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 at

1314–16. 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 at

177–78. 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.