Diego Gaines v. K-Five Construction Corporatio

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2249
DIEGO GAINES,
Plaintiff-Appellant,
v.
K-FIVE CONSTRUCTION CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11-cv-03496 — George W. Lindberg, Judge.
ARGUED DECEMBER 5, 2012 — DECIDED JANUARY 3, 2014
Before MANION and SYKES, Circuit Judges, and DARROW,
District Judge.*
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,
*
Of the Central District of Illinois, sitting by designation.
2 No. 12-2249
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 sum-
mary 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
No. 12-2249 3
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 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
4 No. 12-2249
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 Wednes-
day’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.
1
K-Five asserts that before Gaines went out for the day on Thursday, a
K-Five mechanic repaired truck 4289’s door so that it would close. This
would suggest that at least some of Gaines’s safety complaints were
legitimate.
2
K-Five requires its drivers to log certain information in DDRs. The DDRs
are submitted to the mechanics’ shop and the main office. The top of the
DDR includes boxes for drivers to report their “Time Start,” “Time Start at
Job,” “Time Finish at Job,” and “Time Parked.” The main office reviews the
top of the DDRs to record drivers’ hours. The bottom of the DDR includes
space for “any down time, delays, accidents, & etc” and “repair request[s].”
Mechanics review the bottom of the DDRs to identify needed vehicle
repairs and to spot issues related to vehicle safety.
No. 12-2249 5
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 road-
worthy. 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 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
6 No. 12-2249
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 informa-
tion 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 insubor-
dination. K-Five’s Drivers Manual states that after two warn-
ings, the third offense may result in discharge.
No. 12-2249 7
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”).
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,
8 No. 12-2249
Gaines alleges that K-Five fired him in retaliation for filing an
EEOC charge against the company in January 2010.3
Gaines may establish his Title VII discrimination claim and
his Title VII retaliation claim by either the direct or indirect
method of proof. Coleman v. Donahoe, 667 F.3d 835, 859 (7th Cir.
2012). K-Five argues that Gaines waived any argument that his
Title VII claims raise a genuine issue of material fact under the
direct method, and we agree. Because he neglected to make
that argument at the district court level, Gaines cannot now
argue that his Title VII claims should survive summary
judgment under the direct method of proof. Karazanos v.
Madison Two Assocs.,147 F.3d 624, 629 (7th Cir. 1998) (“Argu-
ments not made to the district court are waived on appeal, as
we have said on countless occasions.”). Gaines does not claim
that he made a direct method argument to the district court or
even that he cited direct method cases; rather, he only counters
that he presented classes of circumstantial evidence that could
support a direct method argument.4 This is not enough. See
Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 608 (7th Cir. 2012)
(“[T]he waiver doctrine charges litigants with raising the
arguments they present on appeal in the district court, not just
the facts on which their appellate arguments will rely.”); Weber
3
In his brief, Gaines asserts that he filed an EEOC charge against K-Five in
January 2010. But Gaines does not cite to any support in the record for such
an assertion nor does he expound on the basis for his EEOC charge. Because
we do not need to know the details of Gaines’s EEOC charge to affirm the
district court, we will not search the record to uncover such details.
4
Gaines’s counsel conceded at oral argument that he did not indicate to the
district court that he intended to argue under the direct method.
No. 12-2249 9
v. Univs. Research Ass’n, Inc., 621 F.3d 589, 592–93 (7th Cir.
2010) (finding direct method waived where the plaintiff
mentioned suspicious timing, a class of circumstantial evidence
that could support a direct method argument, but did nothing
else to indicate to the district court that plaintiff intended to
pursue an argument under the direct method of proof); Timm
v. Ill. Dep’t of Corr., 335 F. App’x 637, 642 (7th Cir. 2009)
(finding direct method waived because plaintiff failed to raise
the direct method argument, even though circumstantial
evidence supporting a direct method theory was presented at
district court).
Having found Gaines’s arguments under the direct method
waived, we now turn to Gaines’s arguments under the indirect
method of proof. Normally, discrimination and retaliation
claims are analyzed separately. But in this case both claims fail
for the same reason: Gaines has not identified a similarly
situated employee—known as a “comparator.” Gaines’s Title
VII discrimination and retaliation claims each require him to
identify a comparator when proceeding under the indirect
method of proof. See Peters v. Renaissance Hotel Operating Co.,
307 F.3d 535, 545 (7th Cir. 2002) (discrimination elements);
Harper v. C.R. England, Inc., 687 F.3d 297, 309 (7th Cir. 2012)
(retaliation elements).
