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July 7, 1994

JESSE M. JONES, Plaintiff,

The opinion of the court was delivered by: MILTON I. SHADUR

 On January 26, 1994 Jesse Jones ("Jones") brought this action against Illinois Central Railroad Company ("IC") under the Americans with Disabilities Act of 1990 ("ADA," 42 U.S.C. §§ 12101-12213), in which he charges employment discrimination stemming from IC's claimed refusal to accommodate his physical disability, a work-related shoulder injury. Since April 1993 Jones has had pending in the Circuit Court of Cook County (93 L 5879) a suit under the Federal Employers' Liability Act ("FELA," 45 U.S.C. §§ 51-60) arising out of the same accident that gave rise to Jones' disability. IC has responded to Jones' ADA claim by moving to dismiss, arguing that ADA does not override the exclusive remedial provisions established by the Railway Labor Act ("RLA," 45 U.S.C. § 151-163) to govern all minor disputes involving rail employees. In particular IC contends that Jones' FELA claim constitutes his only avenue of redress.

 At this point the motion is not only fully briefed, but this Court has in hand a lengthy and scholarly *fn1" draft opinion from its law clerk resolving the issues as posed by the parties. But just as the late Adlai Stevenson remarked ruefully after his initial loss to Dwight Eisenhower in 1952 that "something funny happened on the way to the White House," so something funny has happened to the current motion in terms not posed by the litigants.

 It is of course intuitively troublesome to contemplate the prospect that the parties should simultaneously do battle on two different fronts--both in the state court under FELA and in this District Court under ADA--on such closely related claims. And although the parties do not appear to have recognized it, the legitimacy of that intuitive unease is reflected in directly applicable provisions of law.

 To begin with, there is no reason that Jones could not have advanced his ADA claim before the same state court in which his FELA claim is pending. Enforcement of ADA's prohibitions against handicap discrimination expressly draws its sustenance from Title VII of the Civil Rights Act of 1964 as amended (42 U.S.C. §§ 2000e to 2000e-17)--as ADA's 42 U.S.C. § 12117(a) specifies:

The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment.

 And in Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 108 L. Ed. 2d 834, 110 S. Ct. 1566 (1990) a unanimous Supreme Court has held that the state courts have concurrent jurisdiction with the federal courts for the adjudication of Title VII claims brought by employees under 42 U.S.C. § 2000e-5(f). That being so, it necessarily follows that the state courts have concurrent jurisdiction over ADA claims as well.

 To be sure, the existence of such concurrent jurisdiction does not alter the fact that ADA actions are federal-question cases. Hence there is no place for the possible application of 735 ILCS 5/2-619(a)(3) to require dismissal of this action because of the prior pendency of the FELA lawsuit, as there might be if this action were here via diversity jurisdiction (see Commonwealth Edison Co. v. Gulf Oil Corp., 541 F.2d 1263, 1271-72 (7th Cir. 1976))--an issue that our Court of Appeals has not yet decided ( Locke v. Bonello, 965 F.2d 534, 537 n.2 (7th Cir. 1992)) and that continues to divide the district judges in this state. *fn2" Instead the question that calls for threshold examination is whether this case should be excepted "from the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them" ( Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976))--whether this case should rather be dismissed under the teachings of Colorado River and its numerous progeny.

 Only a few moments' reflection is needed to understand why that prospect requires analysis. As in most FELA cases, the existence of Jones' claimed disability--the inability to return to his former job--means that the future loss of income will necessary bulk very large in Jones' FELA claim for damages in the Circuit Court. Indeed, except where an injury is sustained very near the end of an employee's expected working life, the deprivation of that future income stream (even when it is appropriately discounted to present value) typically dominates the damages calculation in FELA cases.

 On the obverse side of the same coin, an employer's willingness (or its forced decision) to put the employee back to work in a comparably compensated position would cut off those future damages, in precisely the same way that an employee's short-term injury with no residual effect on employability will necessarily generate only small damages (if any) that are attributable to the post-trial period. And if the employer is prepared to accommodate the job's demands to the employee's work-injury-triggered disability (or is required to do so under ADA), the same result would obtain. *fn3"

 Thus an ADA claim of the sort advanced by Jones here is closely linked to the FELA claim that for some reason he has chosen to assert in a different forum, even though he was free to bring that ADA claim in the same trial court where his FELA action was already pending. And it is in those terms that the potential application of the Colorado River doctrine must be evaluated.

 Colorado River, 424 U.S. at 817-18 contrasted the general approaches that should be taken to federal court abstention in two different types of situations: those involving state-federal concurrent jurisdiction and those involving wholly federal concurrent jurisdiction. It said in the former respect ( id. at 818):

Given this obligation [the "virtually unflagging obligation" referred to earlier in this opinion], and the absence of weightier considerations of constitutional adjudication and state-federal relations, the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention. The former circumstances, though exceptional, do nevertheless exist.

 Nonetheless, after having set out the types of factors that a federal court should consider in assessing the appropriateness of dismissal in the state-federal concurrent-jurisdiction context (id.), Colorado River ...

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