United States District Court, N.D. Illinois, Eastern Division
July 26, 2004.
KAREN B. SULLIVAN, Plaintiff,
PROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Karen B. Sullivan has sued defendant Progressive
Casualty Insurance Co. for discriminating against her on the
basis of sex pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., for retaliatory discharge
pursuant to the Family and Medical Leave Act of 1993 ("FMLA"),
29 U.S.C. § 2601 et seq., and breach of contract for Defendant's
failure to pay Plaintiff her year-end bonus and reimburse her for
her mileage. Defendant filed an answer to Counts I-III, and
before the Court is Defendant's motion to dismiss Count IV of the
complaint pursuant to Federal Rule of Civil Procedure ("Rule")
12(b)(6). For the reasons provided in this Memorandum Opinion and
Order, the motion is granted.
On July 7, 1991, Plaintiff was hired by Defendant as a
Territory Sales Manager Trainee. (Compl. ¶ 4.) On January 5,
1992, Plaintiff was promoted to Territory Sales Manager, and in
January 1994, she was thereafter promoted to Senior Territory
Sales Manager. (Id. ¶¶ 5-6.) Defendant alleges Plaintiff's
promotion to Senior Territory Sales Manager occurred in January 1995. (Id. ¶ 6.) In June 2000, Plaintiff was ultimately
promoted to District Sales Manager, and remained in that position
until December 2001. (Id. ¶ 7.) Plaintiff alleges she received
compliments from her supervisors, fellow employees, and customers
on her work performance and was always among the best employees
in her position. (Id. ¶ 8.)
In late spring of 2000, Plaintiff discovered she was pregnant
with a baby due in late January 2001. (Id. ¶ 9.) On December 8,
2000, Plaintiff went on maternity leave, which was covered by the
FMLA, and on January 16, 2001, Plaintiff gave birth to a baby
girl. (Id. ¶ 10.) Plaintiff alleges that her maternity leave
was extended by use of her sick time and vacation time, and that
she returned to work upon the expiration of her Family and
Medical Leave on April 13, 2001. (Id. ¶¶ 12-13.)
As a District Sales Manager, Plaintiff received a company car,
which Defendant permitted her to retain while on maternity leave.
(Id. ¶ 14.) Defendant's policy on company cars entitled
managers in Plaintiff's position to a mileage reimbursement for
business use of the car, including driving to auto mechanics for
normal maintenance, car washes for normal cleaning, and gas
stations for fueling. (Id. ¶¶ 15-16.)
Defendant's policy on company cars also provides that managers
in Plaintiff's position were entitled to five-hundred personal
miles per month, that any personal miles not used in a month
rolled over for use in subsequent months, and that any personal
miles not used by the year's end could be redeemed by the
employee for a mileage reimbursement as long as, Defendant
argues, employees did not claim such mileage fraudulently. (Id.
¶ 15; Def.'s Answer Counts I-III Compl. ("Def.'s Answer") ¶ 16.)
Defendant also argues that its policy did not prohibit employees
on Family and Medical Leave from claiming business and/or
personal mileage so long as such mileage was not claimed
fraudulently. (Def.'s Answer ¶ 16.) While on leave, Plaintiff alleges she occasionally used the
company car for business purposes falling within Defendant's
policy, and accrued a total of 1,345 business miles during the
months of January, February, and March 2001, at Defendant's
then-applicable rate of 32.5 cents per mile, equaling $437.12.
(Compl. ¶ 17.) Plaintiff further claimed 1,200 miles of personal
mileage. (Id. at 18.) On June 1, 2001, Plaintiff gave Defendant
a written account of her business and personal mileage while on
Family and Medical Leave for the months of January and February
2001, and on or about June 15, 2001, Plaintiff gave Defendant a
written account of such mileage for March 2001. (Id. ¶ 19.)
Plaintiff alleges that Defendant terminated her on December 7,
2001 for having claimed mileage while on Family and Medical
Leave. (Id. ¶ 20.) Defendant then gave Plaintiff's duties to
the Regional Sales Manager, who was male, and did not replace her
with a new District Sales Manager. (Id. ¶ 21.) Plaintiff
alleges that, contrary to its policies, Defendant refused to
allow her to appeal her termination to a neutral third party and
failed or refused to pay Plaintiff $738.90 for the 2,412 miles
she had accrued. (Id. ¶ 23.) Plaintiff also alleges that
Defendant failed to pay her any or all of her bonus for 2001
because she was not employed on December 17, 2001. (Id. ¶ 24.)