Similarly situated employees need not be identical to the
plaintiff, but they do have to be “directly comparable to the
plaintiff in all material respects.” Coleman, 667 F.3d at 846
(internal citations omitted). Though he only needs one com-
parator, Gaines offers three potential comparators: Craig
Konieczka, Darnell Thomas, and Al Lukritz. We will address
each of these K-Five truck drivers in turn.
10 No. 12-2249
First, Craig Konieczka is argued to be a similarly situated
employee because in June 2010, he wrote down his start time
as 7:15 a.m. whereas his scheduled start time was 7:20 a.m.
Gaines claims that this shows Konieczka falsified his DDR in
such a way that resulted in him “stealing time” from the
company. According to Konieczka, Steve Radtke found out
about the discrepancy and orally warned Konieczka that
falsifying information in a DDR was a terminable offense. But
nothing more came of it.
Setting aside Gaines’s alleged instances of insubordination,
which if considered would distinguish Gaines from Konieczka
in a material respect, one instance of a five-minute discrepancy
in start time is not comparable to misattributing a statement
about truck maintenance to a K-Five mechanic. Even if Gaines
offered evidence suggesting that Konieczka did not in fact start
work at 7:15 a.m.—which Gaines did not do—K-Five’s payroll
system is based on quarter hour increments, which means the
extra five minutes were unlikely to result in any overpayment.
So although both Konieczka and Gaines could be seen as
technically falsifying information on a DDR, Konieczka’s
alleged falsification likely had no consequences. Conversely,
Gaines’s alleged falsification could have affected other K-Five
employees or operations. For example, had the misstatement
not been caught by Johnston, another mechanic could have
seen it and either conducted an improper repair on the truck,
ordered an unnecessary replacement part, or realized the error
and unfairly concluded that Johnston was incompetent.
Without more, Konieczka’s alleged five minute discrepancy is
so trivial that his conduct is not of comparable seriousness to
Gaines’s, so Gaines cannot take Konieczka to a jury as a
No. 12-2249 11
comparator. See Johnson v. Artim Transp. Sys., Inc., 826 F.2d 538,
543–44 (7th Cir. 1987) (violation of the same work rule may not
be sufficient to establish a prima facie case if the underlying
conduct is greatly dissimilar).
Next, Gaines offers Darnell Thomas. Thomas was also
terminated by K-Five but not until his fifth infraction of
company rules within a twelve month period. A review of the
record shows that Radtke or Krug issued four of the five
warnings and that all five warnings were for violations of
company rules that Gaines is not alleged to have violated.
Though the record shows that Thomas violated work rule 26
(showing up late to work) four times and rule 25 (discourtesy
towards a K-Five employee, supplier, customer and/or general
public) once, Gaines does not offer any evidence that describes
the details of Thomas’s infractions, so we are not in a position
to analyze whether Thomas’s infractions were of comparable
seriousness. See Coleman, 667 F.3d at 850 (“In a disparate
discipline case, the similarly-situated inquiry often hinges on
whether co-workers engaged in comparable rule or policy
violations and received more lenient discipline.”(internal
quotations omitted)). The similarly-situated analysis requires
more than simply counting the number of warning slips
another employee received before also being terminated,
especially when the numbers are so close (four for Gaines
versus five for Thomas). And even setting aside Gaines’s
warnings for insubordination, falsifying a DDR is itself a
terminable offense, unlike the work rules Thomas is alleged to
have violated. As far as we know, Thomas just showed up a
few minutes late to work. Because Thomas engaged in differ-
12 No. 12-2249
ent conduct, of which we have no details, he cannot serve as a
comparator.
Finally, Gaines argues that Al Lukritz is similarly situated
because Gaines remembers Lukritz’s test drive of truck 4289 to
have started at 7:20 a.m., but Lukritz recorded that it started at
7:00 a.m. in his DDR. Even assuming that Lukritz did in fact
record an extra 20 minutes, and again setting aside Gaines’s
alleged instances of insubordination, Gaines offers no evidence
that any K-Five supervisor was ever told or otherwise aware of
the incorrect start time on Lukritz’s DDR. Without that
evidence, Gaines cannot defeat summary judgment. See Friedel
v. Madison, 832 F.2d 965, 974–75 (7th Cir. 1987) (explaining that
defendant is entitled to summary judgment even though
plaintiff offers evidence that comparators engaged in same
conduct because no evidence shows that defendant knew
about comparators’ behavior). Because Gaines has not identi-
fied a suitable comparator, his indirect theory claims were
properly defeated at summary judgment.
