Ludwig v. C & A Wallcoverings, Inc.

• Decision Date: 03 April 1992
• Docket Number: No. 90-3724,90-3724
• Citation: 960 F.2d 40
• Parties: 121 Lab.Cas. P 56,876, 7 IER Cases 566 Pamela LUDWIG, Plaintiff-Appellant, v. C & A WALLCOVERINGS, INCORPORATED, an Ohio Corporation d/b/a Kinney Wallcoverings, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 40

960 F.2d 40

121 Lab.Cas. P 56,876, 7 IER Cases 566

Pamela LUDWIG, Plaintiff-Appellant, v. C & A WALLCOVERINGS, INCORPORATED, an Ohio Corporation d/b/a Kinney Wallcoverings, Defendant-Appellee.

No. 90-3724.

United States Court of Appeals Seventh Circuit.

Argued Dec. 13, 1991.

Decided April 3, 1992.

George C. Pontikes (argued), Pontikes & Associates, Chicago, Ill., for plaintiff-appellant.

George Vernon, Laurie A. Spieler, Keck, Mahin & Cate, Chicago, Ill., Robert L. Thompson, J. Raymond Trapnell, Nancy F. Reynold (argued), Elarbee, Thompson & Trapnell, Atlanta, Ga., for defendant-appellee.

Before CUMMINGS, WOOD, Jr., ^* and KANNE, Circuit Judges.

KANNE, Circuit Judge.

The question raised on this appeal is whether an employee can maintain an action for retaliatory discharge under Illinois law when she alleges that she was merely demoted--rather than terminated--from her former position. On a motion for summary judgment, the district court ruled that such a claim was not actionable in Illinois. 750 F.Supp. 339. We affirm.

From September 1988 until March 1989, Pamela Ludwig was employed as administrative assistant to the manager of the Kinney Wallcoverings branch office in Hillside, Illinois. ¹ In mid-March 1989, Ludwig contacted Kinney's management to report several incidents of misconduct allegedly committed by her supervisor, Carole Hoger. She claimed, inter alia, that Hoger had misappropriated several leather coats which had been mistakenly delivered to the branch office, and that she had instructed branch supervisors to place the letter "A" on job applications submitted by black applicants. On March 27, 1989, a Kinney official was sent to the Hillside branch to pursue Ludwig's complaints. However, when the day-long investigation failed to reveal evidence of any impropriety on the part of Hoger, the official informed Ludwig that she was being demoted to the position of order taker--a job which entailed lesser clerical duties but a salary commensurate with that which she was previously earning.

The following morning on March 28, 1989, Ludwig returned to work, but within two hours she became ill and left the office to visit her physician. After examining her, Ludwig's physician concluded that she was afflicted with a severe stress disorder and therefore advised her not to report to work for a week until he had an opportunity to reevaluate her condition; he also prepared a written note to that effect, which Ludwig's husband relayed to the Hillside store management. During the course of the ensuing two weeks, Ludwig saw her physician two more times, and on both occasions she received a written excuse stating that she was still unable to work. Throughout this same period she continued to receive paychecks from Kinney for sick leave.

On April 11, 1989, Ludwig applied for a leave of absence and disability benefits. The next day she received a letter from Hoger indicating that the company doctor would need to examine her before she would be eligible for such benefits. Ludwig, however, refused to arrange an appointment with the company doctor, and instead wrote Hoger on April 18 to inform her that Kinney was to contact her only through her attorney. She also wrote that she deemed herself "terminated" by Kinney Wallcoverings as of March 27, 1989. Ludwig subsequently filed suit charging Kinney with retaliatory discharge.

In a memorandum opinion issued on November 5, 1990, the district court granted summary judgment in favor of Kinney on all claims. Finding that Ludwig had not presented any evidence establishing that she was either directly terminated or otherwise coerced to quit, the court held that Ludwig was "essentially seeking relief for retaliatory demotion--a cause of action which ha[d] yet to be recognized by an Illinois court." The district court further explained that:

[s]ince Illinois courts have followed a narrow interpretation of retaliatory discharge, and have hesitated to expand its scope, this court declines Ludwig's invitation to extend state law by creating a cause of action for retaliatory demotion.

Ludwig now challenges the district court's entry of summary judgment on two grounds. She first contends that the district court erred as a matter of law in holding that her claim, as alleged, did not state a cause of action for retaliatory discharge under Illinois law. Alternatively, she argues there were genuine issues of material fact as to whether she was actually terminated from her position as administrative assistant. But in the event that either of these challenges fail, she has hedged her bets by raising the following back-up argument: if we are not convinced that Illinois courts would find claim for retaliatory discharge under the facts of this case, we should certify the question to the Supreme Court of Illinois in accordance with Circuit Rule 52 and Rule 20 of the Rules of the Supreme Court of Illinois. Each of these arguments is addressed in turn.

We review the district court's entry of summary judgment de novo, drawing all reasonable inferences in favor of the non-moving party. Santella v. Chicago, 936 F.2d 328, 331 (7th Cir.1991); First Wisconsin Trust Co. v. Schroud, 916 F.2d 394, 398 (7th Cir.1990). Summary judgment is appropriate if we can determine that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); Schroud, 916 F.2d at 398. We likewise review de novo the district court's interpretation of state law. Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). "In exercising our obligation to provide meaningful appellate review in diversity cases, we must strive to parse state law and, if necessary, forecast its path of evolution." Belline v. K-Mart Corp., 940 F.2d 184, 186 (7th Cir.1991). Viewing Ludwig's claim in this light, we conclude that the district court properly entered summary judgment in favor of Kinney.

The Illinois tort of retaliatory discharge encompasses three distinct elements: first, an employee must establish that she has been discharged; second, she must demonstrate that her discharge...