Irizarry v. Illinois Central Railroad Company, 1-06-1453.

• Decision Date: 21 November 2007
• Docket Number: No. 1-06-1453.,1-06-1453.
• Citation: 377 Ill. App.3d 486,316 Ill.Dec. 619,879 N.E.2d 1007
• Parties: Gabriel IRIZARRY, Plaintiff-Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY d/b/a Canadian National Railway, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

879 N.E.2d 1007

377 Ill. App.3d 486

316 Ill.Dec. 619

Gabriel IRIZARRY, Plaintiff-Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY d/b/a Canadian National Railway, Defendant-Appellant.

No. 1-06-1453.

Appellate Court of Illinois, First District, Sixth Division.

November 21, 2007.

Robert J. Drummond, The Drummond Law Firm, Terence E. Flynn, Flynn & Jones, Chicago, Rick Rosen, Rosen Law Firm, O'Fallon, for Appellant.

Edward H. MacCabe, MacCabe & McGuire, Chicago, for Appellee.

Justice JOSEPH GORDON delivered the opinion of the court:

Plaintiff, Gabriel Irizarry, filed a two-count complaint against his former employer, Illinois Central Railroad Company (defendant). Count I sought relief under the Federal Employer's Liability Act (FELA) (45 U.S.C. § 51 et seq. (2000)) for injuries plaintiff sustained while employed by defendant. Count II was a common-law retaliatory discharge claim. The circuit court granted defendant's motion to dismiss count II of plaintiff's complaint pursuant to section 2-615(a) of the Code of Civil Procedure (735 ILCS 5/2-615(a) (West 2002)). Plaintiff now appeals. For the reasons that follow, we affirm.

I. BACKGROUND

On April 15, 2005, plaintiff filed a two-count complaint stating a negligence claim under the FELA and a state claim for retaliatory discharge. The factual allegations common to both counts are summarized as follows. On February 28, 2005, plaintiff was employed as a carman at one of defendant's facilities. Because plaintiff was working in interstate commerce, both he and defendant were subject to the provisions of the FELA. On February 28, 2005, as part of his "regular duties," plaintiff was adjusting a piston underneath a train car when a wrench fell and injured his tooth. Plaintiff filed a "personal injury report" pursuant to defendant's rules and regulations and in order to protect any causes of action or other relief that he may have under the FELA. As a result, defendant's risk manager, Charles Krane, spoke to plaintiff and "threatened" to fire him. Soon thereafter, plaintiff was actually terminated. Plaintiff alleges that he was terminated for filing the personal injury report and for potentially pursuing his rights under the FELA.¹

On June 10, 2005, defendant filed a motion to dismiss count II pursuant to section 2-615(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615(a) (West 2002)), contending that a railroad employee covered by the FELA for his work-related injuries could not bring an action for retaliatory discharge. On November 1, 2005, the circuit court dismissed plaintiff's retaliatory discharge claim with prejudice. In doing so, the court relied upon this court's recent decision in Sutherland v. Norfolk Southern Ry. Co., 356 Ill.App.3d 620, 292 Ill.Dec. 585, 826 N.E.2d 1021 (2005), in which we held that a railroad employee subject to the FELA could not assert a state law claim for retaliatory discharge. Plaintiff's subsequent motion for reconsideration was denied on April 24, 2005. He now appeals.

II. ANALYSIS

Plaintiff contends that the trial court erred in granting defendant's motion to dismiss his retaliatory discharge claim based on our holding in Sutherland. A motion to dismiss under section 2-615(a) of the Code attacks the legal sufficiency of a plaintiff's complaint by alleging defects appearing on its face. Illinois Graphics Co. v. Nickum, 159 Ill.2d 469, 484, 203 Ill.Dec. 463, 639 N.E.2d 1282 (1994). Such a motion should be granted if the complaint does not allege sufficient facts to state a cause of action. Bianchi v. Savino Del Bene International Freight Forwarders, Inc., 329 Ill.App.3d 908, 918, 264 Ill.Dec. 379, 770 N.E.2d 684 (2002). Our review on appeal is generally de novo. Unterschuetz v. City of Chicago, 346 Ill.App.3d 65, 68, 281 Ill.Dec. 367, 803 N.E.2d 988 (2004).

The retaliatory discharge tort is an exception to the general rule of at-will employment under which an employer may fire an employee for any reason or no reason at all. Jacobson v. Knepper & Moga, P.C., 185 Ill.2d 372, 235 Ill.Dec. 936, 706 N.E.2d 491 (1998). To establish a claim for retaliatory discharge, a plaintiff must show (1) that he has been discharged in retaliation for his activities; and (2) that the discharge violates a clear mandate of public policy. Zimmerman v. Buchheit of Sparta, Inc., 164 Ill.2d 29, 35, 206 Ill.Dec. 625, 645 N.E.2d 877, 881 (1994).

