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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRYCE PAUL SABIN,
)
)
)
Plaintiff/Counter-
Defendant,
)
)
No. 04 C 193
v.
)
YELLOW TRANSPORTATION, INC.,
)
JUDGE DAVID H. COAR
)
)
Defendant/Counter-
Plaintiff.
)
MEMORANDUM OPINION AND ORDER
Plaintiff Bryce Paul Sabin (Plaintiff) is suing his former employer, Defendant Yellow
Transportation, Inc. (Defendant or Yellow), for retaliatory discharge. Defendant is counter-
suing Plaintiff for breach of duty of loyalty, breach of contract, conversion, unjust enrichment,
and promissory estoppel. Before this Court is Defendants motion for summary judgment in its
favor on Plaintiffs retaliatory discharge claim and on its breach of duty ofloyalty and breach of
contract counterclaims. For the following reasons, Defendants motion is DENIED on all three
counts.
I.
LEGAL STANDARD
Summary judgment is appropriate if 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
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matter of law. Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only if there is
sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When reviewing a motion for summary
judgment, the court must view the facts in the light most favorable to the nonmoving party and
draw all reasonable inferences in that partys favor. See Schuster v. Lucent Technologies, Inc.,
327 F.3d 569, 573 (7th Cir. 2003).
The movant bears the burden of establishing that no genuine issue of material fact exists.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the
non-movant must set forth specific facts demonstrating that there is a genuine issue for trial.
Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. To successfully oppose the motion, the
non-movant must designate these facts in affidavits, depositions, answers to interrogatories, or
admissions; the non-movant cannot rest on the pleadings alone. Celotex, 477 U.S. at 324. A
scintilla of evidence in support of the non-movants position is insufficient,Anderson, 477 U.S.
at 252, and the non-movant must do more than simply show that there is some metaphysical
doubt as to the material fact. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). Weighing evidence, determining credibility, and drawing reasonable
inferences are jury functions, not those of a judge deciding a motion for summary judgment.
Anderson, 477 U.S. at 255.
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The facts are taken from the parties Local Rule 56.1 materials.
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II.
FACTS1
Plaintiffs Termination
Defendant is a national trucking company that employed Plaintiff as a casual city
driver at various terminals in Chicago from 1995 until 1997, and as a regular city driver at its
Chicago Ridge Terminal from 1997 until 2001.
On February 12, 2001, Defendant terminated Plaintiff for alleged insubordination.
Plaintiff filed a grievance challenging the termination through his union, Teamsters Local 705
(Union), under the collective bargaining agreement (CBA) that governed the terms and
conditions of his employment. A joint management-labor committee (Committee) reinstated
Plaintiff without back pay or, benefits effective April 1, 2001.
Plaintiff also filed a complaint, on March 27, 2001, with the U.S. Department of Labor,
Occupational Health and Safety Administration (OSHA) under the Surface Transportation
Assistance Act (STAA), 49 U.S.C. § 31105 (the 2001 STAA Claim). Plaintiff alleged that
Defendant terminated him because he had engaged in protected activity (namely, reporting a
fault with his truck). On April 16, 2001, after an investigation, the U.S. Secretary of Labor (the
Secretary) dismissed Plaintiffs claim on the grounds that the allegations lacked merit.
Plaintiffs Subsequent Termination
Meanwhile, in accordance with the Committees decision, Defendant prepared for
Plaintiff to return to work on Monday, April 2, 2001. Defendant scheduled Plaintiff to work
Monday, Tuesday, and Wednesday of that week. On each of those three days, however, Plaintiff
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called to inform Yellow dispatcher Michael Flanagan (Flanagan) that he would not report to
work. In accordance with the CBA, Plaintiff received paid time-off, with benefits, during this
three-day period. Plaintiff then returned to work at Yellow on Thursday, April 5, 2001. He also
worked at Yellow on April 6 and 9, 2001.
A few months later, in June 2001, Plaintiff called the Illinois State Police to inspect a
Yellow truck that he was driving. This was one of Plaintiffs many public complaints about the
safety hazards created by Defendants operations. One dispute between the parties, for example,
is whether Plaintiff received a warning letter from Defendants Regional Linehaul Manager for
calling the police about safety issues.
Later in the summer of 2001, Defendant learned for the first time that Plaintiff had
worked for another trucking company, VSA of Illinois (VSA), from the last week of March
2001shortly before he was scheduled to return to work at Yellowuntil August 20, 2001.
Shortly thereafter, Defendant learned that Plaintiff was driving a truck for VSA on April 2, 3,
and 4, 2001the same days he called off work fr om Yellow. Defendant also learned that,
during the week of April 2, 2001, Plaintiff had driven in excess of sixty hours in a seven-day
rolling period, exceeding the maximum hours of service a truck driver can perform under the
U.S. Department of Transportation (DOT) regulations. Plaintiffs driving time for VSA
combined with his driving time for Defendant during the week of April 2, 2001 resulted in
Plaintiffs violation of DOT regulations.
