1

 Feeder drivers driver semi-tractor trailers for UPS.

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

REGINALD FLEMING, WILLFREDO )

VASQUEZ, PETER D. CARTER, DARRYL D. )

MACARTHUR, EDWARD BANEVICIUS, )

THOMAS BALLUFF, JOHN BAPTISTE, )

LARRY BORTKO, DALE CHOBAK, )

THOMAS PSIHOGIOS, and RICKY WHITE, )

)

Plaintiffs, )

)

vs. ) Case No. 03 C 9391

)

UNITED PARCEL SERVICE and )

INTERNATIONAL BROTHERHOOD )

OF TEAMSTERS, LOCAL 705, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

The plaintiffs in this case are “feeder drivers”1 for United Parcel Service and members of

Local 705 of the International Brotherhood of Teamsters Union. In 2002, the plaintiffs were

temporarily laid off from their home domicile facilities in UPS’s Metro Chicago district, and they

transferred to facilities in the North Illinois and Chicago Area Consolidation Hub districts, where

they “bumped” other workers with less seniority. 

The plaintiffs’ claims are based on their treatment during and after these temporary

layoffs. They have sued UPS for breaching its collective bargaining agreement with Local 705

under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and have also sued
2

 According to Gary Landem, UPS’s Metro Chicago labor manager, a feeder driver’s

home domicile is the facility into which he is initially hired; that facility generally remains the

driver’s home domicile for the rest of his career at UPS. Landem Decl. ¶ 15. The parties dispute

the circumstances under which a feeder driver can change his home domicile.

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Local 705 for breaching its duty to fairly represent them under section 9 of the National Labor

Relations Act, 29 U.S.C. § 159. In addition, plaintiffs Fleming, Carter, and Vasquez have

asserted claims of race discrimination against UPS under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-5. Defendants have moved for summary judgment on all of these

claims. For the reasons outlined below, the Court grants the defendants’ motions.

Facts

Defendant UPS ships packages throughout the world. In the Chicago metropolitan area,

UPS has three districts collectively known as the Tri-District – Metro Chicago, North Illinois,

and the Chicago Area Consolidated Hub (CACH). Metro Chicago has three facilities (Jefferson

Street, Northbrook, and Franklin Park); North Illinois has two facilities (Addison and Palatine);

and CACH, the largest UPS facility in the country, is its own district. Defendant Local 705 is a

labor union local that represents over 12,500 UPS employees within UPS’s Tri-District. Landem

Decl. ¶¶ 4-10. UPS and Local 705 negotiate and enter into collective bargaining agreements that

govern the employment relationship between UPS and its employees, and both are involved with

various aspects of interpreting and administering the agreements. 

During 2002, plaintiffs, who are feeder drivers domiciled2 at UPS facilities in Metro

Chicago, were laid off from their positions in that district due to a shortage in work. Specifically,

these plaintiffs are:

• Thomas Balluff, a Caucasian man assigned to UPS’s Northbrook facility who was

laid off in February 2002. Def. 56.1 Stmt. ¶¶ 8, 43, 68.
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 The exceptions were plaintiffs Bortko, MacArthur, and Vasquez who were out on either

worker’s compensation or disability leave at various times during the layoff. Def. 56.1 Stmt. ¶

71.

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• Edward Banevicius, a Caucasian man assigned to UPS’s Northbrook facility who

was laid off in February 2002. Def. 56.1 Stmt. ¶¶ 7, 42, 68.

• John Baptiste, a Caucasian man assigned to UPS’s Northbrook facility who was laid

off in February 2002. Def. 56.1 Stmt. ¶¶ 9, 44, 68.

• Larry Bortko, a Caucasian man assigned to UPS’s Northbrook facility who was laid

off in May 2002. Def. 56.1 Stmt. ¶¶ 10, 45, 70.

