Orsini v. Echlin, Inc.

• Decision Date: 08 May 1986
• Docket Number: No. 86 C 2976.,86 C 2976.
• Citation: 637 F. Supp. 38
• Parties: Roberta ORSINI, Plaintiff, v. ECHLIN, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

637 F. Supp. 38

Roberta ORSINI, Plaintiff, v. ECHLIN, INC., Defendant.

No. 86 C 2976.

United States District Court, N.D. Illinois, E.D.

May 2, 1986.

Supplemented May 8, 1986.

Peter F. Ferraceti, Brad Denney, Law Offices of Peter F. Ferraceti, P.C., Ottawa, Ill., for plaintiff.

Dan T. Carter, Paul R. Beshears, Smith, Currie & Hancock, Atlanta, Ga., Paul E. Lehner, Philip Fertik, Adams, Fox, Adelstein & Rosen, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Echlin, Inc. ("Echlin") has just removed to this District Court from the Circuit Court of the 13th Judicial District, LaSalle County, Illinois, the lawsuit filed by Echlin's ex-employee Roberta Orsini ("Orsini"). For the reasons stated in this memorandum opinion and order, this Court remands this action sua sponte.

Echlin's removal of this case has to be viewed as posing some doubts as to its bona fides. Two independent reasons demonstrate such removal is without foundation, and it would seem that should have been known to be so by Echlin's lawyers.

First of all, Orsini sues on what are unquestionably state grounds:

1. claimed retaliatory discharge following her exercise of rights under the Illinois Workers' Compensation Act (the "Act"), Ill.Rev.Stat. ch. 48, ¶¶ 138.1 to 138.30; and

2. allegedly intentional infliction of mental and emotional harms by the discharge so motivated.

Echlin contends Orsini was an employee subject to a collective bargaining agreement, thus compelling her to sue under federal law. But Orsini does not claim violation of the collective bargaining agreement. It is black-letter law that:

1. Plaintiff is master of her own claim for purposes of determining federal jurisdiction. The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913).

2. Echlin thus cannot rely on its potential federal-law defense as a basis for removal. Tennessee v. Union & Planters' Bank, 152 U.S. 454, 461-62, 464, 14 S.Ct. 654, 656-57, 658, 38 L.Ed. 511 (1894); cf. Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908).

Second, Orsini's action unquestionably embraces an asserted violation of the Act, on which both her claims are squarely grounded (see Act § 138.4(h), prohibiting punitive action by employers in response to the exercise of rights under the Act). As such, the claims cannot be removed because of the bar of 28 U.S.C. § 1445(c). See this Court's opinion in Alexander v. Westinghouse Hittman Nuclear Inc., 612 F.Supp. 1118 (N.D.Ill.1985), construing the "arising under" language of that section of the removal statutes. And that section precludes removal under either the federal-question or diversity-of-jurisdiction theories.

Either of those grounds would be fully dispositive here. Together they are doubly fatal.¹ Each of them separately demonstrates "the case was removed improvidently and without jurisdiction" (28 U.S.C. § 1447(c)). This action is remanded to the state Circuit Court from which it came, and Echlin is ordered to pay just costs to Orsini.

SUPPLEMENT TO MEMORANDUM OPINION AND ORDER

Almost immediately after this Court's May 2, 1986 memorandum opinion and order (the "Opinion") remanding this action to the Circuit Court of the Thirteenth Judicial District, LaSalle County, Illinois because "the case was removed improvidently and without jurisdiction" (28 U.S.C. § 1447(c)¹), Echlin, Inc. ("Echlin") moved for reconsideration. For the reasons stated in this supplement to the Opinion, this Court's decision to remand the case stands.

By sheer chance, in the interim between issuance of the Opinion and Echlin's current motion this Court received another virtually identical removal petition in Lofton v. General Electric Co., No. 86 C 3089.² In dealing with Lofton this Court substantially copied the Opinion, adding however a brief discussion of the preemption question that has since been posed by Echlin's current motion. In the course of preparing that discussion this Court reviewed the same authorities now raised by Echlin (and more), finding they supported rather than forestalled remand. This supplemental opinion will expand on the Lofton opinion to treat specifically with Echlin's present arguments.

