United States District Court, Northern District of Illinois, E.D
December 27, 1983
CHESTER BALARK, PLAINTIFF,
ETHICON, INC., DEFENDANT.
The opinion of the court was delivered by: Bua, District Judge.
Plaintiff brought the instant lawsuit seeking to have the court
confirm and enter judgment upon an arbitration award. In
addition, plaintiff seeks to obtain damages under theories of
retaliatory discharge and intentional infliction of emotional
distress. Jurisdiction over the instant
matter is based on diversity of citizenship. 28 U.S.C. § 1332.
Before the Court is defendant's Motion to Dismiss. For the
reasons stated herein, defendant's Motion to Dismiss is
On May 11, 1982, because of unexcused absences, plaintiff was
discharged from his employment with defendant. Plaintiff
grieved the discharge under the collective bargaining agreement
and on November 24, 1982 received an arbitrator's decision
directing that plaintiff be reinstated upon a finding of
medical fitness for work by an orthopedic physician mutually
agreeable to the parties. On January 24, 1983, plaintiff was
deemed to be medically fit and, on the following day, was
reinstated to the employment roll. Immediately thereafter,
however, he was discharged under a different section of the
collective bargaining agreement. In connection with this
discharge he was told, by letter dated February 7, 1983, that
he had violated defendant's standards of behavior by exhibiting
"the most reprehensible of employee conduct by deliberately and
intentionally creating a significant work place disturbance and
by making false and malicious statements against Supervisor
Richard Owens which culminated in (plaintiff's) . . . filing
against Supervisor Owens totally unwarranted false criminal
assault charges which in turn were not sustained in trial
On April 21, 1983 the instant lawsuit was filed in state court.
The case was subsequently removed to this Court.
Plaintiff's complaint is in three counts. In Count I, plaintiff
asks the Court to confirm and enter judgment on the arbitration
award. Count II is based on a theory of retaliatory discharge.
Finally, in Count III, plaintiff attempts to assert a claim
based on intentional infliction of emotional distress. The
Court will address each count separately as it relates to the
Motion to Dismiss.
In Count I, plaintiff asks this Court to confirm and enter
judgment on the arbitration award, thus permitting enforcement
of the award as any other judgment or decree. Ill.Rev.Stat. ch.
10 ¶¶ 111, 114 (1981).
Plaintiff's grievance dealt solely with the issue of whether he
was properly terminated under Article III, Section D2(a) of the
applicable collective bargaining agreement, which provides:
An employee shall be deemed to have quit his/her job
voluntarily if (a) he/she is absent from work for three
consecutive days without good cause.
Plaintiff's absence from work on May 7, 8 and 10 allegedly
caused his termination. Plaintiff argued to the arbitrator that
his absence from work was not without good cause as two
physicians had diagnosed him as being unable to work during the
period of his absence, despite the fact that various company
physicians had deemed him fit to return to work on those dates
and that X-rays revealed no abnormalities or other objective
findings of disability.
The arbitrator ruled that plaintiff's absence was not without
good cause and ordered that plaintiff could not be terminated
based on such absence. Upon a finding of medical fitness by a
physician agreeable to both parties, plaintiff was to be
reinstated to his position. Plaintiff was in fact reinstated,
only to be terminated immediately thereafter because of his
previously having violated defendant's standards of behavior.
Plaintiff's second termination was for grounds wholly
independent of those contained in the grievance. Confirmation
and enforcement of the arbitrator's decision would therefore be
ineffective as to those grounds which form the basis of
plaintiff's most recent termination.
Defendant fully complied with the arbitrator's decision.
Indeed, in his verified complaint, plaintiff admits that he was
reinstated by defendant. In essence, plaintiff seeks relief on
issues never submitted to arbitration. It is well settled that
a court's function in confirming an arbitration award is
severely limited. Amiciza Societa Navegazione v. Chilean
Nitrate & Iodine Sales Corp., 274 F.2d 805 (2nd Cir. 1960).
The court's power of enforcement is
restricted to those matters dealt with in the arbitrator's
award. As plaintiff here seeks to have the Court enter judgment
on matters outside of the arbitrator's decision, Count I must
be dismissed. Such matters must first be presented to the
arbitrator as provided in the collective bargaining
agreement.*fn1 Only upon the arbitrator's decision as to
these matters, here concerning plaintiff's discharge for
misconduct under Article II, Section E of the collective
bargaining agreement, may the Court confirm the award and enter
judgment on those issues.
