Appeal from the United States District Court for the Southern District of Illinois. No. 05-665-David R. Herndon, Chief Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
The plaintiff was a deckhand on a barge owned by the defendant, a company that provides shipping by barge in inland waterways, mainly the Mississippi River. See "Alter Barge Line, Inc.-History," www.alterbarge.com/history.html (visited Dec. 7, 2007). On three occasions he complained to management that crew members were using illegal drugs while on duty. Shortly after the third report he was fired and brought this suit for retaliatory discharge. The district judge granted summary judgment for the defendant.
The plaintiff advances four separate grounds for relief, two under Illinois law (conceded to govern any nonfederal issues in the case) and two under admiralty law (which of course is federal). One ground is section 20 of the Illinois Whistleblower Act, 740 ILCS 174/20, which forbids an employer to "retaliate against an employee for refusing to participate in an activity that would result in a violation of a State or federal law, rule, or regulation." Using illegal drugs would be such an "activity," but there is no evidence that the plaintiff refused to engage in it. The district judge thought "activity" could be stretched to include working with drug users or on boats on which drugs were being used, but the stretch is implausible, because neither would be an illegal activity. Nor did the plaintiff refuse to work because of the presence of drugs or drug users, or indeed for any other reason. And, critically, there is no indication that he refused to use drugs himself. That is not to say that he did use them; there is no indication of that either. The point is that he did not refuse to use them-as far as appears, he was never invited to use them. Anyway there is no indication that the defendant fired him because he refused to use drugs. (That would be bizarre conduct-firing an employee for refusing to use illegal drugs on the job.) And so he has no claim under the statute, as the district judge correctly concluded.
The judge held in the alternative that the Whistle-blower Act is preempted, so far as its application to seamen is concerned, by the federal statute that we discuss next. We need not consider that alternative ground. But in passing it by we do not mean to approve (or for that matter disapprove) the district judge's analysis.
After the Fifth Circuit in Donovan v. Texaco, Inc., 720 F.2d 825 (5th Cir. 1983), held that there is no tort of retaliatory discharge under admiralty law, Congress passed the Seaman's Protection Act, 46 U.S.C. § 2114. So far as bears on this case, the Act forbids discharging or otherwise discriminating against a seaman because he "in good faith has reported or is about to report to the Coast Guard or other appropriate Federal agency or department that [he] believes that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred." § 2114(a)(1)(A); see Gaffney v. Riverboat Services of Indiana, Inc., 451 F.3d 424, 452-53 (7th Cir. 2006). The plaintiff did not report the use of illegal drugs (a use that we can assume violated "a maritime safety law or regulation prescribed under that law," though neither party bothers to say so) to the Coast Guard (conceded to be the appropriate agency to report such a violation to, though there is no indication that the plaintiff complained to any agency, federal or for that matter state) until after he was fired. Nor did he tell anyone before he was fired that he was planning to complain to a federal agency. The defendant could not have fired him because he was about to report the use of illegal drugs to the Coast Guard if it didn't know he had any intention of doing so. And as far as the record shows, it didn't.
We have now disposed of one of the plaintiff's state claims and one of his federal claims. His other state claim is under Illinois's common law tort of retaliatory discharge. Generally an employee who does not have an employment contract can be fired at the will of the employer, but the Illinois courts, like those of most states, Deborah A. Ballam, "Employment-at-Will: The Impending Death of a Doctrine," 37 Am. Bus. L.J. 653, 664-66 (2000); see Chism v. Mid-South Milling Co., 762 S.W.2d 552, 555-56 (Tenn. 1988), have created an exception for cases in which the employee is fired because he reported dangerous or illegal activities at work. Metzger v. DaRosa, 805 N.E.2d 1165 (Ill. 2004); Jacobson v. Knepper & Moga, P.C., 706 N.E.2d 491, 493 (Ill. 1998); Palmateer v. International Harvester Co., 421 N.E.2d 876, 878-80 (Ill. 1981); Bourbon v. Kmart Corp., 223 F.3d 469, 472 (7th Cir. 2000) (Illinois law). That is a precise description of what happened to the plaintiff, if the allegations of his complaint are true. But the defendant persuaded the district court that the plaintiff's common law claim is preempted both by the federal statute that we have just been discussing and by admiralty law-the body of legal doctrines, most judge-made, that govern the legal rights and duties of the users of navigable waterways.
The argument for preemption by the statute is unpersuasive. Remember that the statute was enacted in response to the Donovan decision. Donovan had been discharged because he complained to the Coast Guard. All the statute did, besides abrogating the rule adopted in Donovan, was to add "about to report" to "report" (a subsequent amendment extended protection for reporting to other agencies as well, besides the Coast Guard) and to entitle the seaman to refuse (without fear of retaliation) to perform duties that he reasonably believed would inflict a serious injury on him or on others. 46 U.S.C. § 2114(a)(1)(B). These narrow provisions do not suggest an intention by Congress to occupy the entire field of retaliatory discharge of seamen; nor is there any other indication of such a purpose. It would be paradoxical if, to repair the damage that it believed had been caused by Donovan, Congress killed the application of all state statutory and common law doctrines of retaliatory discharge to seamen-yet that is the defendant's argument.