• Peter Carter, an African-American man assigned to UPS’s Northbrook facility who

was laid off in January 2002. Def. 56.1 Stmt. ¶¶ 5, 39, 69.

• Dale Chobak, a Caucasian man assigned to UPS’s Franklin Park facility who was

laid off in May 2002. Def. 56.1 Stmt. ¶¶ 11, 46, 70.

• Reginald Fleming, an African-American man assigned to UPS’s Northbrook facility

who was laid off in February 2002. Def. 56.1 Stmt. ¶¶ 3, 38, 68.

• Darryl MacArthur, an African-American man assigned to UPS’s Northbrook facility

who is unsure when he was laid off. Def. 56.1 Stmt. ¶¶ 6, 41, 69.

• Thomas Psighogis, a Caucasian man assigned to UPS’s Northbrook facility who was

laid off in November 2002. Def. 56.1 Stmt. ¶¶ 12, 47, 69.

• Willfredo Vasquez, a Hispanic man assigned to UPS’s Jefferson Street facility who

was laid off in February 2002. Def. 56.1 Stmt. ¶¶ 4, 40, 68.

• Ricky White, an African-American man assigned to UPS’s Jefferson Street facility

who was laid off in February 2002. Def. 56.1 Stmt. ¶¶ 13, 48, 68

Despite being laid off from their respective jobs, the plaintiffs were able to take positions as

feeder drivers in UPS’s CACH and North Illinois districts, “bumping” other workers who had

less seniority.3

 When the layoff ended in December 2002, the plaintiffs were recalled to their

home domicile facilities in the Metro Chicago district. Def. 56.1 Stmt. ¶ 56, 71, 96-97. They
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were laid off in 2003, 2004, and 2005, however, due to shortages of work. During these periods,

plaintiffs bumped into positions in other job classifications in the Metro Chicago district or took

voluntary layoffs subject to recall. Def. 56.1 Stmt. ¶ 99.

Plaintiffs’ claims arise out of their treatment following the 2002 layoff. They contend

that under the collective bargaining agreement then in effect (the “Old CBA”), they were entitled

to remain at the facilities to which they had relocated. If they had been allowed to remain at

those facilities, they would have avoided the later layoffs. Plaintiffs contend that UPS breached

the Old CBA in requiring them to return to Metro Chicago after the 2002 layoff; that Local 705

failed to pursue their grievances regarding UPS’s action; and that Local 705 harmed plaintiffs by

negotiating away, in the collective bargaining agreement concluded in October 2002 (“New

CBA”), their purported right to stay in the facilities to which they had bumped. Plaintiffs

Fleming, Carter, and Vasquez further contend that defendants racially discriminated against them

by not following the Old CBA as well as by negotiating away their rights in the New CBA.

The parties agree that under the Old CBA, laid off feeder drivers could bump or displace

the least senior feeder driver within the Tri-District. Def. 56.1 Stmt. ¶¶ 56-57. The parties

disagree, however, about the options laid off feeder drivers had after they displaced that

individual.

First, defendants contend that a feeder driver’s home domicile facility does not change

even if he bumps into another facility during the layoff. Plaintiffs, in contrast, argue that a

displaced feeder driver could opt to change his home domicile to the facility into which he

bumped after working there for thirty days. Def. 56.1 Stmt. ¶¶ 72-73, 113.

Second, the parties disagree about whether a laid off feeder driver had the right to bid on
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shifts and start times at the facility into which he bumped. At each UPS facility, feeder driver

start times are put up for bidding twice a year based on center seniority, defined as the date the

individual first obtained a feeder position with UPS. Defendants argue that feeder drivers may

only bid for shifts and start times within their home domiciles; plaintiffs contend that feeder

drivers stationed outside their home domiciles are also allowed to participate in the bidding

process. Def. 56.1 Stmt. ¶ 49-52. 

