Johnson v. Olin Corporation, (S.D.Ind. 2000)

Full title: PLEAS A. JOHNSON, Plaintiff, v. OLIN CORPORATION, UNITED STEEL WORKERS OF…

Court: United States District Court, S.D. Indiana, Indianapolis Division

Date published: Sep 29, 2000

Cause No. IP98-1456-C-B/S (S.D. Ind. Sep. 29, 2000)

Opinion

Cause No. IP98-1456-C-B/S

September 29, 2000

ENTRY GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

SARAH EVANS BARKER, Judge

Plaintiff, Pleas A. Johnson ("Johnson"), alleges that Defendant, Olin Corporation ("Olin"), wrongfully terminated him and that Defendants, The United Steel Workers of America ("International Union") and The United Steel Workers of America, Local 1999-14 ("Local Union") (collectively "Union Defendants"), participated and acquiesced in Olin's wrongful activity. Count I contends that Olin's termination of Johnson and the wrongful actions of the Union Defendants occurred while Johnson was on leave from work, in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et. seq.; Count II asserts that the same conduct was based on Johnson's age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; Count III maintains that Olin and the Union defendants harassed and terminated Johnson in retaliation for Johnson's pursuit of statutorily protected activities, in violation of the ADEA; Count IV alleges that the defendants' actions were in retaliation for his pursuit of worker's compensation benefits and constitute wrongful discharge under Indiana law; Count V asserts that the defendants' actions constitute breach of contract under Indiana law; Count VI contends that the Union defendants' actions violated their duty of fair representation, in violation of the Labor Management Relations Act, 29 U.S.C. § 141 et seq.; finally, Count VII alleges that the defendants' actions deprived Johnson of his pension, in violation of the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq.¹ The defendants have filed two motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56, one by Olin and one by the Union Defendants. For the reasons discussed below, we GRANT both motions in their entirety.

1 Johnson concedes that the Defendants are entitled to summary judgment with respect to his ERISA claims. See Plaintiff, Pleas A. Johnson's (Amended) Resp. to Def. Union's Mot. for Summ. J. at 9. Therefore, summary judgment is GRANTED in favor of Olin and the Union Defendants on Count VII.

Background

Bridgeport Brass Corporation is a manufacturer conducting business in Indianapolis under the assumed name of Olin Brass Indianapolis ("Olin").See Def. Olin's Br. in Supp. of its Mot. for Summ. J. ("Olin's Br."), Statement of Material Facts not in Dispute ("Olin's Facts") ¶¶ 1-2. Johnson, born January 3, 1934, was hired by Olin as a box maker in 1951 and paid as an hourly employee for the next 46 years, until April 24, 1998; other than a brief period of time in 1989 when Johnson was classified as a "fork truck operator," he worked as a box maker during his entire tenure at Olin. See Olin's Facts ¶¶ 3-4, 10-11; Memorandum of Law in Supp. of Union Defs.' Mot. for Summ. J. ("Unions' Memo."), Statement of Material Facts ("Unions' Facts") ¶ 2.² Johnson's duties as a box maker included "`cutting lumber, nailing skids, cutting them to size, nailing them up, stacking them, and hauling the finished boxes out.'" Olin's Facts ¶ 9 (quoting Johnson Dep. at 15).

2 There is significant overlap and no conflict between Olin's undisputed material facts and the Union Defendants' undisputed material facts and we cite to them interchangeably.

The United Steelworkers of America ("International Union") is the exclusive bargaining representative of certain hourly-paid employees of Olin, including Johnson, and United Steelworkers of America Local Union 1999-14 ("Local Union") assisted the International Union in representing those employees. See Unions' Facts ¶ 3. From 1969 until 1984, Johnson was a union steward for the Local Union. See Olin's Facts ¶ 5.

Olin and the Union Defendants negotiated a Collective Bargaining Agreement ("CBA") which governed the terms and conditions of Johnson's employment with Olin and was in force during all times relevant to this action. See Olin's Facts ¶¶ 4, 6. Among the management rights reserved to Olin under the CBA are "`the right to hire, transfer, promote, demote, assign, retain, suspend or discharge its employees for just cause . . .; to relieve employees of lack of work, or for other production requirements; to make or amend such reasonable or necessary rules.'" Olin's Facts ¶ 7 (quoting Article Ten of the CBA). Article 16, Section One of the CBA further provides that Olin may discharge an employee for "just cause." Unions' Facts ¶ 4. The CBA also contains a grievance procedure through which all complaints and grievances are to be processed. See Olin's Facts ¶ 8.

Examples of conduct defined as "just cause" for termination are found in the Rules and Regulations for Safety and General Conduct at the Indianapolis plant ("Conduct Rules") reissued by Olin in June, 1994 and again in March, 1997. See Affidavit of Terry Sitze, Olin's Manager of Administrative Services, Ex. 2 (June, 1994 Conduct Rules), Ex. 3 (March, 1997 Conduct Rules). The 1994 Conduct Rules included a section of offenses titled "Group III" about which "[v]iolation . . . is totally unacceptable employee conduct and will result in discharge." One of the Group III offenses was "Making False Claims or misrepresentation in an attempt to obtain sickness of [sic] accident insurance benefits or Workmen's Compensation." The 1997 Conduct Rules also included a section of offenses that would subject an employee to immediate termination or discharge for "[f]alsifying any record or giving false information or making false claims;. . . ." See also Unions' Facts ¶ 4 (stating that "Conduct Rule 3-2 provides that falsification of claims for benefits from the Employer is grounds for discharge.").

There is no dispute that Johnson filed a number of grievances in the months prior to the conclusion of his employment with Olin in which grievances Johnson described his supervisor's conduct as "harassment." First, on February 12, 1998, Johnson filed a grievance with the Local Union in which he complained that his foreman, George Anderson (born March 2, 1938), harassed him that day by issuing a verbal warning to him for "`not taking care while walking on a wet floor;'" although denying that the warning constituted harassment, Olin agreed to remove the warning from Johnson's file. See Olin's Facts ¶¶ 15-16. Next, on February 19, 1998, Johnson filed a grievance complaining that Anderson should have asked another employee to perform a task Anderson had required Johnson to do; again, while denying that Anderson's request was harassment, Olin settled the grievance with the Local Union. See id. ¶ 17. On March 26, 1998, Johnson filed a grievance seeking overtime pay for four hours of work performed on March 8 and March 15, 1998; Olin settled this grievance by paying Johnson one hour of overtime but denied that it had violated the CBA. See id. ¶ 18.

Finally, Johnson complained about several actions which took place on April 7, 1998, actions that Johnson believed constituted harassment. First, Anderson and Ed Holleran (the Production Control Supervisor, born May 23, 1937) issued a verbal warning regarding Johnson's productivity wherein, according to Johnson, Holleran said, "`[you are] an old man and you're wore [sic] out. And it's time you give some serious consideration about getting out of the box shop.'" Id. ¶ 21 (quoting Johnson Dep. at 31). Olin denied that Holleran had harassed Johnson, which denial the Local Union accepted. See id. On that same day, Anderson limited the number and length of times that Johnson could use the bathroom during a twelve-hour shift because he believed that Johnson was making too many trips to the bathroom. See id. ¶ 22. Olin admits that Anderson said that "if [Johnson's] age or health were causing a problem that required so many bathroom trips, he should get medical attention." Id. Olin settled this grievance with the Local Union after removing the time limitations that Anderson had placed on Johnson's restroom use. See id.

The next day, April 8, 1998, Johnson reported to his Group Leader that he had injured his shoulder pulling lumber off a wagon and loading it onto a conveyor belt. On April 9, 1998, Johnson reported the injury to Anderson, who sent Johnson to Olin's Safety Office. See id. ¶ 23. Johnson reported back to Anderson that he had been given a twenty-pound lifting restriction and directed to return to work; Olin sent him home on a temporary disability leave of absence after determining that it had no work which complied with that restriction. See id. ¶¶ 24-25; Unions' Facts ¶ 5. Before leaving the facility, Johnson signed Olin's Injury Policy, a portion of which stated that "[a]n employee who knowingly submits a false work-related injury claim will not receive benefits and will be disciplined." Olin's Facts ¶ 26.

At this point, we face the first dispute between the parties over the factual record before us. Olin contends that its company physician, Dr. David Katz ("Dr. Katz"), also examined Johnson on April 13, 1998, after Johnson was placed on a temporary disability leave of absence who concluded that, based on his physical examination and Johnson's description of how his shoulder felt, Johnson had a sprained muscle in his shoulder and instruction him not to lift any items over his head.See Olin's Facts ¶ 27. Olin further contends that Dr. Katz placed Johnson on a ten-pound lifting restriction, which contention Johnson disputes. Compare id. with Plaintiff Pleas A. Johnson's Response to Defendant's Statement of Material Facts ("Pl.'s Resp. to Olin's Facts") ¶ 27.

