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RICHARDSON v. KRAFT-HOLLEB FOOD SERV.

December 5, 1990

GERALD RICHARDSON, Plaintiff,
v.
KRAFT-HOLLEB FOOD SERVICE, INC., a division of PHILLIP MORRIS, INC., SYSCO FOOD SERVICE, INC., a/k/a SYSCO FOOD SERVICE, CHICAGO, INC. and CHICAGO TRUCK DRIVERS, HELPERS & WAREHOUSE WORKER'S UNION, Defendants



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 Gerald Richardson brought a two-count complaint against two former employers, Kraft-Holleb Food Service, Inc. ("Kraft-Holleb") and Sysco Food Service, Inc. ("Sysco"). He also names the Chicago Truck Drivers, Helpers & Warehouse Worker's Union ("Union") as a defendant. Kraft-Holleb and Sysco have filed separate motions to dismiss. For the following reasons, we deny both motions.

 I. Factual Background

 Richardson injured his back in the course of discharging his duties as a Kraft-Holleb truck driver. He received medical care and treatment for his injury intermittently between May 1 and Sept. 25, 1989. He also filed a claim for worker's compensation benefits. Kraft-Holleb discharged Richardson in late Sept. 1989. Pursuant to the collective bargaining agreement between Kraft-Holleb and the Union, Richardson filed a grievance protesting his discharge. On Jan. 31, 1990, an independent arbitrator issued a "pre-arbitration" report recommending that the Union not take Richardson's grievance to arbitration.

 In the meantime, Richardson obtained a similar truck driving job at Sysco, where he worked from Nov. 1 to Dec. 26, 1989. He sustained another workplace injury, or an aggravation to the previous injury, and filed for worker's compensation benefits. Richardson returned to work on Feb. 5, 1990, but was reinjured on Feb. 14. *fn1" He again filed for worker's compensation. Sysco discharged Richardson upon his return to work on March 26, 1990. Richardson filed a grievance protesting his discharge on April 10, 1990.

 Count I of the complaint broadly alleges the violation of a collective bargaining agreement between the two employers and the Union. *fn2" Jurisdiction is alleged under the Labor Management Relations Act, 29 U.S.C. § 185 (1988). Count II broadly alleges retaliatory discharge "in violation of the public policy of the State of Illinois."

 II. Sysco's Motion

 We address Sysco's motion first. Though styled as a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, it is properly addressed as a Rule 56 motion for summary judgment because Sysco attaches to its motion the affidavit of its Transportation Manager, Ted Pellus. Fed. R. Civ. P. 12(b)(6) (if "matters outside the pleading are presented to . . . the court, the motion [to dismiss] shall be treated as one for summary judgment").

 Under the federal procedural rules, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings . . . together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

  In a summary judgment context, the non-moving party's papers will be examined somewhat more indulgently than those of the moving party. See DeCintio v. Westchester County Medical Center, 821 F.2d 111, 114 n. 4 (2d Cir.), cert. denied, 484 U.S. 965, 108 S. Ct. 455, 98 L. Ed. 2d 395 (1987); 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2738 n. 31, at 484 (1983). Among other things, this means that the non-moving party is entitled to have its affidavits generously construed. Jensen v. United States, 662 F.2d 664, 667 (10th Cir. 1981). We will assign to the non-moving party "all of the favorable inferences that reasonably may be drawn" from the papers before us. 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2738 n. 32, at 484.

 Sysco, via the Pellus affidavit, makes two arguments: *fn3" 1) Richardson's discharge came within a "new employee" probationary period and discharge within that period is not reviewable through the collective bargaining agreement's grievance and arbitration procedure; and 2) the company is unaware of any grievance filed on Richardson's behalf by or through the Union concerning his termination.

 Article 2, § 6 of the collective bargaining agreement between Sysco and the Union provides, in relevant part, that

 
the trial period for all new Employees shall be forty-five (45) days of actual work within a ninety (90) consecutive calendar day period. During this trial period, a Trial Employee may be terminated by the Employer with or without just cause and the Trial Employee shall not have recourse ...

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