McElroy v. SOS Intern., Inc.

Decision Date20 December 1989
Docket NumberNo. 89 C 4639.,89 C 4639.
Citation730 F. Supp. 803
PartiesHerbert McELROY, Plaintiff, v. SOS INTERNATIONAL, INC. Defendant.
CourtU.S. District Court — Northern District of Illinois

Marc M. Pekay, Chicago, Ill., for plaintiff.

Adele Rapport, Carol McHugh, Paul E. Starkman, Arnstein & Lehr, Chicago, Ill., for defendant.


HOLDERMAN, District Judge:

Plaintiff Herbert McElroy originally brought this suit against defendant Strategic Organization Systems Environmental Engineering Division, Inc. ("SOS International") in the Circuit Court of Cook County, Illinois. SOS International removed the action to this court. Now, McElroy has moved to remand the case back to the state court. SOS International, in turn, has moved to dismiss the action for failure to state a claim upon which relief can be granted under Fed.R.Civ.Pro. 12(b)(6), contending that provisions of the Occupational Safety and Health Act ("OSHA"), 29 U.S.C. § 651 et seq., preempt McElroy's claims.

This court finds that McElroy's action was properly removed to this court and thus his motion to remand must be denied. Additionally, the court holds that OSHA does not preempt McElroy's claims. Thus, this case should be dismissed without prejudice to its reassertion in the state courts.


SOS International employed McElroy as an asbestos worker. (State Complaint at ¶¶ 1-2; First Amended Complaint at ¶ 1.) In April of 1988 McElroy complained to his supervisor about SOS International's violations of OSHA requirements relating to the removal of asbestos. (State Complaint at ¶¶ 2-3; First Amended Complaint at ¶¶ 5-6.) On April 25, 1988 SOS International fired McElroy in retaliation for his complaints about the OSHA violations. (State Complaint at ¶¶ 8-9; First Amended Complaint at ¶¶ 11-13.)

On May 8, 1989 McElroy filed this action for retaliatory discharge in the Circuit Court of Cook County, Illinois. A month later SOS International removed this case, claiming that it raised a federal question.


This court's inquiry is divided into two parts. First, this court must determine whether it has jurisdiction over this action. Since McElroy originally brought his suit in state court, jurisdiction hinges upon whether SOS International properly removed the suit. Only if removal was proper may this court determine the second question — whether or not federal law preempts McElroy's claims. Lingle v. Norge Division of Magic Chef, Inc., 823 F.2d 1031, 1037 (7th Cir.1987), rev'd on other grounds, 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988).

I. SOS International Properly Removed This Action

McElroy has moved to remand this case back to the state court. SOS International opposes remand, claiming that the case involves a federal question because OSHA provides the only remedy for McElroy's alleged retaliatory discharge.

The federal removal statute states:

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); see also Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571, 574 (7th Cir.1982). A defendant may remove a cause of action presenting a federal question to a federal court regardless of diversity of citizenship. 28 U.S.C. § 1441(b); see also Mitchell v. Pepsi-Cola Bottlers, Inc., 772 F.2d 342 (7th Cir.1985).

To determine whether McElroy's claim arises under federal law this court applies the "well-pleaded complaint rule", which provides that the "federal claim must generally appear on the face of the complaint unaided by any other pleadings, including a removal petition." Oglesby v. RCA Corp., 752 F.2d 272, 275 (7th Cir. 1985).

McElroy's state court complaint asserts that SOS International discharged him in retaliation for complaining of OSHA violations. (State Complaint at ¶¶ 2, 3, 4, 9, 10.) Specifically, McElroy states that his discharge "was in violation and was contrary to public policy and in retaliation for plaintiff's attempt to have the defendants comply with OSHA's regulations." (State Complaint at ¶ 10.)

In his complaint McElroy makes no specific reference to violation of Illinois law. Although paragraph 10 of his complaint is a general reference to violation of "public policy," nowhere does McElroy state that he is seeking relief only under Illinois law. To the contrary, McElroy cites OSHA and violations of its requirements no fewer than five times. (State Complaint at ¶¶ 2, 3, 4, 9, 10.)

Based upon the face of his complaint, McElroy appears to be bringing suit for retaliatory discharge because he was a "whistle-blower" as to OSHA violations. As such, McElroy's complaint states a claim for a federal remedy under OSHA — specifically 29 U.S.C. § 660(c)(1)1 — and thus was properly removed under the federal removal statute, 28 U.S.C. § 1441(a).

