United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Nance brought this suit in state court against his former
employer, Comcast Business Communications, Inc., alleging
common law retaliatory discharge. Doc. 1-1 at pp. 52-55.
Comcast removed the suit under the diversity jurisdiction,
Doc. 1, and now moves under Federal Rule of Civil Procedure
12(b)(6) to dismiss for failure to state a claim, Doc. 11.
The motion is granted.
resolving a Rule 12(b)(6) motion, the court assumes the truth
of the operative complaint's well-pleaded factual
allegations, though not its legal conclusions. See Zahn
v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th
Cir. 2016). The court must also consider “documents
attached to the complaint, documents that are critical to the
complaint and referred to in it, and information that is
subject to proper judicial notice, ” along with
additional facts set forth in Nance's brief opposing
dismissal, so long as those additional facts “are
consistent with the pleadings.” Phillips v.
Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th
Cir. 2013). The facts are set forth as favorably to Nance as
those materials allow. See Pierce v. Zoetis, Inc.,
818 F.3d 274, 277 (7th Cir. 2016). In setting forth those
facts at the pleading stage, the court does not vouch for
their accuracy. See Jay E. Hayden Found. v. First
Neighbor Bank, N.A., 610 F.3d 382, 384 (7th Cir. 2010).
began working for Comcast in July 2004. Doc. 1-1 at p. 52,
¶ 3. On May 24, 2015, he injured his shoulder while off
duty. Id. at ¶ 4. Nance continued working for a
week, but was unable to perform his duties due to the injury
and decided to go on short-term disability leave.
Id. at ¶ 5. He returned to work on March 14,
2016, but the injury still hampered his work. Id. at
1, 2016, Nance had rotator cuff surgery. Ibid. He
was unable to work while recuperating over the next six
months. Id. at p. 53, ¶ 7. During that time,
Nance repeatedly attempted to collect from Comcast disability
payments to which he was contractually entitled. Id.
at ¶ 8. On December 30, 2016, he submitted doctor's
reports to Comcast indicating that he needed to remain off
work but would be re-evaluated after an MRI. Id. at
¶ 9. While Nance was awaiting the MRI, Comcast fired him
on January 9, 2017. Id. at ¶ 10.
common law retaliatory discharge claim alleges that he was
wrongfully discharged in violation of two Illinois public
policies: (1) a policy against retaliating against employees
who assert disability benefits to which they are
contractually entitled; and (2) a policy against discharging
employees who are under doctor's orders not to work.
Id. at pp. 53-54. Comcast argues that neither
purported policy can ground a retaliatory discharge claim
under Illinois law. Doc. 11-1 at 5-7.
opposition brief does not defend his second retaliatory
discharge theory, Doc. 20, thereby abandoning and forfeiting
that theory. See G & S Holdings LLC v. Cont'l
Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012) (“We
have repeatedly held that a party waives an argument by
failing to make it before the district court. That is true
whether it is an affirmative argument in support of a motion
to dismiss or an argument establishing that dismissal is
inappropriate.”) (citations omitted); Alioto v.
Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011)
(“Our system of justice is adversarial, and our judges
are busy people. If they are given plausible reasons for
dismissing a complaint, they are not going to do the
plaintiff's research and try to discover whether there
might be something to say against the defendants'
reasoning.”) (internal quotation marks omitted). That
leaves Nance's first theory, which rests on the policy
against retaliating against employees who assert their
contractually-mandated disability benefits.
is an at-will employment state, meaning that “an
employer may discharge an employee-at-will for any reason or
for no reason.” Turner v. Mem'l Med. Ctr.,
911 N.E.2d 369, 374 (Ill. 2009) (internal quotation marks
omitted); see also Brandon v. Anesthesia & Pain Mgmt.
Assocs., Ltd., 277 F.3d 936, 940 (7th Cir. 2002). The
Supreme Court of Illinois, however, “has recognized the
limited and narrow tort of retaliatory discharge as an
exception to the general rule of at-will employment.”
Jacobson v. Knepper & Moga, P.C., 706 N.E.2d
491, 492 (Ill. 1998). “To state a valid retaliatory
discharge cause of action, an employee must allege that (1)
the employer discharged the employee, (2) in retaliation for
the employee's activities, and (3) that the discharge
violates a clear mandate of public policy.”
Turner, 911 N.E.2d at 374; see also Darchak v.
City of Chi. Bd. of Educ., 580 F.3d 622, 628 (7th Cir.
2009); Blount v. Stroud, 904 N.E.2d 1, 9 (Ill.
2009); Palmateer v. Int'l Harvester Co., 421
N.E.2d 876, 877-78 (Ill. 1981). The public policy invoked by
the employee must “strike at the heart of a
citizen's social rights, duties, and
responsibilities.” Turner, 911 N.E.2d at 374
(internal quotation marks omitted).
