The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Plaintiff Jose Andreu's ("Andreu") partial motion for summary judgment. This matter is also before the court on Defendant United Parcel Service, Inc.'s ("UPS") motion for summary judgment. For the reasons stated below, we grant Andreu's partial motion for summary judgment. We deny UPS's motion for summary judgment in its entirety.
Andreu alleges that UPS employed him beginning in 1996 and that in 2003 he started working for UPS as a package worker. According to Andreu, in January 2005, he injured his back while on his assigned route delivering packages ("Injury"). Andreu claims that he reported the Injury in a meeting with his supervisor Dave Ziltz ("Ziltz") and that Ziltz notified UPS's workers' compensation insurance carrier regarding the Injury. Andreu also alleges that during this meeting, Ziltz accused Andreu of lying about the Injury and faking his pain. Andreu alleges that Ziltz continued to repeat his assertions that Andreu was lying about the Injury and Ziltz expressed hostility towards Andreu subsequent to the meeting.
Andreu states that over the next month he was examined and treated for the Injury by a physician associated with UPS as well as by his own physician. According to Andreu, he notified UPS of his ongoing treatment and he was forced to miss several days of work due to the pain he was experiencing as a result of the Injury.
Andreu alleges that on February 9, 2005, Ziltz confronted Andreu at his truck and accused Andreu of lying about the number of packages and/or stops that Andreu had left for the day in an earlier communication. Ziltz allegedly told Andreu that Andreu would be fired. Andreu alleges that, two days later, he informed UPS that he could no longer perform his present duties due to his Injury and the treatment he was receiving. According to Andreu, on March 4, 2005, his superior Kerry Snyder ("Snyder") notified him that he was terminated effective immediately for allegedly lying about the number of packages and deliveries remaining on February 9, 2005, and he was escorted off the premises by UPS personnel. Andreu alleges that he was not dishonest on February 9, 2005, and did nothing to legitimately warrant termination. Andreu claims that UPS's decision to terminate him was motivated by Andreu's act of reporting the Injury.
Andreu originally filed an action before this court alleging a federal claim under the Consolidated Omnibus Budget Reconciliation Act ("COBRA") and a state law claim alleging retaliatory discharge under the Illinois Worker's Compensation Act, 820 ILCS 305/1 et seq. ("IWCA"). Subsequently, Andreu voluntarily dismissed his COBRA claim and we remanded the action to state court on the IWCA claim. On October 30, 2007, UPS removed the action back to this court based on diversity of citizenship subject matter jurisdiction, pursuant to 28 U.S.C. § 1332(a). UPS answered Andreu's complaint and asserted the affirmative defense that Andreu is barred from recovery since he failed to exercise reasonable effort to mitigate his damages. UPS filed a motion for summary judgment on Andreu's claim. Andreu filed a partialmotion for summary judgment on UPS's affirmative defense.
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). When there are cross motions for summary judgment, the court should "construe the evidence and all reasonable inferences in favor of the party against whom the motion under consideration is made." Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).
I. Legal Standard for an Illinois Retaliatory Discharge Claim
Andreu brings his claim for retaliatory discharge under the IWCA. The Illinois Supreme Court has construed retaliatory discharge for exercising rights under the IWCA as an actionable tort. Kelsay v. Motorola, Inc., 384 N.E.2d 353, 357-59 (Ill. 1978). To assert the tort of retaliatory discharge under the IWCA, a plaintiff must show "(1) that he was the defendant's employee before the injury; (2) that he exercised a right granted by the Workers' Compensation Act; (3) and that he was discharged from his employment with a causal connection to his filing a workers' compensation claim." Hiatt v. Rockwell Intern. Corp.,26 F.3d 761, 767 (7th Cir. 1994); see also Hartlein v. Illinois Power Co., 601 N.E.2d 720, 728 (Ill. 1992)(detailing elements of an IWCA claim). In an IWCA retaliatory discharge claim, "[t]he onus is on the employee to show affirmatively that [his] termination was motivated by unlawful intent to retaliate against [him] for exercising [his] statutory right." Feldman v. American Memorial Life Ins. Co., 196 F.3d 783, 792 (7th Cir. 1999). If a plaintiff fails to present evidence of a causal connection between the plaintiff's workers' compensation claim and the termination, the action fails. See id. at 793(finding that the plaintiff could not support her retaliatory discharge claim under the IWCA since she presented "no affirmative evidence indicating any causal nexus between her worker's compensation claim and her termination"). Furthermore, "a claim that rests entirely on suspicious timing is insufficient to survive summary judgment." Id. at 792. In Illinois, a plaintiff cannot satisfy the causation element of the retaliatory discharge claim if the employer has shown a valid non-pretextual basis for discharging the plaintiff. Hartlein, 601 N.E.2d at 728.
The Seventh Circuit recently noted that there is some ambiguity on the issue of whether federal courts, sitting in diversity, should apply the Illinois tort standard for addressing retaliatory discharge claims, or whether federal courts should apply the burden-shifting method from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), used in federal discrimination cases. McCoy v. Maytag Corp., 495 F.3d 515, 522 (7th Cir. 2007). The Illinois Supreme Court has explicitly rejected the use of the burden-shifting analysis as applied by Illinois courts to retaliatory discharge claims. Clemons v. Mech. Devices Co., 704 N.E.2d 403, 407-08 (Ill. 1998). However, the Seventh Circuit posited that under the Erie doctrine federal courts sitting in diversity might still be required to apply the federal burden-shifting standard, depending on whether the McDonnell Douglas analysis is considered substantive or procedural. McCoy,495 F.3d at 522. The Seventh Circuit, in McCoy, concluded that the major difference between the Illinois tort analysis and the McDonnell Douglas analysis relates to the initial question of what constitutes a prima facie case. Id. However, since the issue of whether the plaintiff met a prima facie case was not before the Seventh Circuit in McCoy, the Court decided not to resolve the issue of which standard should apply. Id.
Based on the circumstances of the instant action and the precise issues that are disputed by the parties, the applicable legal standard is not determinative on the outcome of the case. As discussed below, the parties agree that Andreu has met the first and second prongs under the retaliatory discharge standard. However, the parties dispute the issue of whether Andreu was terminated by UPS and whether that termination had a causal connection to the Injury and Andreu's workers' compensation claim. The parties also dispute whether Andreu's action is preempted by a collective bargaining agreement and whether UPS can assert the affirmative defense that Andreu failed to mitigate his damages. Whether we apply the McDonnell Douglas burden-shifting analysis or the Illinois tort analysis, material issues of fact remain with respect to Andreu's retaliatory discharge claim.
II. UPS's Motion for Summary Judgment
UPS has moved for summary judgment on the IWCA claim, arguing: (1) that the instant action is preempted under § 301 of the National Labor Relations Act ("NLRA") since Andreu's claims are intertwined with a collective bargaining agreement, (2) the action taken against Andreu by UPS was not a termination and there is no causal connection between UPS's disciplinary action and Andreu's termination, and (3) the ...