The Court's decision in this regard envelopes plaintiff's
arguments regarding both the reinstatement and back-pay issues,
the latter of which is not mentioned in either the arbitrator's
decision or the plaintiff's complaint but which arises for the
first time in plaintiff's response to defendant's motion to
dismiss. Even were the back-pay issue properly raised in the
plaintiff's complaint, it is apparent that this remedy was not
provided for by the arbitrator and therefore cannot be implied
by this Court. If a back-pay award is desired, it may only be
provided by the arbitrator and cannot be imposed by this Court.
See, Beer, Soft Drinks, Water, Carbonic Gas & Liquor Sales
Drivers, etc., Local 744, v. Vierk Corporation, 549 F. Supp. 393
(N.D. Ill. 1982).
Plaintiff admits that the arbitrator's decision has been
complied with. The remedy it seeks in Count I is beyond the
scope of that award. Count I must therefore be dismissed.
In Count II, plaintiff maintains that his termination was in
retaliation for his complaints to the police regarding certain
of his superiors employed by defendant.
Whether plaintiff's complaint has merit is irrelevant. In Lamb
v. Briggs Manufacturing, 700 F.2d 1092 (7th Cir. 1983), the
Court clearly established that in a diversity action, such as
in the case at bar, no right of action for retaliatory
discharge exists in this Court where plaintiff is covered by a
collective bargaining agreement which provides a mechanism for
assertion of the claims. As defendant points out, Palmateer v.
International Harvester Company, 85 Ill.2d 124, 52 Ill.Dec.
13, 421 N.E.2d 876 (1981), relied upon by plaintiff, is of
little consequence as in that case no collective bargaining
agreement was in place. Similarly, Judge Posner's dissent in
Jackson v. Consolidated Rail Corporation, 717 F.2d 1045 (7th
Cir. 1983), expounding what the learned judge believes should
be the law, falls of its own weight. Lamb provides the law of
Because plaintiff was covered by a collective bargaining
agreement, no cause of action for retaliatory discharge exists
in this circuit. Count II must therefore be dismissed.
Count III attempts to allege a claim for intentional infliction
of emotional distress arising from defendant's allegedly: (1)
refusing to reinstate plaintiff despite an arbitration award in
plaintiff's favor; (2) referring plaintiff's name to the FBI in
its investigation of the "Tylenol murders;"*fn2 and, (3)
sending a letter to plaintiff stating the reasons for
plaintiff's discharge as being that plaintiff deliberately
created a work place disturbance and made false and malicious
criminal accusations against his supervisor.
In order to state a claim for intentional infliction of
emotional distress in Illinois, the plaintiff must allege facts
sufficient to establish: (1) that the conduct of the defendant
was extreme and outrageous; (2) that the emotional distress
suffered by the plaintiff was severe; and (3) where, as here,
plaintiff alleges that defendant's conduct was reckless, that
conduct was such that defendant knew that severe emotional
distress would be certain or substantially certain to follow.
Plocar v. Dunkin' Donuts of America, 103 Ill. App.3d 740, 59
Ill.Dec. 418, 431 N.E.2d 1175 (1st Dist. 1981).
Plaintiff's complaint is deficient in several respects. First,
it is apparent that the conduct complained of by plaintiff
falls short of being "extreme and outrageous" as required to
state a valid claim for intentional infliction of emotional
distress in Illinois. Public Finance Corp. v. Davis,
66 Ill.2d 85, 4 Ill.Dec. 652, 360 N.E.2d 765 (1976).
According to the Restatement (Second) of Torts, even tortious
or malicious intent is insufficient. "Liability has been found
only where the conduct has been so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of
decency. . . ." Restatement (Second) of Torts, § 46, comment d
(1965), quoted in Public Finance Corp., supra.
The Court is hard pressed to see how any of the conduct
complained of by plaintiff could in any way be construed as
"extreme and outrageous." As the Court has previously noted,
defendant did not fail to abide by the arbitrator's decision;
rather it chose to terminate plaintiff on an independent basis.
Hence, insofar as plaintiff complains of defendant's failure to
comply with the arbitrator's decision, the allegations are
without merit. Further, even if the Court were to hold that
defendant disobeyed the arbitrator, such conduct is hardly
extreme and outrageous. Thus, insofar as this conduct is
complained of, plaintiff clearly fails to state a claim for
intentional infliction of emotional distress.