B. STAA Retaliation
In the early 1980s, random inspections by law officers
around the country revealed widespread violations of commer-
cial motor vehicle safety regulations. See Bettner v. Admin.
Review Bd., 539 F.3d 613, 615 (7th Cir. 2008) (citing Brock v.
Roadway Express, Inc., 481 U.S. 252, 258, 262 (1987)). In response
to this grim revelation, Congress enacted certain protections in
section 405 of the Surface Transportation Assistance Act
(“STAA”). See id. at 615–16. The premise of Congress’s action
was that employees (e.g., truck drivers) are in the best position
to identify safety violations. Id. at 615. Congress wanted to
No. 12-2249 13
encourage employees to complain about safety violations
when they see them. Id. Section 405 of the STAA therefore
identifies categories of protected activity, like complaining
about safety issues, and makes it illegal for employers to
retaliate against their employees for engaging in such pro-
tected activity. See 49 U.S.C. § 31105.
Invoking the STAA, Gaines filed a complaint with the
Occupational Safety and Health Administration (“OSHA”) in
June 2010. No final decision issued within 210 days, allowing
Gaines to file his complaint with the district court for de novo
review. See 49 U.S.C. § 31105(c). At the district court, Gaines
attempted to present a prima facie case by demonstrating that
his STAA protected activity was a contributing factor in
K-Five’s decision to subject him to an adverse employment
action. See Formella v. U.S. Dep’t of Labor, 628 F.3d 381, 389 (7th
Cir. 2010). Both parties agreed that termination is an adverse
employment action. Thus, the issue turned on whether Gaines
engaged in an STAA protected activity, and if so, whether that
activity was a contributing factor in his termination. If Gaines
put forth a prima facie case, then the burden would shift to
K-Five to demonstrate by clear and convincing evidence that
it would have fired Gaines even if he did not engage in STAA
protected activity. Id. Should K-Five make such a showing,
then Gaines has the opportunity to show that K-Five’s alternate
reason for firing Gaines is pretextual. See Roadway Express, Inc.
v. U.S. Dep’t of Labor, 495 F.3d 477, 482 (7th Cir. 2007).
The district court held that Gaines’s initial refusals and
actual delays in driving truck 4289 were not protected activities
because they were not based on an objectively reasonable belief
that the truck was unsafe. As a result of finding that Gaines did
14 No. 12-2249
not engage in STAA protected activity, the district court
granted summary judgment in favor of K-Five. Again, we
review de novo the district court’s grant of summary judgment,
viewing the evidence in the light most favorable to Gaines.
Healy, 450 F.3d at 738.
Though the district court only addressed whether Gaines’s
complaints about truck 4289 constitute protected activity,
Gaines argued then and argues now on appeal that he engaged
in three separate protected activities: (1) refusing to drive truck
4279 (the truck with asphalt) because it was unsafe, (2) initially
refusing to drive truck 4289 until after Lukritz’s test drive
because the truck was unsafe, and (3) filing a DDR that raised
a safety concern with truck 4289 (even though he incorrectly
reported Johnston’s statement). Gaines claims that each of
these actions, and all of them combined, were a contributing
factor in K-Five’s decision to fire him. We find that each of the
three identified events raises a triable issue of fact under the
STAA.
1. Refusing to Drive Truck 4279
Under the STAA, an employee engages in protected activity
when he refuses to operate a vehicle because he fears that
operating the vehicle will cause harm to him or the public:
A person may not discharge an employee … because
the employee refuses to operate a vehicle because
the employee has a reasonable apprehension of
serious injury to the employee or the public because
of the vehicle’s hazardous safety or security condi-
tion.
No. 12-2249 15
49 U.S.C. § 31105(a)(1)(B)(ii). Whether the employee’s appre-
hension was indeed reasonable is analyzed from the viewpoint
of a reasonable individual:
[A]n employee’s apprehension of serious injury is
reasonable only if a reasonable individual in the
circumstances then confronting the employee would
conclude that the hazardous safety or security
condition establishes a real danger of accident,
injury, or serious impairment to health. To qualify
for protection, the employee must have sought from
the employer, and been unable to obtain, correction
of the hazardous safety or security condition.
49 U.S.C. § 31105(a)(2). As the statute indicates, an employee
is only protected for refusing to drive a vehicle if he first asked
his employer to correct the hazardous safety condition, but the
safety hazard remained uncured. Id.Once Gaines determined that truck number 4279 was
unsafe because the tail pan was covered in asphalt, he alerted
his supervisor, Schwarz, to the hazardous condition. And even
though Schwarz scraped off loose asphalt, Gaines refused to
drive the truck because he believed that the hazardous
condition had not been fully corrected. The issue is whether
Gaines’s fear of injury after Schwarz scraped off the loose
asphalt was objectively reasonable.
