The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant American Postal Workers Union Local 7011's, Defendant American Postal Workers Union's (collectively referred to as "Union Defendants"), and Defendant John E. Potter's (named in his official capacity as Postmaster General of the United States Postal Service) ("USPS") motion to dismiss, or in the alternative, for summary judgment. For the reasons stated below, we grant the motion for summary judgment and we deny the motion to dismiss as moot.
Plaintiff Gerald Berry ("Berry") alleges he began his employment with USPS in July of 1990 and worked for over fifteen years as a full-time mail clerk. Berry claims that throughout his employment with USPS, he was a member in good standing with the Union Defendants and that his employment at USPS was governed, at all times, by a Collective Bargaining Agreement ("Agreement") between USPS and the Union Defendants. According to Berry, on November 10, 2004, the Union Defendants and USPS negotiated a new agreement, known as the "Last Chance Agreement" ("LCA"), that USPS required Berry to sign in order to keep his job with USPS. The terms of the LCA allegedly required Berry to maintain satisfactory attendance which included less than three unscheduled absences in a six month period and zero "AWOL" days. (Amend. Compl. Ex. C).
Berry claims that on October 31, 2005, he was scheduled to spend five days in County jail for a DUI conviction. Berry claims that he requested a leave of absence for those five days from his Plant Manager who arbitrarily denied his request. Berry claims that, as a result, he was forced to take five consecutive absences without leave. According to Berry, on January 11, 2006, USPS notified him that his employment was terminated due to the fact that, in violation of the LCA, Berry had taken unscheduled absences between August 27, 2005 through August 31, 2005, as well as absences on three other dates. Berry alleges that he responded to his removal notice by providing evidence that proved that he was not absent on the stated dates. Berry claims that USPS then issued an amended removal notice which listed his unscheduled absences as October 31, 2005 through November 4, 2005, as well as two other dates. Following the issuance of the second removal notice, USPS allegedly terminated Berry's employment.
According to Berry, representatives of the Union Defendants filed a grievance on Berry's behalf which was addressed through the appropriate grievance procedures set out in the Agreement. However, on September 20, 2006, the Union Defendants allegedly entered into a settlement agreement without Berry's knowledge or consent, in which the Union Defendants agreed to withdraw Berry's grievance. Berry alleges that, by entering into such an agreement to drop the grievance without Berry's consent, the Union Defendants breached the statutory duty of fair representation, violated the Members' Bill of Rights, and acted in a capricious, arbitrary, and discriminatory manner towards Berry.
Berry brought the instant action on November 6, 2007, and includes in his first amended complaint a claim brought against USPS for a breach of the Agreement ("Section 301 Claim"), and a claim brought against the Union Defendants alleging a breach of the duty of fair representation. The Union Defendants have filed the instant motion to dismiss the breach of fair representation claim and, in the alternative, for summary judgment on the breach of fair representation claim. On May 22, 2008, the court granted USPS's motion to join in the Union Defendants' motion.
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).
Defendants contend that Berry was aware of his claims against them as early as October 2006, and no later than March 2007. As such, Defendants claim that the statute of limitations expired by the time Berry filed his claim. Defendants have moved both to dismiss and for summary judgment.
I. Fair Representation Claim Against Union Defendants
Defendants move for summary judgment on Berry's fair representation claim against the Union Defendants. Pursuant to Federal Rule of Civil Procedure 56(b), a defending party may move for summary judgment "at any time . . . on all or part of the claim." Fed. R. Civ. P. 56(b). In this case, Defendants have moved for summary judgment solely on the basis of the statute of limitations. Pursuant to Local Rule 56.1, Defendants have also included a statement of material facts in support of their motion. Berry has not filed a response to Defendants' statement of facts and these facts are not disputed.
In the statement of facts, Defendants provide evidence that Berry filed a charge with the National Labor Relations Board ("NLRB") on October 27, 2006, alleging that the Union Defendants were engaging in unfair labor practices. (SF Par. 1). Berry's charge stated that the Union Defendants "failed to represent [Berry] ...