On September 13, 2001, upon request, Flanagan completed a written statement recalling
that Plaintiff called in sick on April 2, 3, and 4, 2001. Immediately thereafter, Defendant sent
Plaintiff three different termination letters. The letter dated September 13, 2001 stated that
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In addition, Plaintiff emphasizes that two particular drivers without, he claims, a
history of whistleblowing activity (Israel Gonzales and Brian Fiener) were issued only warning
letters, not terminations, for exceeding DOT hours. Defendant points out that the men exceeded
the maximum hours all while working for Yellow. The parties dispute whether Defendant treats
violations of DOT maximum hours of service differently when an employee violates those
regulations while working exclusively for Yellow as opposed to while working for other
companies. Plaintiff also contends that the men did not report the hours they drove for other
companies during the period after their termination but before their reinstatement.
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Plaintiff was terminated for proven dishonesty because he called in sick April 2-4 and accepted
sick pay for those days when he instead drove a truck for VSA. The letter dated September 27,
2001 stated that Plaintiff was terminated for proven dishonesty because he reported to work at
Yellow on April 6 and 9 after having been on duty for too many hours (including Plaintiffs
hours with VSA) the previous seven days in violation of DOT regulations. The letter dated
September 28, 2001 stated that Plaintiff was terminated for proven dishonesty because he failed
to report to work on August 20, 2001 (an unexplained, unexcused absence) and instead drove a
truck for VSA that day. Under the CBA, proven dishonesty is a cardinal infraction that
allows for immediate termination. See Def.s L.R. 56.1 Statement, Tab M at 72.
Also under the CBA, an employees four sick or personal days per year are not treated
differently. An employees sick or personal day does not cost Defendant any more money than
an employees actual workday. Furthermore, employees do not have to tell Yellow why they are
using their personal days (Plaintiff did not), and Yellow did not inform drivers that there were
restrictions on their activities during personal or sick days. Likewise, there is nothing in
Defendants policy or in the employment contract that prohibits an employee from
moonlighting.2 Finally, Plaintiff emphasizes that Yellow drivers were not and are not required to
report hours worked outside of Yellow. In fact, Yellows Director of Labor Relations is not
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aware of any drivers prior to Plaintiffs termination who actually reported moonlighting hours to
Yellow.
Plaintiff Challenges the Termination Decision
After his September 2001 termination, Plaintiff filed a Union grievance alleging that
Defendant terminated him because he engaged in protected activity. The Committee heard his
grievance and upheld the termination on October 12, 2001.
Plaintiff also filed a complaint with OSHA under the STAA in March 2002 (the 2002
STAA Claim). As before, the Secretary investigated and dismissed the claim, finding that
Defendant terminated Plaintiff on September 13, 2001 for dishonesty, not for protected
whistleblower activity. Plaintiff appealed the decision to an Administrative Law Judge (ALJ).
During discovery in the STAA Appeal, Defendant learned that Plaintiff had taken copies
of other drivers daily logs from Defendants premises without permission There are two copies
of each log: Defendant retains a white copy and the individual driver retains a yellow copy.
Plaintiff took yellow drivers copies only, and submitted them to the DOT in an attempt to
substantiate a complaint about Yellow. Plaintiff returned some of the logs he took the next day,
but threw away others that were at least seven days old.
The Settlement Conference
The parties voluntarily attended a settlement conference presided over by ALJ Jansen on
May 22, 2003. Defendants counsel, Anderson Scott (Scott) and Matt Brazeal (Brazeal),
attended, as did Plaintiff and his attorney, Paul Taylor (Taylor).
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The parties dispute the manner in which Taylor reviewed the proposed agreement with
Plaintiff and whether Plaintiff understood and agreed to the terms of the agreement.
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At the beginning the conference, the parties signed an agreement stating, in relevant part:
No party shall be bound by anything said or done during settlement judge proceedings unless a
settlement is reached. If a settlement is reached, the agreement shall be written and executed and
shall be binding upon all parties to the agreement subject to approval by the presiding judge.
Pl.s L.R. 56.1 Compendium, Tab No. 1.
Scott brought with him a copy of a proposed settlement agreement that he had drafted.
The proposed agreement left blank the monetary amount of any possible settlement. Taylor
reviewed the proposed agreement and requested minor changesto which Scott agreedto the
agreements confidentiality language.3
The parties discussed possible settlement figures ranging from $9,000 to $53,000.