Supreme Court of Illinois recently recognized, “a
review of Illinois case law reveals that retaliatory
discharge actions have been allowed in two settings: where an
employee is discharged for filing, or in anticipation of
filing, a claim under the Workers' Compensation Act; or
where an employee is discharged in retaliation for the
reporting of illegal or improper conduct, otherwise known as
‘whistleblowing.'” Michael v. Precision
Alliance Grp., LLC, 21 N.E.3d 1183, 1188 (Ill.
2014) (citation omitted); see also Bourbon v. Kmart
Corp., 223 F.3d 469, 472 (7th Cir. 2000)
(“Illinois law allows claims for retaliatory discharge
when an employee is terminated for filing a workers'
compensation claim or because the employee has reported the
employer's criminal conduct, either to law enforcement
personnel or to the company itself.”). “The
Illinois Supreme Court has defined ‘public policy'
only within these limited bounds and thus has consistently
sought to restrict the common law tort of retaliatory
discharge.” Darchak, 580 F.3d at 629.
Nance's invitation to recognize a third setting for the
retaliatory discharge tort would broaden liability under that
tort without the imprimatur of the Illinois courts. That is
significant, as the Seventh Circuit has repeatedly cautioned
that when “faced with two opposing and equally
plausible interpretations of state law, ” a federal
court should generally “choose the narrower
interpretation which restricts liability, rather than the
more expansive interpretation which creates substantially
more liability.” Home Yalu, Inc. v. Pep Boys-Manny,
Moe & Jack of Del., Inc., 213 F.3d 960, 963 (7th
Cir. 2000) (internal quotation marks omitted); see also
Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 636
(7th Cir. 2007); S. Ill. Riverboat Casino Cruises, Inc.
v. Triangle Insulation & Sheet Metal Co., 302 F.3d
667, 676 (7th Cir. 2002). This principle governs even where,
as here, the defendant removes to federal court a case
initially filed in state court. See
Pisciotta, 499 F.3d at 636 n.5 (“We have
applied this restrictive approach to a plaintiff's novel
theory of liability under state law even where the plaintiff
had no choice but to litigate his claim in federal
court.”); Insolia v. Philip Morris Inc., 216
F.3d 596, 607 (7th Cir. 2000) (holding that, although
“[t]he plaintiffs are in a predicament because state
law in this area is stunted by the ability of [the
defendants] to remove cases under diversity jurisdiction[, ]
… that does not justify the federal courts imposing a
new tort claim on Wisconsin”). Accordingly, Nance may
proceed only if he can overcome the strong presumption
erected by Seventh Circuit precedent against recognizing the
heretofore unrecognized theory underlying his retaliatory
discharge claim. He has failed to overcome that presumption;
in fact, his claim would fail even absent the presumption.
properly plead a retaliatory discharge claim, a plaintiff
must articulate the relevant public policy with specificity.
The Supreme Court of Illinois repeatedly emphasized this
point in Turner, holding that “[a] broad,
general statement of policy is inadequate to justify finding
an exception to the general rule of at-will
employment”; that “[a]ny effort to evaluate the
public policy exception with generalized concepts of fairness
and justice” is insufficient; that “unless an
employee at will identifies a specific expression of public
policy, the employee may be discharged with or without
cause”; and that “[a]n employer should not be
exposed to liability where a public policy standard is too
general to provide any specific guidance or is so vague that
it is subject to different interpretations.” 911 N.E.2d
at 375-76 (internal quotation marks omitted). “[T]he
mere citation of a constitutional or statutory provision in a
complaint will not, by itself, be sufficient to state a cause
of action for retaliatory discharge. Rather, an employee must
show that the discharge violated the public policy that the
cited provision clearly mandates.” Id. at 377.
identifies three sources for a public policy against
discharging workers for asserting their contractual rights to
disability payments. None suffices under Turner.
First, he points to the Health Insurance Claim Filing Act,
which provides that “[n]o employer … shall
discharge an employee where the basis for such discharge is
retaliation for the filing of a legitimate claim or the
actual use or receipt of medical or health services by an
employee under [an employer-provided] insurance
policy.” 820 ILCS 45/2. Second, he cites Kelsay v.
Motorola, Inc., 384 N.E.2d 353 (Ill. 1978), which
recognized the retaliatory discharge tort under circumstances
where an employee is terminated for filing a workers'
compensation claim. Id. at 357. As Nance recognizes,
however, a disability benefits claim is not a health
insurance claim or a workers' compensation claim, so
neither the Health Insurance Claim Filing Act nor
Kelsay applies. Nance retorts that the policy behind
the Health Insurance Claim Filing Act and Kelsay
“is naturally extended to disability benefits, ”
Doc. 20 at 4, but that extension is forbidden by
Turner, which requires a plaintiff to “show
that the discharge violated the public policy that the ...