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ALVAREZ v. HI-TEMP INCORPORATED

United States District Court, N.D. Illinois


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 terminated employees' rights to unemployment compensation. (See generally Pl.'s Mem. Resp. to Defs.' Supp. Mem. at 2-4.) The court addresses these arguments in turn.

  a. Negligent Supervision Claim Based On Violation of the FMLA

  The first issue is whether the FMLA preempts a negligent supervision claim based on a violation of the FMLA. Neither the Seventh Circuit nor any court in this circuit has addressed this issue yet. After careful consideration of cases from other jurisdictions as well as the statute itself, the court concludes that a negligent supervision claim premised on a violation of a right created by the FMLA is preempted.

  Preemption may be express or implied. Unless the statute contains explicit preemptive language (which the FMLA does not), the Supreme Court has recognized two forms of implied preemption: field preemption and conflict preemption. Gade, 505 U.S. at 98. A federal statute preempts a field if the scheme of federal regulation is "`so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it[.]'" Id. Conflict preemption, on the other hand, occurs `"where compliance with both federal and state regulations is a physical impossibility' or where state law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Id. (internal citations omitted).

  In Kiely v. University of Pittsburgh Medical Center, No. 98-1536, 2000 WL 262580 Page 7 (W.D. Pa. Jan. 20, 2000),*fn7 the court found that Congress created a comprehensive scheme to provide remedies for violations of the FMLA, and consequently held that the FMLA preempted plaintiff's negligent supervision claim based on an FMLA violation.*fn8 The Kiely court discussed the different types of preemption, but did not identify whether its ruling was based on field or conflict preemption.*fn9 This court agrees with the Kiely court's conclusion, but finds that further explanation is warranted.

  Field preemption, or complete preemption, is not at issue here. "The number of statutes that completely preempt their respective fields is limited." Bellido-Sullivan v. Am. Int'l Group, Inc., 123 F. Supp.2d 161, 165 (S.D.N.Y. 2000) (holding that FMLA does not completely preempt state law); Boomer v. AT&T Corp., 309 F.3d 404, 417 (7th Cir. 2002) (explaining that field preemption is also known as complete preemption). Through the FMLA's savings clause, Congress explicitly left room for the states to provide family and medical leave rights above and beyond those provided by the FMLA. Section 2651(b) of the FMLA provides that "[n]othing in this Act or any amendment made to this Act shall be construed to supercede any provision of any State or local law that provides greater family or medical leave rights than the rights established Page 8 under this Act or any amendment made by this Act." 29 U.S.C. § 2651 (b). Based on the plain language of the savings clause, the court finds no reasonable basis to infer that Congress intended to completely occupy the field of regulation relating to family and medical leave rights.

  Although the savings clause clearly "allows states to provide additional substantive leave rights," it does not follow that states may "provide additional remedies for FMLA violations." Desrochers v. Hilton Hotels Corp., 28 F. Supp.2d 693, 695 n. l (D. Mass. 1998). Congress made certain damages available to remedy violations of employees' FMLA rights. Those remedies include (i) damages equal to the amount of "any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation,"or, if no such losses occurred, damages for "any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to the sum equal to 12 weeks of wages or salary for the employee," (ii) interest, and (iii) liquidated damages equal to the sum of the amount described in (i) and (ii).*fn10 29 U.S.C. § 2617(a)(1)(A) (i-iii). Equitable relief, such as employment, promotion, or reinstatement, may also be awarded. 29 U.S.C. § 2617(1)(B).

  The remedies available under the FMLA do not include damages for emotional distress or punitive damages.*fn11 See, e.g., Montgomery v. Maryland, No. 02-1998, 2003 WL 21752919, at *2 (4th Cir. July 30, 2003) (unpublished ruling) (emotional distress damages not available); Graham Page 9 v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1284 (11th Cir. 1999) (same); Harrington-Grant v. Loomis, Fargo & Co., No. 01 C 6344, 2002 WL47152, at *6 (N.D. Ill. Jan. 11, 2002) (punitive damages not available); Divizio v. Elmwood Care, Inc., No. 97 C 8365, 1998 WL 292982, at *4 (N.D. Ill. May 28, 1998) (same); McAnnally v. Wyn South Molded Products, Inc., 912 F. Supp. 512, 513 (N.D. Ala. 1996) (neither punitive nor emotional distress damages available). Yet if the negligent supervision claim based on a violation of rights created by the FMLA is allowed to proceed and Alvarez prevails, he potentially could recover compensatory damages, including damages for emotional distress, as well as punitive damages. Making those remedies available to Alvarez through a tort claim to rectify an FMLA violation when such remedies are precluded under the FMLA would circumvent the remedial scheme Congress devised to accomplish the FMLA's objectives.

