The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Plaintiff Calvin Benford brings an action against Defendant Chicago Beverage Systems L.L.C. ("CBS" or "Defendant") alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") (Count I), 29 U.S.C. § 621 et seq., retaliatory discharge in violation of the Illinois Workers' Compensation Act (Count II), 820 ILCS § 305/1 et seq., and retaliatory discharge for reporting a supervisor's improper conduct (Counts III and IV). Before the Court now is Defendant's Motion for Summary Judgment. For the reasons stated below, the motion is granted in part and denied in part.
The facts below are generally taken from Defendant's Statement of Undisputed Material Facts ("DSOF") and Plaintiff's Statement of Additional Facts ("PSOF"); the Court will note where there are disputes about material facts.*fn1
Defendant CBS is a beer distribution company operating in the Chicago area. DSOF ¶ 3. CBS hired Plaintiff as a regular, full-time employee in 1997, although he had previously worked at the company as a temporary employee. Id. Plaintiff held a number of positions at CBS, but in his last position, he was responsible for driving a forklift in the warehouse and loading heavy pallets of beer onto trucks for delivery. Id. at ¶ 4. Plaintiff worked under Sid Murff, his immediate supervisor, Jim Burns, another supervisor, Mike Nino, director of operations, and Bill Emerson, Vice President of Supply Chain Management. PSOF ¶ 1. Plaintiff was born on February 5, 1959. DSOF ¶ 3.
b. Plaintiff's Shift on October 7, 2005
On Thursday, October 7, 2005, Plaintiff worked an overnight shift from 8 p.m. until approximately 4 or 5 a.m. on Friday, October 8. DSOF ¶ 13. Sometime before midnight during that shift, Plaintiff's supervisor Murff spoke to Plaintiff regarding pallets of beer that Plaintiff had ostensibly loaded onto the wrong trucks. DSOF ¶ 15.
The facts are not clear regarding whether Plaintiff actually made mistakes during the October 7-8 shift. In his deposition, Plaintiff testified that he had made "a couple" of mistakes during that shift, but clarified that he meant that "the supervisor [Murff] didn't tag the trucks." Benford Dep. 110:6-10, Jan. 15, 2009. When Murff confronted Plaintiff about his so-called mistakes during the shift, Plaintiff argued that Murff had failed to "tag" the trucks. Id. at 115:7-21; see also id. at 125:2-6 ("Q: Do you recall telling Mr. Burns during that Thursday to Friday shift that you knew you were making mistakes? A: Mistakes? The mistake was made because the-because the trucks weren't tagged properly.") Plaintiff testified that either five or six times in his employment or twice per month in 2005, Murff gave him loading instructions that were contrary to his written instructions. DSOF ¶ 41. Murff was later terminated in 2007 for theft after having been reported to CBS by a warehouse employee. DSOF ¶ 42. Plaintiff suggests, but Defendant disputes, that Murff's gave incorrect loading instructions to Plaintiff on October 7 in order to steal products from Defendant. PSOF ¶ 22.
Regardless, after Murff spoke to Plaintiff, Burns approached Plaintiff and told him that he was concerned about Plaintiff's safety and that Plaintiff would be subject to a reasonable suspicion alcohol and drug test if he continued to make errors. Benford Dep. 150:3-6, 127:9-16. Burns and Murff then spoke with Burns' supervisor Emerson and informed him that Plaintiff had made uncharacteristic mistakes, and that Plaintiff had been told that continued mistakes would subject him to an alcohol and drug test. Id. at¶ 17. Burns and Murff also spoke with Nino. Nino, Burns, and Emerson agreed to subject Plaintiff to the test. Id. ¶ 18.
Plaintiff took the drug test. On the following Monday, October 10, 2005, the drug testing clinic informed Defendant that Plaintiff had tested positive for cocaine. Id. at ¶ 19, 20. Plaintiff objects to the trustworthiness of the drug test, but does not deny that the result of Plaintiff's test was a positive indication for cocaine. Emerson, Nino, and Vice President of Human Resources Charlotte Rangel met to discuss Plaintiff's positive cocaine test, and then Emerson (or possibly Emerson and Nino together) decided to terminate Plaintiff's employment with CBS. Rangel Dep. 62:1-20, Jan. 23, 2009; Nino Dep. 51:15-23, Jan. 23, 2009; Emerson Dep. 75:15-22. Plaintiff was terminated on October 11, 2005. Plaintiff admits that no CBS manager ever made any comments about his age. DSOF ¶ 43.
c. CBS's Drug and Alcohol Policies
Plaintiff and other hourly CBS employees were members of the Teamsters Local 744 union ("Union"). CBS and the Union were signatories to a Collective Bargaining Agreement ("CBA") in effect from February 1, 2003 through January 31, 2008. The CBA governs the terms and conditions of employment for hourly employees and contains a grievance process leading to final and binding arbitration. DSOF ¶ 5. The CBA provides that union employees such as Plaintiff may be discharged for cause and need not be given advance notice of discharge due to intoxication (being under the influence of drugs, narcotics or other controlled substances) or the consumption of controlled substances during work hours. DSOF ¶ 6.
CBS and the Union have also entered into a Drug and Alcohol-Free Work Place Policy ("Policy"), a Memorandum of Understanding which is a part of the CBA and has been in effect since 1998. The Policy prohibits employees from working or reporting to work under the influence of drugs or alcohol or with a prohibited amount of drugs (including cocaine) or alcohol in their systems, and provides that such behavior constitutes just cause for immediate discharge. DSOF ¶ 7. Plaintiff testified that he was aware that Defendant and the Union had entered into a policy requiring employees to be alcohol and drug-free, and that he understood the policy had been implemented at least in part for the safety of CBS employees. DSOF ¶ 10.
The Policy provides for both random and reasonable suspicion testing. PSOF Ex. H at D00312. Under the former, "all employees may be required to undergo random and/or periodic urine tests for illegal drugs" when selected for random testing. Id. Under the latter, "in the event the Employer reasonable [sic] suspects that an employee is using or under the influence of illegal drugs while at work, an investigation will be conducted. As part of this investigation, the employee may be required to submit to a urine test for drugs." Id. at D00313. There are no policies or procedures for determining whether an employee is reasonably suspected of using or being under the ...