McCoy, Thomas v. Maytag Corporation

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-2417

THOMAS MCCOY,

Plaintiff-Appellant,

v.

MAYTAG CORPORATION,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 04 C 4099—James L. Foreman, Judge.

____________

ARGUED FEBRUARY 8, 2007—DECIDED JULY 30, 2007

____________

Before RIPPLE, MANION, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge. Maytag Corporation terminated

Thomas McCoy’s employment for failing to comply

with the notice provision of its collective bargaining

agreement after McCoy did not provide a medical update

to justify his absence from work after his leave of absence

expired. McCoy then sued Maytag, alleging that Maytag

terminated him in retaliation for his filing of a workers’

compensation claim and that his termination breached the

collective bargaining agreement. The district court granted

summary judgment to Maytag on both claims. We affirm.

2 No. 06-2417

I.

Thomas McCoy was an assembly line employee in

Maytag Corporation’s (“Maytag”) washer and dryer

manufacturing facility in Herrin, Illinois. On April 21, 2003,

McCoy injured his left shoulder while moving washing

machine bases as part of his job duties. McCoy felt some-

thing pop in his left shoulder, and then his arm began to go

numb and he experienced a tingling sensation.

That same day, McCoy reported the incident to his

supervisor, Gordon Dailey. A physician’s assistant, Chris

Shadowens, examined McCoy that day and diagnosed him

as suffering from rotator cuff tendinitis, but he ruled out a

tear. Shadowens opined that McCoy was fit to return to

light-duty work the next day, with the restriction that

McCoy may not use his left arm to lift objects weighing

more than five pounds. Later that day McCoy provided

Shadowens’ written medical evaluation to nurse Kathy

LeMay, who worked in Maytag’s on-site medical office,

which was located within the manufacturing facility.

McCoy also testified that in the past he had provided

medical documents, such as doctor’s notes, both to LeMay

and to Maytag’s Senior Workers’ Compensation Specialist,

Marie Brasher. Brasher, unlike LeMay, worked in Maytag’s

human resources office.

McCoy returned to work the next day. An unidentified

doctor then modified Shadowens’ prior work limitations to

restrict McCoy from using his left arm and stated in his

written medical evaluation that McCoy could return to

work the next day. McCoy discussed the new restriction

with Dailey. Unfortunately for McCoy, Dailey informed

him that Maytag had no jobs that could accommodate his

restriction. McCoy left work on April 22, 2003, and never

returned to work at Maytag.

No. 06-2417 3

McCoy testified that at some point shortly thereafter, he

had a conversation with LeMay during which he requested

“a form to fill out for work comp.” According to McCoy,

LeMay gave him a Maytag form entitled “Statement of

Claim for Accident or Sickness Benefits” (“A&S form”).1

McCoy then completed the A&S form and dated it April 28,

2003. On the form, McCoy indicated that he had been

injured at work and that he intended to present a workers’

compensation claim. McCoy’s personal physician, Edward

Corder, M.D., completed the physician portion of McCoy’s

A&S form and signed and dated it May 7, 2003. Two days

later, McCoy sent to Maytag a facsimile of his completed

A&S form.2 McCoy stated that no one at Maytag discour-

aged him from filing an application for A&S benefits, and

he acknowledged that he received A&S benefit payments.

McCoy testified that, at the time he completed the A&S

form, he mistakenly believed it was a form to apply for

workers’ compensation benefits. On the same day that

McCoy completed his portion of the A&S form, however,

he completed, signed, and dated a separate workers’

compensation benefits application at his attorney’s office.

The record indicates that McCoy filed his workers’ com-

pensation claim with the Illinois Industrial Commission,3

and that Maytag initially disputed McCoy’s claim. In May

1

A&S benefits are a twenty-six-week, short-term disability

benefit. In order to remain eligible for A&S benefits, the em-

ployee is required to submit monthly disability forms attest-

ing to the employee’s continued disability.

2

Based on McCoy’s application date his A&S benefits and

leave of absence expired on October 21, 2003.

3

The Illinois Industrial Commission is now known as the

Illinois Compensation Division.

4 No. 06-2417

2004, McCoy and Maytag ultimately settled his workers’

compensation claim for a lump sum payment to McCoy of

$8,856.69.

