Welch v. Veolia ES Solid Waste Midwest, LLC, 11 CV 7685
| Decision Date | 26 September 2013 |
| Docket Number | No. 11 CV 7685,11 CV 7685 |
| Parties | CHARLES WELCH, Plaintiff, v. VEOLIA ES SOLID WASTE MIDWEST, LLC d/b/a VEOLIA ENVIRONMENTAL SERVICES, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiff, Charles Welch ("Plaintiff" or "Welch"), an employee of Defendant Veolia Environmental Services ("Veolia" or "the company"), suffered a work-related injury to his left shoulder on May 27, 2009. The next day, Welch reported the injury to Veolia and sought medical attention. Welch was terminated two days later for failing to report his injury in accordance with company policy and for falsifying documents. In this lawsuit, Welch alleges that Veolia terminated his employment in retaliation for his exercising his rights under the Illinois Workers' Compensation Act (the "Act"). 820 ILCS 305/1 et seq. The court has jurisdiction based on diversity of citizenship. 28 U.S.C. § 1332.1 The parties now bring cross motions for summary judgment on Plaintiff's claims. For the reasons set forth below, Defendant's motion for summary judgment [36] is denied and Plaintiff's motion for summary judgment [40] is denied.
The following facts are drawn from the pleadings and the parties' Local Rule 56.1 submissions.2 Veolia is a waste disposal and recycling firm headquartered in Milwaukee, Wisconsin. (Removal Pet. ¶ 3.) Beginning in May 2001, Welch worked as a refuse collection driver at Veolia's Waukegan Hauling division in Waukegan, Illinois. (Def.'s Rule 56.1 Stmt. of Facts [38] (hereinafter "Def.'s 56.1") ¶¶ 3-4.) Initially, Welch worked yard waste collection routes in Chicago and Waukegan. (Id. ¶¶ 3, 6.) From 2003 to 2007, he worked on a recycle route in Vernon Hills, Illinois. (Id. ¶¶ 8, 9.) For the last two years of his employment, Welch was responsible for a residential garbage route in North Chicago, covering this route by himself in a side-loader truck. (Id. ¶ 9.) Welch's duties included collecting garbage as well as bulk items such as couches and mattresses.
Veolia requires all employees injured on the job to complete an employee injury report "immediately, or as soon as possible." (Def.'s 56.1 ¶ 21; Def.'s Resp. to Pl.'s Rule 56.1 Stmt. of Add'l Facts (hereinafter "Def.'s Resp. to Pl.'s 56.1 Add'l") [53] ¶ 3.) Pursuant to Veolia's Company Work Rules and Regulations, "[i]t is prohibited to . . . fail to report an accident and/or injuryimmediately to management." (Id. ¶ 20.) Welch received a one-page summary of the company rules which states that (Veolia Work Rules and Responsibilities [39-8], Ex. H to Def.'s App. to 56.1 Stmt. [39] (hereinafter "Def.'s 56.1 App.").) Welch was trained that in the event of an accident or injury he was to report the incident in writing and report it to a supervisor during the workday, or at the end of the day when he turned in his paperwork. (Def.'s 56.1 ¶ 19.) Welch acknowledges that he was aware of these rules, and testified that he understood that if he had an accident or injury on the job, he was expected to report it immediately. (Id. ¶¶ 17, 20.) While employed by Veolia, Welch has had at least five on-the-job injuries, and has filed "multiple" workers' compensation claims against Veolia. The parties agree that prior to the incident at issue in this case, Welch had reported all of his previous injuries to Veolia in accordance with company policy.
In his amended complaint, Welch asserts that on May 27, 2009 he "experienced acute soreness in his left shoulder from lifting the large, heavy items." (Am. Compl. [11] ¶ 15.) At his deposition, Welch explained that the loads on his route were particularly heavy that day, and at the end of his shift he felt soreness throughout his body including a "twinge" in his shoulder. (Welch Dep. Excerpts 81:1-82:11.) Welch did not report an injury to anyone at Veolia on May 27, however. (Def.'s 56.1 ¶ 27.) At the end of his shift, he completed and signed a route sheet in which he certified that he had completed his route and that he had no accident or injury that day. (Id. ¶ 27.) Welch initially alleged that he was unable to report any injury to his supervisor that day, because when he returned from his route, his supervisor had already left for the day. (Am. Compl. ¶ 15.) Welch now asserts that he did not report an injury on the 27th because the twinge he felt in hisshoulder did not cause him pain, and he did not believe himself to be injured at that time.
