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JOHNSON v. BAXTER HEALTHCARE CORP.

November 20, 1995

RENEE JOHNSON, Plaintiff,
v.
BAXTER HEALTHCARE CORPORATION, CAREMARK ORTHOPEDIC SERVICES, INC., CAREMARK ORTHOPEDIC MANAGEMENT SERVICES, INC., AND CAREMARK, INC., Defendant.



The opinion of the court was delivered by: PLUNKETT

 This case arises from plaintiff Renee Johnson's complaints of racially motivated harassment and mistreatment while working for defendant Baxter Healthcare Corporation and of retaliatory discharge. Defendants move to dismiss certain claims made in plaintiff's second amended complaint. For the reasons set forth below, defendants' motion to dismiss the claims is granted.

 Background

 In October 1990, Johnson applied for and was denied a promotion to lead data entry operator. She also claims that on three occasions she was denied the opportunity to transfer to positions in Baxter's affiliated health facilities or clinics. These positions were filled by Caucasian workers. On July 1, 1991, Johnson was suspended for refusing to confirm that she had tape-recorded conversations with her coworkers without the consent of each worker. On July 12, 1991, she was discharged. On August 7, 1991, Johnson amended her complaints with the IDHR and EEOC to allege that she had been suspended and discharged in retaliation for having filed complaints of racial discrimination.

 After an investigation, the IDHR found no substantial evidence of discrimination or retaliation and dismissed Johnson's charges in their entirety. Johnson sought review through the Illinois Human Rights Commission. A three-member panel upheld the IDHR's decision. Johnson then filed a petition for review of the Commission's decision with the Illinois Appellate Court on April 13, 1994. While that appeal was pending, Johnson filed her initial complaint with this Court. She filed an amended complaint on December 27, 1994, asserting claims under both Title VII, 42 U.S.C. §§ 2000e-2, 2000e-3, and 2000e-5 (Count I) and under 42 U.S.C. § 1981 (Count II). On March 21, 1995, Johnson filed a second amended complaint asserting claims under Title VII (Count I) and a common law claim for retaliatory discharge (Count II).

 In April 1995, we dismissed those portions of Count I of Johnson's first amended complaint alleging failure to transfer, because they were barred by her failure to raise them in her EEOC complaint. Johnson v. Baxter Healthcare Corp., 1995 U.S. Dist. LEXIS 4522, No. 94 C 4808, 1995 WL 170006 (N.D. Ill. Apr. 7, 1995). We also dismissed Count II of the first amended complaint in its entirety, because pre-November 1991 claims are not cognizable under section 1981. Thus, the failure to transfer claims that form part of Count I of the second amended complaint have already been dismissed, as Johnson concedes. Because our earlier order was not taken into account in defendants' motion to dismiss now under consideration, which was filed contemporaneously with our order, we treat the request to dismiss the failure to transfer allegations in Count I as a motion to strike and grant it without further discussion. Defendants do not move to dismiss the remaining allegations of Count I. Thus, the only issue remaining is defendants' motion to dismiss the retaliatory discharge claim that constitutes Count II of the second amended complaint.

 Discussion

 On a motion to dismiss, we accept as true all well-pleaded factual allegations of the complaint, and draw all reasonable inferences therefrom in favor of the plaintiff. Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th Cir. 1992). The court need not, however, ignore facts alleged in the complaint that undermine the plaintiff's claim. Arazie v. Mullane, 2 F.3d 1456, 1465 (7th Cir. 1993) (citing Roots Partnership v. Lands' End, 965 F.2d 1411, 1416 (7th Cir. 1992)). The complaint will not be dismissed unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984). "Nevertheless, a plaintiff must allege sufficient facts to outline the cause of action, proof of which is essential to recovery." Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265 (1986) (citations omitted).

 She now brings a suit alleging a common law cause of action for retaliatory discharge. Defendants argue that by providing the exclusive remedy for claims of retaliatory discharge as described in the Act, the Act has effectively abolished any common law causes of action for retaliatory discharge that may have existed in Illinois prior to enactment of the IHRA. Plaintiff contends that the exclusive remedy provisions of the Act merely prevent a claimant from asserting a common law cause of action until her administrative remedies under the Act have been exhausted.

 We turn to Illinois law, as we must, to determine the effect of the IHRA's exclusivity provision on the plaintiff's ability to maintain the present cause of action. This Court's duty in regard to substantive state law is to "apply the state law that would be applied in this context by the Illinois Supreme Court." Kaplan v. Pavalon & Gifford, 12 F.3d 87, 89 (7th Cir.1993) (quoting Green v. J.C. Penney Auto Ins. Co., 806 F.2d 759, 761 (7th Cir.1986)). Obviously, cases decided by the Illinois Supreme Court are the most persuasive evidence of how that court would resolve the legal issues presented here. "Intermediate appellate court cases are useful but not binding evidence of what the Illinois Supreme Court would do in a similar case." Id. (citations omitted).

 The parties have not cited to us, nor have we located through our own research, Illinois cases that address the precise issue before us. Illinois has recognized a common law claim for retaliatory discharge. Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876, 52 Ill. Dec. 13 (Ill. 1981). The cause of action, however, is limited to situations where there is no other legal remedy against improper retaliatory discharge by an employer and to vindicate clearly mandated public policy. Hicks v. Resolution Trust Corp., 738 F. Supp. 279, 282-83 (N.D. Ill. 1990); Brudnicki v. General Elec. Co., 535 F. Supp. 84, 89 (N.D. Ill. 1982). However, for instances of retaliatory discharge for complaints of racial discrimination, Illinois has provided a legal remedy in the IHRA. See, Hicks, 738 F. Supp. at 283.

 Defendants cite several cases supporting their contention that the IHRA is the exclusive remedy for alleged civil rights violations. Mein v. Masonite Corp., 109 Ill. 2d 1, 485 N.E.2d 312, 92 Ill. Dec. 501 (Ill. 1985) (employee discharged on basis of age could not state a claim for wrongful discharge outside the purview of the IHRA); Geise v. The Phoenix Co. of Chicago, 159 Ill. 2d 507, 639 N.E.2d 1273, 203 Ill. Dec. 454 (Ill. 1994). Defendants cite, in addition, several cases in this district in support of their contention that retaliatory discharge claims are barred by the exclusivity provisions of the IHRA. Flaherty v. Gas Research Inst., 1993 U.S. Dist. LEXIS 5120, No. 92 C 7315, 1993 WL 121973 (N.D. Ill. Apr. 19, 1993); Rager v. Boise Cascade Corp., 1989 U.S. ...


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