provides a five-year limitations period for, inter alia, "all civil actions not otherwise provided for."
In order to determine which statute applies, it is necessary to determine what type of injury is redressed by Section 510. See Neikirk v. Central Illinois Light Co., 128 Ill. App. 3d 1069, 1072, 471 N.E.2d 1027, 1028-29, 84 Ill. Dec. 261, (3d Dist. 1984) ("applicability of the two-year limitation is determined by the nature of the injury resulting to the plaintiff, and not the form of the action"). Defendant characterizes plaintiff's claim as essentially one for employment discrimination. It is true that Section 510 forbids "discrimination" on the basis of exercise of rights guaranteed by ERISA, and that plaintiff's complaint could be construed as an allegation of discrimination for the exercise of such rights. Defendant's emphasis on this discrimination aspect of the claim, however, is excessive. Section 510 makes it unlawful to "discharge, fine, suspend, expel, discipline, or discriminate against" an employee for certain reasons. (Emphasis added.) It uses the term "discriminate" as a type of action distinct from a discharge. "Discrimination," therefore, probably refers not to a discharge or fine, for example, but to other ways in which an employer treats an employee differently based on that employee's exercise of ERISA rights. Furthermore, the central concern of Section 510 is the protection of the employment relationship and the regulation of employee benefit plans rather than a remedy for discrimination. See generally West v. Butler, 621 F.2d 240, 245 (6th Cir. 1980) (Section 510 was designed "primarily to protect the employment relationship that gives rise to an individual's pension rights"). The Court finds, therefore, that the nature of the injury redressed by actions brought pursuant to Section 510 is essentially an employment injury rather than a discrimination injury.
Defendant argues that application of the two-year statute is mandated by Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985), and Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S. Ct. 2617, 96 L. Ed. 2d 572 (1987). Wilson held that the state limitations period for personal injury claims applies to all actions brought pursuant to 42 U.S.C. § 1983. Goodman similarly held that the state limitations period for personal injury claims applies to all actions brought pursuant to 42 U.S.C. § 1981. Defendant argues that Goodman characterized discrimination claims as personal injury claims, and that plaintiff's employment discrimination claim should therefore be considered a personal injury claim. The Court's focus in Goodman, however, was specifically on the type of injury suffered by victims of racial discrimination. Cf. Wolgel v. Mexicana Airlines, 821 F.2d 442, 446 (7th Cir. 1987) (Wilson does not mandate use of two-year statute for claims arising under § 404(b) of the Federal Aviation Act despite § 404(b)'s prohibition of discrimination, because § 404(b) concerns discrimination in a broader sense than personal injury), cert. denied, 484 U.S. 927, 98 L. Ed. 2d 251, 108 S. Ct. 291 (1987). Adverse employment actions taken because of an employee's exercise of ERISA rights present a situation distinct from racial discrimination. Wilson and Goodman, therefore, do not answer the question of which statute of limitations must be applied to plaintiff's claim based on Section 501.
Cf. Gavalik v. Continental Can Co., 812 F.2d 834, 843-45 (3d Cir. 1987), cert. denied, 484 U.S. 979, 108 S. Ct. 495, 98 L. Ed. 2d 492 (1987).
The Court thus looks to the Illinois limitations statutes, and the judicial interpretations of those statutes, to determine which statute applies where a plaintiff alleges the injury of an adverse employment action similar to that alleged by a plaintiff bringing a Section 510 claim. An examination of the application of the two-year statute makes it clear that the statute is applied narrowly and does not extend to such injuries. In Mitchell v. White Motor Co., 58 Ill. 2d 159, 317 N.E.2d 505 (1974), the Illinois Supreme Court held that the five-year statute, rather than the two-year statute, applies to an action for loss of consortium. The court rejected the argument that an action for loss of consortium should be governed by the same limitations period which applies to a cause of action asserted by the spouse who suffered the direct injuries, and it rejected the argument that the plaintiff's loss of consortium should be characterized as an injury to her person. 58 Ill. 2d at 160-61, 317 N.E.2d at 506. The court held that the two-year statute applies only to a "direct physical injury to the person of the plaintiff," which it also characterized as a "bodily injury." Id. at 161-62, 317 N.E.2d at 506-07. See also Johnson v. Arnos, 624 F. Supp. 1067 (N.D. Ill. 1985) (Moran, J.) (two-year statute limited to direct physical injury); Shorters v. City of Chicago, 617 F. Supp. 661 (N.D. Ill. 1985) (Shadur, J.) (same); Neikirk v. Central Illinois Light Co., 128 Ill. App. 3d 1069, 1072, 471 N.E.2d 1027, 1029, 84 Ill. Dec. 261 (3d Dist. 1984) (same). It is also clear that the two-year statute does not apply to such torts as fraud, deceit and tortious misrepresentation -- torts which give rise to personal injury in a broad sense but not in the narrow sense of a direct physical injury. See Chicago Park District v. Kenroy, Inc., 78 Ill. 2d 555, 560-61, 402 N.E.2d 181, 184, 37 Ill. Dec. 291 (1980); Rozny v. Marnul, 43 Ill. 2d 54, 69, 250 N.E.2d 656, 664 (1969).
Because a claim arising under Section 510 is an action based on an economic injury rather than direct physical injury to the plaintiff's person, it is not within the scope of the two-year limitations statute. Furthermore, a claim for retaliatory discharge -- the state law claim which perhaps is most directly analogous to a claim pursuant to Section 501 -- is governed by the residual five-year limitations period. Henon v. Lever Brothers Co., 114 Ill. App. 3d 608, 611, 449 N.E.2d 196, 198, 70 Ill. Dec. 322 (1st Dist. 1983). Cf. Wilson v. Bd. of Educ. of Limestone-Walters, 127 Ill. App. 3d 433, 436, 468 N.E.2d 995, 997, 82 Ill. Dec. 341 (3d Dist. 1984) (undisputed application of five-year statute to teacher tenure dispute).
The Court concludes that plaintiff's claim is governed by the Illinois five-year limitations period of Ill. Rev. Stat. ch. 110 § 13-205. The Court thus accepts the Magistrate's recommendation and holds that plaintiff's complaint is not time-barred. Defendant's motion to dismiss is denied.
DATED: January 18, 1989