any source requiring authorization on the part of the Union to obtain a pre-arbitration review on the merits of a grievance. That the Union went to the time and expense to engage Arbitrator Steadman to review Richardson's grievance, without any requirement that it do so, could not be construed by any reasonable jury as evidence of improper motive. To the contrary, such effort reveals nothing more than the Union's desire to assure that the grievances it processes to arbitration have some probability of success on the merits.
Second, Richardson claims that the Union's improper motivation is evinced by Glover's erroneous statement to this court that Richardson admitted he was able to return to work on June 26, 1989, but chose not to return. However, even accepting the truth of Richardson's contention, no reasonable jury could conclude that Glover's current mistaken belief affected the Union's earlier handling of the grievance. Furthermore, to the extent that Richardson's claim represents dissatisfaction with the Union's assessment of the merits of his grievance, that dissatisfaction is insufficient to survive summary judgment.
Finally, Richardson asserts that disagreement among Union officials on the merits of his grievance reveals the arbitrary, discriminatory, and bad faith nature of the Union's refusal to arbitrate the grievance. There is no dispute that Glover has final authority to determine which grievances to arbitrate. The fact that his assessment of the merits of Richardson's grievance differed from Field Representative Hickey's evaluation provides no evidence to infer improper motivation by the Union. Rather, a disagreement on the merits reveals nothing more than the good faith consideration of Richardson's grievance.
In sum, Richardson has failed to present any evidence, direct or circumstantial, from which a reasonable jury could conclude that the Union acted in an arbitrary, discriminatory, or bad faith manner. Significantly, there is no evidence of personal enmity between Richardson and the Union. Nor has Richardson set forth evidence of any political motivation for the Union's decision not to arbitrate his grievance. Thus, in the absence of a genuine issue of material fact, we find it appropriate to enter summary judgment in favor of the Union.
B. The Collective Bargaining Agreement
Richardson's second claim, brought pursuant to § 301 of the NLRA, requires less discussion. Richardson contends that Kraft-Holleb violated its CBA with the Union by discharging him. It is well established, however, that "when a union has exclusive power under a collective bargaining agreement to invoke the grievance process, an employee may pursue an individual claim only if his union wrongfully refuses to process the claim." Dahnke, 906 F.2d at 1198 (emphasis in original); see also United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 62, 101 S. Ct. 1559, 1563-64, 67 L. Ed. 2d 732 (1981) (a showing that the union breached its duty of fair representation is an indispensable predicate for a § 301 suit brought by an employee against his employer for breach of the CBA); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71, 96 S. Ct. 1048, 1059-60, 47 L. Ed. 2d 231 (1976); Freeman v. Local Union No. 135, 746 F.2d 1316, 1321 (7th Cir. 1984). Since we have concluded that the Union did not wrongfully refuse to arbitrate Richardson's claim, Richardson may not pursue his claim for wrongful discharge under § 301 of the NLRA.
C. The Tort of Retaliatory Discharge
Richardson's final contention is that Kraft-Holleb is liable under the Illinois common law tort of retaliatory discharge, first recognized by the Illinois Supreme Court in Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353, 23 Ill. Dec. 559 (1978). Richardson claims that Kraft-Holleb discharged him in retaliation for asserting his rights under the Illinois Workers' Compensation Act.
Recovery for the tort of retaliatory discharge requires proof that (1) plaintiff was discharged from employment; (2) in retaliation for his activities; and (3) the discharge violates a clear public policy. Washburn v. IBP, Inc., 910 F.2d 372, 373 (7th Cir. 1990); Mercil v. Federal Express Corp., 664 F. Supp. 315, 317 (N.D. Ill. 1987); Barr v. Kelso-Burnett Co., 106 Ill. 2d 520, 527, 478 N.E.2d 1354, 1358, 88 Ill. Dec. 628 (1985).
There is no dispute that Richardson was discharged from employment by Kraft-Holleb. Further, the Illinois courts have recognized a cause of action when a plaintiff is discharged in retaliation for filing a claim for workers' compensation. McEwen v. Delta Air Lines, Inc., 919 F.2d 58 (7th Cir. 1990) (interpreting Illinois law); Kelsay, 74 Ill. 2d 172, 384 N.E.2d 353, 23 Ill. Dec. 559 . At issue in this case is the evidence of causation, that is, the extent to which Richardson can prove that Kraft-Holleb had a retaliatory motive for firing him. The causation element is not met if the employer has a valid basis, which is not a pretext, for discharging the plaintiff. Mercil, 664 F. Supp. at 317 (citing Slover v. Brown, 140 Ill. App. 3d 618, 620-21, 488 N.E.2d 1103, 1105, 94 Ill. Dec. 856 (5th Dist. 1986)).
The entirety of Richardson's evidence presented to support his claim of retaliatory discharge can be summarized as follows: (1) Al Cassidy, Human Resource Director of Kraft-Holleb, erroneously concluded that Richardson was able to return to work on June 26, 1989, notwithstanding Dr. Ortinau's opinion to the contrary; and (2) the proximity of the termination and the filing of the claim for benefits displays Kraft-Holleb's culpable motive.
Even assuming the truth of his first assertion, no reasonable jury could sustain a verdict in Richardson's favor. Under Illinois law, an employer may act on the basis of its employees' physical disabilities. The limit concerning the grounds for termination is drawn at the request for benefits, not physical impairment. For example, the plaintiff in Slover, 140 Ill. App. 3d 618, 488 N.E.2d 1103, 94 Ill. Dec. 856 , was injured in the course of employment, and, while he was unable to perform his job, he was laid off and replaced. After his recovery, his employer refused to reinstate him. The court concluded: "Causality does not exist if the basis for discharge is valid and nonpretextual. Thus, an employer may fire an employee for excess absenteeism, even if the absenteeism is caused by a compensable injury." Id. at 621, 488 N.E.2d at 1105 (citations omitted); see also McEwen, 919 F.2d at 60-61; Marin v. American Meat Packing Co., 204 Ill. App. 3d 302, 562 N.E.2d 282, 149 Ill. Dec. 818 (1st Dist. 1990).
Thus, the inference to be drawn from the proximity of the termination and the claim for benefits is all that stands between Richardson and summary judgment. On May 24, 1989, the Illinois Industrial Commission issued a Notice of Hearing indicating that Richardson's claim for benefits had been filed with that agency. According to Kraft-Holleb, Richardson was terminated on June 26, 1989, the date he failed to return to work.
Without more, however, we conclude that no reasonable jury could infer that Richardson's termination was improperly motivated. To the contrary, Richardson concedes that he was given a second chance to report to work on or before July 10, 1989. His failure to report back to work until September 25, 1989, indicates either (1) that Richardson was lackadaisical, or (2) that he actually was unable to perform his job. As both circumstances provide an employer with legitimate grounds for discharge, neither standing alone constitute evidence from which a retaliatory intent reasonably may be inferred. Therefore, no genuine issue of material fact exists to support Richardson's claim under the Illinois tort of retaliatory discharge.
There is no genuine issue of material fact to support Richardson's claim that the Union breached its duty of fair representation, a prerequisite to any claim brought pursuant to § 301 of the NLRA. Moreover, Richardson has failed to provide this court with any facts from which a reasonable jury could conclude that Kraft-Holleb terminated him in retaliation for his asserted right to workers' compensation benefits. Accordingly, we enter summary judgment, pursuant to Fed. R. Civ. P. 56(c), in favor of both the Union and Kraft-Holleb. It is so ordered.