Both parties cite to Johnson deposition (pages 99 and 100) to support their respective positions. However, the visit to Dr. Katz which Johnson describes in that part of his deposition appears to be Johnson's visit on the day that he was initially placed on the temporary disability leave of absence. See Johnson Dep. at 99-100. Johnson later testified in his deposition that he did not remember visiting Dr. Katz at any time between the day he saw Dr. Katz on April 8, 1998 (the day he was placed on disability leave) and the last day of his employment with Olin. See Johnson Dep. at 103. Olin further cites as support an affidavit signed by Dr. Katz wherein he describes a single visit with Johnson on April 13, 1998, in which he first examined and diagnosed Johnson and placed him on a ten-pound lifting restriction. See Katz Aff. ¶¶ 3-4. Although Olin asserts that Johnson was examined twice, once on the day he was placed on disability leave and told he had a twenty-pound weight restriction and a second time when Dr. Katz told Johnson of a ten-pound weight restriction, the undisputed facts yield the following conclusion: that Johnson was examined a single time by Dr. Katz, on the day Johnson reported his injury (sometime between April 8, 1998, and April 13, 1998), at which time Dr. Katz told Johnson not to lift any items over his head and placed Johnson on a ten-pound weight restriction; Johnson's testimony nonetheless was that he was told of a twenty-pound weight restriction and not notified of a ten-pound restriction.³

3 The Unions' Facts, citing only to Johnson's amended complaint, state that Johnson visited a physician who placed him on a twenty-pound lifting restriction and that Olin then placed him on a temporary disability leave of absence. See Unions' Facts ¶ 5.

The remainder of the testimony about Johnson's visit to Dr. Katz is undisputed. Dr. Katz prescribed Tylenol for the pain, Olin's medical personnel arranged for Johnson to attend physical therapy and Johnson was to report back to Dr. Katz in two to three weeks. See Olin's Facts ¶ 28.

During Johnson's leave of absence, he went to his son's auto body shop on almost a daily basis. See Olin's Facts ¶ 31. Johnson testified at his deposition that, while at the shop, he engaged in physical activity, including sweeping leaves and putting them in a trash bin, driving a tractor, "haul[ing] a cutting torch one day behind the shop" and cutting metal with it, sweeping the floor and picking up paper. Johnson Dep. at 107 (emphasis added); Olin's Facts ¶ 32. Johnson disputes that he "hauled a cutting torch," citing his affidavit to the effect that he "us[ed] the cutting torch, which I never lifted. . . ." Johnson Aff. ¶ 33. We infer from this inconsistency that Johnson is either attempting to contradict his earlier deposition testimony through his own affidavit or he is trying to clarify that "hauling" does not require "lifting." In either event, we regard the dispute as immaterial.

In an effort to minimize fraud, Olin sometimes authorizes an independent investigation company to conduct covert videotape surveillance on an employee who is off work due to a reported work-related injury. See Olin's Facts ¶ 29. Olin and the case manager for Olin's worker's compensation carrier, based on the circumstances surrounding a reported work-related injury, will determine whether such surveillance is required. One indicator that Olin views as suspicious, thus warranting videotape surveillance, is a close proximity in time between an employee's receipt of discipline and a report of work-related injury by that employee. See id. Olin has used this type of videotape evidence previously to justify termination of employees for violating the Conduct Rule about falsifying claims for benefits from the company. See Unions' Facts ¶ 9.

Between April 9 and April 19, 1998, Olin's Safety Manager, Scott Stoner ("Stoner"), learned of the timing between Johnson's reported injury and the instances of company discipline described above. Stoner reviewed the timing and nature of Johnson's claimed injury, as well as "other suspicious circumstances on a prior worker's compensation claim involving Johnson" with the worker's compensation carrier's case manager, and concluded that Johnson's case warranted the use of videotape surveillance. See Olin's Facts ¶ 30. Thereafter, Johnson was videotaped performing various physical activities on April 21 and 22, 1998. See id. ¶ 33; Unions' Facts ¶ 5-6.

On April 23, 1998, Olin's Labor Relations Supervisor, David Kern ("Kern"), received copies of the surveillance tapes, which he viewed with Stoner and Dr. Katz. See Olin's Facts ¶ 34. The videotape showed Johnson performing a variety of activities including welding involving the use of his left shoulder, driving a tractor, sweeping, lifting a shovel with his left arm to deposit material into a trash barrel, and lifting wood overhead with his left arm. See Olin's Facts ¶ 35. Based on his observations of the activities depicted in the videotape, Dr. Katz concluded that Johnson's activities were in direct violation of his restrictions, Johnson's activities were inconsistent with the information Johnson had provided to Dr. Katz, the left arm appeared to be functioning normally, and Johnson had fabricated his injury report. See id. ¶¶ 36-37. Dr. Katz then communicated these conclusions to Kern.See id. ¶ 37.

Olin alleges that, based on Dr. Katz's opinions, Kern concluded that Johnson had submitted a false injury claim in violation of Olin's policy, which warranted immediate discharge. See id. ¶ 38. Olin also alleges that "[d]ue to Johnson's longevity with the Company, Kern also decided to give Johnson the option to resign/retire or be discharged. Kern also consulted with Terry Sitze, Manager of Administrative Services, who agreed with Kern's decision concerning Johnson." Olin's Facts ¶ 38. Kern further testified that his decision regarding Johnson's employment was "based solely on Kern's conclusion that Johnson had submitted a false work-related injury claim. . . . Kern did not consider Johnson's age, any pension benefits to which he might be entitled at the time or in the future, any grievances or complaints Johnson previously made, or any other factors." Id. ¶ 39. Johnson disputes this last assertion, claiming that the "decision making process was so tainted by age discrimination that Kern cannot be decided to [sic] have rendered a decision independent of these considerations. Olin Brass constantly displayed an intent to force Johnson out of the company based on his age." Pl.'s Resp. to Olin's Facts ¶ 39.

Johnson does not dispute the activities observed on the videotape, Dr. Katz's conclusions, or that Dr. Katz communicated these conclusions to Kern. Instead, Johnson disputes the correctness of Dr. Katz's conclusions that the activities were inconsistent with Johnson's restrictions and that Johnson fabricated his injury or claim, citing his own affidavit as well as that of Charles Rice, a co-worker in Olin's Box Shop Department. See Pl.'s Resp. to Olin's Facts ¶ 36-37. Johnson's affidavit states that:

Dr. Katz stated that I must continue to work the shoulder and that I must not leave it completely inactive because it would freeze up . . .[,] ordered me to attend physical therapy and referred me . . . for this physical therapy. When I attended physical therapy for my left shoulder injury, I had to perform a variety of exercises so that I could work my left shoulder. They told me I must also perform these exercises at home several times a day in order to work and exercise the shoulder.

Johnson Aff. ¶¶ 21, 27-28. Johnson also states that he reviewed the videotape and that "[n]one of the activities I performed on the video tape violated my restrictions." Johnson Aff. ¶ 31. Rice's affidavit relates the details of a document which he "saw on George Anderson's desk" which "indicated that Pleas Johnson should continue to use his shoulder or arm so that there would be no tightening of the tendons in his shoulder or arm . . . [and] indicated that Pleas Johnson could perform light duty." Rice Aff. ¶ 10. Setting aside for the moment the obvious hearsay problems in Rice's affidavit testimony, both Rice and Johnson testify that Johnson was to continue using his shoulder, that he should not leave it "completely inactive" to avoid tightening of the shoulder. Johnson cites no testimony from a qualified medical professional that identifies exactly what activities Johnson was restricted from performing, or that the activities observed on the videotape were ones that either Dr. Katz or the physical therapist instructed Johnson to continue performing. Nor does he provide any evidence that Dr. Katz's belief was not honestly held or was tainted in some way. At best, this testimony indicates Johnson's belief that none of the activities he performed while being videotaped violated his restrictions.

After Kern reached his decision regarding Johnson's employment, he contacted the Local Union Unit President, Steven Griffith ("Griffith"), to inform him of the allegations and Olin's decision. On April 24, 1998, Griffith viewed the videotape himself and Kern told him of the reasoning that led to Olin's decision. See Olin's Facts ¶ 40; Unions' Facts ¶ 8. Johnson and the Unions disagree over what additional information was conveyed at the meeting between Kern and Griffith.

