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ALVAREZ v. HI-TEMP INCORPORATED

March 23, 2004.

LORENZO ALVAREZ, Plaintiff,
v.
HI-TEMP INCORPORATED and JAMES MIKODA, Individually, Defendant



The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge

MEMORANDUM OPINION & ORDER

Plaintiff Lorenzo Alvarez sued his former employer, defendant Hi-Temp Incorporated, and Hi-Temp's plant manager, defendant James Mikoda, alleging that (i) defendants unlawfully refused to permit him to take a leave of absence from work, or to reschedule his vacation, in order to be with his pregnant wife who was experiencing serious medical complications, and (ii) subsequently discharged him after he took a leave of absence without defendants' authorization. In his second amended complaint, Alvarez raises a federal claim against both defendants for violating the Family and Medical Leave Act of 1993 ("FMLA") 29 U.S.C. § 2601, et seq., and also brings a state common law claim for tortious interference with contractual relations against Mikoda and a state common law claim for negligent supervision against Hi-Temp. Before the court is the defendants' motion to dismiss the state law claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), and to strike certain allegations from the complaint under Rule 12(f). Mikoda argues that the claim for tortious interference with contractual relations raised in Count II is preempted by Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Alternatively, Mikoda contends that Alvarez fails to state a claim. Page 2 As for the negligent supervision claim raised in Count III, Hi-Temp asserts that it is preempted by both the FMLA and the Illinois Worker's Compensation Act ("IWCA"), 820 ILCS §§ 305/5(a), 305/11. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons explained below, defendants' motion to dismiss Counts II and III is granted but their motion to strike is denied.

I. Analysis

  "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When evaluating a motion to dismiss under Rule 12(b)(6), courts must accept the well — pled allegations of a complaint as true and construe any ambiguities in favor of the plaintiff. Thompson v. III. Dep't of Prof l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). If federal law preempts a state law claim, however, the state law claim must be dismissed. O'Hern v. Delta Airlines, Inc., 838 F. Supp. 1264, 1266 (N.D. III. 1993). Whether a state law claim is preempted depends on the congressional intent and purpose underlying the federal statute. Gade v. Nat'l Solid Wastes Mgmt. Assoc., 505 U.S. 88, 96 (1992). Preemption "may be either express or implied, and `is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose.'" Id. at 98.

  A. Tortious Interference with Contractual Relations

  The court agrees with Mikoda that § 301 of the LMRA preempts Alvarez's claim for tortious interference with contractual relations. Alvarez's employment contract is the collective bargaining agreement covering his union. Seventh Circuit law is clear that "[w]hen a worker is Page 3 covered by a collective bargaining contract, he must . . . litigate any legal dispute with his employer as a breach of that contract."*fn1 Kimbro v. Pepsico, Inc., 215 F.3d 723, 725 (7th Cir. 2000). The worker may not bring a state law breach of contract claim, nor may he recharacterize his claim as one for tortious interference with contract against his supervisor — such claims are preempted. Id. at 725-727.

  This result is logical given that the purpose of preemption under § 301 is to maintain consistency in interpreting collective bargaining agreements. In re Bentz Metal Products Co., Inc., 253 F.3d 283, 286 (7th Cir. 2001) (a collective bargaining agreement "should not have different meanings under federal law and the laws of various states"). The existence of a collective bargaining agreement does not mean that preemption of state law claims automatically follows. Rather, a state law claim is preempted if resolution of the claim requires interpretation of a collective bargaining agreement. Id. at 285. Here, a necessary element of Alvarez's claim for tortious interference with contractual relations is that Hi-Temp breached its contract with Alvarez as the result of Mikoda's wrongful actions. HP1 Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 676 (Ill. 1989) (stating elements of claim); Quadro Enter., Inc. v. Avery Dennison Corp., No. 97 C 5402, 2000 WL 1029176, at *9 (N.D. Ill July 26, 2000) (no claim for tortious interference if no underlying breach); Pfendler v. Anshe Emet Day School, 401 N.E.2d 1094, 1098 (Ill.App. Ct. 1980) (same). Establishing whether there was a breach of the collective bargaining contract necessarily requires interpretation of that contract, so Alvarez's claim is preempted. E.g., Carroll v. Commonwealth Edison, Co., No. 97 C 1994, 1997 WL 428528, at * 4 (N.D. Ill. July 24, 1997). Page 4

  Alvarez makes no real effort to persuade the court otherwise. Instead, he argues that he pled in the alternative, raising a claim for both tortious interference with contractual relations and tortious interference with employment relationship — known under Illinois law as tortious interference with prospective economic advantage.*fn2 The problem with this argument is that "the tort of intentional interference with prospective economic advantage `is concerned only with intentional interference with prospective contractual relations [that are] not yet reduced to contract:" Stamper v. Chicago Transit Auth., No. 96 C 1849, 1997 WL 177844, at *5 (N.D. Ill. Apr. 4, 1997). Alvarez's expectations in continued employment with Hi-Temp were reduced to an employment contract — the collective bargaining agreement. "An existing [contractual] agreement precludes an action for intentional interference with prospective economic advantage."*fn3 Delphi Indus., Inc. v. Stroh Brewery Co., 945 F.2d 215, 221 (7th Cir. 1991). Because a contractual relationship already exists, Alvarez "must allege `tortious interference with a contract rather than a prospective business advantage.'"*fn4 Stamper, 1997 WL 177844, at *5. Page 5 This result makes sense, particularly in the context of this case. As explained above, a worker who is employed under a collective bargaining agreement cannot avoid preemption by casting his claim as one for tortious interference with contractual relations. Kimbro, 215 F.3d at 725. Similarly, that same employee should not be able to proceed under a theory of tortious interference with prospective economic advantage when there is an existing contract, and in doing so, escape federal preemption.

  The only claim properly raised against Mikoda in Count n was tortious interference with contractual relations, which is preempted by the LMRA.*fn5 Count n is dismissed.

  B, Negligent Supervision against Hi-Temp

  Hi-Temp argues that both the FMLA and the IWCA preempt Alvarez's negligent supervision claim. For the reasons explained below, the court grants the motion to dismiss as it relates Count DI without reaching the issue of IWCA preemption.

  1. FMLA Preemption

  Hi-Temp contends that Alvarez's negligent supervision claim,*fn6 which is based on a violation of the FMLA, is preempted by the FMLA. Alvarez disagrees on several grounds. First, he disputes Hi-Temp's position that the FMLA is the sole remedy available for FMLA violations. Page 6 Second, he contends that his negligent supervision claim is based on more than a violation of the FMLA. According to Alvarez, his claim is also based on Hi-Temp's failure to properly supervise Mikoda (1) to ensure that he properly followed Hi-Temp's leave and vacation policies; and (2) to ensure that he would not interfere with ...


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