Because the conduct complained of fails to constitute extreme
and outrageous conduct, the other elements of the tort, namely
the severity of the distress and defendant's knowledge that
severe emotional distress would follow need not be addressed in
detail. The Court does note, however, that given the high
degree of severity which must be alleged, it does not appear
that these factors have been met. See, Restatement (Second)
of Torts, § 46, comment j (1965).
Plaintiff's assertion that by referring his name to the FBI in
connection with the "Tylenol murders" investigation, defendant
caused plaintiff to suffer emotional distress also is
insufficient. Defendant claims that as a subsidiary of the
parent company of the manufacturer of Tylenol, it was obligated
to give plaintiff's name to the FBI. While such behavior on the
part of defendant may indicate a lack of judgment and personal
respect and would reasonably tend to upset any named suspect
such as plaintiff, given the severity of the crimes and the
difficulty inherent in solving them, such conduct is far from
extreme or outrageous and is not reasonably likely to trigger
severe emotional distress on the part of the plaintiff. In this
regard, plaintiff also fails to state an emotional distress
Finally, plaintiff appears to claim that by notifying plaintiff
by letter of the reasons for his final discharge, and by
discharging him on the grounds contained therein, defendant
intentionally inflicted emotional distress onto the plaintiff.
Again the court fails to understand how such conduct could
possibly he construed as extreme and outrageous. Indeed, by
informing plaintiff of the termination decision and the
underlying grounds for it in writing, defendant may have aided
plaintiff in that such evidence could conceivably be used in
the presentation of his case to an arbitrator on those issues
which must be submitted to arbitration.*fn3
Plaintiff argues that the holding of the Illinois Appellate
Court in Milton v. Illinois Bell Telephone, 101 Ill. App.3d 75,
56 Ill.Dec. 497, 427 N.E.2d 829 (1st Dist. 1981)
mandates the denial of defendant's motion to dismiss Count III.
Milton, the court held that a complaint properly stated a
claim for intentional infliction of emotional distress where
the plaintiff alleged, inter alia, that his employer ordered
him to falsify certain work reports and, when plaintiff
refused, retaliated against him by harassment and coercion.
While the Court recognizes that each case involving intentional
infliction of emotional distress must be considered
individually and that no two cases will ever be exactly alike,
it is clear that Milton is plainly distinguishable from the
case at bar and that its holding offers not even persuasive
support of plaintiff's argument.
In Milton, the court appears to have based its holding on the
fact that by demanding plaintiff to falsify the reports,
defendant, as a public utility, was attempting to coerce
plaintiff to engage in illegal conduct. Therefore, the court
held, by refusing to falsify the reports, plaintiff was merely
exercising his legal rights. However, the fact that plaintiff
in the case at bar also was merely exercising his legal rights,
here by filing a criminal complaint against his supervisor,
does not necessitate a holding that Milton is to be equated
with the circumstances presented here. In Milton, unlike in
the instant case, among the conduct allegedly engaged in by
defendant was the attempted coercion of plaintiff into illegal
activity. Indeed, that coercion appears to form the main
rationale behind the Milton holding. Plainly, the instant
case cannot be viewed as parallel to Milton and fails to
state a claim for intentional infliction of emotional distress.
See also Public Finance Corp. v. Davis, 66 Ill.2d 85, 4
Ill.Dec. 652, 360 N.E.2d 765 (1976) (where agent of Public
Finance repeatedly called Davis at home, work, and daughter's
hospital room; was informed of Davis' sick and nervous
condition as well as that of her daughter; induced Davis to
write a check despite the fact that her account had
insufficient funds; informed an acquaintance of Davis that she
was writing bad checks; and engaged in other conduct of a
similar nature, all in an attempt to collect on an unpaid debt,
the court held the conduct not to be extreme and outrageous);
Morrison v. Sandell, 112 Ill. App.3d 1057, 68 Ill.Dec. 556,
446 N.E.2d 290 (4th Dist. 1983) (court held that the conduct of
defendant, which included the undermining of his ability to
learn his job, including the deliberate withholding of
instruction and training, the removal of personal items from
plaintiff's coat, the encouraging of other employees to give
plaintiff the "silent treatment", and, on one occasion, the
placement of human waste in plaintiff's desk drawer, did not
constitute extreme and outrageous conduct); Plocar v. Dunkin'
Donuts, 103 Ill. App.3d 740, 59 Ill.Dec. 418, 431 N.E.2d 1175
(1st Dist. 1981).
For the reasons stated herein, plaintiff's complaint fails to
state a claim upon which relief can be based. Therefore,
defendant's Motion to Dismiss is granted.
IT IS SO ORDERED.