On May 28, 2009, before Welch's shift began at approximately 4:30 or 5:00 a.m., route supervisor Steve Budny ("Budny") observed that Welch's shoulder was red and swollen. (Welch Dep. Excerpts 89:21-90:1, 90:15-22.) Welch asserts that he told Budny that he felt a "tweak" in his shoulder during his previous shift, and that he had begun experiencing shoulder pain that morning. (Pl.'s 56.1 Resp. ¶ 28.) In his Supervisor's Investigation Report, Budny noted that on May 28, 2009, Welch reported that he had injured his shoulder the night before. (Supervisor's Investigation Rpt. [41-16], Ex. P to Pl.'s Mem. in Supp. of Mot. for Summ. J. (hereinafter "Pl.'s Mem.") [41], at 1.) According to Budny, Welch told him that he felt a "tweak or pain in his shoulder" while lifting the night before. (Id.) Budny directed Welch to complete an incident report, which Welch did later that day. (Def.'s 56.1 ¶ 29, 33; Pl.'s 56.1 Resp. ¶ 29.) Welch's incident report states only that on May 27, 2009, he was lifting heavy bulk items and bags and noticed a bulge in his shoulder the following morning. (Welch's Employee Stmt. [41-9], Ex. I to Pl.'s Mem.)
After learning that Welch was injured, Budny asked Welch if he thought he could continue to work. (Def.'s 56.1 ¶ 29.) Welch replied that he believed that he could, so Bundy told Welch that he would ask Welch's operations manager, Charles Vasalos ("Vasalos"), to check in on him later. (Id. ¶¶ 12, 29.) Later that day, while Welch was on his route, Vasalos stopped to talk to Welch. Vasalos asked Welch how he was feeling and whether he wanted to see a doctor. (Id. ¶ 30.) Welch replied that it could not hurt to have his shoulder examined, so Vasalos instructed Welch to go to the clinic after returning his truck to the yard. (Id.) Welch finished the collections on the street on which he was working, returned his truck to the yard, and went to the clinic where Veoliasends its employees who are injured on the job.3 (Id. ¶ 32.) Welch continued to work light duty on May 29 and 30, 2009. (Id. ¶ 34.)
On June 1, 2009, Welch called Veolia human resources manager Cindy Greenbaum ("Greenbaum") to report his injury and to discuss his working conditions—particularly the difficulty he had with the heavy loads and bulk items he encountered on his route. Welch insists he told Greenbaum that he believed his injury resulted from lifting heavy objects on a daily basis, rather than from a single traumatic event. (Def.'s Resp. to Pl.'s 56.1 Add'l ¶ 19.) On the morning of June 2, 2009, Greenbaum sent an e-mail message to Veolia General Manager David Wall (hereinafter "Wall") reporting that Welch had told her that he had injured his shoulder while lifting trash cans on May 27, 2009. (June 2, 2009 Email [45-2], Ex. B to Pl.'s 56.1 Resp.) Greenbaum concluded without elaboration that Welch had disregarded company safety policies by lifting a can that was too heavy. (Id.) Greenbaum's e-mail states, further, that the injury was "deemed preventable," although she does not specify who made this determination or what information supported it other than her conversation with Welch the day before. (Id.) In a parenthetical at the end of the message, Greenbaum notes that Welch is "on the repeater list with this." (Id.) It is not clear whether Greenbaum is referring to Welch's prior injuries or to his alleged violation of the company safety rules, and no explanation has been given of what it means to be on the "repeater list." On June 1, 2009, Vasalos and Wall also received an e-mail from Sedgwick Claims Management Services, Inc. stating that Welch had filed a claim, which had been assigned to one of Veolia's claims adjusters who would contact Wall within24 hours to discuss the matter. (Def.'s Resp. to Pl.'s 56.1 Add'l ¶ 5; June 1, 2009 Email [45-4], Ex. D to Pl.'s 56.1 Resp.)
On June 2, 2009, Vasalos and Wall met with Welch and told him that he would be subject to disciplinary action for failing to report an accident or injury. (Def.'s 56.1 ¶ 36.) Vasalos and maintenance manager Ron Atkinson prepared a disciplinary report which states that during the investigation into Welch's injury, Welch stated that he felt soreness in his shoulder as if he had pulled a muscle at approximately 2:00 P.M. on the afternoon of May 27, 2009. (Disciplinary Rpt. [39-13], Ex. M to Def.'s 56.1 App.) The report does not identify when, or to whom, Welch made the statements attributed to him. (See Id.) The disciplinary report concludes that termination was appropriate, and cites dishonesty, failure to report an injury, violation of work/safety rules, and falsification of company documents as reasons for termination. (Id.) Later that day, Vasalos and Atkinson had another meeting with Welch during which Vasalos told Welch that he was terminated. (Id. ¶¶ 37, 38.) Welch was presented with the disciplinary report,...
To continue reading
Request your trial