Plaintiff testified that, at the end of the conference, he had no idea where the parties were in
terms of a dollar amount, and the parties reached no agreement. Defendant, by contrast,
maintains that Plaintiff and his attorney agreed to release, waive, and settle all actual and
potential claims against Defendant for $9,000, including attorneys fees, and that Scott was to
prepare a revised writing that reflected the agreement. The parties agree that Plaintiff never
signed a written document agreeing to dismiss or settle his claims against Defendant. In any
event, on June 2, 2003, ALJ Jansen issued a written notice stating that the parties have
announced that settlement has been reached. Def.s L.R. 56.1 Statement, ¶ 39.
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Events After the Settlement Conference
The same day ALJ Jansen issued the above notice (June 2, 2003), Scott sent Taylor a
revised settlement agreement that included the amount of Defendants gross payment to settle
Plaintiffs claims ($9,000) but left blank theallocation of that payment between Taylors
attorneys fees and Plaintiffs damages. Taylor sent this revised settlement agreement to
Plaintiff.
Several weeks passed. Finally, the judge assigned to adjudicate the STAA Appeal, ALJ
Tierney, announced that he would schedule a hearing on the merits unless he received the
settlement document. Taylor then wrote a letter to ALJ Tierney on July 17, 2003 stating that the
parties had reached a settlement, but (1) his client (Plaintiff) had informed him that he (Plaintiff)
did not wish to follow through on the settlement and (2) Taylor intended to withdraw as
Plaintiffs counsel. Plaintiff never objected to the contents of the letter, and Taylor withdrew as
his counsel on July 22, 2003.
The next month, Brazeal sent Plaintiff a settlement agreement and a check for $9,000.
After reading the agreement, Plaintiff returned the check and the agreement, unsigned, to
Brazeal. Plaintiff testified that he subsequently was given yet another settlement agreement
much shorter in length. This document stated: Endorsing the attached $9,000.00 check
constitutes acceptance of the terms of this Settlement Agreement. Pl.s L.R. 56.1 Compendium,
Tab No. 23. The three documents that Plaintiff considers proposed settlement agreements (the
two documents that arrived in the mail plus the proposed agreement Scott brought to the
settlement conference) all contained the following language: The Settlement Agreement
contains the entire understanding between the Parties and may not be modified, except in writing
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signed by all Parties to this Settlement Agreement. Pl.s L.R. 56.1 Compendium, Tab Nos. 21,
22, 23.
In July 2003, Defendant moved for summary judgment in the STAA proceeding. ALJ
Tierney denied the motion, finding that several issues of material fact were in dispute, including
but not limited to why Plaintiff was terminated, whether Yellow was engaged in selective
enforcement of DOT rules, the type of leave Plaintiff used when he did not report to work on
April 2, the amount and types of disciplinary action at Yellow, and the nature of Yellows policy
on working for other companies.
The ALJs Dismissal of Plaintiffs 2002 STAA Claim
Having denied summary judgment and having received no settlement document, ALJ
Tierney held a formal hearing on the STAA Appeal on October 7, 2003. Plaintiff appeared pro
se, and requested a continuance because he expected to file a state court action against
Defendant. Plaintiff explained that he could afford counsel and be heard by a jury of his peers in
state court. ALJ Tierney denied Plaintiffs request for a continuance as untimely.
Plaintiff then moved to withdraw his objections to the Secretarys October 2002 findings
that there was no reasonable cause to believe Defendant violated the STAA. Counsel for
Defendant agreed to Plaintiffs withdrawal provided that the ALJ dismiss Plaintiffs claim with
prejudice. Accordingly, ALJ Tierney informed Plaintiff that he would be unable to re-file his
claim. After Plaintiff acknowledged this fact, ALJ Tierney granted Plaintiffs request to
withdraw his objections to the Secretarys findings and dismissed the case with prejudice. ALJ
Tierney issued a Final Decision and Order Approving Complainants Withdrawal of Objections
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to the Secretarys Findings, Reinstating andAffirming the Secretarys Findings, Dismissing
Claim With Prejudice, and Awarding Respondents Costs on November 14, 2003.
On October 9, 2003, Plaintiff filed a state court action making the same allegations
contained in his 2002 STAA Claim (that is, Defendant discharged him in retaliation for his
complaints of alleged safety violations). Defendants removed the case to federal court on
January 12, 2004.
III.
DISCUSSION
A.
Plaintiffs Retaliatory Discharge Claim
1.
Res Judicata
Defendant moves for summary judgment on Plaintiffs retaliatory discharge claim on the
grounds that the claim is barred by the doctrine of res judicata.