Defendant argues she was ineligible for such a bonus. (Def.'s
Answer ¶ 24.)
The purpose of a motion to dismiss, pursuant to Rule 12(b)(6)
is to examine the adequacy of the complaint, not to decide the
merits of the case. Fed.R.Civ.P. 12(b)(6); see Gibson v. City
of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a
motion to dismiss, the court must construe all reasonable
inferences drawn from the facts of the complaint in the light
most favorable to the plaintiff, and all well-pleaded facts and
allegations in the complaint must be taken as true. See Roots
P'ship v. Lands' End, Inc., 965 F.2d 1411, 1416 (7th Cir. 1992);
Branch v. Costa, No. 00 C 4765, 2000 WL 1671495, at *1 (N.D.
Ill. Nov. 3, 2000). Defendants must meet a high standard in order
to have a complaint dismissed for failure to state a claim, and
the allegations of a complaint should not be dismissed unless it
appears beyond a doubt that the plaintiff cannot prove any set of
facts in support of her claim entitling her to relief. Ledford
v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997); Hamros v.
Bethany Homes & Methodist Hosp. of Chicago, 894 F. Supp. 1176,
1178 (N.D. Ill. 1995).
With regard to Defendant's motion to dismiss, Defendant argues
that Plaintiff's Illinois common law claim for retaliatory
discharge under the FMLA (Count IV) should be dismissed due to a
failure to state a claim. Defendant argues that every federal
district court in Illinois to address the same issue has
uniformly rejected the creation of this new public policy tort by
holding that the Illinois Supreme Court would refuse to extend
the tort of retaliatory discharge to include claims based on the
FMLA. Moreover, Defendant argues that because Plaintiff has not
relied upon a statute in support of her retaliatory discharge
claim that embodies a public policy, the claim cannot survive a
motion to dismiss.
Plaintiff alleges that she was discharged by Defendant, her
employer, for exercising her rights under the Family and Medical
Leave Act of 1993, and that such dismissal gives rise to claims
under both the FMLA and the Illinois state law tort of
retaliatory discharge. (Compl. ¶¶ 45-47.) The purpose of the FMLA
is to promote equal employment opportunities for men and women
and to prevent gender-based discrimination in the workplace.
Nevada Dep't. of Human Res. v. Hibbs, 538 U.S. 721, 727-28
(2003). This Act entitles eligible employees to take up to twelve
work weeks of unpaid leave annually for several reasons,
including serious health conditions, and allows the plaintiff to seek both equitable
relief and money damages against any employer, if the employer
interferes with the plaintiff's right to exercise rights under
the FMLA. Id. at 724-25.
In the present matter, Plaintiff argues that the FMLA embodies
important federally mandated public policies which must be
protected from retaliation by Illinois law, just as state
policies are protected by Illinois law. (Pl.'s Resp. Def.'s Mot.
Dismiss ("Pl.'s Resp.") ¶ 3.) She alleges that she has
established a cause of action because Defendant discharged her
for claiming mileage for her company car while on maternity leave
while male and non-pregnant employees were not terminated for
claiming mileage after taking leave, and Defendant then replaced
her with a male employee. (Compl. ¶¶ 20-21, 32-33.) Plaintiff
further alleges that Defendant never reimbursed her for that
mileage in retaliation for her having taken maternity leave.
(Id. ¶ 23.) Defendant argues that Plaintiff was terminated for
claiming her mileage fraudulently, in violation of company policy
and that fraudulently claimed mileage is not reimbursed. (Def.'s
Mot. ¶ 2.)
Illinois has recognized the limited and narrow tort of
retaliatory discharge as an exception to the general rule of
at-will employment. Balla v. Gambro, Inc., 584 N.E.2d 104, 107
(Ill. 1991); see Alexander v. Somer, No. 01 C 1908, 2002 WL
31557607, at *9 (N.D. Ill. Nov. 18, 2002); Callozzo v. Office
Depot, Inc., No. 97 C 5308, 1998 WL 111628, at *2 (N.D. Ill.
