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02/05/87 Mary N. Byrd, v. the Aetna Casualty &

February 5, 1987

MARY N. BYRD, PLAINTIFF-APPELLANT

v.

THE AETNA CASUALTY & SURETY COMPANY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

504 N.E.2d 216, 152 Ill. App. 3d 292, 105 Ill. Dec. 347 1987.IL.131

Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. LINDBERG, P.J., and REINHARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF, Plaintiff, Mary N. Byrd, appeals from the trial court dismissal of count III of her complaint against defendant Anchor Glass Container

Corporation (Anchor). The trial court dismissed count III on grounds that the claim asserted there was preempted by Federal law.

Count III of the complaint sets forth the following allegations. Byrd was an employee of defendant Anchor. On June 27, 1984, she was terminated by Anchor because she had received temporary total disability benefits under section 8(b) of the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(b)). The complaint then cites section 4(h) of the Act which makes it unlawful for an employer to discharge an employee for exercising rights or remedies granted to him by the Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.4(h)). According to plaintiff's allegations, section 4(h), as well as the public policy of the State of Illinois, prohibit employers from discharging an employee for exercising his or her rights under the Act and make an offending employer liable for actual and punitive civil damages.

Anchor's motion to dismiss alleges that at the time she was discharged, Byrd was a member of the Glass, Pottery, Plastics and Allied Workers International Union. The union and Anchor were parties to a collective-bargaining agreement which provided that a unionized employee could only be discharged for "just cause" and that disputes regarding discharge had to be resolved according to the grievance procedure established by the agreement. According to Anchor's allegations, Byrd had exhausted her remedies under the grievance and arbitration provisions of the labor contract and was precluded from relitigating the issue of whether she was wrongfully discharged.

On July 18, 1985, pursuant to Anchor's motion for reconsideration, the trial court reversed an earlier ruling and dismissed count III for lack of subject matter jurisdiction. The court had concluded that the claim set forth in count III was preempted by Federal law.

On appeal, Byrd asserts that the trial court erroneously dismissed the retaliatory-discharge count of her complaint on grounds of preemption. She contends that her cause of action arises under State law because the Illinois Supreme Court created a retaliatory-discharge tort in furtherance of the workers' compensation policy of the State, independent of a union employee's rights under a collective-bargaining agreement. Anchor responds that the Illinois law is irrelevant pursuant to a subsequently decided United States Supreme Court case which indicates that Byrd's action is preempted by Federal labor law. In our opinion, plaintiff's position is the correct one.

Through the Workers' Compensation Act, the legislature gave expression to a public policy of providing employees with an effective and fair way to seek compensation for injuries sustained in the course of their employment without fear or risk of losing their jobs. (Ill. Rev. Stat. 1983, ch. 48, par. 138.2; Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 148, 473 N.E.2d 1280.) This public policy was implemented in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, which held there was a tort remedy for at-will employees who were discharged in retaliation for filing claims under the Act. The Kelsay court was convinced that a cause of action for retaliatory discharge was needed in order to discourage employers from threatening termination, or actually terminating, employees who claimed compensation. Without such a remedy, according to the court, employees could be intimidated into relinquishing their rights under the Act.

In Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 473 N.E.2d 1280, our supreme court extended the cause of action established in Kelsay to employees who were union members protected by collective-bargaining agreements. Those agreements provided specific grievance procedures to guarantee that an employee was discharged only for "just cause." Sackett, the defendant in Midgett, argued that while Kelsay provided a remedy for employees otherwise without a remedy, the plaintiffs in Midgett had a remedy through the grievance procedure. Therefore, the Kelsay rationale was not applicable to the union employees. The court concluded, however, that "in order to provide a complete remedy it is necessary that the victim of a retaliatory discharge be given an action in tort, independent of any contract remedy the employee may have based on the collective-bargaining agreement." 105 Ill. 2d 143, 149, 473 N.E.2d 1280.

The Midgett court focused on the availability of punitive damages in tort as opposed to job reinstatement and full back pay under the usual union contract and noted that without punitive damages "there is no available sanction against a violator of an important public policy of this State." (Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 150, 473 N.E.2d 1280.) According to the court, it would be unreasonable to immunize from punitive damages employers who unjustly discharged union employees and, at the same time, penalize employers who unfairly terminated a nonunion employee. The Midgett court concluded that "[t]he public policy against retaliatory discharges applies with equal force in both situations." (105 Ill. 2d 143, 150, 473 N.E.2d 1280.) The viability of the tort created in Midgett was reaffirmed in Boyles v. Greater Peoria Mass Transit District (1986), 113 Ill. 2d 545, 499 N.E.2d 435.

Although Anchor does not dispute the holding of Midgett, it does assert that the Midgett court expressly did not consider the preemption issue. Anchor further argues that even if preemption was examined, Midgett is irrelevant because Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 85 L. Ed. 2d 206, 105 S. Ct. 1904, a case decided after Midgett, indicates that Byrd's State action is preempted under section 301 of the Federal Labor Management Relations Act (29 U.S.C.A. sec. 185(a) (West 1978)). While we acknowledge that ...


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