The Unions contend, and Olin concurs, that Kern informed Griffith that the evidence warranted immediate discharge but that, due to Johnson's age and years of service to the company, Olin would allow him to voluntarily retire and receive his full pension benefits. Compare Unions' Facts ¶ 10 with Olin's Facts ¶ 40. Johnson disputes Union's Fact ¶ 10, stating that Kern informed Griffith that "a hearing would be held prior to Johnson's discharge. . . . They had set a time and contacted the Union about the hearing and prior to that hearing, Pleas Johnson had retired." Plaintiff Pleas A. Johnson's Resp. to Def.'s Statement of Mat. Facts (Pl.'s Resp. to Unions' Facts) ¶ 10 (internal citation omitted) (citing Sitze Dep. at 36). Sitze's deposition states that Olin had set a hearing, on or about April 24, 1998, at 9:00 am, in which Johnson would have had the opportunity to rebut the allegations of fabrication. See Sitze Dep. at 36-37. Sitze further testified that Griffith was informed of this hearing, but that prior to its being conducted, Johnson chose to retire. See id.

On that same day, April 24, 1998, Johnson returned to the plant to obtain a refill on Tylenol tablets, but when he arrived, Stoner, Olin's Safety Manager, informed Johnson that Olin management wanted to meet with him. See Olin's Facts ¶ 41. Johnson arrived at the Personnel Department, where Kern and Griffith were waiting, and Griffith and Johnson left to have a conversation about the videotape, Olin's decision, and Johnson's options. See Olin's Facts ¶ 42; Unions' Facts ¶ 11. Johnson and the Unions dispute what was said during that conversation.

The Unions cite an affidavit signed by Griffith in which he testifies that he informed Johnson of the videotape and its contents, and the fact that such videotape evidence had been used previously by Olin to justify the discharge of other employees. See Griffith Aff. ¶ 8. Griffith also testifies that he told Johnson of the option Olin was providing to voluntarily retire thus allowing Johnson to receive his full pension and not have any discipline appear on his employment record. See id. Griffith claims to have further told Johnson that he could choose how to proceed, but that it was Griffith's personal opinion, based on his experience with other cases where employees were discharged for filing false claims and where such videotape evidence was available, that Johnson's chances of mounting a successful challenge to a possible discharge were not good. See id.; Griffith Suppl. Aff. ¶ 5. Griffith also testified that he told Johnson that a discharge would not affect his entitlement to a full retirement pension, since Johnson's right to those benefits was protected by ERISA, and that Johnson understood those rights. See Griffith Suppl. Aff. ¶ 8.

According to Griffith, Olin, at the time of this conversation between himself and Johnson, had already prepared a retirement letter which Johnson could sign and which Griffith had in his possession. See Griffith Aff. ¶ 8. Johnson indicated that he understood his options, voluntarily signed the letter and went to Olin's office to have the retirement processed. See id. Olin's allegations support the Unions' version of the facts, and further indicate that Griffith and Johnson returned from their meeting and submitted a statement, signed by Johnson, which requested immediate retirement. See Olin's Facts ¶ 43.⁴

4 The Unions also cite portions of Johnson's deposition as supporting Griffith's version of the events. However, the Unions failed to provide us with these excerpts. The Unions submitted only the Griffith affidavits in support of their joint motion, although their motion for summary judgment also stated that it relied upon all evidence submitted by Olin in support if its motion for summary judgment. See Motion for Summary Judgment by Defendants United Steelworkers of America and United Steelworkers of America, Local 1999-14 at 1 ("In support of this motion [we] rely on the attached affidavit of Steven Griffith, [our] own supporting memoranda of law . . . and any affidavits, exhibits and arguments which it is anticipated are being submitted by the Defendant Employer Olin Corporation."). The Unions anticipated that Olin would submit portions of the Johnson deposition which Olin neglected to submit. Any reliance on those non-submitted excerpts is therefore unsupported.

Johnson characterizes the conversation between Griffith and himself somewhat differently. Johnson testified that Griffith came out of his meeting with Kern carrying a sheet of paper and the two of them went to a trailer to talk. See Johnson Dep. at 112-13.⁵ Johnson further testified that Griffith told him that the videotape showed Johnson sweeping and shoveling dirt, to which Johnson responded, "That's not right." See Johnson Dep. at 113. Johnson remembers Griffith saying that if Johnson chose not to retire, but rather to be discharged, the Unions were "not going to even try to represent [him]." Johnson Dep. at 114. Johnson claims to have then said, "Well, in that case I don't have no choice but to take my retirement. But I want you to know right now, I'm taking it under protest, because there's nothing doing, and this is just nothing doing but firing me." Johnson Dep. at 114. The only other testimony about the Griffith/Johnson conversation which any party provided to us on this motion is Johnson's statement in his affidavit repeating this characterization of the conversation. See Johnson Aff. ¶ 37.⁶

5 Like the Unions, Johnson also cites to evidence which he has not submitted (for example, Griffith Dep. at 17-18 — the only portion of the Griffith deposition submitted by any party is pages 27-28 which do not discuss the testimony for which the Griffith deposition is cited — and Johnson Dep. at 119. Page 113 of the Johnson deposition is cited above as it was submitted by the parties and appears to support Johnson's assertion.

6 Johnson also contests the timing of the preparation of the retirement papers he signed; however, the timing is immaterial.

Johnson does not recall Griffith informing him of his right to a hearing and asserts that other similarly situated younger employees and Union members were able to attend similar hearings and dispute Olin's allegations. See Pl.'s Resp. to Unions' Facts, Statement of Additional Material Facts ¶¶ 17-18. The Unions respond that grievances are automatically filed for those discharged by Olin, but that since Johnson retired and was not discharged, no grievance was filed. See Union Defs.' Reply to Pl. Johnson's Statement of Additional Material Facts and Mem. in Resp. to Pl.'s Reply to the Union Defendants' Mot. for Summ. J. ¶¶ 15-17.

Johnson also makes the unsupported assertion that Olin has treated younger employees more favorably than Johnson was treated when Olin has been presented with similar circumstances involving the allegation of fraudulent injury claims.⁷ Olin responds by citing testimony from Kern listing former employees whom Olin had terminated from their employment after allegations of filing false injury claims: James Hoopingarner, age 39, discharged after being videotaped; Angela Collins, age 33, resigned after being videotaped; Kathy Hoopingarner, age 39, resigned after being videotaped; Paula Gallen, age 39, discharged after being videotaped; Velvet Jones, age 32, discharged without videotape surveillance and later reinstated by an arbitrator after she filed a grievance challenging her discharge; Brad Killion, age 22, allowed to resign without videotape surveillance; and Jermaine Coleman, age 24, allowed to resign without videotape surveillance. See Kern Aff. ¶ 9; Kern Suppl. Aff. ¶ 3-6.

7 The only support provided by Johnson for this assertion is the affidavit of Velvet Jones wherein she testified about her discharge due to allegations of filing a false claim and reinstatement by an arbitrator after Jones filed a grievance challenging the discharge. See Affidavit of Velvet Jones ¶ 8. This "assertion" is not factual but is instead a legal conclusion drawn from the relevant facts.

Johnson claims that he was subjected to protracted age discrimination during his final years with Olin. See Pl.'s Resp. to Olin's Facts, Statement of Additional Material Facts ¶¶ 17-18. Johnson testified in his affidavit that Anderson frequently told Johnson that he was "too damn old to work here" and that he needed to retire; that on more than one occasion Holleran asked Johnson when he would retire and told him that he ought to consider retiring; that Holleran told Johnson that he "could no longer maintain the pace of production, that [he] was an old man, [he] was wore [sic] out, and [he] ought to seriously consider getting out of here." Johnson Aff. ¶¶ 6-17. Johnson presents affidavits from co-workers, Charles Rice, Darrell Everroad, and Velvet Jones corroborating Johnson's testimony. See Rice Aff. ¶¶ 5-8, 11; Everroad Aff. ¶¶ 5-6; Jones Aff. ¶¶ 6-7.

That Johnson did not contest his retirement with Olin is not in dispute, nor did he file a grievance protesting the circumstances of that retirement, or ask for the Unions' assistance in contesting the circumstances surrounding the conclusion of Johnson's employment with Olin. See Olin's Facts ¶ 44; Unions' Facts ¶ 13. However, Johnson explains these failures as a response to Griffith's alleged comment that the Union would not support or represent him in challenging his retirement/discharge (although Griffith states that it was Local Union policy to automatically file a grievance when an employee was discharged by Olin). See Johnson Aff. ¶ 37; Griffith Suppl. Aff. ¶ 8.⁸

8 The Unions also contend that Johnson never named the Union (as opposed to the Local Union) in any charge of discrimination filed by Johnson with the Equal Employment Opportunity Commission. See Unions' Facts ¶ 14. Johnson responds that he did file a charge of discrimination with the EEOC against the Union, by and through the Local Union. See Compl., Ex. A.