Mar. 6, 1998). In order to establish a cause of action for
retaliatory discharge, the plaintiff must show that: (1) she was
discharged in retaliation for her activities; and (2) the
discharge is a violation of a clearly mandated public policy.
Jacobson v. Knepper & Moga, P.C., 706 N.E.2d 491, 493 (Ill.
1998); see Alexander, 2002 WL 31557607, at *9.
A claim for retaliatory discharge should be recognized when it
is necessary to prevent employers from using their power of termination in a manner that
frustrates the public policy behind other Acts, such as the
Workmen's Compensation Act. See Barr v. Kelso-Burnett Co.,
478 N.E.2d 1354, 1356 (Ill. 1985); Handel v. Belvedere USA Corp.,
No. 00 C 5042, 2001 WL 1286842, at *3-4 (N.D. Ill. Oct. 22,
2001). However, the Illinois Supreme Court does not "strongly
support" an expansion of this tort, and will only provide one
when there is a clear violation of mandated public policy.
Barr, 478 N.E.2d at 1356. Public policies based on social or
economic regulation are not as likely to be considered sufficient
to support claims of retaliatory discharge. McGrath v. CCC Info.
Servs., 731 N.E.2d 384, 391 (Ill.App. Ct. 2000).
Instances in which the Illinois Supreme Court has expanded
protection for retaliatory discharge include situations in which
employees were terminated for supplying information to
law-enforcement agencies against other employees or their
employers (referred to as whistle-blowing), and employees who
filed worker's compensation claims. Palmateer v. Int'l Harvester
Co., 421 N.E.2d 876, 877-79 (Ill. 1981) (whistle-blowing);
McGrath, 731 N.E.2d at 389 (worker's compensation).
One of the difficulties in deciding whether to expand the tort
of retaliatory discharge is determining what constitutes a
clearly mandated public policy. Callozzo, 1998 WL 111628, at
*2. In the past, the Illinois Supreme Court has held that public
policy "concerns what is right and just and what affects the
citizens of the State collectively." Palmateer, 421 N.E.2d at
878. Such policy must "strike at the heart of a citizen's social
rights, duties, and responsibilities." Id at 878-79. A claim
for retaliatory discharge will be denied if only private
interests are affected. Callozzo, 1998 WL 111628, at *2-3.
Moreover, the Illinois Supreme Court has not expanded the tort of
retaliatory discharge if other, adequate safeguards to the public
policy implicated in the case are available. Jacobson, 706
N.E.2d at 494. Defendant argues that the FMLA does not involve matters that
strike at the heart of a citizen's social rights, duties, and
responsibilities, and therefore Plaintiff cannot base her
retaliation claim upon it. Handel, 2001 WL 1286842, at *4. In
the past, courts in this district have held that the FMLA was
designed to balance the employer's legitimate interests with the
needs of employees in obtaining leave for certain medical or
family reasons, and thus affected only the private relationship
between the employer and employee. Id.; see Hamros,
894 F. Supp. at 1179; Dormeyer v. Comerica Bank-Ill., No. 96 C 4805,
1998 WL 729591, at *6 (N.D. Ill. Oct. 14, 1998); Callozzo, 1998
WL 111628, at * 4.
Plaintiff argues that the United States Supreme Court stated in
at least one case that the FMLA embodies significant federal
policy to curtail certain types of discrimination. Nevada, 538
U.S. at 732-33 (plaintiff sought and was granted leave under FMLA
to care for ailing wife, but defendants terminated him when he
failed to return to work). Nevertheless, Plaintiff's case may be
distinguished for several reasons. See id. at 735-36; Barr,
478 N.E.2d at 1357.
First, the issue before Nevada v. Hibbs was not whether the
Illinois Supreme Court would recognize a common law action for
retaliatory discharge for exercising rights under the FMLA, but
whether a state employee may recover damages under the FMLA if a
state fails to comply with the federal statute. 538 U.S. at 726.
Second, in reaching the decision that state employees may recover
for retaliatory discharge under the FMLA, the Court discussed
congressional findings leading to the enactment of the FMLA for
the sole purpose of determining whether congress abrogated the
state's Eleventh Amendment immunity when enacting the FMLA. Id.
at 732, 735-36.
