United States District Court, Northern District of Illinois, E.D
July 9, 1985
JOHN A. ALEXANDER, PLAINTIFF,
WESTINGHOUSE HITTMAN NUCLEAR INCORPORATED, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
John Alexander ("Alexander") initially sued his former employer
Westinghouse Hittman Nuclear Incorporated ("Westinghouse") in the
Circuit Court of Cook County, charging his firing was in
retaliation for his having exercised rights under the Illinois
Workers' Compensation Act (the "Act"), Ill.Rev.Stat. ch. 48, ¶¶
138.1 to 138.30.*fn1 Westinghouse removed the action to this
District Court on diversity of citizenship grounds (Alexander is
an Illinois citizen, while Westinghouse is a citizen of both
Delaware [its state of incorporation] and Maryland [the location
of its principal place of business]).
Alexander has moved to remand in reliance on
28 U.S.C. § 1445(c):*fn2
A civil action in any State court arising under the
workmen's compensation laws of such State may not be
removed to any district court of the United States.
In response to that motion and Alexander's supporting memorandum,
Westinghouse has filed a memorandum arguing Alexander's
retaliatory-discharge lawsuit does not "aris[e] under" the Act.
For the reasons stated in this memorandum opinion and order,
Alexander's motion is granted.
This Court does not write on a clean slate. Precisely the same
issue has been posed to three district judges, all of whom have
reached the same conclusion: remand. Thomas v. Kroger Co.,
583 F. Supp. 1031, 1036-37 (S.D.W.Va. 1984); Kemp v. Dayton & Rubber
Co., 435 F. Supp. 1062, 1063 (W.D.Okla. 1977); Fernandez v.
Reynolds Metal Co., 384 F. Supp. 1281, 1283 (S.D.Tex. 1974).
Westinghouse urges the result here should be different, though,
1. the decision in Rubenstein Lumber Co. v. Aetna
Life and Casualty Co., 122 Ill.App.3d 717, 78
Ill.Dec. 541, 462 N.E.2d 660 (1st Dist. 1984); and
2. the fact the Texas workers' compensation law
(involved in Fernandez) and the Oklahoma workers'
compensation law (involved in Kemp) specifically
created a private cause of action for the worker
retaliated against, while the corresponding Illinois
cause of action was judicially created.
But it is plain Westinghouse's arguments do not tell the whole
True enough, Section 138.4(h) simply creates a prohibition
against an employer's retaliatory conduct:
It shall be unlawful for any employer, insurance
company or service or adjustment company to interfere
with, restrain or coerce an employee in any manner
whatsoever in the exercise of the rights or remedies
granted to him or her by this Act or to discriminate,
attempt to discriminate, or threaten to discriminate
against an employee in any way because of his or her
exercise of the rights or remedies granted to him or
her by this Act.
Illinois' General Assembly did not go on in terms (as did the
Texas and Oklahoma legislatures) to specify a private damage
claim for the employee injured by violation of that statute.
Instead it fell to the Illinois Supreme Court in Kelsay v.
Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353
(1978) to recognize a tort claim for the illegally discharged
employee on public policy grounds.
That however is exactly parallel to the West Virginia
situation.*fn3 There the legislature enacted a 1978 amendment to the
workmen's compensation statute, W.Va. Code § 23-5A-1:
No employer shall discriminate in any manner against
any of his present or former employees because of
such present or former employee's receipt of or
attempt to receive benefits under this chapter.
Like the Illinois Supreme Court in Kelsay, the West Virginia
Supreme Court implied a private cause of action where the
legislature had not created one. Shanholtz v. Monongahela Power
Co., 270 S.E.2d 178 (W.Va. 1980) (specifically labeling the
action one in tort, consequent on the employer's "contravention
of public policy," id. at 183).*fn4
Against that background Chief District Judge Haden, in his
thoughtful Thomas opinion, specifically elected to follow the
Fernandez and Kemp cases in ordering remand. Much of what Judge
Haden said could well have been written for this case (in
illustration of which the following quotation, 583 F. Supp. at
1037, has been adapted to the Illinois situation by substituting
the bracketed language for its West Virginia counterparts):
Finding its rule of decision in the Fernandez and
Kemp cases, this Court concludes that [Section
138.4(h)] is a law arising under the workmen's
compensation laws of [Illinois] and Plaintiff's
instant action, founded upon this statute and the
[Illinois] Supreme Court's opinion in [Kelsay], is
barred from removal to federal court by 28 U.S.C. § 1445(c).
