complaint makes it clear that McElroy is seeking only a state court remedy, it fails to defeat removal.
Like the state court complaint, McElroy's first amended complaint also declares that SOS fired him for reporting OSHA violations. (Complaint at paras. 5-7, 12-13.) McElroy adds to his first amended complaint, however, allegations that his discharge also violated various Illinois statutes. (Complaint at paras. 5-7, 12-14). The first amended complaint also makes clear that McElroy seeks a remedy for violation of the public policy of Illinois. (Complaint at para. 14.)
Although McElroy's first amended complaint clarifies the remedies he seeks, this court must look to his state complaint to determine whether removal was proper. 28 U.S.C. § 1447(c); Austwick v. Board of Education of Township High School, 555 F. Supp. 840, 842 (N.D.Ill. 1983). However, even if McElroy's first amended complaint were controlling, it still would support removal, as it too pleads an OSHA claim for which this court would have had original federal question jurisdiction. Moreover, even if McElroy had amended his complaint to camouflage any mention of OSHA, the "artful pleading" exception to the well-pleaded complaint rule would require that this court look beyond the face of the complaint to expose any federal claim. Lingle, 823 F.2d at 1038.
Therefore, because it is clear that McElroy's complaint raises a federal question and this court would have had original jurisdiction under 28 U.S.C. § 1331, the action was properly removed to this court. See Oglesby, 752 F.2d at 276 n. 2 (if plaintiff's cause of action were construed as one for retaliatory discharge for exercising his rights under OSHA "it would have been grounded squarely on federal law and therefore removable by defendant as a matter off right. 28 U.S.C. § 1441.").
II. OSHA Does Not Preempt McElroy's Claims
Having decided the jurisdictional question, this court's next inquiry must be whether OSHA provides an exclusive remedy for retaliatory discharge of an employee who reports an OSHA violation, thereby preempting McElroy's claims as SOS International contends.
Congress has power under the Supremacy Clause of the Constitution to preempt state law. Northwest Central Pipeline Corp. v. State Corp. Com'n of Kansas, 489 U.S. 493, 109 S. Ct. 1262, 1273, 103 L. Ed. 2d 509 (1989). In determining whether Congress has invoked its preemption power primary emphasis is given to ascertainment of congressional intent. R.J. Reynolds Tobacco Co. v. Durham County, N.C., 479 U.S. 130, 107 S. Ct. 499, 507, 93 L. Ed. 2d 449 (1986).
SOS International contends that Section 667 of OSHA reflects a Congressional intent to preempt the entire field of health and safety to the extent that OSHA addresses particular issues. OSHA Section 667 states in relevant part:
(a) Assertion of State standards in absence of applicable Federal standards