Under Illinois law, res judicata bars litigants from refiling an action previously
adjudicated on the merits when the action is directed against the same parties and involves the
same claims. See DeLuna v. Treister, 708 N.E.2d 340, 344 (Ill. 1999). Res judicata will bar a
subsequent action if: (1) a court of competent jurisdiction has entered a final judgment on the
merits in the first action; (2) there is an identity of cause of action; and (3) there is an identity of
parties or their privies. See id. In Illinois, an order dismissing a suit with prejudice is considered
a final judgment on the merits for purposes of applying res judicata. See Knodle v. Jeffrey, 545
N.E.2d 1017, 1022 (Ill. App. Ct. 1989). In addition, [r]es judicata and collateral estoppel apply
to administrative decisions that are adjudicatory, judicial, or quasi-judicial in nature. Powers v.
Arachnid, Inc., 617 N.E.2d 864, 867 (Ill. App. Ct. 1993). Administrative decisions have
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preclusive effect, however, only in the limited area of factfinding. Wenig v. Lockheed
Environmental Systems, 726 N.E.2d 645, 649 (Ill. App. Ct. 2000) (quoting Allahar v. Zahora, 59
F.3d 693, 696 (7th Cir. 1995)).
The parties do not dispute that two of the three requirements for the application of res
judicata (identical cause of action, identical parties) have been met. They dispute only whether
an administrative agency engaged in factfinding and issued a final judgment on the merits.
Plaintiff argues that the ALJ did not conduct a hearing on the merits of his 2002 STAA
Claim or make factual findings at the October 7, 2003 hearing; the ALJ merely denied his
request for a continuance, granted his motion to withdraw his objections, and dismissed the
STAA claim with prejudice. In fact, Plaintiff argues, ALJ Tierney made findings only once, at
the summary judgment stage, when he found that multiple factual issues were in dispute.
Defendant argues that ALJ Tierney did issue findings of fact. Indeed, the ALJ issued a
Final Decision and Order Approving Complainants Withdrawal of Objections to the
Secretarys Findings,Reinstating and Affirming the Secretarys Findings, Dismissing Claim
With Prejudice, and Awarding Respondents Costs (Final Decision and Order) (emphases
added). As indicated by its caption, the Final Decision and Order expressly reinstates and
affirms the Secretarys findings that Plaintiffscomplaint lacked merit. Moreover, it explains
that STAA regulations required ALJ Tierney to reinstate and affirm the Secretarys findings:
Section 1978.111(c) of 29 C.F.R., [sic] permits a party to withdraw objections to
the Secretarys preliminary findings or preliminary order at any time before the
findings or order become final. When such withdrawal occurs before the ALJ or
the Secretary, it is required that an order be issued affirming any portion of the
findings or preliminary order with respect to which the objection was withdrawn.
29 C.F.R. § 1978.111(c). If the case is before the ALJ, the ALJs order becomes
the final administrative order in the case.
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See Final Decision and Order, Def.s L.R. 56.1 Statement, Ex. G at 2. See also 29 C.F.R. §
1978.111(c) (stating that [t]he judge . . . shall affirm any portion of the findings . . . to which the
objection was withdrawn) (emphasis added); id. (ALJ Tierney citing the regulation then stating,
[c]onsequentially, I reinstate and affirm the Secretarys preliminary findings).
There is no evidence, however, that the findings ALJ Tierney reinstated and affirmed
were the product of the kind of factfinding that should bar Plaintiffs claim in this Court.
Specifically, viewing the facts in the light most favorable to Plaintiff, there is no evidence that
the Secretary found facts after a hearing in which both parties were present and had the
opportunity to be heard. To the contrary, the evidence indicates that upon receiving Plaintiffs
2002 STAA Claim, the Secretary merely conducted an investigation, without input by Plaintiff,
and issued findings. See Secretarys Findings, Def.s L.R. 56.1 Statement, Ex. L at 1 (stating
that [f]ollowing an investigation of this matter by a duly authorized investigator, the Secretary
of Labor . . . makes the following findings.). The Secretarys findings as to Plaintiffs 2001
STAA Claim shed additional light on the factfinding that has taken place thus far. The Final
Investigative Report issued on April 16, 2001 states that Respondent [Yellow] was not
contacted regarding the complaint as it was determined that the complaint was not activity
protected by the STAA. See Final Investigative Report Memorandum, Def.s L.R. 56.1
Statement, Ex. D at 2. This statement indicates that, in deciding at least one of Plaintiffs claims,
the Secretary did not even grant Defendant the opportunity to provide facts for the Secretarys
consideration.
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Under the STAA, after receiving a complaint, the Secretary must conduct an
investigation, decide whether it is reasonable to believe the complaint has merit, and notify the
complainant and the person alleged to have committed the violation of the findings. 49 U.S.C.