Discussion Summary Judgment Standards

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).

With a motion for summary judgment, the burden rests on the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" to cite evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in [his] favor on a material question, then the court must enter summary judgment against [him]." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986)); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52).

In considering a motion for summary judgment, a court must draw all reasonable inferences in a light most favorable to the non-movant. See Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). Thus, if genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate.See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). However, if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his case, summary judgment is not only appropriate, but also required. See Celotex, 477 U.S. at 322; Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989).

Johnson's Claims

A concise explication of our decision in this case is made difficult by a complaint that includes six substantive claims arising under three separate federal statutes (the ADEA, FMLA, and LMRA) as well as two state law causes of action (state law retaliation and breach of contract), and names three defendants. Our analysis is made even more difficult because the Defendants' actions, alleged to have given rise to Plaintiff's complaint, are not all clearly described nor is the connection among each of the counts and the various defendants; indeed, some of the counts are interrelated and overlapping.

Our reading of the (amended) complaint, the parties' submissions on the motion for summary judgment and the evidence submitted in support of those briefs and memoranda indicates that Johnson is of the view that the various defendants violated his rights in the following ways:⁹ prior to his "discharge," his supervisors in the Box Shop engaged in the following actions because of his age and in violation of the ADEA — giving him verbal warnings for "not taking care while . . . walking on a wet floor" and for unsatisfactory production levels, limiting the number and length of bathroom breaks while on shift, failing to promote him, failing to give him overtime pay. In addition, Johnson alleges that his discharge was based on his age, in violation of the ADEA; in retaliation for his seeking his rights protected by the ADEA; in retaliation for his having sought worker's compensation benefits, in violation of Indiana law; in violation of his rights protected by the FMLA; and a breach of contract, in violation of Indiana law. Johnson also alleges that the Union Defendants breached a duty of fair representation, in violation of the LMRA.

9 We assume that Johnson is bringing each of the following claims against all of the defendants, unless otherwise noted.

Age Discrimination in Employment Act Claims Disparate Treatment

Johnson's primary claim is that Olin and the Unions unlawfully discriminated against him because of his age, as asserted in Count II, so we begin our analysis there. The ADEA makes it unlawful to "discharge any individual or otherwise discriminate against any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. ___, 120 S.Ct. 2097, 2105 (2000) Michas v. Health Cost Controls, 209 F.3d 687, 692 (7th Cir. 2000). To succeed on a discrimination claim under the ADEA, a plaintiff must show that an adverse employment action would not have occurred "but for" his employer's motive to discriminate on the basis of his age. See Fuka v. Thomson Consumer Elecs., 82 F.3d 1397, 1403 (7th Cir. 1996); see also Michas, 209 F.3d at 692 (describing plaintiff's burden as demonstrating that age was a "determining factor" in an employer's discharge decision).

A plaintiff pursuing an ADEA claim has two means by which to make a prima facie case of such discrimination: by presenting direct evidence that age was a determining factor in the employer's decision or by presenting indirect evidence via the burden-shifting method of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to "demonstrate that the employment decision `was motivated by the employer's discriminatory animus.'" Michas, 209 F.3d at 692 (quoting Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000)); Fuka, 82 F.3d at 1402; see also;Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d 438, 442 (7th Cir. 1998) (stating that a plaintiff can establish a prima facie case of discrimination either by presenting direct evidence of a discriminatory motive or by employing the burden-shifting method of McDonnell Douglas). No matter which proof structure is utilized, the plaintiff must tie the discrimination to some form of an "adverse employment action" to make a case of discrimination. See, e.g., Olefsky v. William Grant Sons, Inc., No. 98-C-0076, 2000 WL 263974, at *4 (N.D.Ill. Mar. 6, 2000) (noting that plaintiff utilizing direct evidence paradigm must provide nexus between alleged "ageist" remarks and an adverse employment action).

Before considering the proof-paradigm appropriate to Johnson's evidence, we must determine which of the actions alleged are truly adverse employment actions. Minor changes in work conditions are not adverse employment actions under the ADEA. See Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 273 (7th Cir. 1996) (holding that lateral transfer involving no reduction in pay and no more than a minor change in work conditions was not adverse employment action). "Not everything that makes an employee unhappy is an actionable adverse employment action. Otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). Instead, the employer's alleged conduct must have some "tangible job consequence." Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998).

The Seventh Circuit has held that unfair or undeserved reprimands do not qualify as adverse employment actions if they carry no job consequences. See Sweeney, 149 F.3d at 556. Likewise, negative performance evaluations, standing alone, do not constitute an adverse employment action, although they may be considered under certain circumstances as evidence of discrimination. See Smart, 89 F.3d at 442;see also Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997) (holding verbal threat of being fired, reprimand for not being at assigned work station, a missed pay increase, and being placed on "final warning" do not constitute adverse employment actions). Against this backdrop, we turn to the actions alleged in the case at bar.

First, Johnson alleges that he was discriminated against when he received unwarranted verbal warnings for "not taking care while . . . walking on a wet floor" and for unsatisfactory production levels. Johnson points to no job-related consequences resulting from these verbal warnings, alleging rather that they form the basis of an independent cause of action. Not only do Sweeny and Smart indicate that this conduct cannot form the basis of an independent cause of action, but Johnson also has failed to contradict Olin's contention that these warnings did not alter the terms or conditions of his employment.

Johnson also contends that he was discriminated against when his supervisor regulated the length and time of his bathroom breaks. As with the verbal warnings, Johnson does not address Olin's arguments that no material job-related effect flowed from the bathroom restrictions and thus that the restrictions were not an adverse employment action. Absent some evidence to the contrary, we find that the verbal warnings Johnson received and Olin's restrictions in time and length of Johnson's use of the bathroom while on his shift were not adverse employment actions capable of independently sustaining an ADEA cause of action.

Johnson further alleges that he was denied overtime because of his age. While a denial of overtime pay may constitute an adverse employment action, the evidence establishes that any dispute over such denial has already been settled in a manner that was satisfactory to Olin, the Local Union, and Johnson. It is undisputed that Johnson filed a grievance complaining about the alleged overtime deficiencies and that the Local Union and Olin reached an agreement to settle this grievance by paying Johnson one hour of overtime pay. Johnson did not contest this settlement; having accepted it, he cannot now bring suit based upon the same conduct. See Campbell v. Morton Grove Pharm., Inc., No. 98-C-0037, 1998 WL 786452, at *4 (N.D.Ill. Nov. 5, 1998). Thus, the alleged denial of overtime benefits does not constitute an adverse employment action.

Johnson also alleges that during his employment with Olin, he was denied promotions because of his age. See Amended Compl. ¶ 16. Although there is nothing additional presented either in the complaint or the statements of material fact as to the circumstances surrounding these alleged failures to promote, Johnson testified that the two instances to which he is referring occurred six and eight-to-ten years ago. See Johnson Dep. at 78-79.

Timely filing of a charge of age discrimination with the EEOC is a prerequisite to maintaining an action under the ADEA. See 29 U.S.C. § 626(d); Hamilton v. Komatsu Dresser Indus., 964 F.2d 600, 603 (7th Cir. 1992). In Indiana, a plaintiff must file a charge of discrimination with the EEOC within 180 days of the challenged employment action. See 29 U.S.C. § 626(d)(1); Daugherity v. Traylor Bros., Inc., 970 F.2d 348, 350 n. 2 (7th Cir. 1992) (citations omitted); Vaught v. R.R. Donnelley Sons Co., 745 F.2d 407, 410 n. 2 (7th Cir. 1984);Young v. Lincoln Nat'l Corp., 937 F. Supp. 1326, 1334 (N.D.Ind. 1996). Plainly, claims of discrimination that occurred over six years ago are have not been timely filed, no matter how generously we construe the limitations period, and Johnson may not now bring charges based upon this conduct.¹⁰

10 We further note that Johnson has not addressed this contention in his summary judgment briefs, neither attempting to describe the circumstances surrounding the alleged failure to promote nor indicating what method of proof he is utilizing to pursue this claim. Although none of the parties' statements of material fact included any of the circumstances surrounding these actions, Olin's discussion of the claim in its brief clearly indicated to Johnson that the claim was a part of the motion for summary judgment. Thus, even if Johnson's claim had been timely filed with the EEOC, he would have waived it with respect to this motion.