  Numerous courts have found that Congress intended the "specific remedies set forth in § 2617 [to] be the exclusive remedies available for a violation of the FMLA." O'Han v. Mt. Vernon Bd. of Educ., 16 F. Supp.2d 868, 895 (S.D. Ohio 1998) (§ 1983 action premised on FMLA violation foreclosed); Kiely, 2000 WL 262580 (negligent supervision claim preempted); Kilvitis v. County of Luzerne, 52 F. Supp.2d 403, 419 (MD. Fenn. 1999) (§ 1983 action premised on FMLA violation); Clay v. City of Chicago, Dep't of Health, No. 96 C 3684, 1996 WL 613164, at *2 (N.D. Ill. Oct. 22, 1996) (defendant conceded that due to FMLA's comprehensive enforcement scheme, § 1983 claim was not available to remedy FMLA violation); but see Knussman v. State of Maryland, 16 F. Supp.2d 601, 610 (D. Md. 1998) (allowing § 1983 claim based on violation of FMLA). As the O'Hora court reasoned, "it would be anomalous to hold that when the only unlawful employment practice consists of a Page 10 violation of the FMLA, the plaintiff can bypass the restrictions on the plaintiff's right to bring and maintain the action under the FMLA by framing the cause of action as one brought under § 1983." 16 F. Supp.2d at 894 (discussing certain administrative restrictions, not restrictions on available remedies).

  Likewise, it would be anomalous to allow a plaintiff to bypass the limitations Congress placed on remedies for FMLA violations by permitting a common law tort claim to proceed premised solely on an FMLA violation. Allowing a plaintiff to pursue damages that are precluded by the FMLA conflicts with "the accomplishment and execution of the full purposes and objectives of Congress." Gade, 505 U.S. at 98 (internal quotation marks omitted). Significantly, the FMLA created Alvarez's rights to take family and medical leave. The FMLA also provides a comprehensive remedial scheme to enforce those rights. Accordingly, Alvarez's legal recourse for violations of those rights is limited to the damages available under the FMLA. E.g., Kiely, 2000 WL 262580; O'Hara, 16 F. Supp.2d at 894; see Alexander v. Chicago Park District, 773 F.2d 850, 855 (7th Cir. 1985) (legal recourse for violations of rights created by Title VH is through Title VII); Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1204 (6th Cir. 1984) (no § 1983 cause of action where claim is based solely on a Title VII violation). To the extent Alvarez's negligent supervision claim is premised on the violation of a right created by the FMLA, that claim is barred under the doctrine of conflict preemption.

  b. Negligent Supervision Claim Based On Other Violations

  According to Alvarez, his negligent supervision claim is premised on more than an FMLA violation — it is also based on Hi-Temp's failure to supervise Mikoda to ensure that he properly followed Hi-Temp's general leave and vacation policies. For Hi-Temp to be liable for Page 11 negligent supervision, Mikoda "must have committed an independently actionable wrong." Arnold v. Janssen Pharmaceutica, Inc., 215 F. Supp.2d 951, 958 (N.D. Ill. 2002). Thus, Alvarez must show that Mikoda violated the general leave and vacation policies. The problem for Alvarez is that those policies are part of the union's collective bargaining agreement. Determining whether Mikoda's conduct violated the contractual leave and vacation policies requires interpretation of the collective bargaining agreement. To the extent Alvarez's negligent supervision claim is based on a violation of the contractual leave and vacation policies, his claim is preempted by § 301 of the LMRA.*fn12 See In re Bentz Metal Products Co., Inc., 253 F.3d at 285 (state law claim preempted if resolution requires interpretation of collective bargaining agreement).

