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KELLY v. MERCOID CORP.

September 27, 1991

NADANA C. KELLY, Plaintiff,
v.
MERCOID CORPORATION, Defendant


James H. Alesia, United States District Judge.


The opinion of the court was delivered by: ALESIA

JAMES H. ALESIA, UNITED STATES DISTRICT JUDGE

 Plaintiff, Nadana C. Kelly ("Kelly"), brings this action against her former employer, Mercoid Corporation ("Mercoid"). This action arises out of Kelly's discharge by Mercoid for her refusal to submit to a urinalysis test. Kelly originally filed her complaint for damages, reinstatement, backpay and other relief in the Chancery Division of the Circuit Court of Cook County, Illinois ("the state court"). Mercoid subsequently removed the case to this Court on two grounds: that Kelly's claims were preempted under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. ยง 185(a) ("Section 301") and that Kelly's complaint alleged a violation of the Fourth Amendment to the United States Constitution.

 Kelly's complaint, as amended, consists of four counts. In Count I, Kelly alleges that Mercoid violated Kelly's right under the Fourth Amendment to the United States Constitution to be free from unreasonable search add seizure. In Count II, Kelly asserts a parallel claim under Article I, Section 6 of the Illinois Constitution. In Count III, Kelly claims that Mercoid unreasonably invaded her privacy, in violation of Article I, Section 6 of the Illinois Constitution. Finally, in Count IV, Kelly asserts a state law tort claim against Mercoid for unreasonably intruding upon Kelly's seclusion and solitude and casting her in a false light in the public eye.

 Mercoid filed a motion for summary judgment as to all counts of Kelly's complaint, pursuant to Rule 56 of the Federal Rules of Civil Procedure. In its motion, Mercoid also requested an award of its attorneys' fees and costs pursuant to Rule 11 of the Federal Rules of Civil Procedure. This Court referred Mercoid's motion to Executive Magistrate Judge Lefkow for a Report and Recommendation. On February 21, 1990, the Magistrate Judge issued her report, recommending that this Court enter summary judgment in favor of Mercoid as to Count I, that Counts II through IV be remanded to the state court, and that no attorneys' fees or costs be awarded. Mercoid subsequently filed objections to the Magistrate Judge's Report and Recommendation. This Court has reviewed the parties' underlying briefs, the Magistrate Judge's Report and Recommendation, Mercoid's objections, and Kelly's response. For the reasons set forth in this opinion, we adopt in part and reject in part the Magistrate Judge's Report and Recommendation, sustain Mercoid's objections, grant Mercoid's motion for summary judgment as to all counts, and grant in part Mercoid's request for attorneys' fees and costs under Rule 11.

 I. Facts

 Mercoid manufactures products which require the handling of mercury, a toxic substance that is subject to standards and regulations promulgated by the Federal Occupational Safety and Health Administration ("OSHA"). Pursuant to OSHA's standards and recommendations, Mercoid adopted a policy requiring certain employees who worked with open mercury to submit to physical examinations, including urinalysis, to be performed by a medical doctor at an outside clinic, every other month.

 Mercoid hired Kelly in November, 1974 as a machine operator and assembler. After approximately one and one-half years, Mercoid transferred Kelly to the setting department, where her duties included inspecting mercury in sealed tubes. Kelly remained in the setting department until on or about July, 1986, when Mercoid transferred Kelly to the tube department, where the mercury switches are manufactured.

 On or about June 19, 1986, prior to Kelly's transfer to the tube department, she attended a meeting. At that meeting, Mercoid distributed to all employees in attendance, including Kelly, a document consisting of over 30 pages and entitled "Mercoid Corporation - The Safe Handling of Mercury - Instruction for Employees." Included within this document, among other things, was a three-page memorandum explaining Mercoid's policy of requiring employees who worked with open mercury to submit to physical examinations, including urinalysis. Someone from management read the entire document aloud to all employees in attendance and Kelly herself read at least the three-page memorandum contained within the document. *fn1" In addition, all employees, including Kelly, signed a document indicating that they had "RECEIVED AND READ THE ENGINEERING BULLETIN CONCERNING THE SAFE HANDLING OF MERCURY INSTRUCTIONS FOR EMPLOYEES."

 Upon her transfer to the tube department, Kelly began performing various duties in the mercury switch manufacturing process. Kelly claims that no one ever informed her that her contact with mercury in the tube department would be any different from that in her prior department. Initially, Kelly's duties in the tube department included clipping, spot painting, soldering, and flashing mercury tubes. During her employment in this department, Kelly claims that she never saw open mercury or residue of open mercury.

 On Friday, September 5, 1986, Elliot Sanoguel ("Sanoguel"), Kelly's supervisor, generally announced to Kelly and the others in her department that they were scheduled to report to Callahan Clinic on the following Monday, September 8, 1986 and reminded them to stop and pick up their urine specimen bottles. Notwithstanding this announcement and reminder, her attendance at the June 19, 1986 meeting, her admission that she read the three-page memorandum on the safe handling of mercury, and her signature indicating that she had received notice of the urinalysis testing, Kelly claims that she was unaware of any urinalysis testing requirement. Kelly also claims that she did not know that other tube department employees were undergoing urinalysis testing, nor did she know of the procedure to be followed or the reason for such testing.

