Worker fired for behavior, not whistleblowing: Judge

An employee of an Illinois refinery was terminated for his inappropriate behavior, not for reporting alleged safety violations, a federal judge held Friday.

In Arias v. Citgo Petroleum Corp., U.S. District Judge Andrea R. Wood in Chicago dismissed former worker Amando Arias’ complaint, finding that the company presented evidence that the worker was asked to resign for drinking excessively at several company events and acting inappropriately toward his colleagues.

Mr. Arias worked as a contractor safety coordinator for Citgo Petroleum Corp. at its Lemont, Illinois, refinery until his termination in 2014. In 2011, he claimed that he became aware that the company was operating a unit that had several reactor leaks and a weakened metal surface, and reported to an investigator at the U.S. Chemical Safety Board that the company had “merely scabbed the leaks.”

He claimed that after telling his supervisor of his communication with the CSB that he began to suffer from adverse employment actions, including being assigned to the night shift in October 2013, and to roles that exacerbated his arthritis. The company said half of the employees in all departments were assigned to the night shift in October 2013 to assist with rebuilding efforts after a fire.

In July 2014, Mr. Arias attended a boat cruise with other employees at Navy Pier in Chicago, but Citgo and Mr. Arias dispute whether it was a company-sanctioned event. After the event, a Citgo employee complained to human resources about Mr. Arias’ behavior on the cruise, accusing him of becoming intoxicated and making lewd insults and sexually harassing comments about co-workers in front of other workers and their families. After an investigation, he was placed on a 10-day suspension and issued a final warning letter for violating the company’s harassment and discrimination and substance abuse policies.

In September 2014, Mr. Arias participated in a golf and Chicago White Sox baseball game outing with other employees, a vendor and the fire chiefs of two towns near the office. Both Citgo and Mr. Arias again disputed whether the event was company sanctioned. Afterward, another employee complained to HR about Mr. Arias’ “really despicable” behavior, which included allegations that Mr. Arias was noticeably drunk, had groped one of the fire chiefs and made lewd comments to a co-worker.

After an investigation he was summoned to the HR office, where he resigned.

He then filed a complaint alleging retaliatory discharge and violation of the Illinois Whistleblower Act. The district judge granted summary judgment to Citgo. Citgo argued that because Mr. Arias voluntarily resigned, he was prohibited from alleging a charge of retaliatory discharge. Although Mr. Arias argued that he was constructively discharged because he had been targeted and suffered “ongoing retaliation” the judge agreed with Citgo, noting that Illinois common law does not recognize constructive retaliatory discharge as a cause of action.

The judge also dismissed his claims of IWA violations, finding that Mr. Arias failed to establish a genuine issue of material fact as to whether Citgo retaliated against him. The night shifts, which he said were retaliatory, were temporary and “generally do not qualify as adverse employment actions,” and the final warning letter he received after the boat cruise was also “not the kind of materially adverse employment action” required to show for an IWA claim, the judge said.