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September 18, 2003


The opinion of the court was delivered by: Joan Gottschall, District Judge


In a twelve-count complaint raising various federal and state claims, plaintiff Ellen Emery has sued her former employer, defendant Northeast Illinois Regional Commuter Railroad Corporation d/b/a METRA/Metropolitan Rail ("Metra"), as well as Metre's executive director Philip Pagano, general counsel Michael Noland, associate general counsel Theresa Bamett, and senior attorneys Sue-Ann Rosen, Richard Capra, and Constance Valkan. The defendants have moved to dismiss all counts under Fed, R. Civ. P. 12(b)(6) for failure to state a claim. As explained below, the defendants1 motion is granted in part and denied in part.


Emery, an experienced trial attorney, was employed by Metra as in-house counsel from June 23, 1997 until she was terminated on March 4, 2002. Her practice focused on cases involving the Federal Employer Liability Act ("FELA"), 45 U.S.C. § 51, et seq., and she evidently was quite successful in her profession; within six months of being hired, she was [ Page 2]

promoted to Associate General Counsel-Litigation. In July 1999, Emery tripped over some raised electrical sockets at Metra's offices, resulting in a serious knee injury. Consequently, she had several surgeries and took a limited disability leave. Because her injury occurred at work, Emery filed a claim with Metra's Risk Management Department. Metra refused to pay the majority of her medical bills. After two years of attempting to resolve her claim with the Risk Management Department, Emery retained counsel to represent her in a FELA lawsuit against Metra.

Shortly after filing suit, Emery had her annual performance review with defendant Noland. Although she had always received annual performance bonuses in previous years, she did not receive a bonus, despite exemplary performance. Moreover, after she filed her FELA suit, she was told she could no longer represent Metra in FELA cases, was screened off all FELA cases, was denied access to all information concerning FELA cases, and was demoted to Senior Attorney. Metra also moved to disqualify Emery's counsel, Hoey, Farina & Downes (a firm which also represented many other plaintiffs in FELA actions against Metra), from all FELA cases involving Metra, accusing Emery of unethical behavior and disclosing attorney-client confidences, such as her knowledge of Metra's trial strategies, settlement practices and procedures, and case reserves. According to Emery, she never committed any such ethical violations.

Emery alleges that the defendants proceeded to defame her to various judges, attorneys, the John Marshall Law School ("JMLS"), its faculty, administration, graduates and students, and the National Association of Railroad Trial Lawyers (ltNARTC"), beginning before her [ Page 3]

termination on March 4, 2002, and continuing through the present. As a result, Emery commenced this lawsuit, alleging various counts involving constitutional deprivations of liberty and property interests in violation of 42 U.S.C. § 1983, conspiracy to violate her constitutional rights, retaliatory discharge and demotion, defamation, self-compelled defamation, tortious interference with contractual relations, tortious interference with prospective business advantage, civil conspiracy, and a violation of the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f). The defendants seek dismissal of all counts for failure to state a claim.

Emery concedes that no cause of action exists for retaliatory demotion or self-compelled defamation under Illinois law, so both Count I, to the extent it raises a retaliatory demotion claim, and Count VIII are dismissed without discussion. Likewise, Emery concedes that her claim in Count IV, for deprivation of her property interest in her job in violation of § 1983, cannot survive. The remaining counts are addressed below.


I. Federal Claims

A. Retaliation under FELA (against Metra)

Emery's claim for retaliation under FELA against Metra, raised in Count III, is dismissed for failure to state a claim. As the Seventh Circuit has recognized, "neither [FELA] nor any other source of federal law creates a federal right against retaliatory discharge" for a plaintiff who is fired after filing a FELA claim. Graf v. Elgin, Joliet & E. Ry., 790 F.2d 1341, 1344 (7th Cir. 1986); Shrader v. CSX Transp., Inc., 70 F.3d 255, 258 (2d Cir. 1995); Mayon v. S. Pac. Transp. Co., 805 F.2d 1250, 1252-53 (5th Cir. 1986) (only remedy available for employee terminated for [ Page 4]

filing FELA claim are the remedies under the Railway Labor Act, not FELA); Landfried v. Terminal R.R. Assoc., 721 F.2d 254, 256 (8th Cir. 1983) ("Congress has not enacted a statute prohibiting an employer from discharging an employee in retaliation for filing a FELA action."); see also Bielicke v. Terminal R.R. Assoc., 30 F.3d 877, 878 (7th Cir. 1994); Shrader, 70 F.3d at 258.

