The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiff Ross Nelson, an African American born in 1957, was terminated from his employment with the United Parcel Service ("UPS") after refusing what he believes was a demotion and then failing a blood-alcohol test. In his first lawsuit (06 C 1428), Nelson charges UPS with discriminating against him on the basis of his race and age, in violation of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. In a second suit (06 C 1898), he contends that Teamster Local 705 breached its duty of fair representation and discriminated against him on the basis of race and age by failing to pursue a grievance challenging his discharge. Both Defendants have moved for summary judgment. UPS argues that the undisputed facts show that Nelson's termination was based on his refusal to return to his part-time position after a temporary assignment as a driver. Local 705 argues that the two union officials who made the decision not to pursue Nelson's grievance did so on the basis of their good-faith belief that the union would not prevail, and that neither of them were aware of Nelson's race or age at the time they made the decision.
Because Nelson has not presented evidence from which a reasonable jury could conclude that his race or age were the reason for his discharge, UPS's motion is granted. Because the record is incomplete with respect to Local 705's decision not to pursue Nelson's first grievance, Defendant Local 705's motion is granted in part and denied in part.
Plaintiff Ross Nelson is an African-American born on December 20, 1957. (UPS 56.1 ¶¶ 1, 2.) Defendant United Parcel Service ("UPS") is in the business of shipping packages throughout the world. (Id. ¶ 3.) From December 3, 2000 until June 11, 2005, Nelson worked for UPS as a part-time unloader and "revenue recovery auditor" at the UPS facility at 1400 Jefferson Street in Chicago, earning $11.35 per hour and working approximately 20-25 hours per week. (Id. ¶¶ 6, 10.) A member of Teamsters Local 705, Nelson's employment was governed by a collective bargaining agreement between UPS and Local 705. (Id. ¶¶ 8, 9.)
UPS's summer seasonal period runs each year from Easter until the Friday after Labor Day. (Id. ¶ 13.) During that period, UPS hires, or temporarily promotes from its part-time staff, package car drivers to replace drivers who are on vacation. (Id. ¶ 15.)*fn2 Beginning on June 13, 2005 and continuing until September 2, 2005, Nelson worked as a "seasonal package car driver," assigned to UPS's facilities in Addison, Illinois and Palatine, Illinois. (Id. ¶ 7.) Nelson claims that Ed Label (the parties have not provided Mr. Label's title) told him initially that he was being promoted to a position as "full time driver," (id. ¶ 14, citing Nelson Dep,, Exh. to UPS 56.1, at 107-08), but it is undisputed that Nelson in fact became a seasonal driver, earning $14.70 per hour, as compared with the full-time driver rate of $15.75 per hour. (Id. ¶ 16.)*fn3 UPS package drivers work a forty-day probationary period, after which they are entitled to seniority in the package car driver position. (Id. ¶ 18.) Under the collective bargaining agreement ("CBA") between UPS and the International Brotherhood of Teamsters Local 705, package car drivers hired during the summer seasonal period cannot achieve seniority during the summer season.*fn4 (Id. ¶ 19.) Those who complete the forty-day probation but are returned to their former positions are, however, entitled to be offered the next available openings for package car drivers in the district. (Id. ¶ 23.) Nelson knows of no other drivers who were promoted from part-time to full-time (non-seasonal) drivers during the summer of 2005. (Id. ¶ 20.)*fn5
During the weeks of July 4, July 11, and July 18, 2005, while Nelson was working in UPS's Naperville Center, he was "splitting a route" with another driver and worked less than 8 hours per day and less than 40 hours per week. (Id. ¶ 24, citing Nelson Dep. at 61-63.) Other seasonal drivers, including white drivers and drivers under the age of 40, also worked less than 40 hours a week during July 2005. (Id. ¶ 27.) Nelson worked longer hours during the last two weeks of June and the last week of July. (Id. ¶ 28.) At the end of July, Nelson was invited to take a promotion to a driving position in UPS's Palatine, Illinois facility; he began working there on August 1, 2005. (Id. ¶¶ 30, 31.) Krystin Krause, a white woman, was the manager at that facility; Nelson's division manager, Waring Lester, is a black man born in 1969. (Id. ¶¶ 32, 33.) Nelson clams that Ms. Krause told him on August 1, 2005 that he would not get full-time hours, increased pay, or employee benefits. (Id. ¶ 34.) In fact, though, during the month of August, he worked as a package car driver at least eight hours a day and more than 40 hours per week. (Id. ¶ 35.)
While Nelson was employed at the Palatine Center, he had some performance problems, including regularly misdelivering packages. (Id. ¶ 40.) On approximately nine occasions, UPS supervisors rode with him and instructed him on improving his performance. (Id. ¶ 41.)*fn6 UPS routinely reviews the performance of its seasonal drivers near the end of the summer season to decide whether to keep them as drivers or send them back to part-time work. (UPS 56.1 ¶ 43.) As noted, Nelson's driving work was deficient; on September 1, 2005, UPS supervisor Krystin Krause, and UPS human resource manager Gina Curzi met with Nelson and his union steward, Jim Carroll, and informed Nelson that he was being returned to a part-time position as an inventory clerk in the Metro Chicago district. (Id. ¶¶ 44-46; Local 705 56.1 ¶ 6.) Nelson refused the part-time position. (UPS 56.1 ¶ 47.) Krause and Carroll disagreed about whether the collective bargaining agreement between Local 705 and UPS allowed UPS to return Nelson to his former position. (Local 705 56.1 ¶ 8.)