Third, the parties dispute whether plaintiffs had a right to remain at the facility to which

they had been displaced at the end of the layoff. The Old CBA provided that “[w]hen a layoff is

over the employee may return to his/her regular Center.” Defendants say this provision simply

permitted laid off feeder drivers to return to their home domicile facilities after the end of a

layoff. Plaintiffs contend that this provision and company practice gave laid off feeder drivers

the right to remain permanently at the facility into which they had bumped after thirty days, to

designate that facility their home domicile, and to bump into permanent positions there. Def.

56.1 Stmt. ¶¶ 83-84. Defendants disagree, saying that this provision did not give a laid off

feeder driver a unilateral right to remain at the location into which he had bumped: instead, the

feeder driver, UPS, and Local 705 could reach a mutual agreement under which he could remain

by changing his home domicile and bidding on and obtaining a permanent position.

Plaintiffs filed several grievances about their treatment during the 2002 layoff. In these

grievances, they complained about being transferred to multiple facilities during the layoff, not

being allowed to bid on shifts and start times, not being allowed to bid for permanent positions at

the facilities into which they had bumped, and being forced to return to their home domicile

facilities at the end of the layoff. Def. 56.1 Stmt. ¶¶ 121, 124, 130, 133. 
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Most of these grievances resulted in deadlocks at the UPS/Local 705 Grievance

Committee. Rather than taking the grievances to arbitration, Local 705 decided to refer them to

the UPS/Local 705 committee that was drafting the New CBA. Plaintiffs contend that referring

the grievances to the negotiating committee was not an option under the Old CBA and that

plaintiffs’ grievances were therefore never really resolved. Def. 56.1 Stmt. ¶¶ 102-133. 

Both the Old and New CBAs provide for a multi-step grievance and arbitration procedure

for resolving disputes involving “differences between the Employer and the Union as to the

application or interpretation of the any of the provisions of this Agreement.” Defendants argue

that Local 705 has the discretion to decide whether to pursue a grievance through arbitration;

plaintiffs argue that all grievances require a final resolution, meaning that if there is a deadlock in

the UPS/Local 705 Grievance Committee, the grievance must be sent to binding arbitration. Def.

56.1 Stmt. ¶¶ 102–07.

 By the time the 2002 layoff ended, the New CBA was in effect. Local 705’s membership

ratified the contract on October 1, 2002; it had an effective date of August 1, 2002. The New

CBA provided that “[w]hen the layoff is over, the employee will return to his/her regular

Center.” Def. 56.1 Stmt. ¶ 86. It also brought the bumping rights available to laid off feeder

drivers during future layoffs in line with the bumping rights available to all other employees. 

Whereas the Old CBA allowed only laid off feeder drivers to bump the least senior employee in

their classification in the entire Tri-District, the New CBA provides that feeder drivers, like other

laid off employees, can only bump the least senior employee in their job classification in their

home district. New CBA, Art. 44, § 4. 
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Discussion

Defendants are entitled to summary judgment “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, show that there is no genuine

issue as to any material fact and that the moving part[ies] [are] entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c). When evaluating a motion for summary judgment, the Court must

view the facts in favor of the non-moving parties and draw all reasonable inferences in their

favor. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

1. Breach of contract / duty of fair representation claims concerning old CBA

Plaintiffs have sued UPS for breach of the Old CBA and Local 705 for failure to pursue

their grievances under the Old CBA. An individual beneficiary of a collective bargaining

agreement may not, without more, sue his employer for breaching the agreement. Rather, he may

do so only if he can demonstrate that the union representing him has breached its duty to fairly

represent union members. DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 164-65

(1983). In a “hybrid” case of this type, the claims against the employer and the union are

interdependent; if the employee fails to establish either, the suit fails. Id.