  Additionally, Alvarez contends that his negligent supervision claim is based on Hi-Temp's failure to supervise Mikoda to ensure that he would not interfere with terminated employees' rights to unemployment compensation. According to Alvarez, Mikoda intentionally and wrongfully characterized his termination as a voluntary resignation in an effort to prevent him from collecting unemployment, (see Sec. Am. Compl. ¶¶ 19, 24), and Hi-Temp negligently failed to prevent Mikoda from doing so.*fn13 This strikes the court as an inappropriate application Page 12 of the tort of negligent supervision. Garcia v. Allen, 28 S.W.3d 587, 592 (Ct.App. Tex. 2000).

  Under Illinois law, a negligent supervision claim is viable if "(1) [the] employer had a duty to supervise its employees, (2) the employer negligently supervised an employee, and (3) such negligence proximately caused the plaintiff's injuries." Van Home v. Mutter, 691 N.E.2d 74, 79 (Ill.App. Ct. 1998), rev'd in part on other grounds, 705 N.E.2d 898 (Ill. 1999). Relying on Hills v. Bridgeview Little League Assoc., 745 N.E.2d 1166, 1179 (Ill. 2000), Alvarez argues that Hi-Temp had a "duty to exercise reasonable care to ensure that its employees do not intentionally harm others."*fn14 (Resp. at 12.) In Hills, the intentional harm at issue was a physical beating, not the termination of someone's employment. There are no reported Illinois cases in which a plaintiff brought a negligent supervision claim where the alleged injury was termination of employment. Courts in other jurisdictions have held that "[t]he claim is not available in an action for wrongful termination, where an employee contends that his employer failed to adequately oversee his immediate supervisors." Day v. Excel Corp., No. 94-1439-JTM, 1996 WL 294341, at *14 (D. Kan. May 17, 1996); Garcia, 28 S.W.3d at 592 (holding that "employers do not have a duty to supervise their employees in a manner that prevents other employees from being terminated without sufficient justification"). The court is therefore skeptical whether an Illinois court would extend the tort of negligent supervision to encompass Alvarez's claim. Page 13

  The court's jurisdiction over Alvarez's negligent supervision claim is supplemental under 28 U.S.C. § 1367(a). (Sec. Am. Compl. ¶ 2.) Where a state law claim raises a novel issue of state law, the court has discretion to decline to exercise supplemental jurisdiction over the claim. 28 U.S.C. § 1367(c); Quinn v. Vill, of Elk Grove Vill. Bd. of Fire & Police Comm'rs, No. 01 C 8504, 2002 WL 47157, at *2 (N.D. Ill. Jan. 11, 2002). Courts generally decline to exercise supplemental jurisdiction if the issue of state law is one of first impression. Quinn, 2002 WL 47157 at *2. Here, Alvarez's claim presents a question of first impression for Illinois courts, and thus presents a novel issue of state law. The court therefore opts not to exercise supplemental jurisdiction over the claim.

  Count III is dismissed.

  C. Motion to Strike Allegations from Second Amended Complaint

  Defendants also ask the court to strike certain allegations from the complaint pursuant to Fed.R.Civ.P. 12(f), claiming that the allegations constitute redundant, immaterial, impertinent or scandalous matter. For example, defendants ask the court to strike allegations that the action is brought "pursuant to the Dlinois state laws of tortious interference with a contractual relationship and negligent supervision," that the court has supplemental jurisdiction, and that Hi-Temp's parent company operates in 26 states as well as Mexico. and Canada, and has net sales in excess of $600 million. (Sec. Am. Compl. ¶¶ l, 2, and 5.)

  When ruling on a Rule 12(f) motion to strike, the court has "considerable discretion." Videojet Sys. Int'l, Inc. v. Inkjet, Inc., No. 95 C 7016, 1997 WL 124259, at *3 (N.D. Ill. Mar. 17, 1997). Moreover, "`as a general matter, motions to strike . . . under Rule 12(f) are disfavored.'" Id. There is nothing scandalous or prejudicial about any of the challenged allegations. While Page 14 some of the challenged allegations may be redundant or superfluous, this court is capable of disregarding such allegations. The motion to strike is therefore denied.

 II. Conclusion

  Defendants' motion to strike certain paragraphs and dismiss counts n and HI of plaintiff's second amended complaint is granted in part and denied in part. Counts II and III are both dismissed, primarily on preemption grounds. To the extent plaintiff's claim in Count III is based on a novel application of the common law tort of negligent supervision, which is not subject to preemption, the court declines to exercise supplemental jurisdiction over that claim. Finally, defendants' motion to strike is denied.


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