department local) and Local Union 1427 (the customer service department local). Id. paras. 63-65.
Bush and Edison dispute whether or not the collective bargaining agreement in effect during the relevant time for local 1367 is, in fact, identical to that in effect for local 1427. However, our own examination of the two agreements (attached to Langford's affidavit in Exhibit E to Edison's Rule 12(m) Statement of Facts) reveals that in all material respects the agreements are identical.
The provisions of each agreement governing seniority, promotions, transfers, layoffs and reemployment rights of employees are materially the same, as are those provisions dealing with hours of work, overtime, holidays, working conditions, vacations, leaves of absence, wages, grievances, and more. The only material difference between the two agreements is the particular positions and wage rates covered.
Beyond the I.B.E.W. agreements, Edison has certain work rules and practices which are applicable to all unionized employees. These require employees to be available and on-time for work, and subject them to a progressive discipline scheme. Id. para. 71. Transfer between bargaining units does not obliterate an employee's length of service, used to determine entitlement to benefits (health insurance, vacations, pensions), or that employee's disciplinary record. Id. paras. 68, 72.
Thus, giving § 1981's right to make contracts language a "fair and natural reading," Bush cannot demonstrate that Edison's failure to promote him violates the statute. Certainly "[a] transfer between divisions of a company does not automatically create a new employment relation . . . ." McKnight v. General Motors Corp., 908 F.2d 104, 110 (7th Cir. 1990), cert. denied, 111 S. Ct. 1306, 113 L. Ed. 2d 241 (1991). Even the facts that, arguably, the transportation and customer service departments are unrelated, and that Bush's responsibilities in the two departments were "significantly different" does not create such a new relationship;
what matters is not a change in jobs but a change in contractual status. . . . The transfer of an executive from the accounting to the manufacturing division in the same plant is not [the kind of transfer envisioned as actionable under § 1981, like that from employee to officer or partner].
Id.; see also Malhotra v. Cotter & Co., 1990 U.S. Dist. LEXIS 16653, at *6-*7 (N.D. Ill. Dec. 4, 1990) (greater promotional opportunities in desired position(s) not characteristic "which would create a new and distinct relation"). And by now, of course, it is well-established that salary and job function differences do not suggest a new and distinct relation between the employer and the employee. Bush v. Commonwealth Edison Co., 732 F. Supp. at 898 ("Virtually every job change involves different duties and a different rate of pay; Patterson clearly did not intend every such claim to be actionable under § 1981.") (footnote omitted).
In short, because Bush has not alleged material differences that would amount to a new contract for § 1981 purposes, we grant Edison's motion for summary judgment on Count II.
V. Bush's Retaliatory Discharge Claim
Count III of Bush's second amended complaint alleges that Edison "retaliated" against him "by demoting him, failing to promote him and by discharging him," all in violation of state common law and the Illinois Worker's Compensation Act, Ill. Ann. Stat. ch. 48, para. 138.4 (Smith-Hurd 1991 Supp.). Second Amended Complaint paras. 93, 116.
As an initial matter, we grant Edison summary judgment on Bush's retaliation claim insofar as it goes beyond retaliatory discharge. Illinois courts have not recognized a common law or statutory cause of action for retaliatory demotion or failure to promote. See, e.g., Dudycz v. City of Chicago, 206 Ill. App. 3d 128, 133, 563 N.E.2d 1122, 1126, 151 Ill. Dec. 16 (1st Dist. 1990) (common law cause of action for retaliatory discharge has "narrow parameters"), appeal denied, 136 Ill. 2d 543, 567 N.E.2d 330 (1991); Scheller v. Health Care Serv. Corp., 138 Ill. App. 3d 219, 222-25, 485 N.E.2d 26, 28-30, 92 Ill. Dec. 471 (4th Dist. 1985) (state supreme court's interpretation of Worker's Compensation Act precludes expansion of retaliatory discharge cause of action beyond cases actually involving discharge); see also Barr v. Kelso-Burnett Co., 106 Ill. 2d 520, 528-29, 478 N.E.2d 1354, 1358, 88 Ill. Dec. 628 (1985) ("In order to state a valid retaliatory-discharge cause of action, the plaintiff must allege that he was discharged in retaliation for his activities and that his discharge violates a clear mandate of public policy . . . .").
The only case cited by Bush in support of such a cause of action is Hartman v. Board of Trustees of Community College Dist. No. 508, 1991 U.S. Dist. LEXIS 1987, at *21 (N.D. Ill. Feb. 13, 1991). In that case, Judge William T. Hart's finding that "Illinois would recognize claims for retaliation short of a discharge" is explicitly grounded on the fact that the parties presented "no good reason . . . for why retaliatory discharge would be a recognized tort, but retaliatory demotion would not." Id. When, as here, the parties adequately brief the issue, Judge Hart and all other judges in this district (to our knowledge) reject the kind of extension Bush urges. Willis v. Evans Prods. Co., 1987 U.S. Dist. LEXIS 4175, at *10-*11 (Hart, J.) ("no Illinois court has yet recognized a cause of action for retaliatory demotion," citing, inter alia, Barr v. Kelso-Burnett Co. and Scheller v. Health Care Service Corp.); E.g., Ludwig v. C & A Wallcoverings, Inc., 750 F. Supp. 339, 342 (N.D. Ill. 1990) (Bua, J.) (retaliatory demotion not recognized by Illinois courts). Accordingly, summary judgment in Edison's favor is appropriate on Bush's retaliatory demotion and failure to promote branches in Count III.