The Court agrees with Local 705 that the plaintiffs’ claims for failure to pursue the

grievances are time-barred. The claims are subject to a six month statute of limitations. Id. at

171; 29 U.S.C. § 160(b). A claim for breach of the duty of fair representation based on failure to

pursue a grievance accrues when the plaintiff discovers or reasonably should discover that no

further action will be taken on the grievance. See, e.g., Chapple v. Nat’l Starch & Chemical Co.,

178 F.3d 501, 505 (7th Cir. 1999). The inquiry is an objective one; “‘the asserted actual

knowledge of the plaintiffs is not determinative if they did not act as reasonable persons and, in
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effect, closed their eyes to evident and objective facts concerning the accrual of their right to

sue.’” Noble v. Chrysler Motors Corp., 32 F.3d 997, 1000 (6th Cir. 1994) (quoting Chrysler

Workers Ass’n v. Chrysler Corp., 834 F.2d 573, 579 (6th Cir. 1987)).

The New CBA was ratified on October 1, 2002; Local 705 contends that the provision in

the New CBA stating that when a layoff is over, the employee “will return to his/her regular

Center” should have told the plaintiffs that their grievances had been resolved against them. The

Court does not agree; the New CBA did not, on its face, resolve the question of what was to

become of grievances filed under the Old CBA. But other facts known to all the plaintiffs made

it clear, or should have made it clear, that their grievances were not being pursued. Specifically,

each of the plaintiffs admit that in December 2002 or January 2003, they attended meetings with

Gerald Zero, the principal officer of Local 705, and Tom Nightwine, Local 705’s contract

negotiator and head of the Local’s delegation to the UPS grievance panel, at which it is

undisputed that Zero and Nightwine stated the plaintiffs would have to remain permanently in the

Metro District (their original home domicile). Def. 56.1 Stmt. ¶¶ 149-51. This was sufficient to

put the plaintiffs on notice regarding the disposition or non-pursuit of their grievances and to

start the six-month limitations period. Because plaintiffs did not make their claim until May

2004, it is time-barred. The fact that plaintiffs may not have received official notification of the

termination of their grievances had been resolved is not controlling; “a claim ... can accrue even

though the union never officially notifies the plaintiff that it will not do what the plaintiff

requested.” Pantoja v. Holland Motor Express, 965 F.2d 323, 327 (7th Cir. 1992).

As to most of the plaintiffs, there is more. Plaintiffs Bortko and Baptiste filed

administrative charges of discrimination against Local 705, in July 2003 and October 2003
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respectively, complaining in part about Local 705’s lack of action on their grievances. Id. ¶¶

145-47. Plaintiffs Fleming, Vasquez and Carter admit that in late 2002 or early 2003, they saw

correspondence in which Local 705’s legal counsel stated that “[g]rievances regarding layoff

rights were resolved in accordance with Article 44, Section 4 of the new contract” – the provision

requiring them to return to their original domiciles. Id. ¶¶ 138-41; Carter Decl. ¶ 29. Finally, in

December 2002, all of the plaintiffs other than MacArthur, White and Fleming went to the

National Labor Relations Board with another driver who filed a charge against Local 705 for

breaching its duty of fair representation in connection with the negotiation of the new contract;

plaintiff Vasquez testified that the group was supporting the other driver’s charge “because we

weren’t getting answers directly from anyone regarding our problems ... and the grievances

weren’t getting anywhere and they weren’t listening.” Id. ¶ 143. As the Seventh Circuit stated in

Pantoja, “[p]rolonged inaction is sufficient to give a diligent plaintiff notice that the union had

breached its duty of fair representation.” Pantoja, 965 F.2d at 327. See also Menges v. Freigh

Car Svcs., Inc., 223 F. Supp. 2d 988, 993-96 (C.D. Ill. 2002) (union’s failure to answer questions

and giving member the “run around” put member on notice of claim for breach of duty of fair

representation).

Local 705 is entitled to summary judgment on plaintiffs’ duty of fair representation

claims regarding the old CBA, and for this reason, plaintiffs cannot sustain claims against UPS

for breach of the Old CBA.