In the months that followed his application for A&S

benefits, McCoy stayed in touch with Brasher and provided

to her medical evaluations forms completed by his treating

physicians indicating the status of his condition and

limitations. Some of the documents that McCoy sub-

mitted were completed versions of Maytag’s own “Health

Insurance Claim Group Disability Income” forms (“Maytag

forms”), while others were evaluations written on his

treating physicians’ letterheads. For example, McCoy

submitted to Maytag an evaluation from one of his treating

orthopedists, William Harryman, M.D., dated August 4,

2003, and written on Dr. Harryman’s letterhead, which

stated that he was unable to work until after his next

evaluation on August 25, 2003.4 On August 11, 2003,

McCoy and Dr. Corder completed, signed, and dated a

Maytag form indicating that McCoy remained totally

disabled and unable to work. Dr. Harryman re-evaluated

McCoy on August 25, 2003, and McCoy testified that he

believed that he provided to Maytag another letter on Dr.

Harryman’s letterhead indicating that McCoy may not

return to work until after undergoing surgery.

On September 25, 2003, five months after his injury, Dr.

Harryman performed surgery on McCoy’s shoulder. In a

letter on Dr. Harryman’s letterhead and signed by Dr.

4

It is unclear who signed these letters on Dr. Harryman’s

letterhead, but McCoy testified that Dr. Harryman was his

treating orthopedist and the forms were completed at Dr.

Harryman’s instruction. The letters’ veracity is not in question.

No. 06-2417 5

Harryman, he stated that McCoy “[m]ay NOT return to

work for at least 8 weeks” following his surgery. Both

McCoy and Dr. Harryman also completed a Maytag form

dated September 29, 2003, indicating that McCoy was

presently disabled and unable to work. McCoy testified

that Dr. Harryman’s office sent to Brasher a facsimile of

both of Dr. Harryman’s written medical evaluation forms.

Maytag acknowledges that it received the forms and that

they were kept in its manufacturing facility’s medical

office. However, neither LeMay nor David Wittenbrink,

Maytag’s other on-site nurse, received Dr. Harryman’s

September medical evaluations. Janice McConnaughy,

Maytag’s Manager of Employee Relations, also testified

that she did not know the documents existed and that

she never received copies.

It was at that point that the situation became convoluted.

Maytag states that it was working under the belief that

McCoy had a duty to provide it with status reports regard-

ing his medical condition every thirty days pursuant to

Article 13.5 of its collective bargaining agreement (“CBA”).

Prior to his surgery, McCoy provided periodic updates

within the required thirty-day time frames, and Maytag

accordingly paid A&S benefits to McCoy. It is uncontested,

however, that following his surgery and submission of Dr.

Harryman’s medical evaluation forms, McCoy did not

provide any further status updates to Maytag for at least

thirty days. Based on its interpretation of the CBA, Maytag

determined that without any updated status reports,

McCoy’s A&S benefits and leave of absence expired on

October 21, 2003.

LeMay asked McConnaughy to advise McCoy that he

6 No. 06-2417

was delinquent in submitting his updated status reports.5

In a letter dated November 6, 2003, sent via certified mail,

McConnaughy informed McCoy that “we have not heard

from you or received medical documentation since your

leave of absence expired on October 21, 2003.”

McConnaughy’s letter requested that McCoy “submit

documentation necessary to support your absence for the

past three weeks by 9:00 a.m. on Friday, November, 14,

2003 for us to review to determine your employment

status” and warned him that “[i]f we do not hear from

you by that date, we will have assumed that you have

terminated your employment.”

From November 6, 2003, through November 14, 2003,

Maytag did not receive a response from McCoy, nor did it

receive a certified mail receipt evincing delivery of the

letter. On November 14, 2003, McConnaughy sent an e-mail

to LeMay and Wittenbrink, asking, “[c]an you please tell

me if you received updated medical documentation for

Thomas McCoy[,]” as well as “[w]hat address do you have

for Thomas?” Wittenbrink responded that he had not

received an update from McCoy, and that McCoy had

provided “an address different than his original paper-

work” on his last continuation form. McConnaughy then

sent to McCoy a second letter via certified mail, which

5

Again, neither LeMay nor McConnaughy was aware of Dr.

Harryman’s written medical evaluations, which Dr. Harryman’s

office faxed to Brasher on October 3, 2003. However, both

testified that they were operating under their understanding

of standard Maytag procedures.