After the removal, however, pursuant to an agreement between the parties McElroy filed a first amended complaint with this court. Although this first amended complaint makes it clear that McElroy is seeking only a state court remedy, it fails to defeat removal.

Like the state court complaint, McElroy's first amended complaint also declares that SOS fired him for reporting OSHA violations. (Complaint at ¶¶ 5-7, 12-13.) McElroy adds to his first amended complaint, however, allegations that his discharge also violated various Illinois statutes. (Complaint at ¶¶ 5-7, 12-14). The first amended complaint also makes clear that McElroy seeks a remedy for violation of the public policy of Illinois. (Complaint at ¶ 14.)

Although McElroy's first amended complaint clarifies the remedies he seeks, this court must look to his state complaint to determine whether removal was proper. 28 U.S.C. § 1447(c); Austwick v. Board of Education of Township High School, 555 F.Supp. 840, 842 (N.D.Ill. 1983). However, even if McElroy's first amended complaint were controlling, it still would support removal, as it too pleads an OSHA claim for which this court would have had original federal question jurisdiction. Moreover, even if McElroy had amended his complaint to camouflage any mention of OSHA, the "artful pleading" exception to the well-pleaded complaint rule would require that this court look beyond the face of the complaint to expose any federal claim. Lingle, 823 F.2d at 1038.

Therefore, because it is clear that McElroy's complaint raises a federal question and this court would have had original jurisdiction under 28 U.S.C. § 1331, the action was properly removed to this court. See Oglesby, 752 F.2d at 276 n. 2 (if plaintiff's cause of action were construed as one for retaliatory discharge for exercising his rights under OSHA "it would have been grounded squarely on federal law and therefore removable by defendant as a matter off right. 28 U.S.C. § 1441.").

II. OSHA Does Not Preempt McElroy's Claims

Having decided the jurisdictional question, this court's next inquiry must be whether OSHA provides an exclusive remedy for retaliatory discharge of an employee who reports an OSHA violation, thereby preempting McElroy's claims as SOS International contends.

Congress has power under the Supremacy Clause of the Constitution to preempt state law. Northwest Central Pipeline Corp. v. State Corp. Com'n of Kansas, ___ U.S. ___, 109 S.Ct. 1262, 1273, 103 L.Ed.2d 509 (1989). In determining whether Congress has invoked its preemption power primary emphasis is given to ascertainment of congressional intent. R.J. Reynolds Tobacco Co. v. Durham County, N.C., 479 U.S. 130, 107 S.Ct. 499, 507, 93 L.Ed.2d 449 (1986).

SOS International contends that Section 667 of OSHA reflects a Congressional intent to preempt the entire field of health and safety to the extent that OSHA addresses particular issues. OSHA Section 667 states in relevant part:

(a) Assertion of State standards in absence of applicable Federal standards
Nothing in this chapter shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect under section 655 of this title.
(b) Submission of State plan for development and enforcement of State standards to preempt applicable Federal standards
Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated under section 655 of this title shall submit a State plan for the development of such standards and their enforcement.

29 U.S.C. § 667(a) and (b) (emphasis added).

The parties do not contest that Illinois has not received approval for a state plan under OSHA. See also, Stanislawski v. Industrial Com'n., 99 Ill.2d 36, 75 Ill.Dec. 405, 412, 457 N.E.2d 399, 406 (1983) (no plan in effect).2 Moreover, it is clear that OSHA prohibits retaliation because of complaints to employers about OSHA violations. 29 U.S.C. § 660(c)(1)3; 29 C.F.R. § 1977.9(c) (1988). Indeed, OSHA sets forth a procedure for relief whereby aggrieved employees must file a complaint with the Secretary of Labor within thirty days of an alleged violation. 29 U.S.C. § 660(c)(2)4; see also 29 C.F.R. 1977.15 et seq.

McElroy is not seeking a remedy under OSHA, however. He requests relief only under Illinois law. Contrary to SOS International's argument, neither Section 667 nor any other provision of OSHA preempts state law so as to preclude McElroy's state law claims.

Section 667 merely sets forth the procedure for approval of state plans seeking to regulate occupational safety or health issues for which no OSHA standard is in effect. The section cannot reasonably be read to preempt state tort remedies...

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