The opinion of the court was delivered by: Foreman, District Judge
Before the Court is defendant's motion for summary judgment, (Doc. 50), and plaintiff's response (Doc. 58). Defendant's motion is discussed below.
The following facts are not in dispute except where noted. On April 21, 2003, plaintiff Thomas McCoy injured his shoulder during the course of his employment at Maytag's manufacturing facility in Herrin, Illinois. (Doc. 50, Exh. 6, McCoy Dep., pp.4-5,Tr.10-11). On April 22, 2003, a physician's assistant examined plaintiff and concluded that he could return to work with restrictions. (Doc. 50, Exh. 6, McCoy Dep., p.9,Tr.15). Shortly thereafter, a doctor examined plaintiff and returned him to work effective April 24, 2003, with the specific restriction that plaintiff could not use his left arm. (Doc. 50, Exh. 6, McCoy Dep., p.10,Tr.16). Because plaintiff's supervisor had no jobs that could accommodate that restriction, plaintiff could not return to work. (Doc. 50, Exh. 6, McCoy Dep., pp.10-11, Tr.16-17).
On or about April 28, 2003, plaintiff filed a worker's compensation claim. (Doc. 50, Exh. 6, McCoy Dep., pp.12-14,Tr.18-20; see also Exh. 8, pp.19-20, Bates Stamp 000352 & 000354). On April 28, 2003, plaintiff and his treating physician, Dr. Corder, completed a "Statement of Claim for Accident or Sickness Benefits" ("A&S"). This form indicated that plaintiff had been injured at work and that he intended to present a workers' compensation claim. (Doc. 50, Exh. 8, p.8).This form was sent to defendant on or about May 9, 2003. (Doc. 50, Exh. 6, McCoy Dep., pp.13-14, Tr.19-20). According to defendant, during the period that plaintiff was collecting A&S benefits, he had a duty to give defendant a status report as to his medical condition every thirty days. (Doc. 50, Exh. 5, Brasher Dep., pp.8-13, Tr.36-42; Exh. 3, Jones Dep., pp.16-17, Tr.41-42).
On August 4, 2003, plaintiff was evaluated by Southern Orthopedic Associates, S.C. and he took a medical note to defendant showing that he was unable to work until after his next evaluation on August 25, 2003. (Doc. 50, Exh. 7, McCoy Dep., pp.9-10, Tr.38-39) (Exh.10, p.8, Bates Stamp 000056). On August 25, 2003, plaintiff was again evaluated by Southern Orthopedic Associates, S.C., and he provided another medical note to defendant showing that he was unable to work until after his surgery on September 25, 2003. (Doc. 50, Exh.7, McCoy Dep., p.11, Tr.40)(Exh.10, p.10, Bates Stamp 000007). On or about September 25, 2003, plaintiff's surgeon, Dr. Harryman, faxed two documents to Marie Brasher showing that after the surgery, plaintiff would need to be off work for 8 to 10 more weeks. (Doc. 50, Exh.10, pp.11-12, Bates Stamp 000060, 000362). According to defendant, these documents would have gone to Nurses Kathy LeMay or David Wittenbrink in defendant's health services department. (Doc. 50, Exh. 5, Brasher Dep., pp.4-8,11,Tr.32- 36,39). Janice McConnaughy, a human resources generalist, has testified that she did not know of the existence of these medical notes. (Doc. 50, Exh. 4, McConnaughy Dep., pp.2-3,8-11,Tr.5-6,13-17).
Plaintiff's A&S benefits and leave of absence expired on October 21, 2003. (Doc. 50, Exh. 5, Brasher Dep., pp.6-8, Tr.34-36; Exh. 4, McConnaughy Dep., pp.9-11, Tr.14-16). As such, Nurse LeMay told Janice McConnaughy that defendant needed to obtain undated medical information from plaintiff. (Doc. 50, Exh. 4, McConnaughy Dep., pp.8-10,Tr.13-16). On November 6, 2003, Ms. McConnaughy sent plaintiff a letter via certified mail which stated:
It has come to my attention that we have not heard from you or received medical documentation since your leave of absence expired on October 21, 2003.
Therefore, please submit documentation necessary to support your absence for the past three weeks by 9:00 a.m. on Friday, November 14, 2003 for us to review to determine your employment status. In addition I need to know why there has been no attempt to contact us. As per the union contract, Article 13.5, two consecutive days of failing to contact your supervisor or a company representative of your absence constitutes quitting without notice.
If we do not hear from you by that date, we will have assumed that you have terminated your employment with Maytag Herrin Laundry Products.
Sincerely Janice McConnaughy Manager of Employee Relations (Doc. 50, Exh. 10, p.17, Bates Stamp 00010).
From November 6, until November 14, 2003, defendant heard nothing from plaintiff nor did defendant receive a certified mail receipt evidencing delivery of the letter to plaintiff. On November 14, 2003, Ms. McConnaughy sent an email to Nurses LeMay and Wittenbrink asking:
Can you please tell me if you received updated medical documentation for Thomas McCoy or Joshua Qualls?
They had until 9:00 a.m. to submit it today. Joshua received his certified letter, but I have not received a receipt for Thomas. What address do you have for Thomas?" (Doc. 58, Exh. 22).
Nurse Wittenbrink responded:
No updated information on McCoy, although I think he tried to pick up an A&S check earlier. On his last continuation form it has an address different than his original paperwork. It is 627 Bryan Avenue, # 9 Carterville, IL 62918. (Doc. 58, Exh. 22).
McConnaughy then sent plaintiff a letter dated November 17, 2003, stating:
According to our records, we have not heard from you since October 21, 2003. I sent you a certified letter on November 6, 2003 notifying you that you had until 9:00 a.m. on November 14, 2003 to submit medical documentation for our review to determine your employment status. In addition, the current union contract states under Article 13.5, Two consecutive days of No Report Absences is considered to have quit without notice.
Therefore, effective immediately, your employment with Maytag Herrin Laundry products has been terminated. If you can provide documentation to support that you have been reporting your absences to Maytag Herrin Laundry Products, please submit them for our review. (Doc. 50, Exh. 10, p.18, Bates Stamp 000062).
On November 20, 2003, plaintiff accepted both the November 6th and November 17th letters. (Doc. 50, Exh. 8, McCoy Dep., p.10, Tr.61; Exh. 2, p.8, Ashworth Affidavit).
After receiving the letters, plaintiff did not contact defendant, nor did he submit any documents for review. (Doc. 50, Exh. 8, McCoy Dep., p.11, Tr.63; Exh. 4, McConnaughy Dep., Tr.34-35). Approximately two months later, on January 15, 2004, plaintiff contacted Union Representative Steve Jones to see if anything could be done about his termination. (Doc. 50, Exh. 3, Jones Dep., p.2, Tr.8). Mr. Jones did not file a grievance on behalf of plaintiff because he concluded that it would have been untimely. (Doc. 50, Exh. 3, Jones Dep., pp.3,14, Tr.9,36).
Plaintiff has brought a two-count complaint for retaliatory discharge and for breach of collective bargaining agreement. Specifically, plaintiff claims that defendant terminated him in retaliation for exercising his worker's compensation rights and breached the collective ...