Defendant also argues that the FMLA already provides strong
deterrents to violations of federal policy, and thus Plaintiff
need not file a state law claim for retaliatory discharge.
(Def.'s Mot. ¶ 1.) Plaintiff counters that it is irrelevant that the FMLA
carries its own anti-retaliation penalties because the Seventh
Circuit and Illinois Appellate Court have held in at least one
case each that a federal law having its own anti-retaliation
remedies does not preclude protection under common-law
retaliatory discharge torts. (Pl.'s Resp. ¶ 4.); see, e.g.,
Brandon v. Anesthesia & Pain Mgmt. Assocs., Ltd., 277 F.3d 936,
943-46 (7th Cir. 2002) (stating Illinois common law retaliatory
discharge claim may be brought where whistle-blowing plaintiff
was terminated although he may have been able to recover under
False Claims Act); Johnson v. World Color Press, Inc.,
498 N.E.2d 575, 579-80 (Ill.App. Ct. 1986) (stating whistle-blowing
plaintiff may sue for common law retaliatory discharge although
he could recover under federal securities laws).
Although Plaintiff cites Brandon v. Anesthesia & Pain
Management Associates in support of this argument, the present
matter may be distinguished from Brandon for several reasons.
See 277 F.3d at 943-46. First, in Brandon, the Seventh
Circuit held that it was unclear whether the conduct of plaintiff
and his employer would allow plaintiff to bring a suit under the
federally mandated False Claims Act ("FCA"), and thus allowed him
to pursue a claim under the Illinois common law in order to
provide him with a remedy for his retaliatory discharge. Id. at
945. Second, the plaintiff in Brandon was a whistle-blower,
putting him in one of the two categories of retaliatory discharge
that the Illinois Supreme Court has expanded its protection to
recognize. Id. at 940; see, e.g., Palmateer, 421 N.E.2d at
879. Finally, the Illinois legislature has specifically
articulated that reporting fraud under the FCA serves an
important public purpose, making it a good public policy
affecting the health and safety of citizens in Illinois.
Brandon, 277 F.3d at 942.
In the instant case, Plaintiff's retaliatory discharge claim
focuses on Defendant's refusal to reimburse her for mileage and provide her with a year-end
bonus. The Illinois Appellate Court has recognized that
underlying disputes involving wages or payments go toward private
economic rights and not public policy. Chicago Commons Ass'n v.
Hancock, 804 N.E.2d 703, 706 (Ill.App. Ct. 2004) (declining to
recognize common law retaliatory discharge claim where employee
alleged he was fired for defending against employer's lawsuit for
reimbursement of wages); McGrath, 731 N.E.2d at 391 (declining
to recognize common law retaliatory discharge claim where
employee claimed he was fired and not paid bonus or stock options
due to his lawsuit under Illinois Wage Payment and Collections
Thus, because Plaintiff's claim is not based on a public policy
which the Illinois legislature or courts have specifically
expressed to be of great importance to the citizens of Illinois,
her claim is not likely to be recognized by the Illinois Supreme
Court as an appropriate Illinois common law retaliatory discharge
tort. In fact, had Plaintiff brought this claim in state court,
there is little doubt that the trial or appellate court would
follow Chicago Commons Association v. Hancock, 804 N.E.2d at
706, or McGrath v. CCC Information Services, 731 N.E.2d at 391,
in determining that Plaintiff's claim is not a sufficiently
significant violation of a clearly mandated public policy.
The purpose of this Court is to determine how the Illinois
Supreme Court would rule if this case were before it. As a
result, this Court joins the majority of Illinois courts in
holding that, where the underlying disputes are primarily
economic in nature, a claim for common law retaliatory discharge
is not recognized. It is improbable that the Illinois Supreme
Court would permit a claim for retaliatory discharge based on
rights set forth through the FMLA under the circumstances of this
case. While the Illinois Supreme Court has already expanded the
retaliatory discharge tort to two categories, whistle-blowing and
worker's compensation claims, those torts protect citizens from criminal activity or serious
hazards. The FMLA, on the other hand, protects private interests
by balancing the needs of employers and employees. Accordingly,
Defendant's motion to dismiss Count IV is granted.
For the foregoing reasons, this Court grants Defendant's motion
to dismiss Count IV [doc. no. 9-1].
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