§ 31105(b)(2)(A). If the Secretary decides it is reasonable to believe a violation occurred, the
Secretary includes findings and a preliminary order for relief in the notice. See id. After
receiving notice of the Secretarys decision, the complainant (here, Plaintiff) and the respondent
(here, Yellow) have thirty days to file objections and request a hearing on the record. If no
hearing is requested, the preliminary order is final and not subject to review. 49 U.S.C. §
31105(b)(2)(B). If a hearing is requested, the Secretary is to issue a final order no more than 120
days after the hearing. 49 U.S.C. § 31105(b)(2)(C). A party dissatisfied with the order may file
a petition for review in a United States court of appeals. 49 U.S.C. § 31105(c). It is not clear to
this Court that the procedure just described is the procedure that was followed in Plaintiffs case.
Nonetheless, the Secretarys Findings cite tothese statutory provisions for its authority to
investigate and decide Plaintiffs claim. See Secretarys Findings, Def.s L.R. 56.1 Statement,
Ex. L, ¶ 3.
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Further, the STAA provides for hearings before the Secretary issues a final order, but the
facts do not indicate to the Court whether such a hearing was held.4 As nature of the
factfinding below is unclear, this Court declines to hold, as a matter of law, that the findings
the ALJ adopted act to preclude Plaintiffs claim in the federal court.
The cases cited by the parties support this conclusion. In Wenig, an employer appealed
when the Department of Labor (DOL) determined that the plaintiffs retaliatory discharge
claim was well-founded. While the appeal was pending before the ALJ, the plaintiff indicated
his desire to pursue his claim solely in state court, refused to sit for a deposition, and failed to
respond to an order to show cause. Accordingly, the ALJ dismissed the DOL proceeding with
prejudice to prevent [the] plaintiff from reinstating his [DOL] proceeding if the state circuit
court case did not proceed to his satisfaction. Wenig, 726 N.E.2d at 649. The employer then
raised a res judicata defense in the subsequent state action. The Appellate Court of Illinois held
that the ALJ issued scheduling orders and considered the parties arguments as to plaintiffs
efforts to voluntarily dismiss the Department proceeding . . . . [but] conducted no hearing on the
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merits of the case and resolved no disputed issues of fact. Id. at 650. Res judicata, therefore,
did not bar the plaintiffs state action.
In Allahar v. Zahora, 59 F.3d 693 (7th Cir. 1995), a couple filed a claim with the Illinois
Department of Human Rights (IDHR) but later decided to pursue the claim solely in federal
court. The couple never, however, completed the paperwork for a voluntary withdrawal, so the
IDHR dismissed their complaint. The defendant then asserted the doctrine of res judicata in
federal court. The Seventh Circuit held that res judicata did not bar the couples claim since
[t]he IDHRs dismissal was a self-definedaction of administrative closurea dismissal
prompted by the Allahars stated intent to withdraw the claim and a dismissal that occurr[ed]
before any factfinding or consideration of the [merits of the] case by the IDHR. Allahar, 59
F.3d 693 at 696.
In Lileikis v. SBC Ameritech, Inc., No. 01 C 9554, 2003 WL 21077864 (N.D. Ill. Mar.
13, 2003), the plaintiff knew that her attorney was going to be out of town on the hearing date, so
she requested a continuance before and at the hearing. The court denied the plaintiffs request
both times, but the plaintiff refused to proceed without her attorney present. The IDHR then
dismissed her claim for lack of participation. The plaintiffs appeals were unsuccessful, and she
ultimately decided to abandon the IDHR action in favor of pursuing her claim in federal court.
This Court held that res judicata did not bar her federal claim since no court or administrative
body had made any determination on the underlying merits of her discrimination complaint. See
Lileikis, 2003 WL 21077864 at *6.
As in Wenig, Allahar, and Lileikis, it does not appear that an administrative agent or
body conducted a hearing on the merits of Plaintiffs case and resolved disputed issues of fact.
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The facts yield only the certainty that the U.S. Secretary of Labor investigated Plaintiffs
complaint and issued a final report. The facts yield nothing about the extent of the investigation
or the events leading to the report. Because the nature of the findings affirmed by the ALJ (in
accordance with STAA regulations) is unclear, those findings are insufficient to preclude
Plaintiff from litigating his retaliatory discharge claim in federal district court.
2.
Retaliatory Discharge
Defendant argues that, even if res judicata does not bar Plaintiffs claim, Plaintiff cannot
survive summary judgment because he cannot establish that he was discharged in retaliation for
protected activity rather than for legitimate reasons.