A K-Five work rule requires its drivers to keep their tail
pans clean. Schwarz testified that the work rule is important
because “if you have a lot of asphalt on your spread pan … it’s
not safe.” The parties agree that some asphalt remained on
truck 4279’s tail pan despite Schwarz’s scraping. Whether the
16 No. 12-2249
amount of remaining asphalt could still reasonably be deemed
unsafe is a question for the jury. Even if—as K-Five argues
despite the broad language of its work rule—it is only loose
asphalt that is problematic, a reasonable person could conclude
that Schwarz’s violent scraping may have loosened the
underlying hardened asphalt that his efforts had not removed.
Accordingly, whether Gaines could reasonably believe that the
remaining asphalt posed a safety risk is a genuine issue of
material fact. See Insolia v. Philip Morris Inc., 216 F.3d 596,
598–99 (7th Cir. 2000) (noting that facts are material if they
“might affect the outcome of the suit” and an issue is genuine
“if a reasonable trier of fact could find in favor of the
nonmoving party”) (citations omitted).
Because we hold that Gaines has presented a genuine issue
of material fact regarding whether his refusal to drive truck
4279 was an STAA protected activity under 49 U.S.C.
§ 31105(a)(1)(B)(ii), we now consider whether Gaines’s refusal
was a contributing factor in K-Five’s termination decision.
K-Five argues it was not, but that argument is difficult to
reconcile with K-Five issuing Gaines a warning for refusing to
drive truck 4279 and then mailing that warning to Gaines
when K-Five fired him. This alone strongly suggests that
Gaines’s refusal to drive truck 4279 played a role in K-Five’s
decision to fire Gaines. But there is more: K-Five’s own
interrogatory response states that Gaines was terminated based
on his work performance and “repeated” failure to follow
company rules. Gaines has therefore shown that his refusal to
drive truck 4279 contributed to K-Five’s decision to fire him.
K-Five argues that because it could have fired Gaines based
on the false DDR alone, his refusal to drive truck 4279 could
No. 12-2249 17
not have been a contributing factor in his termination. As an
initial matter, K-Five appears to misunderstand the legal
framework. All Gaines has to show to make out his prima facie
case is that his refusal to drive truck 4279 contributed to
K-Five’s decision to fire him, which he has done. See Formella,
628 F.3d at 389. After Gaines makes out his prima facie case,
the burden shifts to K-Five to prove by clear and convincing
evidence that it would have fired Gaines even if he did not
engage in this STAA protected activity (i.e., refusing to drive
truck 4279). This is where K-Five’s argument is properly made.
But K-Five has not met its burden. Though K-Five’s Drivers
Manual states that submitting a false DDR is by itself a
terminable offense, K-Five admitted at oral argument that no
direct evidence shows that K-Five would have actually
terminated Gaines based solely on the false DDR.
2. Initial Refusal to Drive Truck 4289
Gaines argues that his initial refusal to drive truck 4289 on
Friday, April 30, was a protected activity under the STAA. He
seeks protection under the same provision as above, 49 U.S.C.
§ 31105(a)(1)(B)(ii). Accordingly, Gaines must show that he had
a reasonable apprehension of serious injury because of the
vehicle’s hazardous safety condition. See id. K-Five argues, and
the district court agreed, that considering all of the circum-
stances—as is required under § 31105(a)(2)—no reasonable
person could have concluded that truck 4289 posed a real
danger of accident or injury.
The district court first noted that Gaines did not report any
safety problems with truck 4289 in his Wednesday DDR. While
true, evidence also shows that Gaines radioed Greg
18 No. 12-2249
Kolloff—the shop foreman—on Wednesday to report both the
problems with the truck and the near miss. In addition, Gaines
testified that he reported the near miss to Bob Schwarz in the
drivers’ room that same day. K-Five offers no evidence to rebut
these two oral reports. We cannot infer that Gaines’s failure to
record the truck’s safety problems in his Wednesday DDR
implied that Gaines did not have a reasonable apprehension of
serious injury, especially in light of evidence of Gaines’s oral
reports. See Coleman, 667 F.3d at 842 (“In assessing whether the
[defendant] is entitled to summary judgment, we examine the
record in the light most favorable to [the plaintiff], the
non-moving party, resolving all evidentiary conflicts in [his]
favor and according [him] the benefit of all reasonable infer-
ences that may be drawn from the record.”).