Having ruled out the pre-discharge conduct as independent bases for any cause of action, we are left with the allegation that Olin acted in a discriminatory manner when it discharged Johnson. This contention, if proven, embodies tangible job consequences that may be actionable under the ADEA, so we must determine whether Johnson's allegations that relate thereto establish age-based discrimination.

Direct or Indirect Evidence

Johnson contends that the evidence in this case is sufficient to utilize the "direct evidence" proof structure discussed above, while Olin counters that the case may only proceed under the burden-shifting method identified in McDonnell Douglas. Direct evidence is "`evidence which if believed by the trier of fact, will prove the particular fact in question without reliance on inference or presumption.'" Cowan, 123 F.3d at 443 (quoting Plair v. E.J. Brach Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997)). Evidence qualifies as "direct" evidence when it "in and of itself suggests that the person or persons with the power to hire, fire, promote, and demote the plaintiff were animated by an illegal employment criterion." Venters v. City of Delphi, 123 F.3d 956, 972 (7th Cir. 1997). For a plaintiff to successfully establish direct evidence of discriminatory intent, it "essentially requires an admission by the decisionmaker that his actions were based on the prohibited animus."Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000). Such direct evidence of discriminatory intent is "rarely found." Id.

Direct evidence "`must not only speak directly to the issue of discriminatory intent, it must also relate to the specific employment decision in question.'" Cowan, 123 F.3d at 443 (quoting Randle v. LaSalle Telecomm., Inc., 876 F.2d 563, 569 (7th Cir. 1989)). Thus, "seemingly stray remarks" can only qualify as direct evidence if they were "`related to the employment decision in question.'" Fuka, 82 F.3d at 1403 (quotingMcCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686-87 (7th Cir. 1991)). If such a connection is not shown, the remarks alone are insufficient to give rise to an inference of discrimination "even when uttered by the ultimate decisionmaker." Fuka, 82 F.3d at 1403.

Johnson alleges that he has direct evidence of discriminatory intent surrounding the decision to terminate him by Olin. Johnson cites comments made by his supervisors, Anderson and Holleran, that allegedly demonstrate an age-based animus. For example, Johnson testified that his supervisors would call him "Old Man" and express a desire that Johnson retire so that younger employees could be brought into the Box Shop.See Pl., Pleas A. Johnson's (Amended) Resp. to Def. Olin's Mot. for Summ. J. ("Johnson's Amended Resp. to Olin") at 2-3. Johnson further alleges that he was subjected to age-related harassment and discipline, including the verbal warnings, limitations on his bathroom use, failure to promote him and failure to pay him overtime as described above. Some of these actions, specifically the verbal warnings and bathroom restrictions, occurred in October 4, 1995, February 22, 1998, and March 9, 1998. See id. at 3. Johnson also believes that Anderson and Holleran created unrealistic production goals for the Box Shop and placed the blame exclusively on Johnson when they were not met. See id. at 8. The comments attributed to Anderson and Holleran as well as the discipline and various actions taken with respect to Johnson are Johnson's "direct evidence" of discriminatory intent that he says pervaded Olin's decision to terminate him.

Perhaps recognizing that none of these actions can be directly attributed to the one person who decided to terminate Johnson — Kern — he attempts to link the allegedly discriminatory animus with Kern. Johnson first attempts to link this "animus" to Kern through Scott Stoner, the Olin official who authorized the use of the videotape surveillance of Johnson. It is undisputed that Stoner initiated the surveillance due to a suspicion that was based on the proximity in time between the (allegedly discriminatory) discipline Johnson received and his injury. It is further undisputed that it was Kern's review of this videotape that ultimately led to his conclusion to terminate Johnson. However, while Johnson alleges that Stoner must have consulted with Anderson and Holleran prior to initiating the videotape investigation, Olin denies this charge, and Johnson is unable to support this allegation. Compare Johnson's Amended Resp. to Olin at 10-11 with Def. Olin's Suppl. Reply Br. in Supp. of its Mot. for Summ. J. ("Olin's Suppl. Reply") at 10.

Unable to link the discriminatory animus to Kern through Stoner, Johnson attempts to link the discriminatory intent directly to Kern through Holleran. Although Holleran had no role in the ultimate decision to terminate Johnson, Holleran met with Kern at some time prior to the day Johnson was injured. See Holleran Dep. at 31. Holleran testified that during this meeting he told Kern that Holleran felt the work in the Box Shop was taking its toll on Johnson. See id. at 32. Holleran also conveyed his concern about Johnson's ability to remain free from injury, telling Kern that he hoped Johnson would bid on another position outside of the Box Shop and that if Johnson did not take such action, Holleran would "very much like to take steps to disqualify him before he injured himself further." Id. at 31, 32.

Holleran also apparently documented a meeting with Johnson in the form of a memorandum, dated April 8, 1998 (See Holleran Dep., Ex. 1) in which he described a verbal warning given to Johnson the day before for inadequate work production and Johnson's contention that the warning was "just another case of discrimination and harassment against him." Id. Holleran wrote that he told Johnson

that he was sixty-five years old, the most senior man, not only in the plant, but in the Box Shop. That over the years he had made his contribution but now I felt that the hard physical work involved in the Box Shop was taking a physical tow [sic] on his body and that he could no longer maintain the pace. I added that the two of us are almost the same age and that their [sic] are things that I can't do as well as I use [sic] to and I accept my limitations and make decisions and adjustments accordingly. . . .

[T]he work in the Box Shop is physically demanding and it's my judgment that your body is tired and you are not able to maintain your share of the work. . . . You [sic] body is tired, you are no longer able to carrying [sic] the load you once did and because of this fact the crew must pick-up the slack and this I cannot allow. . . .

[Johnson] asked me if I was asking him to quit. I answered that by no stretch of the imagination was I asking him to quit, I was just advising him that He needed to think about looking for a job outside the Box Shop.

Holleran Dep., Ex. 1. Holleran testified that he showed the memorandum to Kern, but he did not recall whether he gave a copy of it to Kern.See Holleran Dep. at 47.

Olin contends that even if the age-related statements were communicated by Holleran to Kern, there is no evidence that Kern considered these statements when he decided to terminate Johnson. We agree with Olin on this point. Even if we impute to Holleran an age-based animus based on what he wrote in this memorandum, Johnson has not produced evidence that Kern had any such animus or that Kern was provided a copy of Holleran's memorandum or that he considered it when he decided to discharge Johnson two weeks later. All Johnson provides is speculation and innuendo. This evidence is simply not the "rarely available" smoking-gun evidence necessary to make out a direct evidence case of discrimination. At best, it is the classic "stray remark" evidence not attributable to the decision maker and not related to the employment action at issue. It therefore cannot constitute direct evidence of a discriminatory animus.Cf. Venters, 123 F.3d at 973 (providing as an example of direct evidence "I won't hire you because you're a woman" and "I'm firing you because you're not a Christian.").

In the absence of direct evidence, Johnson must rely on the more common indirect method of proof. To establish a prima facie case of age discrimination, Johnson must show that: (1) he was a member of a protected class; (2) he met Olin's legitimate business expectations; (3) he suffered an adverse employment action; and (4) that similarly situated employees outside the protected class were treated more favorably. See Radue, 219 F.3d at 617; Pitasi v. Gartner Group, Inc., 184 F.3d 709, 716 (7th Cir. 1999).

If plaintiff fails to state a prima facie case, we "need not proceed any further in the McDonnell Douglas analysis." Fisher v. Wayne Dalton Corp., 139 F.3d 1137, 1142 (7th Cir. 1998) (citing Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1178 (7th Cir. 1997); Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1147 (7th Cir. 1997)). Absent proof of a prima facie case, plaintiff has failed to raise an inference of discriminatory intent and summary judgment must be entered in favor of the defendant.See Fisher, 139 F.3d at 1142.

If a prima facie case is established, we proceed to the next stage in the analysis. The defendant may refute the inference that it acted with discriminatory intent by providing a legitimate, non-discriminatory reason for its actions. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981); Pitasi, 184 F.3d at 716; Mills, 171 F.3d at 454. Then, the burden shifts back to the plaintiff to provide enough evidence to show a dispute exists about whether the defendant's given justification is a pretext for discrimination. See Pitasi, 184 F.3d at 716; Mills, 171 F.3d at 454. A plaintiff may prove the defendant's proffered justifications are pretextual either directly, by showing that a discriminatory basis more likely than not motivated the employer, or indirectly be demonstrating that the reasons are unworthy of belief.See Jackson, 176 F.3d at 983. The latter may be established by showing the explanation: 1) has no basis in fact; 2) did not actually motivate the action; or 3) was insufficient to motivate the action. See id.;Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996); Mechnig v. Sears, Roebuck Co., 864 F.2d 1359, 1364-65 (7th Cir. 1988) (citations omitted).

