Carter v. Tennant Co., 03-2791.

• Decision Date: 13 September 2004
• Docket Number: No. 03-2791.,03-2791.
• Citation: 383 F.3d 673
• Parties: Kevin C. CARTER, Plaintiff-Appellant, v. TENNANT COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

383 F.3d 673

Kevin C. CARTER, Plaintiff-Appellant, v. TENNANT COMPANY, Defendant-Appellee.

No. 03-2791.

United States Court of Appeals, Seventh Circuit.

Argued January 6, 2004.

Decided September 13, 2004.

Appeal from the United States District Court for the Northern District of Illinois, Harry D. Leinenweber, J.

COPYRIGHT MATERIAL OMITTED

Ivan M. Rittenberg (argued), Rittenberg, Buffen & Gulbrandsen, Chicago, IL, John T. Moran, Jr., Moran & Associates, Chicago, IL, for Plaintiff-Appellant.

Christopher E. Paetsch, Seyfarth Shaw, Chicago, IL, Matthew E. Damon (argued), Halleland, Lewis, Nilan, Sipkins & Johnson, Minneapolis, MN, for Defendant-Appellee.

Before EASTERBROOK, DIANE P. WOOD, and WILLIAMS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

As Kevin Carter discovered in this case, it rarely pays to lie. In applying for a position with Tennant Company, Carter completed a "Health History Questionnaire" that inquired about his prior work-related injuries and medical care. Carter failed to report a back injury from an earlier job, an omission that Tennant discovered when Carter filed for workers' compensation benefits after "re-aggravating" the injury while working for Tennant. Shortly thereafter, Tennant dismissed Carter. Carter sued, alleging both that Tennant had discharged him in retaliation for making his workers' compensation claims and that Tennant's health history questionnaire violated Illinois's Right to Privacy in the Workplace Act (Privacy Act), 820 ILCS 55/1 et seq. The district court granted summary judgment for Tennant with respect to both of Carter's claims. We affirm.

I

From August 1998 until April 1999, Carter served as a part-time custodian for Gurnee School District 56. On November 30, 1998, Carter injured his back while at work and filed a workers' compensation claim. Carter's workers' compensation benefits paid for frequent chiropractic treatments for his injury. In April 1999, Carter resigned from his position with Gurnee to accept a full-time position with Tennant. As part of the application process for the Tennant position, Carter was required to complete and sign a health history questionnaire. The questionnaire first asked Carter to identify and explain any health conditions that he had suffered. Carter answered: "Back/neck trouble — slight misalignment of vertebrae; corrected by chiropractic adjustment." Carter then answered in the affirmative the following three questions: "Have you ever had any occupational injuries, accidents or illnesses?"; "Did you lose time from work for a work-related injury or illness? List injuries/illnesses, date occurred and company worked for at the time...."; and "Did you see a medical doctor for any work-related injury/illness?" In answering the second question, Carter wrote only: "Hair caught on motor shaft, resulting in swelling of scalp and face." In response to the third question, he answered, "Saw doctor for above incident." At the conclusion of the questionnaire, Carter signed below the following statement: "I hereby certify that I have answered the above questions to the best of my knowledge and that the answers are complete and true. Any misrepresentation or omission may be justification for refusal of employment, or if employed, termination of employment." As Carter acknowledges on appeal, he "did not tell Tennant about his Gurnee injury or on-going medical care and benefits when he completed the questionnaire."

Tennant hired Carter on April 26, 1999. Carter continued to receive workers' compensation benefits for his Gurnee injury until September 15, 1999, when he failed to attend a mandatory medical examination. Two weeks later, on September 28, 1999, Carter informed his Tennant supervisor that he had injured his back while working at a customer site. He immediately sought treatment from his regular chiropractor, Dr. Jeffrey Watkin. The next day, Dr. Watkin submitted a Workers' Compensation Attending Physician's Supplement Report to Tennant, in which he described the injury as lower back pain "reaggravated at work" and listed the date of the injury as November 30, 1998, the date on which Carter injured his back while at Gurnee. On November 9, 1999, Tennant's workers' compensation carrier informed the company that it was denying Carter's workers' compensation claim because he had filed a prior claim with Gurnee for his back injury and was receiving treatment for this injury. Carter continued to work for Tennant following his injury and the denial of his workers' compensation claim, during which time he received positive evaluations, as well as a retroactive merit salary increase.