Next, the district court discussed Gaines’s decision to drive
truck 4289 on Thursday before recording multiple problems
with the truck in his Thursday DDR as evidence that the truck
was safe. We do not agree that driving a truck and then
reporting safety concerns is somehow evidence that the truck
had no safety concerns. Moreover, even if we could draw such
a conclusion from Gaines’s decision to drive the truck on
Thursday, evidence shows that Gaines did in fact complain
about the condition of the truck on Thursday morning.
At this point, the evidence leading up to Friday morning
supports Gaines, not K-Five. Gaines claims that truck 4289
nearly caused an accident when it pulled hard to the left on
Wednesday. Shortly thereafter, Gaines orally reported the near
miss to two K-Five supervisors. On Thursday morning, Gaines
again complained about steering problems with the truck. That
night, he recorded the alleged steering problem in his DDR.
No. 12-2249 19
Construing all facts in the light most favorable to Gaines, a
reasonable person would still have lingering concerns about
the condition of truck 4289 on Friday morning.
K-Five’s best evidence is that on Friday morning Gaines
was told that K-Five mechanics inspected truck 4289 on
Thursday night. But while this evidence helps K-Five, it is not
sufficient to erase a genuine dispute of material fact. A jury
could find that a reasonable person would still conclude that
truck 4289 posed a real safety risk on Friday morning for at
least three reasons. One, the mechanics inspected the truck but
there is no evidence that the mechanics made any repairs.
Believing that Gaines had steering problems the previous two
days, as we must because Gaines is the nonmoving party,
Gaines could have been understandably leery of driving the
unrepaired truck. Two, Gaines’s Friday morning concerns with
the steering were later confirmed by Lukritz, who concluded
that the truck pulled to the left. While Lukritz ultimately
concluded that the truck was roadworthy, he did confirm the
underlying steering problem. Three, Gaines’s experiences were
also later confirmed by Johnston, who concluded that the
steering wheel was off center. K-Five’s brief asserts that an
off-center steering wheel is a “harmless condition,” but K-Five
offers no evidence to support such an assertion. Even if the
truck could drive straight with an off-center steering wheel, it
is not unreasonable to conclude that asking Gaines to work a
13-hour shift with a misaligned steering wheel posed a safety
concern. Johnston’s inspection bolsters the reasonableness of
Gaines’s concerns that the truck’s unfixed steering remained a
safety hazard in light of his recent experiences with the truck.
20 No. 12-2249
In sum, the evidence leading up to Friday morning sup-
ports Gaines’s reasonable apprehension with truck 4289.
Gaines alleges that he complained about steering problems
with truck 4289 on Wednesday and Thursday. On Wednesday
he claims that the steering problems almost caused an accident
on the highway. Gaines’s testimony is bolstered by Lukritz and
Johnston, who both confirmed a problem with the steering
(although they disagree about the seriousness of the problem).
In that context, a jury could conclude that a reasonable person
would believe that truck 4289 posed a real safety concern even
though the mechanics reported no problem with the steering.
We therefore conclude that Gaines has presented a genuine
issue of material fact as to whether his initial refusal to drive
truck 4289 was protected activity under the STAA.
K-Five issued a warning to Gaines for this refusal and
mailed it to him with discharge papers. To establish a violation
of § 31105(a), Gaines must present evidence this warning
contributed to K-Five’s termination decision. Because the
warning accompanied discharge papers, and K-Five’s own
interrogatory response suggests that Gaines’s alleged insubor-
dination played a role in its decision to fire him, Gaines has
shown that his initial refusal to drive truck 4289 contributed to
K-Five’s decision to fire him. K-Five has not presented suffi-
cient evidence for the court to conclude that it would have
fired Gaines absent his initial refusal to drive truck 4289.
3. The Inaccurate DDR
Under the STAA, an employee also engages in protected
activity if he files a complaint related to a safety violation:
No. 12-2249 21
A person may not discharge an employee …
because the employee … has filed a complaint
or begun a proceeding related to a violation of a
commercial motor vehicle safety or security
regulation, standard, or order, or has testified or
will testify in such a proceeding.
49 U.S.C. § 31105(a)(1)(A)(i). Gaines argues that filing his
Friday DDR (the one with the misstatement) was itself pro-
tected activity. K-Five basically concedes that Gaines’s DDR
was a contributing factor in his termination. Accordingly, if
Gaines can show that filing his Friday DDR was an STAA
protected activity, he has made out his prima facie case. See
Formella, 628 F.3d at 389. And although K-Five’s Drivers
Manual says K-Five could have terminated Gaines based solely
on his three alleged instances of insubordination, K-Five offers
no evidence that it would have actually fired Gaines if he had
not submitted the inaccurate DDR. Thus, if Gaines can show
that filing his Friday DDR was an STAA protected activity, we
must reverse the district court on this issue.
