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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 pleadings.


  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 pro se.


  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.


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