United States District Court, N.D. Illinois, Eastern Division
June 17, 2004.
ELLEN K. EMERY, Plaintiff,
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION d/b/a METRA/METROPOLITAN RAIL, et al., Defendants.
The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge
MEMORANDUM OPINION & ORDER
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 several individual
Metra officials based on her March 4, 2002 termination from her
position as Metra's in-house counsel. While at Metra, Emery
specialized in defending Metra from cases brought under the
Federal Employer Liability Act ("FELA"), 45 U.S.C. § 51, et
seq. Emery alleges that defendants (a) terminated her after she
brought her own FELA claim against Metra arising out of an injury
she suffered in the workplace, and (b) defamed her by publicly
accusing her of breaching her ethical duties to Metra by
providing counsel in her FELA case with confidential information
regarding Metra's FELA defense strategies. Emery claims that
defendants' stigmatizing comments prevented her from finding
other employment opportunities in her field. Based on those
allegations, Emery brought (1) federal claims against defendants
for constitutional deprivation of liberty and property interests
under 42 U.S.C. § 1983, conspiracy to violate her constitutional
rights, retaliatory discharge under FELA and federal common law,
violation of the Older Workers Benefit Protection Act ("OWBPA"),
29 U.S.C. § 626(f), and (2) claims under Illinois law for
retaliation, defamation, self-compelled defamation, tortious
interference with contractual relations, tortious interference
with prospective economic advantage, and civil conspiracy. On September 19, 2003, the court dismissed several of Emery's
claims, including her FELA and state law retaliation
counts.*fn1 On the federal retaliation count, the court held
that neither FELA nor any other federal statute creates a cause
of action against an employer for retaliating against an employee
for bringing a FELA claim. In dismissing the state retaliation
claim, the court held that Illinois courts would not likely
recognize a claim for FELA retaliation because Emery has an
adequate alternative remedy under the Railway Labor Act ("RLA"),
45 U.S.C. § 151, et seq.
Emery has filed a motion requesting that the court reconsider
its September 19, 2003 decision to dismiss her state and federal
retaliation claims. Specifically, Emery argues that she should be
allowed to bring a retaliation claim under state law and FELA
because she has no recourse against defendants under the Railway
Labor Act. Along with her motion to reconsider, Emery filed an
amended complaint, attempting to address some of the other
deficiencies identified in the court's September 19 opinion.
Defendants have moved to dismiss that amended complaint, arguing
that Emery's Section 1983 claim should be dismissed for failure
to state a claim and, because Emery has no other viable federal
causes of action, Emery's state claims should be dismissed for
lack of jurisdiction. For the reasons stated below, Emery's
motion for reconsideration of the court's September 19, 2003
order is denied and defendants' motion to dismiss Emery's amended
complaint is granted.
1. Emery's Motion To Reconsider The Dismissal Of Her FELA
Emery has moved the court to reconsider its decision to dismiss
her Section 1983 FELA retaliation claim. However, "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 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.
Nonetheless, Emery argues that, because she does not have a
remedy under the RLA, the court should allow her to bring a FELA
retaliation claim. While the lack of a remedy under the RLA could
conceivably affect the availability of a retaliation claim under
Illinois law, the court cannot find, and Emery does not cite, any
authority for the proposition that the lack of an RLA remedy
allows the court to create a retaliation cause of action under
FELA. Emery's motion for reconsideration is denied.
II. Defendants' Motion to Dismiss
On a Rule 12(b)(6) motion to dismiss, the court accepts all
well-pleaded facts as true and draws all reasonable inferences in
the plaintiff's favor. Hernandez v. City of Goshen,
324 F.3d 535, 537 (7th Cir. 2003). A complaint will not be dismissed
unless it appears beyond doubt that the plaintiff can prove no
set of facts that would entitle him to relief under the law.
The only remaining federal claims in Emery's complaint are (a)
her Section 1983 claim that defendants deprived Emery of her
constitutionally protected liberty interest in her reputation and
in pursuing the occupation of her choice and (2) her Section 1983
claim that defendants conspired to deprive her of those liberty
interests. Defendants have moved to dismiss those claims, arguing
that, because Emery has found comparable employment in her field,
there is no set of facts by which Emery can prove that she was
deprived of a constitutionally protected liberty interest. The
court agrees with defendants' analysis. Reputation itself is not a liberty interest protected under the
Fourteenth Amendment. Siegert v. Gilley, 500 U.S. 226, 233
(1991). Rather, to implicate a liberty interest, charges of
defamation must be coupled with the alteration of a legal status,
such as the loss of employment. Moreover, the constitutionally
protected liberty interest in cases such as this is quite narrow.
An employee's liberty interest is infringed only if "the
circumstances of the discharge, at least if they were publicly
stated, had the effect of blacklisting the employee from
employment in comparable jobs." Trejo v. Shoben, 319 F.3d 878,
889 (7th Cir. 2003). "The employee's . . . reputation . . .
must be called into question in a manner that makes it virtually
impossible for the employee to find new employment in his chosen
field." Townsend v. Vallas, 256 F.3d 661, 670 (7th Cir.
2001) (emphasis added).
Emery's Section 1983 claim fails because she has, in fact,
found comparable employment in her chosen field. At defendants'
request, the court takes judicial notice of the fact that Emery
has worked as an attorney for the law firm of Ancel, Glink,
Diamond, Bush, DiCiani & Rolek, P.C., specializing in local
government law, since July of 2003.
Emery's job as an attorney at an established Chicago law firm
precludes her from arguing that defendants' actions deprived her
of a liberty interest in pursuing a career in the field of her
choosing and rebuts her claim that it is "virtually impossible"
for her to find employment in her field. See, e.g., Trejo, 319
F.3d at 889; Townsend, 256 F.3d at 670 (holding that plaintiff
could not show that his firing as a lifeguard foreclosed
prospective employment opportunities because he retained
employment as a swim instructor with another employer). A liberty interest is not implicated where the change in
employment merely results in reduced compensation or diminished
prestige. Munson v. Friske, 754 F.2d 683, 693 (7th Cir.
1985). Moreover, mere proof that Emery was "somewhat less
attractive to some other employers would not establish the
requisite foreclosure of opportunities." Id. Rather, the
constitution protects only Emery's ability to pursue her chosen
profession. In light of Emery's current employment as an attorney
within her field of expertise, there is simply no set of facts by
which Emery can prove her Section 1983 claim. Defendants'
termination of Emery may have stigmatized her and may be
actionable as a state defamation claim. However, defendants' acts
do not reach a constitutional dimension. Because Emery has not
stated a claim for which relief can be granted, both her Section
1983 claim (Count V) and her Section 1983 Conspiracy claim (Count
VI) are dismissed.
Since no viable federal claims remain, the court relinquishes
jurisdiction over Emery's pendent state claims.*fn3 Emery's
amended complaint is dismissed in its entirety. Wright v.
Associated Ins. Cos., 29 F.3d 1244, 1251 (7th Cir. 1994)
("[T]he general rule is that once all federal claims are
dismissed before trial, the district court should relinquish
jurisdiction over pendent state-law claims rather than resolve
them on the merits"); Solon v. Kaplan, No. 00-C-2888, 2004 WL
725893, *6 (N.D. Ill. March 31, 2004). CONCLUSION
For the foregoing reasons, defendants' motion to dismiss
Emery's amended complaint is granted. Emery's motion for
reconsideration of the court's September 19, 2003 order is