K-Five’s only argument is that false statements are not
protected by the STAA. Because K-Five did not challenge
whether Gaines’s Friday DDR would constitute a “complaint
… related to a violation of a commercial motor vehicle safety
or security regulation, standard, or order,” had it been factu-
ally accurate, that issue is not before us. The narrow issue
presented to us on appeal is whether filing a complaint that
would otherwise constitute STAA protected activity loses such
protection if the complaint is based on inaccurate information.
22 No. 12-2249
To answer this question, both parties turn to Roadway
Express, Inc., v. U.S. Dep’t of Labor, 495 F.3d 477 (7th Cir. 2007),
but as we shall see, that case is inapposite. In Roadway, a truck
driver, Jon Gomaz, allegedly falsified the number of hours
worked in his driving log and was discharged for it. His
coworker, Peter Cefalu, provided a written statement at
Gomaz’s grievance hearing asserting that a Roadway supervi-
sor had once asked Cefalu to falsify his driving log. Cefalu was
fired and thereafter brought suit alleging his discharge violated
the STAA’s prohibition on retaliation. In reaching its decision,
the Court concluded that driving logs were a measure of safety
compliance and driving-log rules (including keeping accurate
time records) were safety regulations. Therefore, testimony
exposing a supervisor’s direction to cover up a safety regula-
tion violation was protected under 49 U.S.C. §
31105(a)(1)(A)(i).
Roadway does not shed light on how this Court would view
an inaccurate “complaint … related to a violation of a commer-
cial motor vehicle safety or security regulation, standard, or
order” and having found no other STAA case in our Circuit
that answers this question, we turn to Title VII retaliation
jurisprudence for guidance. In that context, an employee can
engage in statutorily protected activity by complaining about
discrimination even if the challenged conduct does not actually
constitute discrimination. See, e.g., Rucker v. Higher Educ. Aids
Bd., 669 F.2d 1179, 1182 (7th Cir. 1982) (a plaintiff need not
prove the underlying discrimination case to have an actionable
retaliation case). An employer is prohibited from retaliating
against its employee for taking action if the employee had a
good faith and reasonable belief that he was opposing an
No. 12-2249 23
unlawful practice. O'Leary v. Accretive Health, Inc., 657 F.3d 625,
631 (7th Cir. 2011). Gaines draws the analogy that filing his
inaccurate DDR should constitute a protected activity as long
as he had a reasonable and good faith belief that he was
complaining about a safety violation.
Before biting off on this analogy, we first note that the line
of Title VII cases that Gaines relies on are cases in which the
plaintiff’s complaints are factually true but legally insufficient.
See, e.g., Hamner v. St. Vincent Hosp. & Health Care Ctr., 224 F.3d
701, 706–07 (7th Cir. 2000); Dey v. Colt Constr. & Dev. Co., 28
F.3d 1446, 1458 (7th Cir. 1994); Holland v. Jefferson Nat’l Life Ins.
Co., 883 F.2d 1307, 1314–16 (7th Cir. 1989). For example, the
plaintiff in Holland complained about factually true instances
of sexually offensive remarks but such conduct was not
sufficiently severe to violate Title VII. See Holland, 883 F.2d at1314–16. The Court held that the plaintiff’s complaints about
the sexually offensive remarks were nonetheless Title VII
protected activity—the employer could not retaliate against the
plaintiff for making such complaints. Id. In this case, Gaines’s
complaint was somewhat the opposite: legally sufficient but
factually untrue. Nonetheless, the text of and policy behind the
STAA support Gaines’s position that filing his Friday DDR was
protected activity if he reasonably and in good faith believed
that he was accurately identifying a safety regulation, stan-
dard, or order violation.
First, the text of the STAA protects employees complaining
of safety violations—Gaines was complaining about a steering
problem he considered unsafe. There is no evidence that
Gaines intentionally misidentified the problem. Thus, the
Friday DDR satisfies the plain language of the statute: Gaines
24 No. 12-2249
filed a complaint (the DDR) related to a safety violation (faulty
steering). See 49 U.S.C. § 31105(a)(1)(A)(i) (prohibiting the
discharge of an employee because he or she “has filed a
complaint or begun a proceeding related to a commercial
motor vehicle safety or security regulation, standard, or
order”).
Second, Congress passed the STAA to encourage truck
drivers and other industry employees who see safety problems
to report them. See Bettner, 539 F.3d at 615 (citing 128 Cong.
