United States District Court, N.D. Illinois, Eastern Division
August 25, 2005.
Thomas Albano, Plaintiff,
Roadway Express, Inc. and International Brotherhood of teamsters Local 710, Defendants.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Roadway Express,
Inc.'s ("Roadway") motion for summary judgment and Plaintiff
Thomas Albano's ("Albano") motion for judgment on the pleadings.
For the reasons stated below, we grant Roadway's motion for
summary judgment and deny Albano's motion for judgment on the
Albano was employed as a dock worker for Roadway beginning in
1988. Albano was a member of the International Brotherhood of
Teamsters Local 710 ("Local 710") through the duration of his
employment with Roadway. During Albano's employment with Roadway, Local 710 and Roadway were
parties to a collective bargaining agreement that covered the
terms and conditions of Albano's employment. The collective
bargaining agreement provided that Albano could not be discharged
without just cause. Albano, who was employed with Roadway until
October of 2002 readily acknowledges that during that period of
employment he "had a history of complaining about safety
violations at Roadway" and that he "had a history of complaining
about the manner in which Local 710 was representing its
members." (Compl. par. 10, 11). According to Albano, finally in
February 2002, Frank Wsol, the Secretary Treasurer of Local 710,
told Albano that if he continued to file complaints against Local
710 he would regret it.
In the fall of 2002, the Occupational Safety and Health
Association ("OSHA") attempted to inspect Roadway's Sauk Village
terminal for alleged safety violations. Roadway refused to allow
the OSHA inspectors on the premises. An article subsequently
appeared in the Times of Northwest Indiana regarding the
attempted inspection by OSHA. The article quoted Albano and
indicated that Albano was the person "accusing Roadway of safety
violations." (Comp. Par. 14). In November of 2002, Albano
complained to the Illinois State Fire Marshal about fire safety
at Roadway. Agents of the Illinois State Fire Marshal and the
Sauk Village Fire Marshal then proceeded to inspect the premises
of Roadway. Albano alleges that later in November of 2002, he
"made a report to Sauk Village Police about comments made at work
by a supervisor." (Compl.Par. 17). On November 22, 2002, Albano was discharged by Roadway.
Albano grieved his discharge by Roadway. At the grievance
hearing, the joint labor-management grievance committee was
deadlocked and Local 710 proceeded to arbitration under the terms
of the collective bargaining agreement. The arbitration discharge
is still pending. In July of 2003, Albano filed a National Labor
Relations Board ("NLRB") charge against Local 710. In September
of 2003, after being nominated for the position of recording
secretary with Local 710, Albano attempted to campaign in the
Local 710 officer election on Roadway property. Albano claims
that Roadway "removed" him from the property. (Compl.Par. 24).
Albano alleges that on September 12, 2003, Roadway discharged
Albano again despite the fact that he had never been reinstated
by Roadway after his first discharge. Albano claims that the
second discharge was issued in order to ensure that he could not
be reinstated if he won the arbitration of his November 22, 2002
discharge. Albano grieved the alleged second discharge by Roadway
and filed an additional grievance against Roadway for the refusal
to produce documents necessary for the grievance. According to
Albano, the joint labor-management grievance committee
("Committee") agreed to hear both his grievances on or about
January 8, 2004 at 9:00 a.m.
Albano claims that on the date of the hearing, he arrived
before 9:00 a.m. at the hearing location and informed Local 710
that his case had to be called before 1:00 p.m. because he had to
leave for work. Albano alleges that he also asked Local 710 to
request that his case be continued because Roadway had not
produced the requested documents. According to Albano, at 2:00 p.m. he told
counsel for Local 710 that he had to leave and that "Albano
assumed that Local 710 would reschedule the joint grievance
hearing on his discharge because it had not been held as
scheduled at 9:00 a.m." (Compl. par. 31).
Albano claims that subsequently in January of 2004, Albano's
attorney wrote a letter to Local 710's attorney inquiring as to
the status of Albano's grievances and asking that Local 710
grieve the matters and take them to arbitration if necessary.
Albano alleges that counsel for Local 710 responded in a letter
dated February 12, 2004 indicating that Local 710 had defaulted
the hearing because Albano was not present at the hearing. Albano
then brought the instant action against Roadway and Local 710.
Albano filed a three count complaint including a breach of duty
of fair representation claim against Local 710 (Count I), a
breach of contract claim against Roadway (Count II) based upon
29 U.S.C § 185, and a retaliatory discharge claim against Roadway
(Count III). On December 2, 2004, Albano stipulated to the
dismissal of Count I being brought against Local 710, leaving
Albano as the only remaining Defendant. We note that although
Albano initially was represented by counsel in this matter, this
court allowed his counsel to withdraw on January 27, 2005, before
the filing of the instant motions. Albano is currently proceeding
Summary judgment is appropriate when the record, viewed in the
light most favorable to the non-moving party, reveals that 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(c).