No. 06-2417 7

was dated November 17, 2003.6 That letter stated that

because Maytag had not heard from McCoy since October

21, 2003, “effective immediately, [his] employment with

Maytag [ ] has been terminated. If you can provide docu-

mentation to support that you have been reporting

your absences to Maytag [ ], please submit them for our

review.”

On November 20, 2003, McCoy accepted delivery of both

of Maytag’s certified letters. That same day McCoy con-

tacted his then-attorney, Mark Prince, who in turn con-

tacted Maytag’s attorney, Michael Keefe, regarding

getting McCoy reinstated. According to McCoy, “nothing

came of” Prince’s efforts, and McCoy did not speak

with anyone at Maytag regarding his termination.7 McCoy

did not, however, contact his union representative or

submit any additional documents to Maytag for review for

approximately two months. Not until January 15, 2004, did

McCoy contact his union representative, Steve Jones,

regarding his termination. Jones declined to file a grievance

on McCoy’s behalf, based on his conclusion that a griev-

ance would have been untimely because it was well past

the CBA’s forty-eight-hour deadline to file such a griev-

ance.

McCoy filed this lawsuit against Maytag approximately

four months later. McCoy alleged that Maytag terminated

his employment in retaliation for his exercise of his work-

ers’ compensation rights and that Maytag breached the

6

It is unclear whether the second letter was sent to the same

address or the new address Wittenbrink provided in his e-mail.

7

In December 2003, McCoy dismissed attorney Prince and

hired attorney Stephen Stone to represent him.

8 No. 06-2417

CBA.8 Following discovery, Maytag moved for summary

judgment. The district court granted Maytag’s motion.

McCoy appeals.

II.

On appeal, McCoy first argues that the district court

should not have granted summary judgment in favor

of Maytag because Maytag’s proffered reason for his

discharge—that he failed to provide medical updates—was

a pretext. We review the district court’s grant of summary

judgment de novo. Clark v. State Farm Mut. Auto. Ins. Co.,

473 F.3d 708, 712 (7th Cir. 2007). In doing so, we view all

facts and draw all inferences in the light most favorable to

the non-moving party. Abstract & Title Guar. Co. v. Chicago

Ins. Co., ___ F.3d ___, 2007 WL 1598099, at *2 (7th Cir. June

5, 2007). “Summary judgment is appropriate where the

evidence before the court indicates that there are no

8

McCoy’s retaliatory discharge claim invoked the district

court’s diversity jurisdiction. See generally Monroe v. Mo. Pac. R.R.

Co., 115 F.3d 514, 517 (7th Cir. 1997) (stating that “a state claim

is independent of a CBA for preemption purposes ‘as long as the

state-law claim can be resolved without interpreting the

agreement itself’ ” (quoting Lingle v. Norge Div. Magic Chef, 486

U.S. 399, 410 (1988))). McCoy also invoked the district court’s

federal question jurisdiction when he alleged that Maytag

breached the CBA. See generally Matter of Amoco Petroleum

Additives Co., 964 F.2d 706, 709 (7th Cir. 1992) (stating that

“[f]ederal law so dominates relations between employers and

unions that the Supreme Court treats any attempt to interpret,

enforce, or question a collective bargaining agreement as

necessarily based on national law” (citing Lingle, 486 U.S. at 405-

06)).

No. 06-2417 9

genuine issues of material fact and the moving party is

entitled to judgment as a matter of law.” Id.; Fed. R. Civ. P.

56. McCoy’s retaliatory discharge claim is based on Illinois

law. See generally Kelsay v. Motorola, Inc., 384 N.E.2d 353,

358 (Ill. 1978) (recognizing for the first time a retaliatory

discharge cause of action under Illinois law). “When

resolution of an issue depends on state law, we must apply

the law that would be applied in this context by the

state supreme court.” Ali v. Shaw, 481 F.3d 942, 944 (7th

Cir. 2007). See also Clark, 473 F.3d at 712.