Krause contacted UPS's Labor Relations Manager, Tom Haefke, and Haefke told Nelson and Krause by speakerphone that his old part-time position was the only one available to him, and that if he declined it, he would be terminated. (UPS 56.1 ¶¶ 48, 49.) Nelson nevertheless refused the part-time position, asserting that he had seniority as a full-time driver. At his deposition, Nelson explained that he refused to return to part-time work "because I had made seniority. I had been through my probationary period. I made seniority. I was a full-time package car driver." (Nelson Dep. at 179.) Plaintiff and Local 705 agree that Plaintiff was terminated during this meeting and that "Caroll filed the first grievance regarding his termination at that time." (Pltf.'s 705 Resp. ¶ 10.) Other workers in Nelson's training class who were returned to their former positions before the end of the 2005 season include an Hispanic male born in 1967, an American-Indian male born in 1958, a white female born in 1984, and seven white males born in 1971, 1971, 1972, 1973, 1978, 1982, and 1983. (UPS 56.1 ¶ 51.)
At some point during the morning of September 1, UPS Security Officer Carol Herbord and Human Resources Supervisor Gina Curzi "both felt that Nelson exhibited signs of being under the influence of alcohol" and, pursuant to the CBA, directed that Nelson undergo a "fitness for duty" examination. (UPS 56.1 ¶P 53-55; Pltf.'s 56.1 ¶ 12.) Nelson points out that he had already been discharged at this point, but Haefke explains in his declaration that "Nelson could have changed his mind" and returned to his part-time position. (Plaintiff's 56.1 Resp. ¶ 55, UPS 56.1 ¶ 56, citing Haefke Decl. ¶ 30.) Nelson and Carroll discussed the possibility that Nelson admit that he had a drinking problem and attempt to work out an arrangement with UPS, but Nelson denied having a problem and stated he had not been drinking that day. (Pltf.'s 705 Resp. ¶ 15.) Later that morning, Nelson claims he overheard Ms. Krause making phone calls to various clinics that could conduct the "fitness for duty" examination and commenting to other co-workers, "We are going to fire that nigger today." (Nelson Dep. at 184-185.)
Nelson was taken to Concentra Medical Center for the examination, which included a breathalyzer test and urinalysis. (UPS 56.1 ¶ 57.) Though Nelson denies that the test results are accurate or reliable, he acknowledged in his deposition that on six breathalyzer tests on September 1, the results showed a blood-alcohol level of .097 at 11:28 a.m., then four test results of "insufficient breath," and then a level of .092 at 11:57 a.m. (Nelson Dep. at 79, 84; Pltf.'s 705 Resp. ¶ 15.) At his deposition, Nelson testified that he never breathed hard enough into the breathalyzer to register any result at all. (Local 705 56.1 ¶ 73.) The Collective Bargaining Agreement provides that "any test of an on-duty employee that measures at or above the state mandated DWI level" is a "dischargeable offense." (CBA, Exhibit E to Haefle Decl., Art. 35, § 4.11.1; Local 705 56.1 ¶ 18.) At some point, Nelson requested a blood test, as well, but that request was denied. (Nelson Dep. at 130.)
The following day, at UPS's Palatine facility, Nelson attended a meeting with UPS Supervisor Dale Norris, Kyrstin Krause, Waring Lester, Union Steward Jim Carroll, and Tom Haefke, UPS's Labor Relations Manager. (UPS 56.1 ¶ 72.) Nelson spoke privately with Jim Carroll, who encouraged Nelson to "level with" Haefke and ask for his part-time job back; Nelson refused. (Local 705 56.1 ¶ 21.) Haefke gave Nelson "the opportunity to explain how he failed the breathalyzer test" and then made the decision to terminate Nelson, as he had in the case of every employee who tested over .09 on the breathalyzer in a "fitness for duty" examination. (Id. ¶¶ 74-76, citing Haefke Decl. ¶¶ 39-41.)
Plaintiff, who testified that he has "salt and pepper" hair, claims that Krause referred to him as "Old Silver," and that Division Manager Lester told Nelson on several occasions that other supervisors believed Nelson was "too old, too slow" to succeed as a UPS driver. (Nelson Dep. at 71-72; Pltf.'s 56.1 Add'l. ¶¶ 7-8 .) Nelson did not mention those comments, or Krause's alleged statement of her intention to "fire that nigger today," during the September 2, 2005, meeting nor in his grievances, his charges of discrimination, or his initial complaints in these cases. (UPS 56.1 ¶¶ 81-83, 85-88, 91-92.)
Plaintiff contends that several similarly-situated younger employees were retained after his termination, but the only evidence he cites is a list of employees and their birthdates. (Pltf.'s 56.1 Add'l ¶ 13.) UPS asserts that the employees identified by Plaintiff were seasonal package car drivers, hired after Plaintiff had already been discharged, for the 2005 Christmas season and terminated at its conclusion. UPS notes, further, that one of the workers ...