United States District Court, Northern District of Illinois, E.D
October 26, 1984
THOMAS RACHFORD, PLAINTIFF,
EVERGREEN INTERNATIONAL AIRLINES, INC., A CORPORATION, AND EVERGREEN INTERNATIONAL AVIATION, A CORPORATION, DEFENDANTS.
The opinion of the court was delivered by: Leighton, District Judge.
This cause is before the court on defendants' motion,
pursuant to Rule 12(b)(6), Fed.R.Civ.P., to dismiss
plaintiff's complaint. It is axiomatic that under this rule a
complaint should be dismissed only if it appears beyond doubt
that a plaintiff can prove no set of facts on which relief can
be granted. Hishon v. King & Spalding, ___ U.S. ___, 104 S.Ct.
2229, 2233, 81 L.Ed.2d 59 (1984). The facts, alleged by
plaintiff, and taken as true for purposes of this motion, are
Plaintiff, Thomas Rachford, was formerly employed by
Evergreen International Airlines as a flight engineer. He was
an experienced aircraft mechanic and held a 727 Flight
Engineer Rating, an Air Frame & Power Plant license, and a
Flight Engineer license. In the course of performing
maintenance tasks for the airline, plaintiff noted
irregularities in Evergreen's operating procedures, including
inattention to aircraft maintenance requirements imposed by
Federal Aviation Administration (FAA) regulations which he
brought to the attention of Penn Stohr, Evergreen's Vice
President of Maintenance, at corporate headquarters in
McMinnville, Oregon. Plaintiff also noticed that aircraft #
864 consumed excessive oil and told Stohr of this problem on
successive occasions. When plaintiff was on aircraft # 864 on
June 25, 1984, on a flight from Ontario, California to
Newburgh, New York, the aircraft required oil during a stop at
O'Hare airport; plaintiff warned two Evergreen employees that
# 864 would probably require shutdown due to the engine
On June 26, 1984, the airline discharged plaintiff because
he had informed the FAA about the excessive oil consumption of
aircraft # 864, and because of his excessive complaints to
supervisors and other employees. Plaintiff, an Illinois
citizen, then brought this action against defendants Evergreen
International Airlines, Inc., and Evergreen International
Aviation, Inc., Oregon corporations, invoking the court's
diversity jurisdiction pursuant to 28 U.S.C. § 1332, alleging
wrongful discharge in violation of Illinois law, the Federal
Aviation Act, 49 U.S.C. § 1421, 1425; and under the Railway
Labor Act, 45 U.S.C. § 152, and 181, et seq.
Plaintiff's claim under Illinois law is based on the tort of
retaliatory discharge, a cause of action available to an at
will employee (as plaintiff was), when his termination is in
violation of a public policy of the State of Illinois.
Palmateer v. International Harvester Co., 85 Ill.2d 124, 52
Ill.Dec. 13, 421 N.E.2d 876 (1981); Kelsay v. Motorola, Inc.,
74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978). However,
as defendants point out, this cause of action is a narrow
exception to the usual Illinois rule that an employer may
freely discharge an at will employee. To state a claim for
retaliatory discharge, a plaintiff must allege that his
termination contravenes a clear mandate of public policy of the
state. Here, plaintiff does not rely on State of Illinois law,
but on federal law in support of his claim; and thus, this
court concludes that he has no viable state claim for wrongful
discharge. See Olguin v. Inspiration Consolidated Copper Co.,
740 F.2d 1468 (9th Cir. 1984). While it is undoubtedly true, as
plaintiff claims, that Illinois has a general policy in favor
safety, the state has no interest in enforcing federal law,
even if that federal law is incorporated, as plaintiff
suggests, in the state's general public policy. Id. at 1475.
Moreover, this court finds it difficult to discern why Illinois
public policy would be implicated by the discharge of an
employee of an Oregon corporation for complaints which occurred
in Oregon regarding maintenance of aircraft which flew over the
entire United States. Defendants' motion to dismiss Count I is
Plaintiff bases his claim in Count II on a right of action
under the Federal Aviation Act. However, Congress did not
expressly provide a right of action under that statute, nor
does an implied right of action exist. Pavolini v. Bard Air
Corp., 645 F.2d 144 (2d Cir. 1981). The relevant provisions of
the act do not require an air carrier to continue to employ an
employee, nor do they prohibit a carrier from discharging an
employee for reporting safety violations; thus an action
seeking redress for loss of employment does not flow from any
statutory requirement or violation, and cannot be maintained.
Id. at 147. Defendants' motion to dismiss Count II on this
ground is granted.
In Count III, plaintiff alleges that his consultation with
fellow employees and representation of their joint safety
concerns to management constituted protected activity within
the Railway Labor Act. However, that act does not cover
concerted activities unrelated to union organizing. 45 U.S.C. § 152,
Fourth. See also Davin v. Delta Air Lines, Inc.,
678 F.2d 567 (5th Cir. 1982). Because plaintiff states in his
complaint, Count I, para. 10, that "at none of the times
relevant herein did plaintiff belong to a labor organization,"
his claim under the Railway Act must fail. Defendants' motion
to dismiss Count III is granted.
In light of the above, this court is forced to conclude that
plaintiff has failed to state a claim on which relief can be
granted, and that his remedy, if any, lies in the state courts
of Illinois or, more plausibly, in the courts of Oregon. While
it is perhaps lamentable that one who "whistle blows"
regarding such important matters as air safety should be
discharged from his employment without a remedy under the
Federal Aviation Act, Congress has not seen fit to protect
employees from such retaliation. Until that time, a federal
court can provide no recourse to an employee discharged for
reporting violations of federal safety regulations.
Pavolini v. Bard Air Corp., 645 F.2d at 148. Accordingly,
defendants' motion to dismiss is granted, and this suit is
dismissed in its entirety.
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