To avoid summary judgment in Defendants favor, Plaintiff must demonstrate a question
of fact as to whether (1) he was discharged (2) in retaliation for his activities, and (3) the
discharge violated a clear mandate of public policy. See Hartlein v. Illinois Power Co., 601
N.E.2d 720, 728 (Ill. 1992). The second element requires Plaintiff to demonstrate a causal
relationshipnot a mere sequential connectionbetween his activities and his discharge. See
Roger v. Yellow Freight Systems, Inc., 21 F.3d 146, 149 (7th Cir. 1994); Hinthorn v. Rolands
of Bloomington, Inc., 519 N.E.2d 909, 912 (Ill. 1988). The element of causation is not met if
the employer has a valid basis, which is not pretextual, for discharging the employee. Hartlein,
601 N.E.2d at 728.
Plaintiff testified that he does not know which complaint triggered his discharge, and he
has no idea why Yellow or what Yellow [sic] what triggered them to fire me. Def.s L.R. 56.1
Statement, Ex. A at 133-34. Thus, Defendant argues, Plaintiff relies only on his self-serving
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speculation as to the reasons for his termination to avoid summary judgment. See Billups v.
Methodist Hospital of Chicago, 922 F.2d 1300, 1303 (7th Cir. 1991) (stating that self-serving
remarks standing alone are insufficient to raise doubt as to the credence of the employers
explanation for termination.).
Plaintiffs speculation, however, does not stand alone. First, Plaintiff has shown that
Defendant sent him at least three termination letters stating different grounds for his termination
on the basis of proven dishonesty. Yellows general operating manager testified that he does
not know of any employees aside from Plaintiff that were terminated three times in one month.
A reasonable jury could believe that the series of termination letters is evidence of pretext or, as
Plaintiff argues, evidence of an effort [by Defendant] to terminate Plaintiff for any proffered
reason that the [U]nion would accept. Pl.s Resp. at 8.
Second, Defendant states that it terminated Plaintiff for dishonesty when Plaintiff called
in sick to drive for VSA in April 2001; failed to report that he exceeded the maximum hours of
service while driving for VSA in April 2001; and drove a truck for VSA instead of reporting to
work in August 2001. The facts show, however, that Plaintiff was not told there were
restrictions on his activities during his sick or personal days, Yellows policy and contracts do
not prohibit employee moonlighting, and few if any employees reported moonlighting hours to
Defendant. More importantly, there is a dispute of fact as to who (Plaintiff or Defendant) had
the obligation to monitor and report Plaintiffs driving hours outside of Yellow, and what drivers
were told by Yellow and understood about their personal and sick days. When the existence of
a uniform policy or practice is in doubt, it cannot serve as a reason for discharging [the
plaintiff]. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1040 (7th Cir. 1993). In the very
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least, the policy or practice cannot serve as the basis for summary judgment in the employers
favor.
Finally, Plaintiff has shown that Defendant issued him a warning letter for calling the
police about equipment safety issues. While Defendant argues that the call does not amount to
protected activity, and that the letter does not prove its animosity toward protected activities by
employees, the Court must draw all reasonable inferences in the Plaintiffs favor. A reasonable
jury could infer that Defendant had an adverse reaction to Plaintiffs activitiesa reaction
causally related to Plaintiffs termination.
In sum, Plaintiff has offered evidence to create a doubt as to Defendants reasons for
terminating him. Plaintiff does not need direct evidence, such as an admission by Defendant,
that would link his termination to specific protected activities, as Defendant erroneously argues.
See, e.g., Tullis v. Townley Engineering & Manufacturing Co., Inc., 243 F.3d 1058, 1062 (7th
Cir. 2001) (applying the McDonnell-Douglas method to retaliatory discharge cases in Illinois);
Bourbon v. Kmart Corp., 223 F.3d 469, 473 (7th Cir. 2000) (same). But perhaps Defendants
more troubling argument is that no issue for trial remains because [Plaintiff] has acknowledged
that Yellows . . . reasons for terminating him are truthful and legitimate. Def.s Mem. in
Support of Summ. J. at 9. The parties factual statements make clear that Plaintiff has made no
such acknowledgment. Thus, viewing the facts in the light most favorable to Plaintiff, there is a
genuine issue for trial as to whether Plaintiffs discharge was causally related to his
whistleblowing activity.
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B.
Defendants Breach of Duty of Loyalty Counterclaim
Defendant also moves for summary judgment on Counterclaim I, which alleges that
Plaintiff breached his duty of loyalty to Defendant by working as a driver for VSA, exceeding
his maximum hours of service under DOT regulations during the week of April 1, 2001, and
failing to inform Defendant that he exceeded those hours. Defendant also alleges that Plaintiff
breached his duty of loyalty by taking other drivers daily logs from Yellows premises.