2. Breach of duty of fair representation claims regarding new CBA

Plaintiffs have made an additional claim against Local 705 for breach of its duty of fair

representation; they contend the Local committed such a breach in negotiating away some of
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plaintiffs’ bumping rights in the new CBA. These claims are likewise are time-barred. A claim

for breach of the duty of fair representation arising based on the negotiation of a collective

bargaining agreement accrues when the employee discovered or should have discovered the

agreement’s existence. See Zapp v. United Transp. Union, 879 F.2d 1439, 1441 (7th Cir. 1989). 

The union membership ratified the New CBA on October 1, 2002; plaintiffs concede that Local

705 mailed out copies of the proposed new contract before that date, along with the ratification

ballot. Def. 56.1 Stmt. ¶ 93. Plaintiffs have offered no basis for a later accrual date or for tolling

the limitations period. Because their duty of fair representation claims against Local 705 were

not filed until May 2004, the claim based on the negotiation of the new CBA is time-barred.

3. Race discrimination by UPS against plaintiffs Fleming, Carter, and Vasquez

Plaintiffs Fleming and Carter, who are African-American, and Vasquez, who is HispanicAmerican, each claim that UPS unlawfully discriminated against them based on their race in

administering the Old CBA and implementing the New CBA. Because plaintiffs offer no direct

evidence of discrimination, we analyze their claims under the familiar McDonnell Douglas

burden-shifting standard. Under this standard, a plaintiff can establish a prima facie case of

discrimination by showing that he is a member of a protected class, performed his job

satisfactorily, suffered an adverse employment action, and was treated less favorably than a

similarly situated individual who was not a member of his minority group. Greenslade v. Chi.

Sun-Times, Inc., 112 F.3d 853, 863 (7th Cir.1997). 

a. Discrimination under the Old CBA

Plaintiffs allege that UPS discriminated against them under the Old CBA by failing to lay

off Jim Lepper, a Caucasian driver with less seniority than they had, during the initial Metro
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Chicago layoffs; by allowing Frank Slowik, another Caucasian feeder driver, to return to his

home domicile facility while forcing plaintiffs out; and by allowing Caucasian feeder drivers to

bid on more desirable shifts at the facilities to which plaintiffs were displaced. 

UPS concedes that plaintiffs are members of a protected class, and by waiting until its

reply to argue that they did not suffer adverse employment actions, UPS has forfeited that

argument for purposes of its motion for summary judgment. In seeking summary judgment, UPS

relied on the argument that the Caucasian individuals cited by plaintiffs are either not similarly

situated to plaintiffs or were treated the same as plaintiffs.

UPS agrees that Jim Lepper was not laid off but asserts that this was because he had more

seniority than all of the plaintiffs. Neither side, however, cites any accurate references to Lepper

in the record; both sides merely make contentions about Lepper in their briefs. See Pl. Resp. at 7;

UPS Reply at 3. Because plaintiffs offer no evidence regarding Lepper that is based on personal

knowledge, there is no basis to consider Lepper as comparable to plaintiffs for purposes of

evaluating their claims against UPS. See Juarez, 366 F.3d at 484.

UPS agrees that Frank Slowik returned to work as a feeder driver in the North Illinois

district at the end of the 2002 layoffs. According to UPS, Slowik was similarly situated to

plaintiffs and was treated the same as they were. The Court agrees. Slowik and the plaintiffs

were laid off during the 2002 layoffs and bumped into facilities outside their home district. 

Slowik was treated the same as plaintiffs at the end of the layoffs; he, like plaintiffs, was forced

to return to his home domicile facility, though this was a different home facility from those of the

plaintiffs. See Landem Supp. Decl. ¶ 162. In his own declaration, plaintiff Fleming recognizes

that Slowik was domiciled in North Illinois, laid off, and forced to return to North Illinois at the
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end of the layoff. Fleming claims that this action violated his seniority rights based on his

understanding of the Old CBA, but even if that is so, it still does not support a contention that

Slowik was treated more favorably than Fleming and the other plaintiffs in this case in a manner

that supports their claims of race discrimination. Fleming Decl. ¶ 26.

