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