In seeking a grant of summary judgment the moving party must
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 (1986) (quoting Fed.R.Civ.P. 56(c)). This
initial burden may be satisfied by presenting specific evidence
on a particular issue or by pointing out "an absence of evidence
to support the non-moving party's case." Id. at 325. Once the
movant has met this burden, the non-moving party cannot simply
rest on the allegations in the pleadings, but, "by affidavits or
as otherwise provided for in [Rule 56], must set forth specific
facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). A "genuine issue" in the context of a motion for
summary judgment is not simply a "metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue
of material fact exists when "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir.
2000). The court must consider the record as a whole, in a light
most favorable to the non-moving party, and draw all reasonable
inferences that favor the non-moving party. Anderson,
477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).
A party is permitted under Federal Rule of Civil Procedure
12(c) to move for judgment on the pleadings after the parties
have filed the complaint and the answer. Fed.R.Civ.P. 12(c);
Northern Indiana Gun & Outdoor Shows, Inc. v. City of South
Bend, 163 F.3d 449, 452 (7th Cir. 1998). The courts apply the
Rule 12(b) motion to dismiss standard for Rule 12(c) motions and
thus the court may "grant a Rule 12(c) motion only if `it appears
beyond doubt that the plaintiff cannot prove any facts that would
support his claim for relief.'" Id. (quoting Craigs, Inc. v.
General Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir. 1993)).
The court, in ruling on a motion for judgment on the pleadings,
must "accept as true all well-pleaded allegations," Forseth v.
Village of Sussex, 199 F.3d 363, 364 (7th Cir. 2000), and "view
the facts in the complaint in the light most favorable to the
nonmoving party. . . ." Northern Indiana Gun & Outdoor Shows,
Inc., 163 F.3d at 452(quoting GATX Leasing Corp. v. National
Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir. 1995)). The
main difference between a Rule 12(b) motion and a Rule 12(c)
motion is that a Rule 12(b) motion may be filed before the answer
to the complaint is filed, whereas, a Rule 12(c) motion may be
filed "after the pleadings are closed but within such time as not
to delay the trial." Id. n. 3
A court may rule on a judgment on the pleadings under Rule
12(c) based upon a review of the pleadings alone. Id. at 452.
The pleadings include the complaint, the answer, and any written
instruments attached as exhibits, such as affidavits, letters, contracts, and loan documentation. Id. at 452-53. In ruling on
a motion for judgment on the pleadings a "district court may take
into consideration documents incorporated by reference to the
pleadings . . . [and] may also take judicial notice of matters of
public record." U.S. v. Wood, 925 F.2d 1580, 1582 (7th Cir.
1991). If the court considers matters outside the pleadings, the
court should convert the motion for judgment on the pleadings
into a motion for summary judgment. Northern Indiana Gun &
Outdoor Shows, Inc., 163 F.3d at 453 n. 5.
I. Motion for Summary Judgment
Roadway argues that it is entitled to summary on the breach of
contract claim (Count II) because the claim is time-barred and
there is insufficient evidence to establish that Local 710
breached its duty fo fair representation.
A. Local Rule 56.1
Roadway has filed a statement of material facts along with its
summary judgment motion as is required under Local Rule 56.1.
However, Albano has not filed any response to Roadway's statement
of material facts in accordance with the requirements in Local
Rule 56.1. Local Rule 56.1. Albano is not excused from compliance
with Local Rule 56.1 just because he is proceeding pro se.
Roadway has complied with Local Rule 56.2 and has sent a proper
notice to Albano explaining the motion for summary judgment. In fact, the notice, specifically
informed Albano that he would have to comply with Local Rule
56.1. A pro se litigant is required to comply with Local Rule
56.1. Greer v. Board of Educ. of the City of Chicago, Illinois,
267 F.3d 723, 727 (7th Cir. 2001); Knights v. Williams,
2005 WL 1838427 at *1-2 (N.D. Ill. 2005); Laramore v. City of
Chicago, 2004 WL 2033005 at *2 (N.D. Ill. 2004). Therefore, all
the facts in Roadway's statement of facts are deemed for summary
judgment purposes to be undisputed. Local Rule 56.1; Ammons v.
Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004)
(stating that "a district court is entitled to expect strict
compliance with Rule 56.1" and that "[s]ubstantial compliance is
not strict compliance."); Dent v. Bestfoods, 2003 WL 22025008,
at *1 n. 1 (N.D. Ill. 2003); Malec v. Sanford, 191 F.R.D. 581,
585 (N.D. Ill. 2000).
B. Breach of Collective Bargaining Agreement
Roadway argues that there is insufficient evidence that it
breached the collective bargaining agreement with Local 710. We
agree. The evidence clearly shows that the grievance procedures
were properly followed and that the binding final orders were
properly issued at the culmination of the grievances. Albano has
not pointed to any evidence that would enable a reasonable trier
of fact to conclude that Roadway breached the collective
bargaining agreement in any regard. Albano acknowledges as
undisputed all of Roadway's statement of material facts. The bulk of his answer to the summary judgment motion is merely an
unsupported narrative regarding what he believes occurred during
the times in question. However, discovery has been completed and
Roadway has filed a motion for summary judgment and thus, the
time for relying solely upon allegations has passed. Fed.R. Civ.
P. 56(e). Therefore, we grant Roadway's motion for summary
judgment on the breach of contract claim (Count II).
B. Statute of Limitations
Roadway also argues that the breach of contract claim is barred
by the statute of limitations. In a "suit by an employee against
a union for breach of the duty of fair representation and an
action against the employer under § 301 of the Labor Management
Relations Act for breach of the collective bargaining agreement"
the applicable statute of limitations for the claim against the
union and the employer is six months. Metz v. Tootsie Roll
Indus., Inc., 715 F.2d 299, 302-03 (7th Cir. 1983).
Generally, a statute of limitations period "begins to run . . .
`when the claimant discovers, or in the exercise of reasonable
diligence should have discovered, the acts constituting the
alleged [violation].'" Id. at 304 (quoting in part Hunderford
v. United States, 307 F.2d 99, 102 (9th Cir. 1962)).
In the instant action, Albano acknowledges that the Committee
held the hearing when default was entered on January 8, 2004.
(Compl. Par. 28, 34). Albano did not file the instant action
until August 12, 2004, which is more than six months after the final decision on Albano's grievance. Albano claims
that he was not aware of the Committee's decision until February
of 2004. (Compl. Par. 34). The evidence is clear that had Albano
exercised any diligence in learning the result of the Committee's
decision he would have known the result much sooner than February
of 2004. Albano admits that Local 710 notified him by letter that
the hearing before the Committee was scheduled for January 8,
2005, and that he was required to be present at the hearing or
else the case would be automatically forfeited. (SF 25). Albano
also admits that he was present at the hearing on January 8,
2005, and the Local 710 representative at the hearing warned
Albano that if he chose to leave before his case was called his
case would be defaulted. (SF 26). Albano admits that the Local
710 representative begged him not to leave. (SF 26). Yet, Albano
admits that he left the hearing before his case was called. (SF
26). Albano should thus have been well aware that the Committee
made some decision when it called his case and that there was at
least a strong likelihood that the Committee defaulted his case.
A statute of limitations can be tolled in accordance with the
equitable doctrines of equitable estoppel and equitable tolling.
Williams v. Sims, 390 F.3d 958, 959 (7th Cir. 2004). Under
the doctrine of equitable estoppel the limitations period is
estopped if the defendant engaged in conduct, such as fraudulent
concealment, in order to prevent the plaintiff from filing suit
within the period. Id. Under the Equitable tolling doctrine the
statute of limitations period is tolled if, without the fault of
the defendant, the plaintiff was unable to file suit within the limitations period for some justifiable reason. Id. at 960.
Neither of the equitable tolling doctrines are applicable in
instant action. There is no evidence that anyone concealed the
Committee's decision on January 8, 2004 from Albano or any reason
as to why Albano could not have filed the instant action within
the statutory period. In fact Albano admits that he merely
"assumed that the Joint Committee had postponed it. . . ." (SF
30). Thus, to the extent that the breach of contract claim (Count
II) against Roadway is based upon the events that occurred on
January 8, 2004, or any other conduct that occurred prior to the
six month limitations period is time-barred.
C. Breach of Right to Fair Representation
Even if the breach of contract claim (Count II) was not
time-barred the claim fails because there is not sufficient
evidence for a reasonable trier of fact to conclude that Local
710 breached its duty of fair representation. A district court
may only allow a claim based upon a breach of a collective
bargaining agreement that contains an arbitration clause if "the
employee can prove that `the union as bargaining agent breached
its duty of fair representation in its handling of the employee's
grievance.'" Ooley v. Schwitzer Division, Household Manuf.