It is first important to examine exactly what the Illinois Supreme Court has done in recognizing the viability of the cause of action on which plaintiff Roberta Orsini ("Orsini") sues. In Midgett v. Sackett-Chicago, Inc., 105 Ill.2d 143, 85 Ill.Dec. 475, 473 N.E.2d 1280 (1984) that Court reviewed in detail the argued-for tort of retaliatory discharge for an employee's exercise of rights under the Illinois Workers' Compensation Act (the "Act"), Ill. Rev. Stat. ch. 48, ¶¶ 138.1 to 138.30. In upholding that right of action the Court flatly rejected the notion that any distinction should exist between employees who were subject to a collective bargaining agreement ("CBA") and those who were not, insisting that every retaliated-against employee was entitled to assert such a cause of action. Justice Daniel Ward, speaking for the majority, emphasized the unreasonableness of differentiating between employees in terms of what was viewed the aleatory circumstance of a CBA, stating in part (id. at 150-51, 85 Ill.Dec. at 479, 473 N.E.2d at 1284):

It would be unreasonable to immunize from punitive damages an employer who unjustly discharges a union employee, while allowing the imposition of punitive against an employer who unfairly terminates a nonunion employee. The public policy against retaliatory discharges applies with equal force in both situations.

* * * * * *

There is an important public interest in protecting the rights of workers under the Act, and in deterring unscrupulous employers from discharging employees.

And it is highly significant that the dissenting Justices (id. at 154-57, 85 Ill.Dec. at 480-82, 473 N.E.2d at 1285-87) unsuccessfully urged on the majority that the existence of a CBA, with its typical contractual remedies (most importantly arbitration), should make a difference as to whether suit for an Act-violative retaliation should or should not be allowed.

In short the Illinois Supreme Court, the ultimate authority as to state law, has made a deliberate choice: It has decided the gravamen of the cause of action rests in the Act and not in the existence of a CBA. Any such union-employer agreement is an irrelevancy for the aggrieved Illinois worker — it matters not a whit whether his or her employer is or is not a party to one. That may profitably be contrasted (for reasons treated a bit later) with the Indiana situation. There the Indiana Supreme Court in Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973) specifically grounded its creation of a like tort remedy (allowing recovery against retaliation for the filing of a workmen's compensation claim) on the provision of the Indiana statute that in part provides "no contract" ... shall, in any manner, operate to relieve any employer in whole or in part of any obligation created by this act" (Ind. Code § 22-3-2-15, as quoted (complete with emphasis) in Vantine v. Elkhart Brass Manufacturing Co., 762 F.2d 511, 517 (7th Cir.1985)).

Now what is the gravamen of the federal preemption argument asserted by Echlin? Its current Mem. 2 states the argument succinctly:

However, it is submitted that due to the preemption of these state law claims by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, Plaintiff's only cause of action is under Federal law and removal was proper.

Its Mem. 2 just as accurately identifies the core of its position as the "artful pleading doctrine," which forbids a plaintiff from "defeating removal by omitting to plead necessary Federal questions in a complaint. ..." Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 22, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983). And of course the "necessary Federal question" in a Section 301 claim depends on the existence of a CBA — that is the essence of jurisdiction under LMRA. See generally Comment, Federal Preemption, Removal Jurisdiction, and the Well-Pleaded Complaint Rule, 51 U. Chi.L.Rev. 634 (1984).

Nothing could be less descriptive of the Illinois cause of action on which Orsini sues. As already discussed, Midgett's very recognition of the retaliation tort specifically insisted on the irrelevance of any CBA. It is scarcely "artful" for Orsini to have omitted that fact (the existence of a CBA between Echlin and a union representing Orsini) from her Complaint, just as it was not "artful" for her Complaint to have omitted such other irrelevant facts as that she was (say) five feet four inches tall, had (say) black hair, lived (say) in a single family residence — the examples need not be multiplied further. It was precisely because of that analysis that this Court pointed out in Lofton that the exception recognized in Oglesby v. RCA Corp., 752 F.2d 272 (7th Cir.1985) (the case on which Echlin's memorandum places its initial and heaviest reliance) applies directly here (id. at 276 n. 3):

By contrast, where the right sought to be vindicated in a state court is based on a claim rooted in state policy which in no way conflicts with federal labor law policy, the action is not removable.

And it was for the same reason that Lofton pointed out how unquestionably, in the terms expressed by National Metalcrafters v. McNeil, 784 F.2d 817, 824 (7th Cir. 1986) (our Court of Appeals' most recent treatment of the subject, not adverted to by Echlin):

The state law the Act creates an entitlement that is independent of the collective bargaining contract.

Echlin also seeks to invoke Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) — the most recent definitive word in this area. But though Echlin Mem. 5 accurately states the Supreme Court's reasoning, it wholly misstates its impact. This Court must listen to what the Supreme Court...