Under Illinois law, “ ’[a] valid claim for retaliatory

discharge requires a showing that (1) an employee has been

discharged; (2) in retaliation for the employee’s activities;

and (3) that the discharge violates a clear mandate of

public policy.’ ” Carter v. Tennant Co., 383 F.3d 673, 677

(7th Cir. 2004) (quoting Bourbon v. Kmart Corp., 223 F.3d

469, 472 (7th Cir. 2000) (citing Hartlein v. Ill. Power Co., 601

N.E.2d 720, 728 (Ill. 1992))). “ ‘In the workers’ compensa-

tion context, a plaintiff must show (1) that he was the

defendant’s employee before his injury; (2) that he exer-

cised a right granted by the Workers’ Compensation Act;

(3) and that he was discharged from his employment with

a causal connection to his filing a workers’ compensation

claim.’ ” Id. (quoting Hiatt v. Rockwell Int’l Corp., 26 F.3d

761, 767 (7th Cir. 1994) (citing Kritzen v. Flender Corp., 589

N.E.2d 909, 915 (Ill. 1992))). “ ‘The element of causation is

not met if the employer has a valid basis, which is not

pretextual, for discharging the employee.’ ” Id. (quoting

Hartlein, 601 N.E.2d at 728). An employer’s discharge of an

employee for filing a workers’ compensation claim “ ‘is

equally offensive to the public policy of this State as

stated in the Workers’ Compensation Act.’ ” Id. (quoting

Darnell v. Impact Indus., Inc., 473 N.E.2d 935, 937 (Ill. 1984)).

10 No. 06-2417

Some question remains, however, regarding whether,

under the Erie doctrine, a federal court exercising diversity

jurisdiction to hear a retaliatory discharge claim under

the Illinois Workers’ Compensation Act must apply the

Illinois framework, or whether it may use the familiar

burden-shifting method first presented in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Carter, 383

F.3d at 678; see also Bourbon, 223 F.3d at 474-77 (Posner, J.,

concurring) (“If the requirement of proving cause is so

attenuated as to give the plaintiff a boost toward winning

his case that he would not have under ordinary rules of

pleading and production, then there is a conflict with

substantive state law, and what the federal courts inaptly

call the McDonnell Douglas standard for proving retalia-

tion must give way in any retaliation case governed by

state law.”). This is “of potential importance because

while ‘the Supreme Court of Illinois expressly rejected the

application of McDonnell Douglas to Illinois retaliatory-

discharge cases in Clemons v. Mech. Devices Co., 704 N.E.2d

403, 407-08 (Ill. 1998),’ ” Carter, 383 F.3d at 677 (quoting

Bourbon, 223 F.3d at 474 (Posner, J., concurring)), we

previously have utilized the McDonnell Douglas framework,

see Hiatt v. Rockwell Int’l. Corp., 26 F.3d 761, 767 (7th Cir.

1994) (applying McDonnell Douglas framework to retalia-

tory discharge claim under Illinois law (citing McEwen v.

Delta Air Lines, Inc., 919 F.2d 58, 59-60 (7th Cir. 1990))). As

we noted in Carter, the Supreme Court of Illinois “was

concerned that use of the McDonnell Douglas framework

‘would, in essence, expand the tort of retaliatory dis-

charge by’ . . . reliev[ing] plaintiffs of their burden to prove

as an element of their prima facie case under Illinois law a

causal link between their workers’ compensation claims

and their discharge.” Carter, 383 F.3d at 677-78 (quoting

No. 06-2417 11

Clemons, 704 N.E.2d at 408). Thus, to determine which

framework should apply, we would need to examine

whether the McDonnell Douglas framework is substantive

or procedural when it is applied in this context. Carter, 383

F.3d at 678. If the McDonnell Douglas framework is sub-

stantive for Erie purposes, then we must apply the Illinois

framework when a retaliatory discharge claim under the

Illinois Workers’ Compensation Act “wander[s] into

federal court by virtue of . . . diversity jurisdiction.”