"The ultimate burden remains with the plaintiff-employee to persuade the trier of fact that the defendant-employer intentionally discriminated against him. . . ." Pitasi, 184 F.3d at 716 (internal quotations omitted). However, a showing by the plaintiff that his employer's reasons for firing him were lies or completely insupportable may sustain the inference that the employer's real motive was improper and may be sufficient to satisfy the plaintiff's burden to prove that discrimination was the true reason for the decision. See Reeves, 530 U.S. at ___, 120 S.Ct. at 2108; Jackson, 176 F.3d at 984 (citations omitted). With these general standards in mind, we turn to Johnson's claim.

Olin contends that Johnson has failed to state a prima facie case of discrimination, more specifically, that Johnson has failed to show that substantially younger, similarly situated employees were treated more favorably. See Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 892 (7th Cir. 1997). Johnson is contesting Olin's decision to terminate him based upon its belief that Johnson had falsified an injury claim. Thus, the relevant comparison group is other employees of whom Olin has had evidence of such a falsified claim.

Olin cites evidence that each time it has been confronted by a suspicion of a falsified injury claim, it has taken steps to discharge the suspected employee. See Olin's Br. at 18-19. Olin identifies three employees, who were ages 32, 39 and 39, respectively, whom Olin discharged based upon videotape surveillance, and four employees who opted to resign after being confronted with Olin's suspicions, whose ages ranged from 22 to 39. See id. Johnson does not contest this evidence and provides no instances where Olin's termination policy was applied in a manner different from his. The only comparison provided by Johnson is to Velvet Jones, a 32 year-old employee, who was discharged by Olin and, after a Local Union-initiated grievance, was reinstated by an arbitrator. See Johnson's Amended Resp. to Olin at 13; Jones Aff. ¶ 8. Johnson argues that this "clearly establishes that a substantially younger employee who had allegedly violated the injury policy by submitting false information was permitted to continue her employment and the Union fought for her to be reinstated." Johnson's Amended Resp. to Olin at 13.

Johnson's comparison might be an accurate one if the allegation were that Olin refused to reinstate Johnson after a grievance had been filed and an arbitrator had ordered him to be reinstated. However, it is undisputed that neither Johnson nor the Local Union ever sought his reinstatement; in fact, Johnson concedes that he voluntarily resigned under protest.

This comparison between Johnson and Jones is inapposite; viewed correctly, Olin treated the two employees exactly the same: when confronted by allegations of a false injury claim, it considered terminating them. The fourth prong of the prima facie case contemplates different treatment by the entity being charged with discrimination, in this case Olin. Johnson has presented no evidence that Olin was in league with the Local Union in not pursuing a grievance or had any influence over the Local Union's decision not to file a grievance. Johnson may not assert that the Local Union treated him differently and use this allegation as a basis for liability on the part of Olin. Johnson therefore has failed to make out a prima facie case against Olin for his termination.

If we were to continue this analysis to the pretext stage of theMcDonnell Douglas analysis, Johnson still fails to present an issue of material fact that could defeat summary judgment on his ADEA claim. Olin has presented a legitimate, non-discriminatory reason for its decision, to wit, that based on the videotape and Dr. Katz's statements that Johnson was acting in a way that was inconsistent with a shoulder injury, Kern believed Johnson had falsified his injury claim. Johnson attempts to establish pretext in two ways, by citing the same evidence discussed above in our direct evidence discussion and by showing that Kern's belief was somehow mistaken.

The opportunity to argue pretext does not allow the plaintiff simply to second-guess the employer's decision. We do not sit as a super personnel department that reexamines an entity's business decisions. See Bahl v. Royal Indem. Co., 115 F.3d 1283, 1292 (7th Cir. 1997); Mechnig, 864 F.2d at 1365. The question we must answer at the pretext stage of analysis is not "whether the employer's reasons for a decision are `right but whether the employer's description of its reasons is honest." Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997) (quotingGustovich v. AT T Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992)); see also Bahl, 115 F.3d at 1291 ("[W]hen we consider whether an employer's justification for dismissing its employee is pretextual, the inquiry is not whether the reason for the firing was a correct business judgment but whether the decision makers honestly acted on that reason.").

Both parties agree that Johnson's burden at this juncture is to show that Olin's stated reason is "a lie, specifically, a phony reason for some reason." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). Plaintiff's counsel appears to be under the mistaken view that such a burden may be satisfied by contesting the factual basis for the employer's belief without addressing the honesty of that belief. As noted above, we are not a super personnel department and we will not overturn an honestly made, though arguably mistaken, decision. See Kariotis, 131 F.3d at 677; Bahl, 115 F.3d at 1291.

Thus, while Johnson disputes whether the videotape actually showed him lifting more weight than Dr. Katz's restrictions imposed, he does not dispute that Dr. Katz informed Kern of his belief that Johnson's activities violated those restrictions. We fully agree with Johnson that "[a] reasonable fact-finder could infer from the facts and circumstances surrounding this incident that Pleas Johnson did not submit false injury claims, violate the work restrictions imposed by Olin's own physicians, or attempt to obtain leave based on these injuries." However, that possible inference does not carry the day for Johnson. The only evidence to show that Kern did not honestly believe that Johnson had falsified his claim are the statements made by Anderson and Holleran, and Johnson simply has not provided any basis for linking these statements in any way to the ultimate decision to discharge him. Thus, they do not form a basis for pretext. Johnson's ADEA claim that Olin discharged him because of his age fails as a matter of law.¹¹

11 Johnson submitted Reeves as additional authority supporting his claim. The relevant holding in that case is that a plaintiff may sometimes satisfy his burden of persuasion simply by establishing a prima facie case and producing enough evidence to disbelieve the employer's proffered explanation. See Reeves, 530 U.S. at ___, 120 S.Ct. at 2108. Johnson has failed to put forth evidence that would cause a reasonable fact finder to disbelieve Olin's explanation for its decision so Reeves does not alter our analysis.

Turning to the Union Defendants, Johnson fares no better in establishing an ADEA claim. The International Union contends that it was not named in Johnson's charge of discrimination before the EEOC and therefore is not properly subject to suit in this court. See Unions' Suppl. Reply Br. in Supp. of Mot. for Summ. J. ("Unions' Suppl. Reply") at 4. Once again, Johnson's responsive brief does not address this argument by the International Union; however, he asserts that his EEOC charge against the Local Union was sufficient to support joinder of the International Union in this case. See Plaintiff Pleas A. Johnson's Response to (Union) Defendant's Statement of Material Facts ("Pl.'s Resp. to Unions' Facts") ¶ 14.

As a general rule, a party not named in an EEOC charge may not be sued for discrimination. See Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 905 (7th Cir. 1981) (Title VII); Anderson v. Montgomery Ward Co., 852 F.2d 1008, 1016 (7th Cir. 1988) (noting similarities between filing requirements of ADEA and Title VII). An exception exists where the facts indicate that the unnamed party was put on sufficient notice by the EEOC charge. See Eggleston, 657 F.2d at 906; see also Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991) (holding international union not properly joined after applying four factors: 1) whether the role of the unnamed party could, through reasonable effort by the complainant, be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named party are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party) Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977)). Johnson's unsupported assertion to the contrary, Johnson's submissions do not address whether the International Union was put on notice by the naming of the Local Union before the EEOC. On these facts, we conclude that, with respect to the ADEA charges, the International Union is not properly a party to this suit and is entitled to judgment as a matter of law on those claims.

As for the Local Union, the Union Defendants contend that they cannot be held liable for money damages under the ADEA. See 29 U.S.C. § 626(b); Neuman v. Northwest Airlines, Inc., No. 79-C-1570, 1982 WL 313, at *3 (N.D.Ill. April 30, 1982). We need not address this argument, because we find that Johnson cannot assert an ADEA claim against the Local Union, based upon the undisputed evidence presented to us. Assuming that Johnson could make out a prima facie case of discrimination under the ADEA based on the Local Union's conduct relating to his separation from Olin, the Local Union has provided a legitimate reason for its actions and Johnson has failed to establish any pretext. The Local Union asserts that it did not believe Johnson's claim had any merit and it therefore did not wish to pursue it through a grievance and recommended to Johnson that he accept voluntary retirement. Giving Johnson the benefit of all reasonable inferences, he simply has not come forward with any evidence that the Local Union's actions were taken on account of his age. Therefore, the Local Union is entitled to summary judgment on Johnson's disparate treatment claims in Count II.

