

AMANDO ARIAS, Plaintiff,



         Plaintiff Amando Arias worked as a Contractor Safety Coordinator for Defendant CITGO Petroleum Corporation (“Citgo”) at its refinery in Lemont, Illinois (“Lemont Refinery”) from 1997 until 2014. Arias claims that Citgo terminated his employment because he reported certain failures and violations of the Occupational Safety and Health Act of 1970 (“OSHA”), 29 U.S.C. § 651 et seq., and for refusing to participate in Citgo’s incident misclassification scheme. Arias has sued Citgo pursuant to the Illinois Whistleblower Act (“IWA”), 740 ILCS 174/1 et seq., and the Illinois Wage Payment and Collection Act (“IWPCA”), 820 ILCS 115/1 et seq.[1] Arias also asserts a claim of common law retaliatory discharge. Now before the Court is Citgo’s motion for summary judgment on all three of Arias’s claims. (Dkt. No. 29.) For the following reasons, Citgo’s motion is granted.[2]


         I. Citgo’s Motion to Strike Arias’s Statement of Material Facts

         Before summarizing the material facts, the Court addresses Arias’s violations of Federal Rule of Civil Procedure 56 and Northern District of Illinois Local Rule 56.1, as raised by Citgo in its motion to strike Arias’s statement of material facts. (Dkt. No. 45.) Federal Rule of Civil Procedure 56 and Local Rule 56.1 set forth the manner in which parties are required to present their factual assertions when supporting or opposing a motion for summary judgment. Under Rule 56(c):

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). In addition, the rule allows a party to object that material supporting or disputing a fact “cannot be presented in a form that would be admissible in evidence.” Id. 56(c)(2). When a party fails to support an assertion of fact properly or address another party’s factual assertion, the Court may afford the party the opportunity to support or address the fact, consider the fact undisputed for purposes of the motion, or grant summary judgment if the motion and facts, including those considered undisputed, show the movant is entitled to it. Id. 56(e).

         Local Rule 56.1 requires the party moving for summary judgment to submit a statement of material facts it contends are undisputed and entitle it to summary judgment. L.R. 56.1(a)(3). The statement of facts “shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph.” Id. 56.1(a). In addition, the rule requires the party opposing summary judgment to file a “concise response to the movant’s statement.” Id. 56.1(b)(3). The response should respond to each numbered paragraph in the moving party’s statement and where the opposing party disputes a fact, it must include specific references to the affidavits, parts of the record, or other supporting materials relied on to controvert the fact. Id. Notably, Local Rule 56.1 does not allow the nonmoving party to set forth nonresponsive additional facts in its response to the statement of material facts. De v. City of Chicago, 912 F.Supp.2d 709, 714–15 (N.D. Ill. 2012). To the extent the opposing party wishes to submit any additional facts, it must do so by submitting a separate statement of additional facts in a similar format to the moving party’s statement of facts. L.R. 56.1(b)(3)(C); De, 912 F.Supp.2d at 715 (“It is improper, and a violation of Local Rule 56.1, for the nonmoving party to add additional facts to his Local Rule 56.1(b)(3)(B) response; the nonmoving party’s additional facts belong in a separate statement.”). District courts are “entitled to expect strict compliance with Rule 56.1.” Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004). Consequently, a district court is empowered to penalize noncompliance by striking improperly submitted additional facts or deeming admitted facts to which a party has not properly responded. See De, 912 F.Supp.2d at 711–16.

         Arias’s counsel has violated both Rule 56 and Local Rule 56.1 in numerous ways. First, Arias’s response to Citgo’s statement of material facts disputes the vast majority of those facts. Yet many of the responses fail actually to controvert Citgo’s factual allegations. Local Rule 56.1 “is not satisfied by evasive denials that do not fairly meet the substance of the material facts asserted.” Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000) (interpreting the local rule later renumbered as L.R. 56.1). For example, Citgo states that,

The Substance Abuse Policy provides that “the fact that alcohol may be served at a Company-approved function does not relieve employees of their responsibility to exercise moderation and judgment and to maintain control over their actions and behavior so as not to be a hazard or danger to themselves, other employees, the general public, or the Company’s reputation.”

