Vulpitta v. Walsh Constr. Co.

• Citation: 406 Ill.Dec. 801,61 N.E.3d 1069
• Decision Date: 02 September 2016
• Docket Number: No. 1–15–2203.,1–15–2203.
• Parties: Anthony VULPITTA, Plaintiff–Appellant, v. WALSH CONSTRUCTION COMPANY and the Walsh Group, Limited, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

61 N.E.3d 1069

406 Ill.Dec. 801

Anthony VULPITTA, Plaintiff–Appellant,

v.WALSH CONSTRUCTION COMPANY and the Walsh Group, Limited, Defendants–Appellees.

No. 1–15–2203.

Appellate Court of Illinois, First District, Sixth Division.

Sept. 2, 2016.

Law Office of William M. Walsh (William M. Walsh, of counsel), and Law Office of Paul Luka, P.C. (Paul Luka, of counsel), both of Chicago, for appellant.

Kelley Drye & Warren, LLP, of Chicago (Matthew C. Luzadder and John C. Pirra, of counsel), for appellees.

OPINION

Justice DELORT

delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Anthony Vulpitta sued defendants Walsh Construction Company (Walsh) and The Walsh Group, Limited (Walsh Group), for retaliatory discharge and discrimination on the basis of a work-related disability. The main issue presented in this appeal is whether Vulpitta filed his original underlying charges with the Illinois Department of Human Rights (Department) within 180 days of his termination as required by law. Vulpitta claims the defendants terminated him on July 11, 2012, which would make his charges timely; the defendants contend they terminated Vulpitta on May 24, 2012, which would make his charges untimely. The trial court granted summary judgment to the defendants, finding that Vulpitta was terminated on May 24, 2012. The court also found there were no material issues of fact supporting Vulpitta's retaliatory discharge claim. Vulpitta appeals, contending that the trial court made improper factual findings to resolve these claims. We disagree and therefore affirm.

¶ 2 BACKGROUND

¶ 3 The facts established by the depositions and pleadings in the record are as follows. Vulpitta worked for defendants as a carpenter and carpenter foreman from around June 2000 until May 24, 2012, when he was laid off due to a slowdown in construction activity. He testified that, as a foreman on small Walsh construction projects, he was able to hire a construction worker “for a week or so” but observed that requirements in the employee handbook made it difficult to do so and that a prospective employee was no longer a “Walsh guy * * * if you missed 30 days.” In other words, “If you were laid off for 30 days, you had to re[-]sign up with Walsh.”

¶ 4 Around March 7, 2008, Vulpitta suffered a work-related injury to his left bicep and wrist. He received treatment and returned to work in August or September 2008 with various job restrictions recommended by his physician (primarily in the form of weight limitations and daily break periods), which defendants provided. Vulpitta testified that Patrick Easterday, his friend and supervisor, told him to take breaks as needed and that he was never denied a work break. He filed a workers' compensation claim as to these injuries on August 20, 2009. He did not dispute that defendants employed him on nine different construction projects from the time he filed the claim until his layoff on May 24, 2012.

¶ 5 Around August 15, 2011, Vulpitta suffered a work-related injury to his left hip and went to the hospital for an evaluation. He was examined and discharged to return to unrestricted work the following day. He went to his primary care physician the day after (August 17), but that physician also approved his return to work without restrictions.

¶ 6 On October 31, 2011, Vulpitta began working at defendants' construction project at the Spring Grove apartment complex, and Easterday was again his supervisor. In December 2011, defendants offered Vulpitta $80,000 to settle his 2009 workers' compensation claim, but he rejected the offer the following March.

¶ 7 Easterday testified at his deposition that, on May 24, 2012, Vulpitta was laid off from the Spring Grove project because the carpentry work was complete. Easterday further noted that Vulpitta was the last carpenter to be laid off. Easterday's secretary Michelle Griffin, who handled payroll for the project, stated that because no carpenters were paid after that date, carpentry work must have stopped at that time.

¶ 8 Vulpitta testified that, on May 24, Easterday had told him “Walsh was slow but that things would be breaking.” Easterday did not recall making this statement to plaintiff. Vulpitta and Easterday, however, agreed that Vulpitta was the last carpenter to be laid off at the Spring Grove project, Easterday did not promise to rehire Vulpitta, and Easterday never indicated to Vulpitta that his layoff was only “temporary.” Easterday further testified that, after May 24, he had no work for a carpenter foreman and did not hire any carpenters or carpenter foremen for the rest of 2012. Vulpitta, however, testified that he had heard from other carpenters that there was still carpentry work to be done at the Spring Grove project.¹ Vulpitta admitted that he only “heard rumors” and “believed” that there was a carpenter foreman still working on the Spring Grove project.

