MEMORANDUM AND ORDER
DAVID R. HERNDON, Chief District Judge.
I. Introduction and Background
Pending before this Court are defendant Penn Aluminum's motion for summary judgment (Doc. 168) and memorandum in support of the motion (Doc. 169). Defendant claims it is entitled to summary judgment on Count I because it is time-barred; Count III because plaintiff cannot establish that similarly situated employees were treated more favorably; and Count V because plaintiff did not engage in a protected activity, and the actions taken against him were not retaliatory, but based on legitimate reasons. Plaintiff Levia Moultrie disputes defendant's arguments (Doc. 187).
This case arises from a suit Moultrie filed against defendant claiming he was discriminated against on the basis of his race, and when he complained about it, he was retaliated against and written up for filing the grievances. In February 2009, plaintiff was reassigned in his duties at Penn Aluminum, which he alleges was in violation of the seniority system. Although he filed a grievance through his union steward claiming racial discrimination, Moultrie alleged the grievance report the union filed contained no mention of racial discrimination. Penn Aluminum denied the grievance. After more incidents that Moultrie felt were racially discriminatory against him, he filed a complaint against Penn Aluminum on June 14, 2011 (Doc. 2), alleging a breach of the Collective Bargaining Agreement ("CBA").
Moultrie filed his first amended complaint (Doc. 31) on October 26, 2011. In his amended complaint, plaintiff added counts against the International Brotherhood of Electrical Workers, AFL-CIO, Local 702 ("IBEW") for breach of duty of fair representation and the Marmon Group, alleging it was the parent company of Penn Aluminum. On July 30, 2012, Moultrie filed a motion to voluntarily dismiss his claim against the Marmon Group (Doc. 125). On July 31, 2012, the Court granted Penn Aluminum's motion to dismiss Count IV (Doc. 126), finding plaintiff's claim under the Illinois Human Rights Act ("IHRA") to be untimely. On August 1, 2012, the Court acknowledged Moultrie's notice of voluntary dismissal and dismissed plaintiff's claims against the Marmon Group (Doc. 128).
On November 8, 2012, plaintiff filed a motion to voluntarily dismiss his claim against IBEW (Doc. 189). On November 9, 2012, the Court acknowledged Moultrie's notice of voluntary dismissal and dismissed plaintiff's claims against IBEW (Doc. 190). Thus Count II was dismissed from plaintiff's petition, leaving only Counts 1, III, and V that are the subject of this motion for summary judgment.
II. Summary Judgment
Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record or affidavits that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All justifiable inferences are to drawn in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
If the moving party meets its burden, the non-moving party has the burden of presenting specific facts to show there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings and produce evidence of a genuine issue for trial. Celotex, 477 U.S. at 324. In ruling on a motion for summary judgment, the non-moving party's evidence "is to be believed, " and all justifiable inferences drawn from it in the light most favorable to the non-moving party. Hunt v. Cromartie, 526 U.S. 541, 552 (1999). Summary judgment in favor of the party with the burden of persuasion is "inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact." Id. at 553. However, there is no issue for trial unless there is sufficient evidence that favors the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 249.
Count I Breach of Contract by Penn Aluminum
Moultrie claims that Penn Aluminum breached its contract with him when it removed him from his duties at a "clean job" and reassigned him to "a dirty job." According to plaintiff, he had seniority over the person who was given his previous job and the reassignment and subsequent write up was racially motivated. Moultrie claims he was also written up for dropping a coil off the forklift he was driving, while another employee dropped five coils and was not written up. Moultrie filed a grievance with the union for this incident as well, claiming racial discrimination, but he argues the grievance the union submitted contained no reference to racial discrimination. Moultrie claims he was moved to less desirable shifts, advised to transfer to equipment with less pay and a loss of seniority, and not allowed to file grievances all based on racial discrimination. He contends that these actions breached the contract between the union and Penn Aluminum.
Penn Aluminum claims that Moultrie's claims are time-barred under § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Penn Aluminum argues that Moultrie failed to bring his claim within the required six month time, and thus it is time barred.
The Supreme Court, in DelCostello v. Int'l Bhd of Teamsters, et al., held that the six-month limitations time period under 10(b) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(b) is the applicable statute of limitations that governs a hybrid § 301 suit with claims against both an employer for breach of the CBA and against the union for breach of duty of fair representation. 462 U.S. 151 (1983). The Seventh Circuit upheld the district court's grant of summary judgment for time-barred claims under § 301 in a case factually similar to this. Chapple v. Nat'l Starch & Chem. Co. and Oil, 178 F.3d 501 (7th Cir. 1999). In Chapple, the court found that ...