Loucks v. Star City Glass Co., 76-1553

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Citation: 551 F.2d 745
• Docket Number: No. 76-1553,76-1553
• Parties: 115 L.R.R.M. (BNA) 4765 Earl LOUCKS, Plaintiff-Appellant, v. STAR CITY GLASS COMPANY, Defendant-Appellee.
• Decision Date: 25 March 1977

Page 745

551 F.2d 745 115 L.R.R.M. (BNA) 4765 Earl LOUCKS, Plaintiff-Appellant,
v.
STAR CITY GLASS COMPANY, Defendant-Appellee. No. 76-1553. United States Court of Appeals,
Seventh Circuit. Submitted Without Argument Nov. 29, 1976.
Decided March 25, 1977.

Page 746

Mark L. Schwartzman, Chicago, Ill., for plaintiff-appellant.

Ronald S. Bailis, Chicago, Ill., for defendant-appellee.

Before CASTLE, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.

PELL, Circuit Judge.

Plaintiff-appellant Loucks appeals from the decision of the district court dismissing his complaint for failure to state a claim for which relief can be granted. The question presented in this diversity case is whether Illinois law recognizes a cause of action to remedy Loucks' 1974 discharge from his employment with defendant-appellee Star City Glass Company, which employment was otherwise terminable at will, where it is alleged that Star City discharged Loucks solely because he sought medical attention for an injury received in the course of his employment and expressed his intention to secure compensation under the Illinois Workmen's Compensation Act, Ill.Rev.Stat.1975, ch. 48, § 138 et seq.

Under the principles announced first in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), our answer to this question must be based on Illinois state law, as determined by the state legislature and the highest state court. As Justice Frankfurter observed in Bernhardt v. Polygraphic Company of America, Inc., 350 U.S. 198, 209, 76 S.Ct. 273, 279, 100 L.Ed. 199 (1956) (concurring opinion), "(a)s long as there is diversity jurisdiction, 'estimates' are necessarily often all that federal courts can make in ascertaining what the state court would rule to be its law." (Footnote omitted.) This problem is particularly apparent here, for Illinois' Workmen's Compensation Act, as it stood at the pertinent times, did not expressly treat the question presented to us, and no Illinois court of appellate jurisdiction, let alone the Illinois Supreme Court, has yet passed upon the matter. ¹ We must nonetheless decide the case as we believe the Illinois courts would. Walker v. Kruse, 484 F.2d 802, 805 (7th Cir. 1973). We do so, however, cognizant that it is Illinois law we are attempting to divine, and also that we sit as a court, not as a legislature; it is not our province as a federal appellate court to fashion for Illinois what we are certain many would say was a wise and progressive social policy.

We have said this much about the nature of our judicial task in this case because we recognize that Loucks' claims have a certain appeal to notions of fairness. On the other hand, until the advent of the workmen's compensation acts, many, if not most, industrial accidents went uncompensated, at least as far as the employer was concerned, because of the inability to prove fault upon which civil liability could be predicated or frequently because of the bar of contributory negligence. Under the compensation statutes, an award was made payable to the injured employee without regard to fault on the part of the employer or employee and the cost of this remedy was spread over all industry. This was purely a legislative determination and that, or the area of labor-management relations, is where, in our opinion, extensions of the principles of compensation over and above those inherent in construction of the statutes, should remain. Certainly it could be argued that acceptance of Loucks' claim here would be tantamount

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to writing into the Illinois statute a provision for tenure in the event of an industrial injury.

The Illinois legislature has now spoken as to the lawfulness of retaliatory discharges in this situation. Ill.Rev.Stat.1975, ch. 48, § 138.4(h), effective July 1, 1975, provides as follows:

(h) 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 by this Act or to discriminate, attempt to discriminate, or threaten to discriminate against an employee in any way because of his exercise of the rights or remedies granted to him 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 rights or remedies granted to him by this Act.

Because Loucks was discharged more than a year before this provision became law, we have no occasion to decide whether § 138.4(h) now authorizes a private right of action for a retaliatory discharge. ² All that we do decide today, whatever the equities supporting Loucks' position may be, is that the district court properly concluded that such a right of action did not exist in Illinois to remedy Loucks' 1974 discharge.

Although the parties cite and our research has disclosed no Illinois authorities squarely on point, one clear and well-established line of cases is directly relevant to our determination....