Rec. 32,509–10 (1982) (remarks of Sen. Danforth and summary
of proposed statute)). Refusing to extend protection to employ-
ees who report safety problems just because the details of the
violation turned out to be inaccurate would undercut Con-
gress’s goals for this legislation. This is especially true because
not everyone who can detect a safety concern can accurately
diagnose or characterize its source. Employees aware of safety
violations should not fear that an employer who uncovers an
unintentionally inaccurate detail will use it as cover to fire the
complaining employee.
Our sister circuits and the Administrative Review Board
have reached similar conclusions. See Koch Foods, Inc. v. Sec’y,
U.S. Dep’t of Labor, 712 F.3d 476, 482–83 (11th Cir. 2013)
(recognizing that a complaint is protected under
§ 31105(a)(1)(A)(i) if it was based on a reasonable belief or
perception that a company was engaged in a violation of a
motor vehicle safety regulation); Calhoun v. U.S. Dep’t of Labor,
576 F.3d 201, 212 (4th Cir. 2009) (“To qualify for protection, a
complaint must be based on a ‘reasonable belief that the
company was engaging in a violation of a motor vehicle safety
regulation[.]’”); Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353,
No. 12-2249 25
357 (6th Cir. 1992) (holding that former version of statute
protected employees who complain about “possible safety
violations”); Guay v. Burford’s Tree Surgeon’s Inc., ARB Case No.
06-131, 2008 WL 2624771, at *4 (June 30, 2008) (finding an
employee is protected under the complaint clause of the STAA
if he acted on a reasonable belief regarding the existence of a
safety violation).
We hold that an employee who files a reasonable safety
complaint in good faith is protected by 49 U.S.C.
§ 31105(a)(1)(A)(i) even when that complaint contains inaccu-
rate information. In this case, Gaines must therefore demon-
strate that he had a reasonable and good faith belief that he
was accurately reporting a safety violation when he filed his
Friday DDR. We find that Gaines has presented a genuine
dispute of material fact on this issue, so K-Five was not entitled
to summary judgment on this issue.
C. Illinois Common Law Retaliation
To prevail on his Illinois common law retaliation cause of
action, Gaines must establish (1) that K-Five fired Gaines, (2)
in retaliation for Gaines’s activities, and (3) the discharge
violated a “clear mandate of public policy.” Turner v. Mem’l
Med. Ctr., 911 N.E.2d 369, 374 (Ill. App. Ct. 2009). The parties
disagree about why the district court granted summary
judgment in favor of K-Five. Since our review is de novo, we
will not wade into that disagreement.5
5
K-Five makes a half-hearted argument that Gaines waived his common
law retaliation claim because he misinterpreted the district court’s opinion.
(continued...)
26 No. 12-2249
Because K-Five fired Gaines, the only issues on appeal are
whether K-Five fired Gaines in retaliation for something
Gaines did and whether K-Five violated public policy by firing
Gaines. The first issue is easily resolved in Gaines’s favor.
Though K-Five argues that it had multiple bases to fire Gaines,
each ground for his termination is based on something Gaines
did: his alleged insubordinate acts and his filing a false DDR.
Accordingly, the only issue left is whether Gaines’s termina-
tion violated a “clear mandate of public policy.”
K-Five is not entitled to summary judgment on this issue
for the same reasons that it is not entitled to summary judg-
ment on Gaines’s STAA claim. If K-Five fired Gaines because
he complained about safety issues, then his termination
violates a “clear mandate of public policy.” See Brock v.
Roadway Express, Inc., 481 U.S. 252, 258 (1987) (stating that by
enacting the STAA, Congress declared policy to “encourage
employee reporting of noncompliance with safety regula-
tions”); Wheeler v. Caterpillar Tractor Co., 485 N.E.2d 372, 377
(Ill. 1985) (finding that Congress can declare policy by enacting
legislation).
D. FLSA Claim for Unpaid Overtime
Finally, Gaines argues that the district court erred by
granting summary judgment against his FLSA claim for
unpaid overtime because the evidence shows that K-Five knew
Gaines was working overtime without prior approval yet
5
(...continued)
To the extent K-Five is inviting us to find waiver, we decline K-Five’s
invitation because Gaines has properly raised the issue on appeal.