(Pl.’s St. of Material Fact in Opp’n to Def.’s Mot. for Summ. J. (“PSMF”) ¶ 11, Dkt. No. 37.) Arias responds, “Objection. IRRELEVANT. This is irrelevant because Plaintiff Arias did not serve or consume alcohol at a Company-approved function.” (Id.) Arias’s response did nothing to address the substance of Citgo’s factual assertion regarding the dictates of the company’s Substance Abuse Policy. In addition, Citgo states that Arias received and signed a “Final Warning Letter” reading, “You must understand that any further misconduct of any nature will result in your immediate termination of employment from CITGO. Your signature in the space provided below indicates your agreement with the conditions described in this letter.” (Id. ¶ 20.) In response, Arias states, “Objection. Plaintiff did not sign the ‘Final Warning Letter’ because he agreed with its contents and Defendant’s determination.” (Id.) Again, Arias’s response fails to admit, deny or even address the substance of Citgo’s factual statements. Thus, in the many instances where Arias fails squarely to dispute an asserted fact, the fact will be treated as admitted so long as it is supported by the record.

         In addition, Arias’s counsel often introduces new facts in his responses to Citgo’s statement of material facts. For example, Citgo states,

On September 29, 2014, a CITGO employee complained to Human Resources [“HR”] Manager Dick Albaugh about [Arias’s] “really despicable” behavior at the September 26 event. Albaugh and Dawn DeSandre then conducted an investigation and interviewed three employees who witnessed Plaintiff’s conduct: Rob Grachan and Brian Rimbo (CITGO employees), and Jim Slinkard (CITGO contractor).

(Id. ¶ 22.) Rather than responding to Citgo’s assertion, Arias describes the conduct of others: “Objection. Everybody was drinking and exhibiting non-work-like behavior at both the July 29, 2014 and September 26, 2014 events.” (Id.) Arias then launches into a narrative about what he characterizes as Rimbo’s “lewd and rowdy behavior, ” such as “pos[ing] for multiple scandalous photographs with waitresses from the Tilted Kilt.” (Id.) Again, a response to a statement of material facts should not contain additional facts that do not meet the substance of the moving party’s asserted facts. Any new facts must be introduced in a separate statement of additional facts. Therefore, Arias’s nonresponsive additional facts are stricken and will not be considered by the Court.

         II. Factual Background

         Except where otherwise indicated, the following facts are undisputed or deemed admitted due to Arias’s counsel’s Rule 56 and Local Rule 56.1 violations.

         Citgo is a refiner, transporter, and marketer of transportation fuels, lubricants, petrochemicals, and other industrial products. (PSMF ¶ 2.) After Citgo acquired the Lemont Refinery in 1997, Arias became an employee of Citgo. (Id. ¶ 4.) In 2010, Arias assumed the position of Contractor Safety Coordinator at the Lemont Refinery. (Id. ¶ 5.) Arias’s job responsibilities included “[s]erv[ing] as facility Subject Matter Expert (SME) for Contractor Safety and Construction Compliance per OSHA [The Occupational Safety and Health Administration] standards, ” “[i]dentif[ying] procedure/policy deviation and tak[ing] corrective action, ” and “[c]onduct[ing] compliance reviews and assessments of the facility contractors to include those performing work in routine maintenance, specialized tasks, and construction.” (Id. ¶ 6.) At all relevant times, Arias’s supervisor was Casey Bullock, the Health and Safety Manager at the Lemont Refinery. (Id. ¶ 5.)

