The opinion of the court was delivered by: Bua, District Judge.
On May 11, 1982, because of unexcused absences, plaintiff was
discharged from his employment with defendant. Plaintiff
grieved the discharge under the collective bargaining agreement
and on November 24, 1982 received an arbitrator's decision
directing that plaintiff be reinstated upon a finding of
medical fitness for work by an orthopedic physician mutually
agreeable to the parties. On January 24, 1983, plaintiff was
deemed to be medically fit and, on the following day, was
reinstated to the employment roll. Immediately thereafter,
however, he was discharged under a different section of the
collective bargaining agreement. In connection with this
discharge he was told, by letter dated February 7, 1983, that
he had violated defendant's standards of behavior by exhibiting
"the most reprehensible of employee conduct by deliberately and
intentionally creating a significant work place disturbance and
by making false and malicious statements against Supervisor
Richard Owens which culminated in (plaintiff's) . . . filing
against Supervisor Owens totally unwarranted false criminal
assault charges which in turn were not sustained in trial
On April 21, 1983 the instant lawsuit was filed in state court.
The case was subsequently removed to this Court.
Plaintiff's complaint is in three counts. In Count I, plaintiff
asks the Court to confirm and enter judgment on the arbitration
award. Count II is based on a theory of retaliatory discharge.
Finally, in Count III, plaintiff attempts to assert a claim
based on intentional infliction of emotional distress. The
Court will address each count separately as it relates to the
Motion to Dismiss.
In Count I, plaintiff asks this Court to confirm and enter
judgment on the arbitration award, thus permitting enforcement
of the award as any other judgment or decree. Ill.Rev.Stat. ch.
10 ¶¶ 111, 114 (1981).
Plaintiff's grievance dealt solely with the issue of whether he
was properly terminated under Article III, Section D2(a) of the
applicable collective bargaining agreement, which provides:
An employee shall be deemed to have quit his/her job
voluntarily if (a) he/she is absent from work for three
consecutive days without good cause.
Plaintiff's absence from work on May 7, 8 and 10 allegedly
caused his termination. Plaintiff argued to the arbitrator that
his absence from work was not without good cause as two
physicians had diagnosed him as being unable to work during the
period of his absence, despite the fact that various company
physicians had deemed him fit to return to work on those dates
and that X-rays revealed no abnormalities or other objective
findings of disability.
The arbitrator ruled that plaintiff's absence was not without
good cause and ordered that plaintiff could not be terminated
based on such absence. Upon a finding of medical fitness by a
physician agreeable to both parties, plaintiff was to be
reinstated to his position. Plaintiff was in fact reinstated,
only to be terminated immediately thereafter because of his
previously having violated defendant's standards of behavior.
Plaintiff's second termination was for grounds wholly
independent of those contained in the grievance. Confirmation
and enforcement of the arbitrator's decision would therefore be
ineffective as to those grounds which form the basis of
plaintiff's most recent termination.
The Court's decision in this regard envelopes plaintiff's
arguments regarding both the reinstatement and back-pay issues,
the latter of which is not mentioned in either the arbitrator's
decision or the plaintiff's complaint but which arises for the
first time in plaintiff's response to defendant's motion to
dismiss. Even were the back-pay issue properly raised in the
plaintiff's complaint, it is apparent that this remedy was not
provided for by the arbitrator and therefore cannot be implied
by this Court. If a back-pay award is desired, it may only be
provided by the arbitrator and cannot be imposed by ...