Bourbon, 223 F.3d at 474 (Posner, J., concurring). We did not

resolve this uncertainty in Carter, because the parties

waived the issue by ignoring it on appeal, and because the

plaintiff’s claim failed under either the Illinois framework

or the McDonnell Douglas framework because the defendant

“provide[d] a valid, non-pretextual reason for its decision

to terminate” the plaintiff. Carter, 383 F.3d at 678. See also

Siekierka v. United Steel Deck, Inc., ___ N.E.2d ___, 2007 WL

1342223, at *6 (Ill. App. Ct. May 4, 2007) (“The mere

existence of a valid or sufficient reason, however, does

not defeat a retaliatory discharge claim. ‘[I]f an employer

chooses to come forward with a valid, nonpretextual basis

for discharging its employees and the trier of fact believes

it, the causation element required to be proven is not

met.’ ” (quoting Clemons v. Mech. Devices Co., 704 N.E.2d

403, 406 (Ill. 1998) (emphasis added))); Tincher v. Wal-Mart

Stores, Inc., 118 F.3d 1125, 1130 (7th Cir. 1997) (“The pretext

inquiry focuses on the honesty—not the accuracy—of the

employer’s stated reason for the termination.”) (citations

omitted). We face a similar situation in this case, because

neither party raised this issue on appeal,9 and, as discussed

9

Maytag did note in its response brief that the district court

analyzed McCoy’s claim under both the direct and indirect

(continued...)

12 No. 06-2417

below, Maytag provided a valid, non-pretextual reason

for terminating McCoy’s employment. Accordingly, as we

did in Carter, we leave the decision regarding “ ‘what the

prima facie case of retaliation is in the Seventh Circuit’ ” for

another day. Carter, 383 F.3d at 678 (quoting Bourbon, 223

F.3d at 476 (Posner, J., concurring)).

Even assuming that McCoy could demonstrate a prima

facie case of retaliatory discharge under either the Illinois

framework or the McDonnell Douglas framework, McCoy’s

claim fails because Maytag has articulated a legitimate,

nondiscriminatory reason for terminating McCoy’s em-

ployment and McCoy has failed to show that Maytag’s

proffered reason was pretextual. See Gomez v. The Finishing

Co., 861 N.E.2d 189, 197-98 (Ill. App. Ct. 2006) (“If the

employer is able to articulate a legitimate, nondiscrim-

inatory reason for the employee’s discharge, then the

plaintiff has an opportunity to prove by a preponderance

of the evidence that the legitimate reasons offered by the

defendant were not true, but a pretext for discrimination.”);

see also Tincher, 118 F.3d at 1129 (stating that once an

employer provides a legitimate, nondiscriminatory reason

for terminating the employee, “the McDonnell Douglas

framework ‘drops out of the picture’ leaving [the em-

ployee] with the ultimate burden of proving the discrimi-

nation by showing that [his employer] provided a

pretextual reason for her termination”) (citations omitted).

Maytag has consistently argued that it discharged McCoy

not because he filed a workers’ compensation claim, but

9

(...continued)

methods, but it did not take a position on whether the Illinois

framework or McDonnell Douglas framework should control

the case.

No. 06-2417 13

because he failed to provide Maytag with status reports

regarding his medical condition every thirty days pursuant

to Article 23 of the CBA and because he did not notify

Maytag within forty-eight hours regarding his failure to

return after his leave of absence expired pursuant to Article

13.5 of the CBA. McCoy counters that Maytag’s stated

reason for his termination was pretextual. To show pre-

text a plaintiff must offer evidence to indicate that the

employer did not honestly believe the reasons it gave for

its action and is simply lying to “cover [its] tracks.” Cardoso

v. Robert Bosch Corp., 427 F.3d 429, 435 (7th Cir. 2005). See

also Gomez, 861 N.E.2d at 197. In other words, pretext

“means more than a mistake on the part of the employer;

pretext means a lie, specifically a phony reason for some

action.” Tincher, 118 F.3d at 1129. See also Essex v. United

Parcel Serv., Inc., 111 F.3d 1304, 1310 (7th Cir. 1997) (“The

fact that the employer was mistaken or based its decision

on bad policy, or even just plain stupidity, goes nowhere

as evidence that the proffered reason is pretextual.”).

In this case, there is ample evidence in the record that

Maytag’s decision to terminate McCoy’s employment was

based on its interpretation of the CBA’s terms and its

conclusion that McCoy’s leave of absence had expired and

he had abandoned his employment. McCoy claims that

Maytag deliberately misread the CBA10 as requiring him to

10

McCoy contends that his injury was a “plant injury,” and as

such the CBA’s thirty-day medical update requirement in Article

23 does not apply to him. He also asserts that Maytag engaged

in a conspiracy to avoid paying workers’ compensation expenses

by tricking him into applying for A&S benefits rather than

workers’ compensation and then contriving a reason to termi-

(continued...)

14 No. 06-2417

submit medical status updates every thirty days as part of

a scheme to reduce its workers’ compensation costs.

