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RICHARDSON v. KRAFT-HOLLEB FOOD SERV.

September 4, 1991

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


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 Gerald Richardson brings this two-count complaint against two former employers, Kraft-Holleb Food Service, Inc. ("Kraft-Holleb") and Sysco Food Service, Inc. ("Sysco"). Richardson also names the Chicago Truck Drivers, Helpers & Warehouse Worker's Union ("Union") as a defendant. Kraft-Holleb and the Union have filed separate motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56(b). For the reasons set forth below, we grant both motions for summary judgment. *fn1"

 I. Summary Judgment Standard

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(e). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, 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(c). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).

 II. Undisputed Facts

 On May 1, 1989, Richardson injured his back during the course of his employment as a Kraft-Holleb truck driver. As a result, Kraft-Holleb immediately referred Richardson to Alexian Brothers Medical Center ("Alexian Brothers") for examination and treatment at Kraft-Holleb's expense. Richardson received treatment for his injury intermittently between May 1 and September 25, 1989. In addition, he filed a claim with the Illinois Industrial Commission for worker's compensation benefits.

 On June 20, 1989, after several weeks of treatment, Dr. Magee of Alexian Brothers informed Kraft-Holleb that all tests performed on Richardson were negative, and that, if a final neurological examination likewise was negative, he would be released from medical care. Based on the subsequent neurological report of Dr. Reiss indicating no objective neurological abnormalities, Richardson was released by Alexian Brothers and instructed by Dr. Ortinau to return to work on June 26, 1989.

 Despite his release from Alexian Brothers and the instruction of Dr. Ortinau, Richardson did not return to work on June 26, 1989. In a letter dated July 6, 1989, Allan A. Cassidy, District Human Resources Manager of Kraft-Holleb, informed Richardson that, unless he returned to work on or before July 10, 1989, he would be discharged from employment. Richardson, however, did not attempt to return to work until September 25, 1989. Accordingly, he was discharged from employment at Kraft-Holleb.

 Throughout the relevant period of his employment at Kraft-Holleb, Richardson was a member of the Union. Between his termination from Kraft-Holleb and October 11, 1989, plaintiff engaged in several discussions with Union Steward Willie Johnson and Union Representative Gary Hickey regarding his discharge, his disability, and the filing of a grievance. Richardson thereafter submitted a grievance dated October 11, 1989, in which he asserted that his discharge violated the Union's Collective Bargaining Agreement ("CBA") with Kraft-Holleb.

 Union representatives discussed Richardson's grievance with Kraft-Holleb representatives on several occasions. Kraft-Holleb denied the grievance by letter to Hickey dated October 18, 1989. On October 27, 1989, Kraft-Holleb representatives Cassidy, Ed Knauss and Rich Rothrock met with Union representatives Hickey and Larry Greenfield to discuss the grievance in accordance with the next steps of the grievance procedure enumerated in the CBA. During this meeting, Kraft-Holleb again denied Richardson's grievance. At the request of the Union, Kraft-Holleb provided to the Union documentation regarding Richardson's medical treatment and his failure to return to work.

 On December 11, 12 and 18, 1989, Cassidy and Hickey further discussed Richardson's grievance without resolution. As a result, Union Vice President and General Counsel Paul Glover requested that Richardson schedule a "pre-arbitration meeting" with Glover so that the Union could prepare to process further his grievance. Richardson met with Glover on two occasions in January 1990 to discuss the merits of Richardson's grievance. To aid in his decision of whether to pursue the grievance, Glover engaged an independent arbitrator, Edward Steadman, to review its merits. Steadman issued a written opinion on January 31, 1990, in which he concluded that Kraft-Holleb's termination of Richardson was appropriate and he recommended against the Union taking his grievance to arbitration. Armed with this independent assessment of the low probability of success on the merits, the Union decided not to appeal Richardson's grievance to arbitration.

 III. Discussion

 Richardson presents three claims to this court. Count I, encompassing the first two claims, alleges violations of § 301 of the National Labor Management Relations Act ("NLRA"), 29 U.S.C. § 185. *fn2" Richardson contends that the Union breached its duty to provide him with fair representation, and he argues that Kraft-Holleb violated its CBA with the Union by discharging him. *fn3" Finally, Count II of Richardson's complaint asserts against Kraft-Holleb a claim for retaliatory discharge in violation of Illinois tort law and ...


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