Waycaster v. AT & T TECHNOLOGIES, INC.

• Decision Date: 10 March 1986
• Docket Number: No. 85 C 9903.,85 C 9903.
• Citation: 636 F. Supp. 1052
• Court: U.S. District Court — Northern District of Illinois
• Parties: Ronald WAYCASTER, Plaintiff, v. AT & T TECHNOLOGIES, INC., Defendant.

636 F. Supp. 1052

Ronald WAYCASTER, Plaintiff, v. AT & T TECHNOLOGIES, INC., Defendant.

No. 85 C 9903.

United States District Court, N.D. Illinois, E.D.

March 10, 1986.

Bernard K. Weiler, Pickett, Barnett, Larson, Michey, Wilson & Ochsenschlager, Aurora, Ill., for plaintiff.

Robert H. Joyce, Ronald L. Lipinski, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

For nearly twenty years, plaintiff Ronald Waycaster worked as a machine operator for defendant AT & T Technologies ("AT & T" or the "company") or its predecessor, Western Electric, Inc. In late 1984, AT & T fired Waycaster because of repeated work attendance problems. After failing to obtain relief through established grievance and arbitration procedures, Waycaster filed this action in state court for retaliatory discharge. The company removed the case to this Court claiming that Waycaster's state tort claim was preempted by § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a) (1982). Waycaster has now filed a petition to remand his case to the state court and the company has moved to dismiss the case upon removal.¹ For the reasons set forth below, the petition is denied, and the motion to dismiss is granted.

I. Factual Background

During the course of his employment with AT & T, Waycaster had medical problems with his feet which required corrective surgery on several occasions. He claimed that these problems were work-related since he had to spend a large amount of work time standing on a concrete floor. As a result of his foot problems, but for other reasons as well, Waycaster missed a substantial amount of time from work. Pursuant to AT & T's Total Attendance Program ("TAP")² which monitored its employees' work attendance, Waycaster was discharged for excessive absenteeism in November 1984. Throughout the course of his employment, Waycaster was covered under a collective bargaining agreement between the company and the Local 1942 of the International Brotherhood of Electrical Workers, AFL-CIO (the "Union"). At the time Waycaster was discharged, this agreement contained provisions prohibiting the firing of covered employees without just cause and established grievance and arbitration procedures for resolving labormanagement disputes. Shortly after Waycaster's dismissal, the Union filed a grievance in his behalf contesting the job termination. The arbitrator upheld AT & T's firing of Waycaster.

Following his unsuccessful attempt to resolve his claim through arbitration, Waycaster filed this action against AT & T in the Circuit Court of Kane County in October 1985. The company filed a removal petition under 28 U.S.C. § 1441 based on its assertion that Waycaster's claim was essentially an action under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a)³ for violation of the collective bargaining agreement. Waycaster filed a petition in this Court to remand his case to state court, arguing that his action fundamentally arises under state tort law.

II. Removal Not Barred By § 1445

Waycaster's first argument in support of remand is that removal was improper because his cause arises under the Illinois workers' compensation laws. The federal removal statute prohibits the removal of a civil action from state court where that action arises under the workers' compensation laws of the forum state. 28 U.S.C. § 1445(c) (1982). Although Waycaster's contention would be correct if his case did arise under the Illinois statute governing workers' compensation, we find that he filed an independent tort action which was properly removable.

The complaint alleges that AT & T discharged Waycaster in retaliation for his pursuit of rights under the Illinois Workmen's Compensation Act. The tort of retaliatory discharge has been recognized in Illinois since 1978 when the Illinois Supreme Court declared that a cause of action existed for at-will employees who were terminated because they filed workers' compensation claims. Kelsay v. Motorola, Inc., 74 Ill.2d 172, 181, 23 Ill.Dec. 559, 563, 384 N.E.2d 353, 357 (1978). The court recognized that a cause of action in exception to the general common law rule allowing unfettered termination of at-will employees was necessary to vindicate the rights embodied in the workers' compensation statute. Id. at 185, 23 Ill.Dec. at 564, 384 N.E.2d at 358. However, this cause of action as established by the court clearly did not arise under a specific statutory provision, but under the common law of tort. Id. at 185, 23 Ill.Dec. at 565, 384 N.E.2d at 359.