Whether or not Maytag “misread” the CBA’s thirty-day

policy, it did not immediately enforce it against McCoy

when he initially ran afoul of it. Maytag’s understanding

of the CBA is reflected in the certified letters that it sent

to McCoy prior to terminating his employment. Those

letters also evince that Maytag provided McCoy with a

chance to rectify his failure to submit timely medical

updates prior to taking action against him. Additionally,

all of the Maytag employees who were involved in Mc-

Coy’s termination process—including Brasher, LeMay,

and McConnaughy—testified that they were operating

pursuant to this understanding of the CBA and in accord

with established Maytag policy. For instance, Brasher

testified that, “[i]n the most recent five years, [Maytag] has

10

(...continued)

nate his employment. McCoy’s contentions are not supported

by the record, which evinces that on the same day that

McCoy completed his A&S benefit form he also completed

and filed a separate workers’ compensation application. While

Maytag initially disputed McCoy’s workers’ compensation

claim, McCoy and Maytag ultimately reached a lump-sum

settlement. Further, Maytag did not terminate McCoy’s employ-

ment after he filed his workers’ compensation claim, but

rather seven months later, and after it had been paying him A&S

benefits during that entire period. See Fyfe v. City of Fort Wayne,

241 F.3d 597, 603 (7th Cir. 2001) (stating that a lengthy time

between the events is insufficient proof of causation in the

absence of other causal links (citing Hughes v. Derwinski, 967

F.2d 1168, 1174-75 (7th Cir. 1992) (finding four months insuf-

ficient); Juarez v. Ameritech Mobile Commc’s, Inc., 957 F.2d 317, 321

(7th Cir. 1992) (finding six months insufficient)).

No. 06-2417 15

terminated 17 employees who failed to provide the Com-

pany updated medical information after being requested to

do so.” McConnaughy testified that the letter she sent to

McCoy is a “standard letter” that she sends to “everyone in

this situation.” McCoy’s union representative, Jones,

testified that “it is not uncommon to see those letters with

termination to follow them for a no call, no show, whether

you’re on comp or not.” Finally, Brasher, McConnaughy,

and union representative Jones each testified that under

their understanding of the CBA, an employee must submit

new medical documentation every thirty days, regardless

of whether the employee had previously submitted docu-

mentation that purported to cover a period longer than

thirty days, as McCoy’s letters from Dr. Harryman did in

this case. Thus, while Maytag’s reading of the CBA may

have been flawed, or even incorrect, and its communication

between its employees certainly could have been better,

there is no evidence in the record to support McCoy’s

conjecture that Maytag’s decision to terminate his employ-

ment was part of a larger plot to drive down workers’

compensation costs by targeting workers’ compensation

filers. In short, the record indicates that Maytag’s employ-

ees believed they were carrying out an established policy

without regard for whether McCoy had filed a workers’

compensation claim, and that the fault for McCoy’s termi-

nation (or failure to correct the alleged mis-application of

the thirty-day medical update policy) lies solely with

McCoy’s failure to diligently pursue his rights under the

CBA. We therefore find that Maytag articulated a legiti-

mate, non-retaliatory reason for terminating McCoy, and

McCoy failed to show that Maytag’s reason was pretextual.

Accordingly, we affirm the district court’s grant of sum-

mary judgment to Maytag on McCoy’s retaliatory dis-

charge claim.

16 No. 06-2417

Next, McCoy argues that the district court erred in

granting summary judgment on his claim that Maytag

breached the CBA. Maytag countered, and the district court

agreed, that McCoy’s claim failed because he did not

exhaust the CBA’s grievance procedures prior to filing this

lawsuit. McCoy concedes that he failed to comply with

the CBA’s grievance procedures, but contends that his

failure should be excused.

It is well settled that if a CBA establishes a grievance and

arbitration procedure for the redress of employee com-

plaints, employees wishing to assert claims based on a CBA

first must exhaust the grievance procedure before resort-

ing to a judicial remedy. McLeod v. Arrow Marine Transp.,

Inc., 258 F.3d 608, 616 (7th Cir. 2001) (stating that

“[g]enerally, an employee must exhaust the CBA’s griev-

ance procedures before pursuing judicial remedies”).