¶ 9 Vulpitta further admitted that, following the May 24 layoff, he no longer received any compensation or benefits from defendants. He also testified that he filed for unemployment benefits between May 24 and June 3, 2012, and listed the reason for being unemployed as “lack of work.” He testified, however, that he believed that he was still “employed” by defendants because Easterday told him that “there would be something breaking.”

¶ 10 On July 2, 2012, Vulpitta went to a third physician, Dr. Robert Fink, for treatment of his left hip pain. Dr. Fink ordered Vulpitta to undergo an X-ray examination that same day, the results of which indicated no fractures or dislocations. Dr. Fink then ordered an MRI of Vulpitta's pelvis, including both hips.

¶ 11 Vulpitta contacted Griffin the same day and told her that Dr. Fink needed the medical records and information relating to his August 15, 2011, treatment at Central DuPage Hospital for his “workmen comp claim.” According to Vulpitta, Griffin retrieved that information for him that day, and Vulpitta passed it along to Dr. Fink. Griffin testified during her deposition, however, that she never had a conversation with Vulpitta regarding any information his doctor needed so that he could pursue a workers' compensation claim regarding his August 2011 injury. Griffin added that it was against company policy to provide any medical or injury documentation to anyone, even if it were an employee requesting his own documentation; instead, Griffin said she would “[p]erhaps” refer the employee to the insurance department. Griffin further confirmed that she never had a conversation with Easterday regarding Vulpitta's termination or workplace injuries, although she would ordinarily “apprise” Easterday of an employee's call regarding a workplace injury. Easterday testified that he was unaware as to whether Griffin and Vulpitta spoke regarding the need for plaintiff to obtain information about his August 2011 injuries. Easterday further noted that it was “doubtful” that Griffin would have told him of the conversation, because she would not have asked Easterday about any employee seeking his personal records.

¶ 12 On July 6, 2012, Vulpitta filed a workers' compensation claim for his August 2011 hip injury

. Four days later, he underwent the MRI that Dr. Fink had ordered. The next day, July 11, 2012, Vulpitta and Easterday met for lunch. Easterday said that he had never met a laid-off employee for lunch before, but he and Vulpitta had been friends for many years. Vulpitta agreed that Easterday was a friend of his and added that they played on a hockey team together, that their families had spent holidays together, and that he and Easterday had met for lunch “a couple hundred times” before. According to Vulpitta, Easterday told him, “I have to let you go,” and “I don't want to do this. You know I have to do this. It's not coming from me, but I have to do this.” Easterday did not recall making any of those statements. According to Easterday, he informed Vulpitta at the lunch that “nothing was breaking,” that there were no openings for a carpenter foreman in the near future, and that Vulpitta should feel free to find a position elsewhere if necessary.

¶ 13 On July 16, 2012, Dr. Fink told Vulpitta that the results of the MRI also showed no fractures, bone chips, or dislocations. According to Vulpitta, Dr. Fink told him that a “different” MRI might show something, so sometime that summer, he saw a Dr. Kuhlman, who ordered a “Tesla” MRI. The results of that MRI showed that he had a “torn labrum,” but he never reported those results to defendants.

¶ 14 Vulpitta recalled that, around June 2008, he learned that Easterday was going to terminate a labor foreman, Anestacio Ferralez,² because Ferralez had gotten “hurt a lot” and became a “liability.” Vulpitta, however, admitted that he did not hear the conversation between Easterday and Ferralez and was not in the room when Ferralez was terminated. Easterday testified at his deposition that Ferralez was laid off because the work at the job site was complete and that Ferralez had announced his retirement to Easterday.

¶ 15 Finally, when asked what specific facts he had to support his claim that he was fired in retaliation for seeking a claim under the Workers' Compensation Act (820 ILCS 305/1 et seq.

(West 2012)), Vulpitta responded that it was Easterday's use of the “same words in our conversation as was [Ferralez's] conversation[:] that he had to let me go, that he didn't want to do this. He didn't want to have to fire me, but it's something he had to do.” Vulpitta admitted that his employment could be terminated if work was “slow” and that, at the time of his layoff, work was slow.

¶ 16 On December 28, 2012, Vulpitta filed a charge of discrimination with the Illinois Department of Human Rights (Department), alleging that defendants discriminated against him when it terminated his employment on the bases of retaliation and disability. On August 1, 2013, the Department dismissed Vulpitta's charges for lack of jurisdiction, finding that he filed them 218 days after...