 The following Monday, Kelly reported to work as usual. At about 10:00 a.m., Sanoguel instructed Kelly and some of the other tube department employees to punch out and report to the clinic. After arriving at the clinic, Kelly and her co-workers signed in and Kelly noticed that her co-workers had their urine specimen bottles. When the receptionist asked Kelly for her bottle, Kelly responded that she did not have it, so the receptionist sent Kelly to see the physician. Kelly claims that she asked the nurse at the clinic for a bottle, but the nurse said that she did not have one. The physician then examined Kelly, told Kelly that she was fine, and released Kelly to return to work. Kelly then returned to work, but left early because she was not feeling well and was worried about her father, who was in the hospital.

 On the following day, September 9, 1986, Kelly returned to work as usual and Sanoguel directed Kelly to see the Personnel Manager, John Mulcrone ("Mulcrone"). After arriving at Mulcrone's office, a meeting commenced. In addition to Kelly and Mulcrone, Ted Grzanka ("Grzanka"), the plant manager, and Jenny Kalwa ("Kalwa"), the union steward, were present. During this meeting, Mulcrone informed Kelly that she could not return to the workplace until she submitted to urinalysis, which required her to fill a gallon bottle with urine over a period of 24 hours. Kelly claims that she informed Mulcrone that she would submit to the test if it was done under medical supervision, if they would inform her of the reasons for the test, and if they would insure confidentiality. *fn2" Mulcrone explained to Kelly that the urine sample was needed to ensure that Kelly was not being exposed to mercury. Mulcrone and Grzanka also advised Kelly that she should have read the pamphlet they had given her, and Kelly understood that to be the pamphlet regarding mercury. The parties discussed several alternatives and failed to reach a compromise. After the meeting, Kelly left the workplace.

 A few days later, Kelly telephoned OSHA and told a representative about the test. According to Kelly, the OSHA representative told her that he did not understand why Mercoid would require Kelly to submit to urinalysis when she did not work with open mercury and that he did not know why Mercoid would require Kelly to provide a full gallon of urine. During this conversation, the OSHA representative asked Kelly if she would submit to urinalysis if she could pick up the bottle directly from Callahan Clinic and then return the bottle directly to the clinic, and Kelly responded that she would do so. With Kelly's consent, the OSHA representative later telephoned Mulcrone to see if he would agree to this arrangement. Kelly claims that on the following morning, the OSHA representative called her back and told her that Mulcrone insisted upon Kelly picking up the bottle at Mercoid's offices.

 Approximately one week after the meeting held on September 9, 1986, Kalwa telephoned Kelly to inform her that Mercoid had filed her and that a grievance had been filed on her behalf. In November, 1986, a meeting was held concerning the grievance. Kelly, Mulcrone, Sanoguel, Kalwa, and Joe Needham ("Needham"), the business representative for the union, were present at this meeting. During the meeting, Kelly maintains that she reiterated her willingness to submit to the urinalysis under supervised conditions. Needham took statements from Mulcrone and Kelly, the meeting was adjourned, and another meeting was set for December 8, 1986.

 Before December 8, 1986, Kelly retained her attorney and filed her complaint in the state court. At that time, Kelly's attorney took over the negotiations for Kelly, and after discussing the matter of the upcoming meeting with Kelly and learning of Kelly's desire to visit with her mother that day, Kelly's attorney advised Kelly that the December 8th meeting could be cancelled. Both Kelly's attorney and Kelly herself advised the union of the decision to cancel the meeting. The meeting was never rescheduled. On February 25, 1987, the union rendered its decision not to arbitrate Kelly's grievance.

 At all times relevant to this action, Kelly was a member of Local 1031 of the International Brotherhood of Electrical Workers ("the union"). During Kelly's period of employment, the union and Mercoid had negotiated a series of collective bargaining agreements. Although the most recent collective bargaining agreement ("the agreement") between the union and Mercoid had expired on April 30, 1986, Section 2 of the agreement provided for automatic renewal from year to year thereafter unless Mercoid or the union gave notice to the other party to amend, modify, or terminate within not less than sixty days notice prior to any expiration date. Neither party sent any such notice. On May 2, 1986, Mercoid notified the union that it would no longer collect union dues because the agreement had expired. Nevertheless, Mercoid and the union continued to follow the grievance and arbitration provisions of the expired agreement.

 Indeed, in July, 1986, Kelly filed a grievance in connection with a dispute over her paycheck. The union processed that grievance according to the terms of the grievance and arbitration clause of the expired agreement. In September, 1986, Kelly again invoked the grievance and arbitration procedures of the agreement in connection with the urinalysis dispute. In addition, at all times relevant to this action, Kelly expressed complete satisfaction with the union's representation of her.

 II. Discussion

 As the Magistrate Judge correctly noted, under Rule 56, summary judgment is appropriate only where the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 ...


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