Retaliation

Counts III and IV allege that Johnson's termination was in retaliation for filing grievances based upon age-based discrimination and for asserting worker's compensation rights. In order to make a prima facie case of retaliation under ADEA, the plaintiff must show: (1) that he engaged in protected activity; (2) that he suffered an adverse employment action; and (3) a causal link between the protected activity and the adverse action. See Trahant v. Royal Indem. Co., 121 F.3d 1094, 1098 (7th Cir. 1997). The burden-shifting standards discussed above apply to a retaliation claim as well, so a successful prima facie case shifts the burden to Olin to state a legitimate non-discriminatory reason in response to which Johnson must show pretext. See Hunt-Golliday v. Metropolitan Water Reclamation Dist., 104 F.3d 1004, 1014 (7th Cir. 1997).

Count IV asserts a state-law retaliation claim, alleging that Plaintiff was terminated in retaliation for asserting worker's compensation rights, a claim made actionable by Frampton v. Central Ind. Gas Co., 297 N.E.2d 425 (Ind. 1973).¹² Indiana has adopted the Title VII burden-shifting analysis to retaliation claims. See Indiana Civil Rights Comm'n v. Culver Educ. Found., 535 N.E.2d 112, 115 (Ind. 1989); Fuller v. Allison Gas Turbine Div., 670 N.E.2d 64, 68 (Ind.Ct.App. 1996). We therefore analyze together these two retaliation claims.

12 Indiana is an at-will employment state. See McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 392 (Ind. 1988);Frampton, 297 N.E.2d at 253. Frampton recognized a limited exception to this rule as applied to a discharge solely for exercising a statutorily conferred right. See id. at 253.

Olin contends that Johnson fails to make out a prima facie case because he has failed to establish a causal link between his actions and the prejudicial response. However, suspicious timing may constitute circumstantial evidence sufficient to support a claim of discrimination that will satisfy the requirements of a prima facie case. See Hunt-Golliday, 104 F.3d at 1014. If Johnson succeeds in making a prima facie case of retaliation, Olin's reason for the termination — its honestly held belief that Johnson had filed a false injury claim — rebuts the inference of retaliation and, as discussed above, defeats the claim of pretext. Thus, Johnson's retaliatory discharge claims fail as well.¹³

13 Although Johnson asserts his retaliation claims against all of the parties, he makes no separation retaliation claims against the Union Defendants under either the ADEA or Indiana law. Johnson identifies no protected acts on his part that occurred prior to the Local Union's decision not to pursue his claim that would satisfy the prima facie case. Nor does he refute the Local Union's contention that it believed that Johnson's claim lacked merit and that is why it was not interested in seeking a grievance on his behalf. Thus, to the extent that Johnson's retaliatory discharge claims against the Union Defendants are independent of those asserted against Olin, they too fail.

FMLA "Entitlement" Claim

Count I asserts that the same conduct described in Count II also violates the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. The FMLA establishes two categories of protections for employees, only one of which is relevant to the case at bar.

The FMLA contains prescriptive protections that are expressed as substantive statutory rights. See King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999). The Act provides eligible employees of a covered employer the right to take unpaid leave for a period of up to twelve work weeks in any twelve-month period for a serious health condition, as defined by the Act. Id.; see 29 U.S.C. § 2612(a)(1). After the period of qualified leave expires, the employee is entitled to be reinstated to the former position or an equivalent one with the same benefits and terms of employment that existed prior to the exercise of the leave. Id.; Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 498 (7th Cir. 1999).

To ensure the availability of these guarantees, the FMLA declares it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided." 29 U.S.C. § 2615(a)(1); King, 166 F.3d at 891. An employee alleging a deprivation of these substantive guarantees must demonstrate by a preponderance of the evidence only his entitlement to the disputed leave. In such cases, the intent of the employer is immaterial. See King, 166 F.3d at 891 (citing Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir. 1997)). A claim brought under this substantive right provision of the FMLA is known as an "entitlement claim."¹⁴

14 The second category of protections embodies an anti-discrimination component similar to Title VII, which prohibits an employer from discriminating or retaliating against an employee who requests or takes medical leave pursuant to the statute. See King, 166 F.3d at 891. In this case, Johnson does not specify which type of claim he is advancing. However, Johnson makes no allegation that Olin or the Unions either discriminated or retaliated against him for requesting leave. Rather, he claims that Olin and the Unions interfered with his exercise of his FMLA right to take medical leave. Thus, we assume that Johnson advances only an "entitlement" claim under the FMLA and that the retaliation provisions are not at issue.

An important caveat operates to qualify the protections afforded by the FMLA. An employee who requests or takes protected leave under the FMLA is not entitled to any greater rights or benefits than he would be entitled to had he not requested or taken leave. See Kariotis, 131 F.3d at 680-81; Clay v. City of Chicago Dep't of Health, 143 F.3d 1092, 1094 (7th Cir. 1998). Therefore, an employer is entitled to dismiss an employee for any lawful reason at any time, whether before, during, or after an employee requests or takes leave pursuant to the FMLA, as long as the employer does not discriminate or retaliate against the employee for requesting or taking such leave. Id.; see 29 C.F.R. § 825.216(a) ("An employee has no greater right to reinstatement or other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period."); Stoops v. One Call Communications, Inc., 141 F.3d 309, 311 (7th Cir. 1998) (accepting as "legitimate and controlling" the Secretary of Labor's FMLA regulations).

In Kariotis, the plaintiff was discharged from her position after the defendant decided that she had fraudulently accepted disability benefits. Id. at 674. The defendant fired the plaintiff for disability fraud after having videotaped her off-duty activities. See id. at 677. Prior to terminating the plaintiff, representatives of the defendant viewed the videotape, but failed to present it to the company physician to ascertain whether the activities caught on the videotape actually contradicted the claimed disability. See id. The Seventh Circuit acknowledged that this "investigation" was impulsive and arguably came to the wrong conclusion about the plaintiff's fraud. See id. at 678. Despite these defects, the court determined that the employer terminated the employee based on an "honest suspicion" that the she had committed fraud, which honest suspicion was enough to satisfy the FMLA's requirements. See id. at 681. The Seventh Circuit held that "because Navistar lawfully could have terminated Kariotis after suspecting she committed fraud while on duty, the company can discharge her after it suspected she committed fraud while on leave." Id.

We are left with the same question that we faced with respect to Johnson's discrimination claims, namely, whether Olin had an honest belief that Johnson had filed a fraudulent claim of disability when it decided to discharge him. Johnson is no more successful in refuting this claim with respect to the FMLA claim than he has been in refuting it with respect to his discrimination claims. For the reasons explicated above, we find that Johnson's FMLA claims fail as a matter of law and all of the defendants are entitled to summary judgment on Count I.

Breach of Contract and Labor and Management Relations Act Claims

Count V asserts that Johnson's termination constituted a breach of contract under Indiana law. Count VI asserts that the Unions violated their duty of fair representation, in violation of the Labor and Management Relations Act ("LMRA"), 29 U.S.C. § 141 et seq. Defendants argue that Johnson's state law breach of contract claims are preempted by Section 301 of the LMRA, since that section governs disputes regarding collective bargaining agreements. See Olin's Reply at 10-11. In response, Johnson contends that "[w]hile the collective bargaining agreement provides a back-drop to Johnson's breach of contract claims, it is clear that the union breached its duty of fair representation." Johnson's Amended Resp. to Olin at 18.

Section 301 provides an independent federal cause of action for contract disputes between an employee and a labor organization. See 29 U.S.C. § 185(a). Section 301 serves to preempt a state law breach of contract claim when "the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement." Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988). Indeed, "the preemptive force of § 301 is so powerful as to displace entirely any state cause of action `for violation of contracts between an employer and a labor organization.'" McCarty v. Reynolds Metal Co., 883 F. Supp. 356, 359-60 (S.D.Ind. 1995) (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 23 (1983)). However, "not every dispute concerning employment or tangentially involving a provision of a collective-bargaining agreement" is preempted by Section 301.Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985).

In Lingle, the Supreme Court held that Section 301 did not preempt a claim of retaliatory discharge for filing a worker's compensation claim.Lingle, 486 U.S. at 407. The Court determined that neither the elements of the state-law claim nor the employer's defense required the trial court to interpret any term of a collective bargaining agreement. See id. Thus, the Supreme Court found the retaliatory discharge claim was "independent" of the collective bargaining agreement for Section 301 preemption purposes in that "resolution of the state-law claim does not require construing the collective bargaining agreement." Id.

