The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiff Mitchell Wojtanek alleges that Defendant District Lodge No. 8 of the International Association of Machinists ("IAM Union District 8" or "the Union") discriminated against him on the basis of his age by refusing to pursue a grievance after Plaintiff was discharged by Consolidated Container Corporation ("Consolidated"). In addition to age discrimination, Wojtanek charges the Union with fraud and conspiracy. The Union seeks summary judgment on these claims and, for the reasons explained here, the motion is granted.
Wojtanek worked as a general maintenance mechanic at Consolidated's Elk Grove Village plant. (Def.'s 56.1 ¶ 2.) Defendant IAM Union District 8 is the union that represents certain Consolidated employees, including Plaintiff. (Id. ¶¶ 3, 4.) On August 4, 2006, four and a half years after hiring him, Consolidated discharged Plaintiff, who was then 65 years old. (Id. ¶¶ 6, 7.) Although the record does not reveal Consolidated's reason for discharging Plaintiff, Defendant in this case asserts it was based on unsatisfactory work performance (Def's 56.1 Reply ¶ 60); Plaintiff has sued Consolidated, alleging age discrimination and retaliation.*fn2
In the case before this court, Plaintiff alleges that Defendant Union refused to file a grievance on his behalf, thereby discriminating against him on the basis of his age. According to Plaintiff, Defendant Union's age-based hostility was demonstrated in April 2006, when Plaintiff called Francisco Javier Zuniga, co-chairman of IAM Union District 8, and asked Zuniga to file a grievance relating to Plaintiff's having been assigned to work alone in the plant over the weekend, a matter Plaintiff believed to be a safety violation. (Wojtanek Aff. ¶ 3, App. 1 to Pl's Resp. to Def.'s Mot. for Summ. J.) Wojtanek claims that Zuniga responded by telling him that at his [Wojtanek's] age, if he were to die, "it would not have been much waste." (Id.) Then on July 28, when Consolidated's maintenance supervisor called Plaintiff to a meeting regarding what Plaintiff calls "an incident in the blender room," Zuniga, who was present at the meeting, repeatedly called Plaintiff a liar and told him it was time to retire. (Id. ¶ 4.) Plaintiff asked another union member, Rubel Gutierrez, to file a grievance for him, but Gutierrez responded by saying that he was no longer a union official. (Id. ¶ 5.)
On Friday, August 4, 2006, when Plaintiff arrived for his third-shift assignment, his supervisor, Digol Jacob, told Plaintiff he had been suspended, but offered no reason for the decision. Plaintiff tried to ask questions, but Jacob told him, "Go home, you're terminated." (Id. ¶ 6.) The following Monday, August 7, Plaintiff called the union office, but got no answer (he later learned the union had moved from that office). (Id. ¶ 7.) Unable to make contact by phone, Plaintiff faxed a letter to Zuniga, in which he reported that he had been suspended from work and that Supervisor Jacob had harassed and bullied Plaintiff and his co-workers for years. He referred to "age discrimination" in that letter and stated, further, "I am 3 months before retirement. I am treated entirely unlike other [maintenance workers]." (Id. ¶ 8, citing Letter from Wojtanek to Zuniga of 8/7/2006, Ex. 1 to Wojtanek Aff.) Zuniga claims he never received that letter. (Zuniga Aff. ¶ 19, Ex. D to Def.'s 56.1.)*fn3 In a phone call later that day, Plaintiff asked that Zuniga file a grievance, but, Plaintiff asserts, Zuniga told Plaintiff he was "finished" and that there was "no more room" for him. (Id. ¶ 9.) Plaintiff claims he tried again the next day, calling Zuniga and offering to meet with him at any time and place to prepare the grievance, but Zuniga again refused, observing that because Plaintiff was just a few months from retirement, a grievance would be a waste of time. (Id. ¶ 10.)