As to Bush's retaliatory discharge claim, it is Edison's position that the Illinois Department of Employment Security ("IDES") "determined that Edison discharged Bush for 'misconduct' stemming from his habitual tardiness and absenteeism and that . . . Bush was not entitled to unemployment compensation benefits." Memorandum at 18; Rule 12(m) Statement para. 119. Edison further argues that,
under Illinois law, this IDES determination constitutes res judicata on Bush's retaliatory discharge claim, where, as here, Bush had an opportunity to present, at a full hearing, any evidence he wanted to relating to his contentions regarding the reasons for his discharge and Edison bore the burden of establishing that Bush had engaged in "misconduct."
Memorandum at 18 (footnote and citations omitted).
In Martinez v. Admiral Maintenance Service, one of the cases cited by Edison in support of its position, the plaintiff's employer discharged her and she filed for unemployment benefits. Martinez, 157 Ill. App. 3d 682, 683, 510 N.E.2d 1122, 1123, 110 Ill. Dec. 91 (1st Dist.), appeal denied, 515 N.E.2d 111, 116 Ill. 2d 561 (1987). The employer appealed a grant of unemployment benefits to a hearings referee of the Illinois Department of Labor. Id. The referee ruled that plaintiff had been discharged for "'continued tardiness'" and "'misconduct connected with work.'" Id. (quoting referee's decision).
Plaintiff appealed to the Board of Review, which affirmed the hearing referee's decision. Id. She then filed an action in state court alleging that she had been fired for exercising her rights under the state Worker's Compensation Act. Id. The state appellate court, affirming the trial court's decision, found that the administrative decision that plaintiff had not been wrongfully terminated acted to bar her state court claim that she had been retaliatorily discharged for asserting her legal rights. Id. at 684, 510 N.E.2d at 1124. The appellate court rightly found that res judicata barred the subsequent claim "not only as to all questions actually decided, but also as to all questions which could have been litigated in the action." Id. It also emphasized that
plaintiff had an opportunity to raise her claim of retaliatory discharge before the Hearings Referee to show that defendant's charge of excessive tardiness was pretextual. Having failed to raise in [that forum] her contention that she was fired for filing a Workers' Compensation claim, plaintiff is precluded by res judicata from raising it now.
Id. at 685, 510 N.E.2d at 1124.
Bush responds by maintaining that "Edison's argument must be rejected because the IDES' findings are privileged under § 1900 of the Illinois Unemployment Insurance Act," Ill. Ann. Stat. ch. 48, para. 640 (Smith-Hurd 1991 Supp.).
That contention has been rejected by at least one state court. Colvett v. L. Karp & Sons, Inc., 211 Ill. App. 3d 731, 734, 570 N.E.2d 611, 613-14, 156 Ill. Dec. 135 (1st Dist. 1991). Explicitly following the holding in Martinez, the court in Colvett also noted that § 1900 talked about the confidentiality of information used in reaching the administrative decision, not about the confidentiality of the administrative decision itself:
In 1989, the legislature amended section 1900, broadening the scope of the confidentiality of information obtained in IDES proceedings. . . . However, the legislature confined itself to the confidentiality of information received . . . . The Act has never stated nor suggested, and in our view wisely so, that a final decision of IDES would not be available in another proceeding. We believe that the legislature intended the term "information" to include all investigative materials received from the parties during IDES proceedings. We also believe that a final IDES decision based on the evidence may be used in other proceedings in order to defeat attempts to relitigate such decisions.
In short, then, the IDES determination that Bush had been discharged for misconduct is properly before us, and his retaliatory discharge claim is barred under the doctrine of res judicata. Bush is thus entitled to summary judgment on the remaining aspect of Count III.
Edison's motion for summary judgment is granted as to all three of the counts alleged in Bush's second amended complaint. On Count I, Bush cannot show that Edison's proffered reason for discharging him is unreasonable, not honestly held, or pretextual. Moreover, his statistics are meaningless when unaccompanied by independent grounds for disbelieving Edison's explanation of Bush's termination. On Count II, Bush has not alleged material differences between his contractual relationship with Edison as a repairman and his contractual relationship with the company as a customer service representative that would amount to a new contract for § 1981 purposes. Summary judgment is thus appropriate on the § 1981 claim in Count II. Finally, Edison is entitled to summary judgment on Count III because the doctrine of res judicata prevents this court from ignoring the prior adjudication of Bush's state retaliation claims before the IDES. It is so ordered.
MARVIN E. ASPEN
United States District Judge