Finally, plaintiffs claim that Caucasian feeder drivers were able to bid on better shifts. 

UPS counters that any Caucasian feeder drivers who were able to bid on shifts at the facilities to

which plaintiffs were displaced were dissimilarly situated because, they, unlike plaintiffs, had

their home domiciles at these facilities. UPS also argues that similarly situated Caucasian feeder

drivers who were displaced temporarily during the 2002 layoffs – including other plaintiffs in

this case – likewise were not permitted to bid on desirable shifts and start times. Plaintiffs

provide no basis upon which a reasonable jury could find that Caucasian feeder drivers who were

domiciled at the facilities to which plaintiffs were bumped were situated similarly to plaintiffs,

and they provide no evidence that similarly situated Caucasian feeder drivers who were laid off

were treated more favorably. 

Plaintiffs’ response cites declarations by plaintiffs Carter and Vasquez, but the cited

paragraphs merely state that they were put at the bottom of the seniority list for bidding on shifts

and start times. The cited paragraphs provide no evidence – firsthand or otherwise – that

plaintiffs were treated any differently than Caucasian feeder drivers: they simply complained that

they were treated worse than all the feeder drivers who were domiciled at the facilities to which

they had been displaced. Carter Decl. ¶ 6; Vasquez Decl. ¶ 5. The Court concludes that

plaintiffs have not shown the existence of a genuine issue of material fact regarding whether

similarly situated Caucasian feeder drivers were allowed to bid on more desirable shifts.
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b. Discrimination under the New CBA

Plaintiffs allege that the New CBA has a disparate impact on minority feeder drivers, who

plaintiffs contend are disproportionately domiciled in Metro Chicago and are more vulnerable to

layoffs due to consistent work shortages in that district. Plaintiffs state that the New CBA makes

them more susceptible to layoffs because it eliminates their purported right to remain in the

facilities to which they had been displaced during the 2002 layoffs and their ability to bump

throughout the Tri-District in subsequent layoffs. 

To maintain a successful disparate impact claim, plaintiffs bear the burden of showing

that a particular employment practice causes a disparate impact on the basis of race. Once an

adverse impact is shown, the defendant must show that the practice is both related to the job and

necessary for the business. If the defendant makes this showing, plaintiffs can nonetheless

prevail by showing that an alternative practice exists and that defendant refuses to adopt it. Allen

v. City of Chicago, 351 F.3d 306, 311 (7th Cir. 2003).

Defendants argue that there is no disparate impact because the Caucasian plaintiffs in this

case were treated the same. This argument, however, misses the point: a disparate impact claim

can succeed even if non-members of the protected class are adversely impacted by the practice in

question, so long as there is a disparate or disproportionate impact on members of the protected

class.

Plaintiffs’ claims nonetheless fail, because they have not offered evidence from which a

jury reasonably could find a racially disparate impact, such as demographic information about the

UPS districts, information about the seniority of minorities in each district, and information

about the number of layoffs in each district and demographic data about those laid off during the
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last few years. See Price v. City of Chicago, 251 F.3d 656, 660 (7th Cir. 2001). Instead,

plaintiffs’ claims are based solely on conjecture about the number of minorities in the Metro

Chicago district as compared to the CACH and North Illinois districts. These unsubstantiated

statements do not raise a genuine issue of material fact about whether the New CBA has a

disparate impact on racial minorities.

Conclusion

For the foregoing reasons, the Court grants defendants’ motions for summary judgment

[docket nos. 65 & 68]. The Clerk is directed to enter judgment in favor of the defendants. 

___________________________________

 MATTHEW F. KENNELLY

Date: January 9, 2006 United States District Judge