Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ALEXANDER v. WESTINGHOUSE HITTMAN NUCLEAR

July 9, 1985

JOHN A. ALEXANDER, PLAINTIFF,
v.
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, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.