No. 12-2249 27
declined to pay him for it. Specifically, Gaines seeks reimburse-
ment for days on which he allegedly came in 15 minutes early
to inspect his truck. K-Five does not challenge Gaines’s claim
that he came in early on certain days, though it questions why
Gaines would do that because K-Five builds “pre-trip”
inspection time into the drivers’ shifts. Instead, K-Five says it
simply does not know, nor did it ever know, whether Gaines
was working an extra 15 minutes. While an employer cannot
slyly sit back in order to reap extra work without pay, it has no
obligation to pay for work it did not know about and had no
reason to know about. Kellar v. Summit Seating, Inc., 664 F.3d
169, 177 (7th Cir. 2011). Accordingly, the only issue for review
is whether Gaines has presented a genuine issue of material
fact as to whether K-Five knew that Gaines worked an extra 15
minutes on certain days.
Gaines offers three sources of evidence to support his claim.
First, Gaines points to his DDRs. The top of all DDRs contain
four bold, prominent boxes: “Time Start,” “Time Start at Job,”
“Time Finish at Job,” and “Time Parked.” In those boxes,
Gaines recorded his time. But at the bottom of some of his
DDRs, Gaines wrote “pre-trip” followed by a time that was 15
minutes before the time recorded in the “Time Start” box.
Gaines argues that his “pre-trip” notation at the bottom of the
DDR gave K-Five actual notice that he was working an
additional 15 minutes before his start time. In response, K-Five
offers the unrebutted testimony of Rainelle Burke, who
testified that it was her practice to only review the top portions
of DDRs for payroll purposes.
Second, Gaines points to Schwarz’s testimony that Gaines
“was always [at work] 15, 20 [minutes], half an hour early.”
28 No. 12-2249
Gaines argues that because a K-Five supervisor knew he was
at work early, a jury could find that the supervisor knew
Gaines was working overtime that was not previously autho-
rized. K-Five responds that no evidence shows that Schwarz
knew when Gaines actually started working or knew that
Gaines was not being compensated for his unauthorized
overtime.
Third, Gaines points to his own testimony that for four to
five months in 2009, Radtke and/or Schwarz would wait by
Gaines’s truck before his start time. Because they were hanging
around Gaines’s truck in the morning, Gaines argues that a
jury could infer that they knew he was working unauthorized
overtime. K-Five responds that again, even if Radtke and
Schwarz saw Gaines come to work early no evidence indicates
that either of them ever saw Gaines actually working before his
scheduled start time or even knew Gaines’s precise start time.
We find that Gaines’s evidence does not raise a genuine
issue of material fact. Gaines offers no evidence that anybody
at K-Five saw him working before his scheduled start time,
much less that any such observer knew what time Gaines was
scheduled to start work. And we cannot make a reasonable
inference that anybody knew based on the simple fact that
K-Five supervisors may have seen Gaines come to work early.
In Kellar, the Court held that simple knowledge that the
plaintiff came to work early was not enough to conclude that
the employer knew or should have known that the plaintiff
started working early because it was typical at the business for
employees to socialize before starting work. Kellar, 664 F.3d at177–78. Therefore, the plaintiff’s arriving at work early “raised
no flags.” Id. at 178. In this case, Gaines presents no evidence
No. 12-2249 29
that his arriving at work early should have raised a flag that he
was working unauthorized overtime. K-Five builds pre-trip
inspection time into each driver’s shift and Gaines offers no
evidence that it is inadequate. Without a legitimate reason to
start his pre-trip inspections early, we cannot reasonably infer
K-Five should have known Gaines started them early.
Gaines’s notations at the bottom of some of his DDRs also
do not create a genuine issue of material fact. To begin with,
the notation “pre-trip 7:00” is ambiguous. But more impor-
tantly, the DDR forms very clearly and prominently place the
hours worked information at the top of the page. In light of the
layout of the forms and Burke’s testimony that reviewing
DDRs for payroll purposes only requires reviewing the top of
the form, we find that Gaines’s notations at the bottom of the
form do not raise a reasonable inference that K-Five knew that
Gaines was working unauthorized overtime.
Finally, Gaines offers no evidence that, for the almost three
years he was periodically working an extra 15 minutes at the
start of his shift, he told anyone that he was working unautho-
rized overtime or that his notations at the bottom of his DDR
were meant to indicate as such. Based on the evidence pre-
sented, we find that the district court properly granted
summary judgment in favor of K-Five on Gaines’s FLSA claim.
III. Conclusion
For the foregoing reasons, the judgment of the district court
is AFFIRMED to the extent that it dismissed Gaines’s Title VII
claims and his FLSA claim. Regarding Gaines’s STAA claim
and his Illinois common law retaliation claims, the judgment
30 No. 12-2249
is REVERSED and the case is REMANDED for further pro-
ceedings consistent with this opinion.