In this case, Article 8.5 of the CBA provides such a griev-

ance and arbitration procedure:

The Grievance Procedure and Arbitration provided for

herein shall constitute the sole and exclusive method of

determination, decision, adjustment or settlement

between the Parties of any and all grievances as de-

fined herein, and the Grievance Procedure and Arbitra-

tion provided herein shall constitute the sole and

exclusive remedy to be utilized by the Parties hereto

for such determination, decision, adjustment, or

settlement of any and all grievances as herein defined.

CBA Article 8.5, vol. 3/5. While this provision would

appear to prevent McCoy’s claim, there are three excep-

tions in which a court may excuse an employee’s failure to

exhaust a CBA’s grievance and arbitration procedure: (1) if

“union officials are so hostile to the employee that he could

not hope to obtain a fair hearing on his claim”; (2) if

No. 06-2417 17

“internal union appeals procedures would be inadequate

either to reactivate the employee’s grievance or to award

him the full relief he seeks under § 301”; or (3) if “exhaus-

tion of internal procedures would unreasonably delay the

employee’s opportunity to obtain a judicial hearing on

the merits of his claim.” Hammer v. UAW, 178 F.3d 856,

858 (7th Cir. 1999) (citing Clayton v. UAW, 451 U.S. 679,

689 (1981)). Accordingly, we must determine whether

McCoy’s claim falls within any of these exceptions.

McCoy’s brief does not clearly articulate upon which of

the three exceptions he relies, although it appears that he

is asserting the first exception because he argues that the

union did not fairly represent him by declining to file a

grievance on his behalf. Article 26 of the CBA provides that

an employee who is discharged or suspended must notify

the human resources department regarding any claim of

wrongful discharge or suspension “within two (2) working

days after such discharge or suspension.” According to

union representative Jones, Maytag occasionally waived

the forty-eight-hour requirement if there was a mutual

agreement or need for further investigation. McCoy,

however, admittedly failed for approximately two months

to notify both Maytag’s human resources department and

the union regarding his claims. When McCoy eventually

did notify union representative Jones that he was interested

in pursuing a grievance, Jones declined on grounds that

McCoy’s requested grievance was “far beyond 48 hours”

and “untimely.” We agree with the district court that the

evidence shows that union representative Jones’ decision

not to pursue McCoy’s grievance was motivated by

McCoy’s own neglect of the CBA’s terms, rather than

hostility or unfairness. McCoy attempts to explain away his

late notice by claiming that his private attorney advised

him “not to worry about the termination,” despite the fact

18 No. 06-2417

that McCoy was party to a CBA that obligated timely

notification. Unfortunately for McCoy, relying on advice

from private counsel is not one of the three exceptions to

the exhaustion rule. McCoy also may be asserting the

second exception when he argues that it would have been

futile for him to file a grievance because both Maytag and

union representative Jones misinterpreted the CBA as

requiring him to file a medical update every thirty days,

despite the fact that his injury did not qualify as a “plant

injury.” Even if McCoy’s allegation is correct and his

grievance proved futile, his compliance with the grievance

process would have permitted him a judicial recourse to

correct the alleged error in interpreting the CBA. McCoy

makes no discernable attempt to assert the third exception,

thus we deem that argument waived. See Hojnacki v. Klein-

Acosta, 285 F.3d 544, 549 (7th Cir. 2002) (“A party waives

any argument that it does not raise before the district

court or, if raised in the district court, it fails to develop

on appeal.”); see also Smith v. Ne. Ill. Univ., 388 F.3d 559,

569 (7th Cir. 2004) (stating that cursory and undeveloped

arguments are deemed waived). Accordingly, we find no

exception to the exhaustion rule and affirm the district

court’s grant of summary judgment to Maytag on McCoy’s

breach of contract claim.

III.

The district court did not err in granting summary

judgment in favor of Maytag on McCoy’s retaliatory

discharge and breach of contract claims. McCoy’s retalia-

tory discharge claim failed because Maytag articulated a

legitimate, nondiscriminatory reason for terminating

McCoy’s employment, and McCoy failed to show that

Maytag’s proffered reason was a pretext. McCoy’s breach

No. 06-2417 19

of contract claim failed because he did not exhaust his

administrative remedies under the CBA prior to filing

suit, and his claim did not meet any of the three excep-

tions to the exhaustion rule. Accordingly, the district

court’s judgment is AFFIRMED.

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-30-07