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May 5, 1994

ERIC GREENE, Plaintiff,


The opinion of the court was delivered by: JAMES B. MORAN

Plaintiff Eric Greene, an African American, filed this action against defendant United Parcel Service, Inc. (UPS) alleging that he was discriminated against because of his race. Greene maintains that UPS fired him in violation of both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. UPS contends, however, that Greene was terminated because of poor work performance. Before this court is UPS' motion to dismiss Greene's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Federal subject matter jurisdiction is based on 28 U.S.C. § 1331. For the reasons stated below, the motion to dismiss is granted in part and denied in part.


 Greene began working for UPS on July 27, 1977, as a package car unloader. On May 5, 1986, he was promoted to full-time package car driver. UPS required its package car drivers to finish their deliveries by 7:30 p.m. Drivers are to call in to UPS by 4:00 p.m. if they anticipate missing the 7:30 p.m. deadline. On June 27, 1989, Greene discovered that he could not finish his deliveries by 7:30 p.m. He called to inform UPS of this fact at 6:00 p.m. His supervisor instructed him to continue working and to go off the clock at 8:00 p.m. The following day, UPS terminated Greene's employment.

 Greene had been terminated on three other occasions prior to the June 28, 1989 discharge -- in February 1989, March 1989, and earlier in June 1989. On each of these occasions the reason given for the dismissal was a failure to meet an established deadline. Greene filed a charge of discrimination with the Illinois Department of Human Rights on August 1, 1989. This charge was cross-filed with the district office of the Equal Employment Opportunity Commission (EEOC). In his charge, Greene contended that white drivers also failed to meet these deadlines but that no disciplinary action was taken against them.

 Greene filed a complaint before the Illinois Human Rights Commission (IHRC) on May 8, 1992. UPS moved for summary judgment on May 3, 1993, contending that it fired Green because of his longstanding poor job performance and not because of his race. Greene did not respond to this motion, and the administrative law judge (ALJ) found in favor of UPS. Based on the material submitted by UPS, the ALJ concluded that Greene was discharged because of his poor job performance, not his race. The ALJ recommended that the matter be dismissed with prejudice. The IHRC panel reviewed the recommended order and decision submitted by the ALJ. On November 22, 1993, the panel affirmed and adopted the ALJ's recommended order and decision, and dismissed Greene's complaint with prejudice.

 The EEOC issued a "Notice of Right to Sue" letter to Greene on July 9, 1993. Greene filed this lawsuit on October 7, 1993, alleging violations of Title VII and Section 1981. UPS has moved to dismiss on the grounds that the court lacks jurisdiction and that Greene has failed to state a claim upon which relief can be granted.


 I. Greene's Title VII Claims

 UPS moves to dismiss Greene's Title VII claims pursuant to Rule 12(b)(1), maintaining that this court lacks subject matter jurisdiction. UPS alleges that it is a "carrier" under the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq., and that this claim is therefore subject to the compulsory, binding arbitration which is required for all work-related disputes between unionized employees and employers subject to the RLA. *fn1" The RLA provides, in relevant part, that

the disputes between an employee or group of employees and a carrier or carriers by air growing out of grievances, or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions. . . shall be handled in the usual manner up to and including the chief operating officer of the carrier designed to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to an appropriate adjustment board, as hereinafter provided, with a full statement of the facts and supporting data bearing upon the disputes.

 45 U.S.C. § 184. The Supreme Court has found that this arbitration procedure is mandatory and the exclusive method for resolving grievance disputes arising under the RLA. Brotherhood of Locomotive Eng'rs v. Louisville & N. R.R., 373 U.S. 33, 38, 10 L. Ed. 2d 172, 83 S. Ct. 1059 (1963). However, to expedite the resolution of on-the-job grievances the RLA allows a carrier and a class of employees (in this case, a union) to establish their own system for resolving disputes. See 45 U.S.C. § 153 Second. Such a system shall have a board comprised of both carrier and employee representatives. Id. A fundamental element of such a board is the selection of a "neutral person" to consider and dispose of matters upon which the persons designated by the carrier and the employees cannot reach agreement. Id.

 All terms and conditions of Greene's employment with UPS were governed by a collective bargaining agreement (the agreement) between UPS and Teamsters' Local 705 (the union). Article 22 of this agreement provides, in relevant part, that

differences between the Employer and the Union as to the application or interpretation of any of the provisions of this Agreement, including the question of whether an Employee has been disciplined or discharged for just cause, shall be settled by the following grievance and arbitration procedure; if such differences are not settled by the Employer and the Union within three (3) working days, then the Employer and the Union shall each appoint two (2) members to constitute a Grievance Committee. If the Committee of four (4) cannot reach a ...

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