Waycaster contends that he brought this action pursuant to ¶ 138.4(h) of the workers' compensation statute. He also argues that the Kelsay court's findings are irrelevant since ¶ 138.4(h) was not in effect at the time the Kelsay plaintiff was discharged and therefore did not control the court's decision. In 1975, the Illinois legislature added ¶ 138.4(h) to the statute, Ill. Rev.Stat. ch. 48, 138.4(h) (1983), to provide:

It shall be unlawful for any employer, insurance company or service or adjustment company to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her by this Act or to discriminate, attempt to discriminate, or threaten to discriminate against an employee in any way because of his or her exercise of the rights or remedies granted to him or her by this Act.

It shall be unlawful for any employer, individually or through any insurance company or service or adjustment company, to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to him or her by this Act.

While this provision of the workers' compensation statute makes retaliatory discharge unlawful, it does not create a private cause of action for remedies under the act. Instead, as the Kelsay court recognized, the statute creates a criminal offense of retaliatory discharge. See Kelsay, 74 Ill.2d at 184-85, 23 Ill.Dec. at 564-65, 384 N.E.2d at 358-59; see also Rubenstein Lumber Co. v. Aetna Life & Casualty Co., 122 Ill.App.3d 717, 719, 78 Ill.Dec. 541, 542-543, 462 N.E.2d 660, 661-662 (1st Dist. 1984) ("while the tort of retaliatory discharge exists in order to uphold and interpret public policy such as that mandated by the Workers' Compensation Act ... it is independent of the prohibition against retaliatory discharge which is found in the act itself.")

Furthermore, the Illinois Supreme Court's recent opinion in Midgett v. Sackett-Chicago, Inc., 105 Ill.2d 143, 85 Ill. Dec. 473, 473 N.E.2d 1280 (1984), cert. denied, ___ U.S. ___, 105 S.Ct. 3513, 87 L.Ed.2d 642 (1985), ___ U.S. ___, 106 S.Ct. 278, 88 L.Ed.2d 243 (1985), which expanded the retaliatory discharge tort to employees covered by collective bargaining agreements, made no mention of ¶ 138.4(h).⁴ It discussed the tort in terms of a common law action to protect statutory rights, as did the Kelsay opinion. Id. at 149, 85 Ill.Dec. at 476, 473 N.E.2d at 1283.

A final point of interest which supports the notion that the retaliatory discharge tort is a common law action rather than a statutory action is the fact that compensatory and punitive damages are recoverable in the tort action, Kelsay, 74 Ill.2d at 189, 23 Ill.Dec. at 567, 384 N.E.2d at 361, whereas the Illinois Workmen's Compensation Act limits an employee's monetary remedy solely to compensation provided for by specific statutory provisions. See Ill.Rev.Stat. ch. 48, ¶ 138.11 (1983); Rubenstein Lumber Co., 122 Ill.App.3d at 719, 78 Ill.Dec. at 543, 462 N.E.2d at 662 ("compensation" under the Act not equated with compensatory damages).

Hence, since Waycaster's retaliatory discharge claim did not "arise" under the Illinois workers' compensation statute within the meaning of 28 U.S.C. § 1445(c), removal is not prohibited.

III. Removal Under § 1441

Waycaster also argues that even if § 1445(c) does not bar removal, his retaliatory discharge claim is not preempted by § 301 of the LMRA, and therefore removal under § 1441 should not be permitted. Section 1441 states in pertinent part:

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

28 U.S.C. § 1441(a) (1982). As made clear by the removal statute, this Court must be able to exercise original jurisdiction over the plaintiff's cause. Furthermore, removal based merely on the anticipation of a federal defense to the plaintiff's action is not permissible.⁵Franchise Tax Board v. Construction Laborer's Vacation Trust, 463 U.S. 1, 14, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983); Mitchell v. Pepsi-Cola Bottlers, Inc., 772 F.2d 342, 344 (7th Cir. 1985).

To determine whether a federal question has been properly presented, the Court must examine the theory of recovery set forth in the plaintiff's complaint to see whether the Constitution or laws of the United States create an essential element of the claim (the so-called, "well-pleaded complaint" rule). Franchise Tax Board, 463 U.S. at 9-12, 103 S.Ct. at 2846-48. Furthermore, the existence of a federal controversy must ordinarily be determined by looking only to the face of the complaint, unaided by the defendant's removal petition. Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936). However, this rule has been somewhat relaxed by the "artful pleading" exception to the well-pleaded complaint rule, since literal application of that rule could permit a deft plaintiff to foreclose the defendant's right to a federal forum merely by omitting any reference to those...