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.