In reaching this conclusion the Court is
persuaded not only by the fact that [Section
138.4(h)] is codified as part of the
[Illinois] Workmen's Compensation laws (collected at
[Section 138.4 of chapter 38 of the Illinois
statutes]) but also by the fact that it is an
integral, even essential, component of the
legislatively created workmen's compensation scheme.
The elaborate workmen's compensation plan established
by the legislature would be nullified if workers
refrained from filing claims for benefits or
otherwise refused to participate in workmen's
compensation proceedings, for fear that they would be
terminated because of their action. The protection
afforded workers pursuant to the provisions of
[Section 138.4(h)], then, demarcates it as an
important part of [Illinois'] workmen's compensation
laws. Any civil action brought by an employee to seek
redress for an employer's alleged violation of this
statute is an equally important aspect of the
legislative scheme since a private action brought by
an aggrieved employee is the only method to enforce
the prohibition against retaliatory conduct set forth
in [Section 138.4(h)].*fn5 Therefore, a worker's private
action, such as Plaintiff's, must be considered as an
action "arising under the workmen's compensation
laws" of [Illinois].
It remains only to consider whether Rubenstein makes any
difference. Here too Westinghouse has not told us everything. It
is not true (as Westinghouse claims) that Rubenstein "expressly
rejected" (Westinghouse Mem. 2):
[t]he argument that a complaint alleging that the
plaintiff was discharged for filing a workers'
compensation claim arises under the Illinois Workers'
Compensation Act. . . .
What was at issue in Rubenstein was whether a workers'
compensation insurer was required by the policy terms to defend
and indemnify an employer defendant in a retaliatory discharge
action. What the policy required of the insurer was to defend the
employer (the "Insured") in "any proceeding against the Insured
seeking such benefits. . . ." In turn, "benefits" referred back
to the policy's coverage provision extending to "all compensation
and other benefits required of the Insured by the workmen's
Of course the Illinois Appellate Court rejected the employer's
contention (122 Ill.App.3d at 719, 78 Ill.Dec. at 543, 462 N.E.2d
Therefore, we believe that a tort action seeking
compensatory damages as a result of a retaliatory
discharge is not a proceeding seeking compensation
and other benefits required of the employer by the
Workers' Compensation Act.
It found the employer had mischaracterized the employee's claims,
in terms of policy coverage, by its argument "that the
retaliatory discharge action, though a common law action, arises
out of the Workers' Compensation Act and is therefore a
proceeding within the meaning of the policy" (id. at 718, 78
Ill.Dec. at 542, 462 N.E.2d at 661). As the Appellate Court
pointed out, "the pertinent provision in the policy does not end
with the word `proceeding'" (id.).
Thus Rubenstein decided a retaliatory-discharge lawsuit was not
for "compensation and other benefits required of the [employer]
by the workmen's compensation law." But that is a far different
question from the one presented here and dealt with in Thomas in
the language quoted earlier: whether such a lawsuit "arises
under" the Act. As Chief Judge Haden said on that score, 583
F. Supp. at 1037 n. 10 (again adapted to the Illinois situation,
but with emphasis in the original):
It is important to note that it is the statute itself
which creates Plaintiff's cause of action for
retaliatory discharge. The [Illinois] Supreme Court's
opinion in [Kelsay] merely recognizes the cause of
action created by the statute.
Accordingly this Court adheres to the same analysis as Thomas.
It also finds persuasive, as did Chief Judge Haden, the special
consideration applicable where (as here) jurisdictional
considerations are present. Without ascribing any sandbagging
motive to Westinghouse, this Court is mindful of the possibility
that a court's mistaken decision in favor of retention of a
remandable case could result in a judgment subject to later
attack for want of subject matter jurisdiction. See, e.g., Ross
v. Inter-Ocean Insurance Co., 693 F.2d 659
, 663 (7th Cir. 1982).
Conversely remand can pose no such risk of judicial (and
litigants') diseconomy. As Judge Schwarzer put it in Rosack v.
Volvo of America Corp., 421 F. Supp. 933, 937 (N.D.Cal. 1976):
Even if there were reason to doubt the correctness of
this disposition, any doubt should be resolved in
favor of remand to spare the parties proceedings
which might later be nullified should jurisdiction be
found to be lacking.
That approach is wholly consistent with the concept that "the
policy of the successive acts of Congress regulating the
jurisdiction of federal courts is one calling for the strict
construction of [removal] legislation." Shamrock Oil Corp. v.
Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 872, 85 L.Ed. 1214
This Court therefore finds Section 1445(c) applies, so "that
the case was removed improvidently and without jurisdiction"
(Section 1447(c)). This action is remanded to the Circuit Court
of Cook County.