                            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
