IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
March 5, 2008
ROCKY GOODEN, PLAINTIFF,
DAVE WELCH AND THE AMERICAN COAL COMPANY, DEFENDANTS.
The opinion of the court was delivered by: Stiehl, District Judge
MEMORANDUM & ORDER
Before the Court is defendants' motion to dismiss (Doc. 3) to which the plaintiff has not filed a response, but has filed a motion to remand (Doc.13). Defendants have filed a response to plaintiff's motion to remand (Doc. 18). The plaintiff filed his original complaint in the Circuit Court for the First Judicial Circuit, Saline County, Illinois, seeking to recover for alleged retaliatory discharge for filing a workers compensation claim under the Illinois Workers Compensation Act while employed at The American Coal Company (TACC). The complaint is framed in two counts. Count I seeks recovery against defendant Dave Welch in Count I, as superintendent of TACC, and plaintiff's supervisor, and against TACC in Count II as plaintiff's employer.
The defendants timely removed the action to this Court pursuant to 28 U.S.C. § 1332, asserting that there is complete diversity of citizenship, and that the amount in controversy exceeds $75,000.*fn1 To support the removal, the defendants seek to have the Court dismiss Count I on the grounds that defendant Welch was fraudulently joined, and that without Welch, complete diversity exists.*fn2
A. Plaintiff's Cause of Action Against Defendant Welch
Defendants assert that plaintiff cannot maintain a cause of action under Illinois law for retaliatory discharge against Welch, as plaintiff's supervisor. The Illinois Supreme Court has held that the Illinois Workers Compensation Act only exposes the employer, not a supervising employee, to liability for retaliatory discharge. Buckner v. Atlantic Plant Maint., Inc., 694 N.E.2d 565, 566 (Ill. 1998). The Buckner court held that only the employer can actually discharge the employee, id., and a supervising employee alone is without power to discharge. Id. See also, Rosas v. BB Holdings Partnership, 362 F. Supp.2d 986, 990 (S.D. Ill. 2005) ("This Court has found no Illinois case which has held that anyone other than an individual's employer is a proper party defendant in a retaliatory discharge action."); Smith v. Waukegan Park Dist., 869 N.E.2d 1093, 1097 (Ill. App. Ct. 2007) (employer, alone, is liable under a retaliation claim).
Plaintiff asserts that the defendants' answer somehow gives rise to liability, on the grounds that TACC has alleged that Welch was not acting as an agent of TACC, but was only their employee. Despite this position, this Court cannot find that under controlling Illinois law Welch could be liable for any claim based on retaliation for filing a workers compensation claim. TACC, not Welch, employed the plaintiff, therefore, under the holding in Buckner, plaintiff cannot maintain a claim against Welch, and he is not a proper party to this suit. Therefore, the Court FINDS that plaintiff fraudulently joined defendant Welch and therefore, plaintiff's claim against him is subject to dismissal. 694 N.E.2d at 566.
Accordingly, the Court GRANTS defendants' motion to dismiss Count I of plaintiff's complaint and defendant Dave Welch as fraudulently joined, and Count 1 is DISMISSED. Plaintiff's motion to remand is DENIED on all grounds.
IT IS SO ORDERED.
WILLIAM D. STIEHL DISTRICT JUDGE