Plaintiff's primary assertion is that we should reconsider our holding in Sutherland and permit him to proceed with a retaliatory discharge cause of action premised on his alleged termination for pursuing his rights under the FELA. Plaintiff specifically contends that we erred in deciding Sutherland because we based our decision on the presumption that plaintiff had a remedy for retaliatory discharge under the Railway Labor Act (RLA) (45 U.S.C. § 51 et seq. (2000)), when, as a result of the United State's Supreme Court's decision in Hawaiian Airlines Inc. v. Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994), no such remedy actually exists. In support of this contention, plaintiff cites to four awards from the National Railroad Adjustment Board (NRAB) (see NRAB First Division Award No. 24847 (1997), and Nos. 24909, 24910, 24912 (1998)), in which the Board found, based on Hawaiian Airlines, that it had no authority to consider a state tort claim for retaliatory discharge because such a state tort claim was not preempted by the RLA. We disagree.

We acknowledge that in refusing to expand the scope of the protection offered by Illinois law of retaliatory discharge in Sutherland, we found that absent a state tort claim, plaintiff was not without a remedy for his alleged retaliatory discharge, and we referred him to the RLA's grievance and arbitration procedures. See Sutherland, 356 Ill.App.3d at 629, 292 Ill. Dec. 585, 826 N.E.2d 1021. We, however, note that, as is apparent from its face, our decision in Sutherland was by no means dictated by this consideration. Rather, as shall be more fully demonstrated below, our decision was guided by our analysis of the history and development of the retaliatory discharge doctrine in the opinions of our supreme court since its seminal decision in Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978). Moreover, while we recognize the award board's apparent refusal to grant punitive damages based on a claim of retaliatory discharge, contrary to plaintiff's assertion, the award board did not reject its power and willingness to consider other remedies, including lost wages, back pay and/or reinstatement, if otherwise appropriate. See NRAB First Division Award No. 24847 (1997), and Nos. 24909, 24910, 24912 (1998).

With all this in mind, we turn to our reconsideration of Sutherland. The question that remains then is whether our supreme court, under its present posture, would extend the tort of retaliatory discharge to include railroad employees discharged for filing an FELA claim. In Sutherland, we fully considered the development and evolution of the tort of retaliatory discharge as formulated by our supreme court in Kelsay, 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981), Midgett v. Sackett-Chicago, Inc., 105 Ill.2d 143, 85 Ill.Dec. 475, 473 N.E.2d 1280 (1984), Barr v. Kelso-Burnett Co., 106 Ill.2d 520, 88 Ill.Dec. 628, 478 N.E.2d 1354 (1985), Hinthorn v. Roland's of Bloomington, Inc., 119 Ill.2d 526, 116 Ill.Dec. 694, 519 N.E.2d 909 (1988), Hartlein v. Illinois Power Co., 151 Ill.2d 142, 176 Ill.Dec. 22, 601 N.E.2d 720 (1992), Zimmerman v. Buchheit of Sparta, Inc., 164 Ill.2d 29, 206 Ill.Dec. 625, 645 N.E.2d 877 (1994), Fisher v. Lexington Health Care, Inc., 188 Ill.2d 455, 243 Ill.Dec. 46, 722 N.E.2d 1115 (1999) and Metzger v. DaRosa, 209 Ill.2d 30, 282 Ill.Dec. 148, 805 N.E.2d 1165 (2004). We found that the current policy of our supreme court is to restrict and narrow rather than expand the range of the retaliatory discharge cause of action. See Fellhauer v. City of Geneva, 142 Ill.2d 495, 505, 154 Ill.Dec. 649, 568 N.E.2d 870 (1991) (the tort of retaliatory discharge is "a limited and narrow cause of action"); Metzger, 209 Ill.2d at 44, 282 Ill.Dec. 148, 805 N.E.2d 1165 (the supreme court emphasized that it has "consistently sought to restrict the common law tort of retaliatory discharge"); Barr, 106 Ill.2d at 525, 88 Ill.Dec. 628, 478 N.E.2d 1354, ("[T]his court has not, by its Palmateer and Kelsay decisions, `rejected a narrow interpretation of the retaliatory discharge tort' and does not `strongly support' the expansion of the tort").

This restrictive policy was repeatedly demonstrated in rejecting the expansion of the tort to include a discharge in retaliation for the exercise of the right to free speech (see Barr, 106 Ill.2d at 525, 88 Ill.Dec. 628, 478 N.E.2d 1354); a discharge in retaliation for filing a health insurance claim (see Price v. Carmack Datsun, Inc., 109 Ill.2d 65, 92 Ill.Dec. 548, 485 N.E.2d 359 (1985)); an allegedly wrongful discharge based on age (Mein v. Masonite Corp., 109 Ill.2d 1, 92 Ill.Dec. 501, 485 N.E.2d 312 (1985)); a "constructive discharge" (see Hartlein, 151 Ill.2d at 161, 176 Ill.Dec. 22, 601 N.E.2d 720); and a retaliatory demotion or suspension, short of actual termination (see Zimmerman, 164 Ill.2d at 37-38, 206 Ill.Dec. 625, 645 N.E.2d 877).

This policy of restricting the tort of retaliatory discharge was further implemented by appellate court decisions. See Geary v. Telular Corp., 341 Ill.App.3d 694, 701-02, 275 Ill.Dec. 648, 793 N.E.2d 128 (2003) (in refusing to extend the tort to a plaintiff allegedly terminated for asserting rights under the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West 2000)), the court stated that "Illinois courts have on several occasions refused to expand the tort of retaliatory discharge to claims under that Act, finding that a discharge allegedly...