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United States District Court, Northern District of Illinois, E.D

July 9, 1985


The opinion of the court was delivered by: Shadur, District Judge.


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, because of:

    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 story.

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 compensation law."

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 at 662):

  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 (1941).

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.

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