Then on August 9, 2006, Plaintiff called Zuniga yet again, reminded Zuniga that he was a union member, and demanded that Zuniga represent him. This time, Zuniga agreed to file a grievance, but directed Plaintiff not to call him or Consolidated again. (Id. ¶ 11.) Zuniga claims that in this conversation, Plaintiff announced that he had found another job, working as a tool and die maker, and that he did not want to return to work at Consolidated. (Zuniga Aff. ¶ 9, Ex. D to Def.'s 56.1.) Zuniga claims, further, that Pat Whalen of Consolidated's human resources staff confirmed this information. Whalen told Zuniga that Plaintiff had told her that he had found another job, did not want to return to work at Consolidated, and wanted to apply for COBRA health insurance benefits. (Id. ¶ 10.) Plaintiff denies making such statements to Zuniga or Whalen; he acknowledges that he called Whalen about insurance coverage on August 15, but claims he told her he was "still waiting" for a grievance hearing and that he said nothing to her about another job or about any plans to resign. (Wojtanek Aff. ¶¶ 12, 15-16.)
In any case, on the advice of Rufus Eskew, the union's Assistant Directing Business Representative, Zuniga did prepare a grievance form on August 9, 2006, requesting that Plaintiff be reinstated. Zuniga printed Plaintiff's name on the form and signed it as union steward. (Zuniga Aff. ¶¶ 11-13.) Following his standard practice, Zuniga wrote "unfair and unjust practice by Management" as the basis for the charge, and added "[m]ore details will be given at the meeting."
(Id. ¶ 14; Grievance Record, Ex. 2 to Zuniga Aff.) Plaintiff denies that Zuniga filed a grievance on his behalf (Pl.'s Resp. to Def.'s 56.1 ¶ 7), but the court concludes there is no genuine dispute about this. The only evidence Plaintiff cites in support of his denial is the undisputed fact that Plaintiff himself did not sign the grievance; Defendant explains this is because Plaintiff was not at work to do so. (Zuniga Aff. ¶ 13.) Zuniga presented the grievance to Robert Ward, Consolidated Operations Manager, who responded to it by writing, "Denied,-- Unsatisfactory Work." (Id. ¶¶ 13, 15.) Zuniga reported to the Union Co-Chairman, Rubel Gutierrez, that he had filed the grievance, but had no further involvement with the grievance or with representing Plaintiff. (Id. ¶ 16.)
Although he testified at his deposition that he believed the Union should have taken his grievance through every step of the grievance process (Wojtanek Dep. at 60, Ex. 3 to Def.'s 56.1), Plaintiff now admits that the collective bargaining agreement provides that a grievance challenging a discharge may be taken directly to Step Four of the grievance review process. (Pl.'s Resp. to Def.'s 56.1 ¶ 18.) Rufus Eskew, the Assistant Directing Business Representative, was responsible for negotiating collective bargaining agreements and representing the Union in the grievance process. (Def.'s 56.1 ¶ 20.) Eskew recalled that Zuniga told him that Wojtanek intended to accept another job and did not want to return to work for Consolidated, and that Zuniga understood Plaintiff had told Whalen the same thing. (Id. ¶¶ 23, 24.) Eskew nevertheless advised Zuniga to file a grievance on Plaintiff's behalf, as it is union policy to do so whenever an employee is discharged or suspended pending discharge. (Id. ¶¶ 25, 26; Eskew Aff. ¶ 10, Ex. 1 to Def.'s 56.) After the grievance was filed, Eskew called Mike Ross, the Regional Human Resources Manager for Consolidated, to schedule a fourth step meeting on Plaintiff's grievance. (Def.'s 56.1 ¶ 27.) Ross told Eskew he understood Plaintiff had resigned, but Eskew insisted on proceeding with the grievance. (Eskew Aff. ¶ 14.)