         A. Arias’s Whistleblowing Claim

         According to Arias, his employment relationship with Citgo ended as a consequence of his whistleblowing activity. Arias claims that in 2011, he became aware Citgo was operating a Fluid Catalytic Cracking (“FCC”) unit with several reactor leaks and a weakened metal surface, which periodically suffered emergency shutdowns due to the leaks. (Pl’s Additional Undisputed Material Facts (“PAUMF”) ¶ 8, Dkt. No. 37.) According to Arias, Citgo responded to the leaks by “scabb[e]d” them: a nonsubstantive, temporary solution of placing a metal plate over the leak and welding it in place. (Def.’s Reply to Pl.’s Statement of Additional Facts (“DRPF”) ¶ 9, Dkt. No. 48.) By contrast, Citgo claims the FCC unit did not experience any issues until May 10, 2012, after which Citgo reacted by shutting down the vessel to assess the situation and fix the leak. (PSMF ¶ 45.) Arias became concerned about the safety conditions at the Lemont Refinery, in part because he knew an accident had previously occurred there in 1984, which caused the deaths of seventeen employees. (DRPF ¶ 5.) At the time of the 1984 accident, Arias worked at the refinery and was on the premises. (Id.) Arias claims the accident was caused by an exploding FCC unit, whereas Bullock and Jim Tancredi (a Department Manager at Citgo) claim the explosion was a result of a bottom weld seam failure, which caused a ruptured vessel in a gas plant adjacent to an FCC unit. (Id.)

         On February 14, 2013, Roger Evans, a chemical incident investigator at the United States Chemical Safety Board (“CSB”), sent an email to Arias requesting a series of documents relating to the July 1984 explosion at the Lemont Refinery and the contact information of “the appropriate person in the CITGO Lemont Refinery organization that can officially respond” to the request. (Id. ¶ 12.) Arias forwarded Evans’s email to the appropriate superior personnel. (Id. ¶ 13.) In July 2013, Arias spoke to Evans about a fire that occurred at Citgo’s refinery in Corpus Christi, Texas, as well as another fire in Lake Charles, California. (Id. ¶ 14.) Arias and Evans also discussed the FCC unit’s leaks, “what was going on [at the Lemont Refinery], and safety audits, incident investigation, case management and such, a lot of general safety conditions at the refinery.” (Id.) Arias told Evans that Citgo was “reluctant to bring down and make the necessary repairs” to the leaking FCC and had merely scabbed the leaks. (Id.) Arias claims Evans offered, on behalf of the CSB, to pay for Arias to travel to Denver, Colorado, and meet with him in person about responses to the FCC unit’s issues at the Lemont Refinery, but Bullock refused to allow him to go. (Id. ¶ 15.) Bullock, however, denies that Arias ever approached him regarding Evans’s offer or his desire to discuss with Evans his concerns about the Lemont Refinery’s safety conditions. (Id. ¶¶ 15–16.)

         According to Arias, after he approached Bullock, Citgo began targeting him with adverse employment actions. Specifically, in October 2013, Citgo assigned Arias to the night shift. (Id. ¶ 18.) At the time, Arias was suffering from “a particularly painful” arthritis flare-up, and his doctor had prescribed him a series of work restrictions, including “light duty, ” indoor desk work, and reduced work hours; but Citgo assigned him to “particularly difficult and painful positions that exacerbated” his symptoms. (Arias Aff. ¶ 19, Dkt. No. 50.)Arias claims Citgo removed his work restrictions and assigned him to the night shift as punishment for telling Evans about his safety concerns. (DRPF ¶¶ 18–20.) Citgo explains that approximately half of its employees from all departments were assigned to the night shift in October 2013 to assist with rebuilding efforts after a fire caused extensive damage in the crude unit. (Id. ¶ 20.) Citgo also claims Arias’s restrictions were accommodated, and he was assigned to sedentary office work for one to two weeks as requested by his doctor’s note. (Id. ¶ 21.)

         B. Citgo’s Explanation for ...

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