Some time after November 10, 1999, Tennant's Disability Council met to consider Carter's case. According to Tennant, "[t]he purposes of the Disability Council were to analyze the types of workplace injuries which occurred, in an effort to reduce the occurrence of workplace injuries by developing training; to develop back-to-work plans for injured employees; to assist employees in resuming their regular duties; and to formulate specific action plans for individual employees." The testimony of the Tennant employees who sat on the Disability Council is inconsistent as to whether the Council had final authority to terminate an employee, but there seems to be some consensus that the Council made the decision to discharge Carter. On November 30, Carter's supervisors informed him that he was being terminated effective December 1, 1999.

On January 29, 2001, Carter filed a complaint with the Illinois Department of Labor alleging that Tennant's health history questionnaire violated Section 10 of the Privacy Act. After a hearing, the Administrative Law Judge issued a notice stating: "Please take notice that the Department of Labor has concluded its administration and enforcement of the [Privacy] Act in the above captioned case. The Department will take no further action in this matter. Therefore, pursuant to 820 ILCS 55/15(c), the Complainant has leave to pursue other civil remedies." On February 7, 2002, Carter filed this action in the Circuit Court of Cook County. Carter first raised a retaliatory discharge claim, alleging that Tennant "terminated Plaintiff as a direct consequence of learning of his exercise of his rights as guaranteed under the Illinois Workers' Compensation Act before he became an employee." In addition, he charged that Tennant had violated the Privacy Act by "wilfully and knowingly terminat[ing] Plaintiff's employment based upon its allegations that Plaintiff's failure to provide it with answers to prohibited inquiries constituted falsification of his Health History." Tennant removed the case to the Northern District of Illinois based on federal diversity jurisdiction. On June 16, 2003, the district court granted summary judgment for Tennant on both counts of Carter's complaint. This appeal followed.

II

A

We first consider Carter's claim that Tennant illegally discharged him in retaliation for his filing a workers' compensation claim for his back injury. The district court granted Tennant's motion for summary judgment on this claim, a decision that we review de novo. McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir.2004). Under Illinois law, "[a] valid claim for retaliatory discharge requires a showing that (1) an employee has been discharged; (2) in retaliation for the employee's activities; and (3) that the discharge violates a clear mandate of public policy." Bourbon v. Kmart Corp., 223 F.3d 469, 472 (7th Cir.2000) (citing Hartlein v. Ill. Power Co., 151 Ill.2d 142, 176 Ill.Dec. 22, 601 N.E.2d 720, 728 (1992)). "In the workers' compensation context, a plaintiff must show (1) that he was the defendant's employee before his injury; (2) that he exercised a right granted by the Workers' Compensation Act; (3) and that he was discharged from his employment with a causal connection to his filing a workers' compensation claim." Hiatt v. Rockwell Int'l Corp., 26 F.3d 761, 767 (7th Cir.1994) (citing Kritzen v. Flender Corp., 226 Ill.App.3d 541, 168 Ill.Dec. 509, 589 N.E.2d 909, 915 (1992)). "The element of causation is not met if the employer has a valid basis, which is not pretextual, for discharging the employee." Hartlein, 176 Ill.Dec. 22, 601 N.E.2d at 728. An employee's discharge for filing a workers' compensation claim against her current employer or her prior employer "is equally offensive to the public policy of this State as stated in the Workers' Compensation Act." Darnell v. Impact Indus., Inc., 105 Ill.2d 158, 85 Ill.Dec. 336, 473 N.E.2d 935, 937 (1984).

There is some uncertainty, however, with respect to the applicability of this framework when a retaliatory discharge case "wander[s] into federal court by virtue of ... diversity jurisdiction." Bourbon, 223 F.3d at 474 (Posner, J., concurring); see McEwen v. Delta Air Lines, Inc., 919 F.2d 58, 59-60 (7th Cir.1990). The alternative would be the burden-shifting method presented in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The latter is appropriate if it merely establishes procedures for federal courts to use in adjudicating cases; the state-law approach is required if it is substantive.

This is of potential importance because "the Supreme Court of Illinois expressly rejected the application of McDonnell Douglas to Illinois retaliatory-discharge cases in Clemons v. Mech. Devices Co., 184 Ill.2d 328, 235 Ill.Dec. 54, 704 N.E.2d 403, 407-08 (1998)." Bourbon, 223 F.3d at 474 (Posner, J., concurring). The Illinois court was concerned that use of the McDonnell Douglas framework "would, in essence, expand the tort of retaliatory discharge by reducing plaintiff's burden of proving the elements of the tort." Clemons, 235 Ill.Dec. 54, 704 N.E.2d at 408. Application of McDonnell Douglas, it thought, would relieve plaintiffs of their burden to prove as an element of their prima facie case under Illinois law a causal link between their workers'...