On August 22, Eskew left two messages on Plaintiff's voice mail, directing him to appear for a "hearing meeting" the following day at 9:00 a.m. (Pl.'s Resp. to Def.'s 56.1 ¶ 30.) On his arrival on the morning of August 23, 2006, Plaintiff met with Eskew and Gutierrez for half an hour and showed them copies of a letter he had written to Consolidated the previous day, complaining about Digol Jacob's harassment and bullying. (Wojtanek Aff. ¶ 19; Letter from Wojtanek to Human Resources Manager of 8/22/2006, Ex. 2 to Wojtanek Aff.) Eskew recalls that he reviewed "relevant documents," including disciplinary notices issued to Plaintiff. (Eskew Aff. ¶ 18.) Eskew claims that, as reflected in Eskew's contemporaneous notes, he asked Wojtanek what he wanted from Consolidated, and that Wojtanek initially stated that he wanted only COBRA benefits; at Eskew's own suggestion, Wojtanek added a request that Consolidated agree not to contest his claim for unemployment benefits. (Id.; Handwritten notes, Exs. 4 and 5 to Eskew Aff.) Plaintiff denies having made any such statements. (Wojtanek Aff. ¶ 22.) Plaintiff asserts that neither Eskew nor Gutierrez ever showed Plaintiff a copy of the grievance form Zuniga had prepared. (Id. ¶ 20.)
Eskew, Gutierrez, and Wojtanek proceeded to the grievance hearing. Ross, who attended with two other management representatives, announced that they understood Plaintiff had resigned. (Id. ¶ 21.) Plaintiff claims that for hours, he "strenuously disagreed with Ross," and unsuccessfully sought Eskew's assistance in "help[ing] Ross understand that I neither quit nor resigned my position at Consolidated at any time." (Id.) Eskew claims, to the contrary, that he was "fully prepared to discuss Wojtaneik's grievance and to advocate for his return to work," but Wojtanek instead confirmed three times that all he wanted from Consolidated was his COBRA benefits and an agreement not to contest his claim for unemployment compensation benefits. (Eskew Aff. ¶ 20.) After a recess, management representatives returned to present a written severance agreement for Wojtanek to sign. (Pl.'s Resp. to Def.'s 56.1 ¶ 40; Unsigned Agreement, Ex. 3 to Eskew Aff.) The parties agree that Ross read the agreement aloud, and that it provided that Plaintiff would be deemed to have resigned and would be provided with COBRA benefits, and that Consolidated would not contest Plaintiff's claim for unemployment benefits. (Pl.'s Resp. to Def.'s 56.1 ¶ 41.) At Plaintiff's request, the agreement was revised to allow time for Wojtanek to accept or reject it, and Plaintiff took a copy with him. (Id. ¶¶ 42-45.)
The day after the meeting, Plaintiff wrote to Sam Guinan, one of the management representatives who had attended the grievance hearing, complaining that Mr. Ross had "attempt to press on several time to get an idea in to my head that I quit the job" and had offered him an "unfair severance agreement." (Wojtanek Aff. ¶ 27; Letter from Wojtanek to Guinan of 8/24/2006, Ex. 3 to Wojtanek Aff.) Wojtanek asserts that on August 25, Eskew called Wojtanek and offered to assist him in finding work at a "Japanese company." When Wojtanek responded by asking whether Eskew believed Plaintiff had been fired because of his age, he claims that Eskew hung up. (Wojtanek Aff. ¶ 28.) Eskew denies such a conversation occurred. (Eskew Dep. at 120-21, Ex. 3 to Pl.'s Resp. to Def.'s 56.1.) According to Defendant, neither Eskew nor any other union official had any contact with Wojtanek after the August 23 meeting until the following January, when Eskew learned that Wojtanek had filed a charge of discrimination against the union. (Def.'s 56.1 ¶ 46.)
Eskew had never seen Plaintiff before August 23, 2006, the day of the grievance hearing, and he asserts that he did not know Wojtanek's age. (Eskew Aff. ¶ 26.) Plaintiff disputes this, but the only evidence he cites is a letter he claims he wrote on August 9, 2006, in which he complained about Supervisor Jacob's harsh treatment of Plaintiff and his co-workers and commented, "I am 3 months before retirement." (Letter from Wojtanek to Eskew of 8/9/2006, Ex. 4 to Wojtanek Aff.) Although there are disputes about what happened at the grievance hearing, there is no evidence that Eskew took Wojtanek's age into account in connection with the grievance, and Eskew denies having done so. (Eskew Aff. ¶ 31.) The involvement of other union stewards (Jerlena Brown, Francisco Zuniga, and Rubel Gutierrez) in the grievance was essentially ministerial: Brown received a copy of a disciplinary notice and passed ...