Inc., 961 F.2d 1293, 1297-98 (7th Cir. 1992). For a breach
of the duty of fair representation in the grievance process
claim, a plaintiff must establish "that the union conduct was
`intentional, invidious, and directed at the employee.'" Id.
(quoting in part Martin v. Youngstown Sheet & tube Co., 911 F.2d 1239, 1248 (7th Cir. 1990)) (stating
that the focus must be on "the union's motive and not on the
possible inept nature of a union's actions).
In the instant action Albano has not pointed to evidence that
would enable a reasonable trier of fact to conclude that Local
710 engaged in intentional or invidious conduct directed at
Albano. Albano's answer to the summary judgment motion is merely
unsupported argument as to his opinions and speculation and he
has not pointed to sufficient evidence that would enable the
trier of fact to conclude that Local 710 breached its duty of
fair representation in regard to any of the grievances filed by
Albano. In regards to the January 8, 2004 hearing, as is
explained above, Albano admits pursuant to Local Rule 56.1 that
Local 710 warned him that the case would be forfeited if he did
not attend the hearing and remain at the hearing and that the
Local 710 representative even begged him to stay at the hearing.
(SF 25-26) Albano admits that despite these facts, he left the
hearing before his case was called and merely assumed that the
case had been continued in his absence. (25-26, 30). Albano has
not pointed to any evidence that Local 710 could have obtained a
continuation at the hearing. Based on such admissions, it is
clear that no reasonable trier of fact could rule in Albano's
favor on the breach of the duty of fair representation claim.
Thus, since Albano cannot succeed on that claim, it follows that
he cannot prevail on the breach of contract claim against Roadway
(Count II) relating to the January 8, 2004 hearing. Ooley,
961 F.2d at 1297-98. Therefore, based upon all of the above analysis,
we grant Roadway's motion for summary judgment.
D. Remaining State Claim
Roadway urges the court to relinquish its supplemental
jurisdiction over the remaining state law retaliatory discharge
claim. Albano states in his complaint that the court only has
supplemental jurisdiction over the state law claim. (Compl. Par.
2). Under 28 U.S.C. § 1367(c)(3), a federal district court may
dismiss a plaintiff's supplemental state law claims if it "has
dismissed all claims over which it has original jurisdiction."
28 U.S.C. § 1367(c)(3). The decision to dismiss supplemental claims
is discretionary. Larsen v. City of Beloit, 130 F.3d 1278, 1286
(7th Cir. 1997). The Seventh Circuit has stated that where a
court dismissed a federal claim and the sole basis for invoking
federal jurisdiction is now nonexistent, that court should not
exercise supplemental jurisdiction over remaining state law
claims. Williams v. Aztar Indiana Gaming Corp., 351 F.3d 294,
300 (7th Cir. 2003) (stating that if there is a dismissal of the
original jurisdiction claim and only a supplemental jurisdiction
claim remains "the sole basis for invoking federal jurisdiction
is nonexistent and the federal courts should not exercise
supplemental jurisdiction over his remaining state law claims.");
Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1251 (7th
Cir. 1994) (stating that "the general rule is that, when all
federal-law claims are dismissed before trial, the pendent claims
should be left to the state courts."); Timm v. Mead Corp.,
32 F.3d 273, 277 (7th Cir. 1994) (stating that in exercising that discretion, the court should consider a number of factors,
including "the nature of the state law claims at issue, their
ease of resolution, and the actual, and avoidable, expenditure of
judicial resources. . . ."). We conclude that the retaliatory
discharge claim could properly be dealt with by the state court
and that such a result would promote the efficient usage of
judicial resources. Thus, we dismiss the retaliatory discharge
II. Motion For Judgment on the Pleadings
Albano has filed a motion for judgment on the pleadings despite
the fact that the pleadings were closed in December of 2004, and
discovery has been completed in the instant action. The motion is
not proper first of all because Albano consistently refers to
evidence beyond the pleadings. See Northern Indiana Gun &
Outdoor Shows, Inc., 163 F.3d at 452 (stating that inquiry for
motion for judgment on the pleadings is limited to the pleadings
alone). To the extent that Albano intended the motion to be a
motion for summary judgment the motion is stricken as improper
for failing to comply with Local Rule 56.1 and file an
accompanying statement of material facts. We also note that the
motion also fails to provide any reason, or point to any
pleadings or evidence that shows that the court should find in
his favor. Therefore, we deny Albano's motion for judgment on the
Based on the foregoing analysis, we grant Roadway's motion for
summary judgment and deny Albano's motion for judgment on the
pleadings. We dismiss the remaining state law retaliatory
discharge claim (Count III) without prejudice.
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