Of course it is possible that shipping interests persuaded Congress in effect to trade Donovan for a broad immunity from state law: seamen would have a limited federal right to sue in respect of retaliatory discharge but in exchange would give up all such rights under state law. The importance of interest groups in the legislative process must not be gainsaid, and courts must be cautious not to upset legislative compromises. But nothing in the history of the Seaman's Protection Act or in any other source of knowledge to which we have been directed suggests the swap that we have conjectured. The Senate Report describes the retaliation provision of the Act as merely a response to Donovan. S. Rep. No. 454, 98th Cong., 2d Sess. 12 (1984).
The defendant has a somewhat stronger argument that admiralty law as a whole, which includes statutes such as the Seaman's Protection Act and the Jones Act but also judge-made doctrines, such as maintenance and cure, and divided damages in collision cases, preempts state remedies for retaliatory discharge. The Fourth Circuit has so held, Meaige v. Hartley Marine Corp., 925 F.2d 700, 702-03 (4th Cir. 1991). Other courts disagree. Zbylut v. Harvey's Iowa Mgmt. Co., 361 F.3d 1094, 1095-96 (8th Cir. 2004); Clements v. Gamblers Supply Mgmt. Co., 610 N.W.2d 847, 848-50 (Iowa 2000); Baiton v. Carnival Cruise Lines, Inc., 661 So.2d 313, 314-15 (Fla. App. 1995). We have not spoken to the issue.
The "savings to suitors" provision of 28 U.S.C. § 1333(1) (conferring on the federal courts original jurisdiction, exclusive of the state courts, over "any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled") precludes automatic preemption of state remedies by admiralty law, Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206 (1996); Askew v. American Waterways Operators, Inc., 411 U.S. 325, 337-44 (1973)-the kind of preemption one finds in the labor field. Compare Belknap, Inc. v. Hale, 463 U.S. 491, 499 (1983). As Justice Frankfurter pointed out in Romero v. International Terminal Operating Co., 358 U.S. 354, 373-74 (1959), "State-created liens are enforced in admiralty. State remedies for wrongful death and state statutes providing for the survival of actions, both historically absent from the relief offered by the admiralty, have been upheld when applied to maritime causes of action. Federal courts have enforced these statutes. State rules for the partition and sale of ships, state laws governing the specific performance of arbitration agreements, state laws regulating the effect of a breach of warranty under contracts of maritime insurance-all these laws and others have been accepted as rules of decision in admiralty cases, even, at times, when they conflicted with a rule of maritime law which did not require uniformity." All that is preempted are provisions of state law that would, if applicable to maritime disputes, undermine admiralty law.
And thus a "State may modify or supplement the maritime law by creating liability which a court of admiralty will recognize and enforce when the state action is not hostile to the characteristic features of the maritime law or inconsistent with federal legislation," Just v. Chambers, 312 U.S. 668, 691 (1941) (emphasis added), or in other words when there is no "clear conflict" with admiralty law. Ellenwood v. Exxon Shipping Co., 984 F.2d 1270, 1278 (1st Cir. 1993). Such conflicts are illustrated by cases, summarized in Yamaha Motor Corp., U.S.A. v. Calhoun, supra, 516 U.S. at 210, which hold that the "federal maritime rule validating oral contracts precluded application of state Statute of Frauds[,] . . . admiralty's comparative negligence rule barred application of state contributory negligence rule[,] . . . [and] federal maritime rule allocating burden of proof displaced conflicting state rule." See also Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263, 278-80 (2d Cir. 2002); Green v. Vermilion Corp., 144 F.3d 332, 338-41 (5th Cir. 1998); Sosebee v. Rath, 893 F.2d 54 (3d Cir. 1989); J. Ray McDermott & Co. v. Vessel Morning Star, 457 F.2d 815, 818-19 (5th Cir. 1972).
The court in Donovan thought that allowing a seaman to sue for retaliatory discharge would upset what it described as the delicate balance between the authority of the captain of a ship over his crew and the interest of the seamen. The court emphasized the scary history of mutiny at sea, 720 F.2d 828, which dramatized, the court thought, the danger of allowing authority to be divided between captain and crew. We have no wish to encourage mutinies on Mississippi barges, but we think that accidents due to drunken and cocaine-snorting seamen pose rather a greater risk to maritime safety in U.S. waters in the twenty-first century; and it is a risk that tort liability for firing a seaman who reports such carryings-on to his captain or to the management of the barge company is ...