B. Federal Common Law Retaliation (against Metra)

Emery also sues Metra, in Count n, for retaliation under federal common law. "There is no federal general common law." Erie R.R. Co. v. Tomptins, 304 US. 64, 78 (1938). The Supreme Court "has recognized the need and authority [only] in some limited areas to formulate what has come to be known as `federal common law.'" Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981). "These instances are `few and restricted' and fall into essentially two categories: those in which a federal rule of decision is `necessary to protect uniquely federal interests,' and those in which Congress has given the courts the power to develop substantive law." Id. (internal citations omitted). Thus, "absent some congressional authorization to formulate substantive rules of decision, federal common law exists only in such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases." Id. at 641 (footnotes omitted).

Emery cites not a single case recognizing a federal common law claim for retaliatory discharge for an employee terminated for filing a FELA claim.*fn1 This court declines to be the [ Page 5]

first. There is no unique federal interest at issue, nor is there congressional authorization to create substantive law. Indeed, as discussed in the previous section, although Congress could have created a remedy under FELA for employees like Emery, it declined to do so. Count n is dismissed for failure to state a claim.

C. § 1983 Claim for Deprivation of Liberty Interest (against all defendants)

In Count V, Emery claims that she has a constitutionally protected liberty interest in her reputation and that the defendants, through defamatory statements they made about her, deprived her of this constitutional right without due process of law in violation of § 1983. Actually, reputation itself is not a liberty interest protected by the Fourteenth Amendment. Siegert v. Gilley, 500 U.S. 226, 233 (1991). Rather, to the extent there is a protected liberty interest at issue here, it is Emery's interest in pursuing the occupation of her choice. See Townsend v. Vallos, 256 F.3d 661, 669 (7th Cir. 2001). Defamation becomes actionable as a constitutional claim "when a state actor casts doubt on an individual's `good name, reputation, honor or integrity* in such a manner that it becomes `virtually impossible for the [individual] to find new employment in his chosen field. . . ." Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 617 (7th Cir. 2002) (quoting Townsend, 256 F.3d at 670) (emphasis added). "[S]erious impairment of one's future employment" is not even enough. Id. (citation and internal quotation marks omitted). Further, the plaintiff must show that stigmatizing*fn2 information about him was publicly [ Page 6]

disclosed, and caused him to suffer "a tangible loss of other employment opportunities." Townsend, 256 F.3d at 669-70. Additionally, the stigmatizing information must have been disclosed incident to the discharge. Siegert, 500 U.S. at 234; Newton v. Chicago Sch. Reform 3d. of Trs., No. 96 C 7078, 1997 WL 603838, at *6 (N.D. HI. Sept. 24, 1997).

It is not evident from the complaint that any of the allegedly defamatory statements were made incident to Emery's discharge. Nowhere in Count V, or anywhere else in her complaint, does Emery allege that any defendant made a defamatory statement about her incident to her termination. Further, although Emery incorporates into Count V at least 21 purportedly defamatory statements that defendants made about her from January 15, 2002 through the present, it is unclear which, if any, of those statements were made incident to her termination on March 4, 2002. Emery argues that because her termination occurred within the "January 15, 2002 through the present" time frame in which the defamatory statements were made, "it is clear from the Complaint that the statements were made in relation to her discharge." (Pl.'s Opp. at 17.) The court disagrees. As argued by Emery, all of the allegedly defamatory statements made over a one-year period*fn3 were statements incident to her discharge. That argument ignores the law. To be actionable under § 1983, a defamatory statement must be published "in the context of termination," (i.e., incident to termination). McMath v. City of Gary, Ind., 976 F.2d 1026, 1032 (7th Cir. 1992). Neither defamatory statements made after the employee's termination nor defamatory statements made in an effort to cause an employee to quit are actionable under § 1983. Siegert, 500 U.S. at 234; Newton, 1997 WL 603838 at *7. This is not to suggest that the [ Page 7]

publication and termination must occur simultaneously. But defamatory statements made weeks (let alone months) before or after termination are not statements made in the context of termination. Morris v. Lindau, 196 F.3d 102, 114 (2d Cir. 1999) (defamation must occur close in time to dismissal to succeed on § 1983 claim for deprivation of liberty interest); see also Rodriguez de Quinpnez v. Perez, 596 F.2d 486, 490 n. 3 (1st Cir. 1979) ...

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