In Illinois, employees have a special, fiduciary relationship with their employers. See
People v. Myers, 686 N.E.2d 363, 367 (Ill. App. Ct. 1997). An employee owes the duty of
fidelity and loyalty and cannot, therefore, act inconsistently with his agency or trust; i.e., solicit
his employers customers for himself, entice coworkers away from his employer, or appropriate
his employers personal property. ABC Trans National Transport, Inc. v. Aeronautics
Forwarders, Inc., 379 N.E.2d 1228, 1237 (Ill. App. Ct.1978). An employee also breaches this
duty when he acts unfavorably to the employers interests or hides facts that involve the
employers interest. See Beaton & Associates, Ltd. v. Joslyn Manufacturing & Supply Co., 512
N.E.2d 1286, 1291 (Ill. App. Ct.1987), superceded by statute on other grounds as stated in Royal
Imperial Group, Inc. v. Joseph Blumberg & Associates, Inc., 608 N.E.2d 178, 181-83 (Ill. App.
Ct. 1992). To prevail on this counterclaim, Defendant (here, Counter-Plaintiff) must prove that
(1) a fiduciary duty exists, (2) the fiduciary duty was breached, and (3) the breach proximately
caused the injury of which Defendant complains. See Crichton v. Golden Rule Insurance Co.,
832 N.E.2d 843, 854 (Ill. App. Ct. 2005).
It is undisputed that Plaintiff worked for VSA, that he exceeded the maximum driving
hours under DOT regulations, and that he removed daily logs from Yellows premises. There is
Case 1:04-cv-00193 Document 48 Filed 07/31/2006 Page 18 of 23
5
In addition, Defendant has not produced sufficient facts to establish the injury about
which it complains. Defendant states that Plaintiffs conduct subjected it to liability, but cites
only regulations that do not convey clearly to the Court the consequences Defendant suffers
when employees such as Plaintiff engage in wrongful conduct. See Def.s Reply Mem. at 11
(citing 49 C.F.R. §§ 395.3, 395.8(j)(1)).
6
Defendant further argues that it is entitled to restitution of at least the compensation it
paid to Plaintiff during the period of his breach, regardless of whether Plaintiffs conduct caused
injury to Defendant. See Vendo Co. v. Stoner, 321 N.E.2d. 1, 14 (Ill. 1974), cert. denied, 420
U.S. 975 (1975); see also Wabash, Inc. v. Avnet, Inc., 516 F. Supp. 995, 1000 (C.D. Ill. 1981).
Since this Court finds that there is a question as to whether Plaintiff committed a breach, this
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a dispute of fact, however, as to whether Plaintiff had a fiduciary duty to inform Defendant of his
excess hours of service. Defendant cites a regulation that requires drivers who work for multiple
motor carriers in the span of twenty-four hours to submit a record of duty status to each motor
carrier. See Def.s Reply Mem. at 11 (citing 49 C.F.R. 395.8(j)(1)). Plaintiff, by contrast, has
produced facts showing that Defendant did not require drivers to report hours worked outside of
Yellow. Moreover, the parties dispute whether Defendant ever monitored, or had a duty to
monitor, drivers excess hours.5 On the facts here, there is sufficient evidence for a reasonable
jury to return a verdict for Plaintiff, rather than Defendant, on this issue.
There is also a dispute of fact as to whether Plaintiffs removal of several drivers daily
logs is the equivalent of appropriating Defendants personal property. Defendant argues that by
taking the logs without permission, Plaintiff breached his duty of loyalty. Plaintiff maintains that
he removed only that which he believed was the discarded, outdated property of individual
drivers, not the property of Yellow. Because Defendant has not countered the distinction drawn
by Plaintiff, there is insufficient evidence to grant Defendant judgment as a matter of law on this
issue. Defendant is not entitled summary judgment on its breach of the duty of loyalty
counterclaim.6
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Court need not reach the question of restitution.
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C.
Defendants Breach of Contract Counterclaim
Lastly, Defendant moves for summary judgment on Counterclaim II, breach of contract.
Defendant argues that, at the May 22, 2003 settlement conference, the parties entered into an
enforceable oral contract to settle Plaintiffsclaim for $9,000. Plaintiff, by contrast, argues that
the parties did not intend to be bound until a formal agreement was executed and delivered after
the settlement conference.
Local contract law governs the formation, construction, and enforcement of settlement
agreements. See Pohl v. United Airlines, Inc., 213 F.3d 336, 338 (7th Cir. 2000). In Illinois,
. . . a binding agreement requires a meeting of the minds or mutual assent as to all
material terms. Whether the parties had a meeting of the minds is determined
not by their actual subjective intent, but by what they expressed to each other in
their writings. Thus, the parties decide for themselves whether the results of
preliminary negotiations bind them, and they do so through their words.
Abbott Laboratories v. Alpha Therapeutic Corp., 164 F.3d 385, 387 (7th Cir. 1999).