The only breach of contract allegation made by Johnson against Olin is that it terminated him without following the procedures outlined in the CBA. See Amended Compl. ¶ 50. In contrast to Johnson's Frampton claim discussed above, we are unable to see a way to resolve this claim without construing the CBA. The rights Johnson asserts are not statutorily conferred or independent of the CBA; any extra rights enjoyed by Johnson in the security of his employment flowed directly from the CBA.

With respect to the Unions, Johnson contends that the basis for his state-law breach of contract claim is the Unions "breach [of] its duty of fair representation." Johnson's Amended Resp. to Olin at 18. However, Johnson makes no effort to identify how such a duty is incorporated into a state-law cause of action, independent of the LMRA.

We have been unable to find such an independent cause of action under Indiana law. Rather, the Supreme Court has held that "[t]he duty of fair representation, unlike state tort and contract law, is part of federal labor policy." Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6, 493 U.S. 67, 79 (1989); see also Serstel Corp. v. Gibbs, 417 N.E.2d 372, 374 (Ind.Ct.App. 1981) (holding that claim by plaintiff-employee against union for alleged breach of collective bargaining agreement was only actionable under Section 301 and applying federal law to plaintiff's claim). In addition, to resolve Johnson's claim we would be required to construe the CBA, the only contract at issue in this case. Thus, Johnson's alleged state-law claim falls within the heartland of those claims held to be preempted by Section 301. We hold that breach of contract claim asserted in Count V is therefore preempted by Section 301 of the LMRA, and the defendants are entitled to summary judgment with respect to Count V.¹⁵

15 We need not decide whether Johnson has properly asserted a Section 301 claim against Olin. Such a claim is predicated upon our finding that the union breached its duty of fair representation. See Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558 (1990);United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 63 (1981), limited on other grounds by DelCostello v. International Bhd. of Teamsters, 462 U.S. 151 (1983) (discussing selection of statute of limitations);Filippo v. Northern Ind. Public Serv. Corp., 141 F.3d 744, 748 (7th Cir. 1998). As we explain below, Johnson has made no such showing in this case. Further, to the extent that Johnson is able to assert a state-law claim for breach of the duty of fair representation, his claim must be analyzed according to the standards for a breach of such duty under the LMRA. See Johnson's Amended Reply to Olin at 19 (adopting Johnson's analysis in support of his breach of duty under the LMRA to his breach of contract claim). Thus, even if his state-law claim survived, it would be necessarily tied to his LMRA claim and would fail for the reasons explicated below.

Finally, we are left with Count VI: Johnson's allegations that the Union breached its duty of fair representation, in violation of the LMRA. A union breaches its duty of fair representation only when its actions are arbitrary, discriminatory or carried out in bad faith. See Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 76 (1991) ("O'Neill"); Vaca v. Sipes, 386 U.S. 171, 190 (1967); Filippo v. Northern Ind. Public Serv. Corp., 141 F.3d 744, 748 (7th Cir. 1998). This is a tripartite standard, each element being distinct and requiring separate analysis. See O'Neill, 499 U.S. at 77; Filippo, 141 F.3d at 748-49. To defeat a motion for summary judgment, a plaintiff must proffer specific facts supporting at least one of these elements. See id.; Griffin v. Air Line Pilots Ass'n, Int'l, 32 F.3d 1079, 1083 (7th Cir. 1994).

The "arbitrary" prong of the fair representation test is very deferential, see O'Neill, 499 U.S. at 76-79; Griffin, 32 F.3d at 1083, requiring the court to examine the objective adequacy of the union's actions. See Trnka v. Local Union No. 688, 30 F.3d 60, 63 (7th Cir. 1994). It is not our role to second guess tactical decisions made by the bargaining unit; we begin to question such decisions only when "`the union's behavior is so far outside a `wide range of reasonableness' as to be irrational.'" Filippo, 141 F.3d at 749 (quoting O'Neill, 499 U.S. at 67 and Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)); Griffin, 32 F.3d at 1083.

A union need not pursue every grievance asserted by an employee. See Vaca, 386 U.S. at 191-92; Dahnke v. Teamsters Local 695, 906 F.2d 1192, 1196 (7th Cir. 1990). So long as a colorable argument could be made at the time of the union's decision not to pursue a grievance that such grievance was meritless and that the union did not treat substantially similar grievances differently from the plaintiff's, the decision cannot be regarded as arbitrary. See Trnka, 30 F.3d at 61. A union must provide some minimal investigation to an employee grievance, but "the thoroughness of this investigation depends on the particular case, and only an egregious disregard for union members' rights constitutes a breach of the union's duty." Filippo, 141 F.3d at 749.

In contrast to the objective focus of the arbitrariness inquiry, unfair representation as discrimination or bad faith requires a separate, but related, analysis into the subjective motivation behind the union's action. See Crider v. Spectrulite Consortium, Inc., 130 F.3d 1238, 1243 (7th Cir. 1997); Trnka, 30 F.3d at 63. If a union has an honest belief that a grievance lacks merit, a plaintiff cannot later attempt to construe the union's decision as discriminatory or in bad faith. See Dahnke, 906 F.2d at 1197.

The undisputed evidence in the case at bar establishes that Olin had a videotape which it believed showed Johnson acting in violation of his medical restrictions. It is further undisputed that Steve Griffith, the Local Union President, met with Olin officials who showed him the tape and informed him of their intention to terminate Johnson based upon such evidence. Griffin knew that Olin had previously used similar videotape evidence to successfully discharge other employees and Griffith testified that upon viewing the videotape, he was of the opinion that there was little chance of a successful grievance.

Johnson asserts that the Local Union acted arbitrarily by not pursuing a grievance on his behalf and that Griffith "deliberately misled" Johnson with respect to his rights to a hearing whereby he could contest the company's allegations. Plaintiff, Pleas A. Johnson's (Amended) Response to Defendant Union's Mot. for Summ. J. ("Johnson's Amended Resp. to Unions") at 7. Johnson attempts to use the Local Union's previous pursuit of a grievance on behalf of Velvet Jones as evidence that its refusal to pursue a grievance in Johnson's case was arbitrary. See id. at 8-9. However, a union has no obligation to pursue each and every claim pressed by a member, regardless of its merits. See, e.g., Dahnke, 906 F.2d at 1196 (holding that a union's mere refusal to pursue a grievance is not insufficient to support a finding that the union breached a duty of fair representation). The fact that the Local Union did not intend to pursue a grievance on Johnson's behalf is not enough to show that the Local Union's actions were "egregious" or irrational, and Johnson has provided no other evidence that would allow us to conclude that the Local Union's actions were arbitrary.

Likewise, even if we assume that Griffith neglected to tell Johnson about a planned hearing and that Griffith told Johnson that the Local Union would not support Johnson if he pursued a grievance against Olin, Johnson provides no evidence beyond his own bare assertions as to Griffith's intent in an effort to create a genuine issue of material fact as to Griffith's intent thus allowing Johnson to survive summary judgment on this claim. But a plaintiff's bare assertions of bad faith or discrimination are insufficient to create a genuine issue of material fact when questions of motive or intent arise in summary judgment proceedings. See Dahnke, 906 F.2d at 1196.

It is undisputed that Griffith told Johnson that he had seen the videotape and left Johnson with two choices — to be discharged or to voluntarily retire. See Johnson Dep. at 113-14; Griffith Dep. at 17-18. Griffith further testified that he told Johnson that based on the videotape and similar previous discharges of other employees, there was little chance of a successful arbitration. See Griffith Dep. at 42, 43. Assuming that Griffith did not actually relay these opinions to Johnson, Johnson still has failed to provide us with any evidence to dispute that Griffith honestly held these views or to show that Griffith's intent was discriminatory or in bad faith. The Unions are therefore entitled to summary judgment on Johnson's claim for breach of the duty of fair representation in Count VI.

Conclusion

Having failed to refute the legitimate reasons put forth by Olin and the Unions for their various actions taken with respect to Johnson's separation from Olin, Johnson cannot prevail in this litigation. Olin and the Union Defendants are entitled to judgment as a matter of law on each claim in Johnson's complaint.¹⁶

16 Counsel for Plaintiff has also filed a motion for reconsideration of sanctions previously imposed by this court on November 10, 1999. We stand by our conclusions previously stated in that entry. Plaintiff's motion for reconsideration is DENIED.

It is so ORDERED.