Furthermore, [t]he fact that a formal written document is anticipated does not preclude
enforcement of a specific preliminary promise. Dawson v. General Motors Corp., 977 F.2d
369, 374 (7th Cir. 1992). A contract can be formed before there is an official document
memorializing the deal. See Chicago Investment Corp. v. Dolins, 481 N.E.2d 712, 715 (Ill.
1985). If, for example, the parties agree that a formal document will be prepared only as a
memorialization of the oral agreement, the bargain is binding even though the document has not
been executed. Ceres Illinois, Inc. v. Illinois Scrap Processing, Inc., 500 N.E.2d 1, 5 (Ill. 1986).
Case 1:04-cv-00193 Document 48 Filed 07/31/2006 Page 20 of 23
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However, even where the essential terms have been agreed upon, if the clear intent of the
parties is that neither will be legally bound until the execution and delivery of a formal
agreement, then no contract comes into existence until such execution and delivery. Id.
(quoting Chicago Title & Trust Co. v. Ceco Corp., 415 N.E.2d 668, 677 (Ill App. Ct. 1980)).
Plaintiff has sufficiently demonstrated that a question of fact exists as to whether Plaintiff
and Defendant intended to execute a writing as a memorialization or whether they did not
intend to be bound until a formal agreement was executed and delivered. First and most
fundamentally, however, the parties dispute whether there was mutual assent as to a material
term of the agreement. According to Defendant, the parties agreed to a settlement figure of
$9,000 in exchange for Plaintiffs release of all claims. Similarly, Plaintiffs former attorney,
Taylor, testified that at the close of the settlement conference, he believed the parties actions
demonstrated an intent to be bound by the agreement reached at the conference. Taylor also
testified that no one, including Plaintiff, spoke words that would contradict their actions
indicating that the settlement was a done deal. Def.s L.R. 56.1 Statement, Ex. W at 38-40.
Nonetheless, Plaintiff testified that at the end of the settlement conference, he had no idea on
what amount the parties had agreed since they had discussed amounts ranging from $9,000 to
$53,000. Plaintiff unambiguously disputes Defendants assertion that, at the end of the
settlement conference, the parties agreed openly that all of the material terms of the settlement
had been agreed to. See Pl.s Resp. to Def.s L.R. 56.1 Statement, ¶ 36. Disregarding this
testimony in favor of Taylors testimony and the statement by ALJ Jansen would require
determining Plaintiffs credibilitythe function of a jury, not judge at the summary judgment
phase. See Anderson, 477 U.S. at 255.
Case 1:04-cv-00193 Document 48 Filed 07/31/2006 Page 21 of 23
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Defendant characterizes Plaintiffs testimony as self-serving or, in the very least,
evidence of a mere change in heart. Thus, Defendant urges a ruling similar to that in Pohl v.
United Airlines, Inc., 213 F.3d 336, 340 (7th Cir. 2000): [The plaintiffs] misplaced belief that
he could back out of the settlement at any time prior to signing it does not entitle him to legal
relief from a settlement negotiated with actual authority by his attorney. Defendant also
highlights the fact that ALJ Jansen issued a notice stating that the parties have announced that
settlement has been reached. Def.s L.R. 56.1 Statement, ¶ 39. Notwithstanding this fact,
Plaintiffs testimony creates a question as to whether the parties reached an agreement as to the
settlement amount. Defendant also argues that Plaintiffs words (or lack thereof) and conduct
suggest that Plaintiff did reach an agreement as to the settlement amount: Plaintiff received a
copy of Taylors letter (indicating a settlement had been reached, but Plaintiff did not wish to
follow through) but did not object to the contents of the letter, even to Taylor. The same,
however, may be said of Defendant: Defendants conduct suggests that the parties did not reach
an agreement at the settlement conference. Defendant does not dispute that it did not seek
enforcement of any oral agreement in the STAA proceeding. Moreover, after the settlement
conference, Defendant sent Plaintiff three different documents captioned Settlement
Agreement. While Defendant disputes that these documents are indeed additional, proposed
settlement agreements, Defendants conduct in sending these multiple documents suggests that
the settlement conference did not yield a fixed agreement that merely needed to be
memorialized.
Case 1:04-cv-00193 Document 48 Filed 07/31/2006 Page 22 of 23
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Thus, viewing the facts in the light most favorable to Plaintiff and drawing any
reasonable inferences in his favor, there is genuine issue of fact as to whether Plaintiff breached
a settlement agreement. Summary judgment on this counterclaim is not appropriate.
IV.
CONCLUSION
For the foregoing reasons, Defendants motion for summary judgmentis DENIED.
Enter:
/s/ David H. Coar
David H. Coar
United States District Judge
Dated: July 31, 2006
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