Roberts v. Beaulieu of America, Inc.

• Decision Date: 25 June 1996
• Docket Number: Civil Action No. CV-95-S-2782-NE.
• Citation: 950 F.Supp. 1509
• Parties: James W. ROBERTS, Jr., Plaintiff, v. BEAULIEU OF AMERICA, INC., Defendant.
• Court: U.S. District Court — Northern District of Alabama

950 F.Supp. 1509

James W. ROBERTS, Jr., Plaintiff, v. BEAULIEU OF AMERICA, INC., Defendant.

Civil Action No. CV-95-S-2782-NE.

United States District Court, N.D. Alabama, Northeastern Division.

June 25, 1996.

R. Wayne Wolfe, Wolfe Jones & Boswell, Huntsville, AL, for James W. Roberts, Jr.

Warne S. Heath, Bradley Arant Rose & White, Huntsville, AL, G. Rick Hall, Almon McAlister Baccus & Hall LLC, Tuscumbia, AL, for Beaulieu of America, Inc.

MEMORANDUM OF OPINION

SMITH, District Judge.

This action was commenced in the Circuit Court of Jackson County, Alabama. Plaintiff alleges that, while employed by defendant, he was injured on the job, filed a claim for workers' compensation benefits, and thereafter was wrongfully terminated in violation of Alabama Code § 25-5-11.1 (1992). That statute provides:

No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits under this chapter or solely because the employee has filed a written notice of violation of a safety rule pursuant to subdivision (c)(4) of Section 25-5-11. [Emphasis supplied.]

Plaintiff demands judgment "in an amount for compensatory and punitive damages as the jury may deem just and appropriate, plus costs." (Complaint p. 2.) Service of process was perfected on September 29, 1995, and defendant removed the action to this court on October 27th, within the time allowed by 28 U.S.C. §§ 1441, 1446, premising jurisdiction on 28 U.S.C. § 1332, based upon the parties' diversity of citizenship.¹

Plaintiff moved to remand on November 13, 1995, contending that retaliatory discharge claims "arise under Alabama's worker's compensation laws" and, accordingly, are not removable to federal court pursuant to 28 U.S.C. § 1445(c), which provides:

(c) A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States. [Emphasis supplied.]

That motion was denied by United States District Judge Robert B. Propst on December 20, 1995, for reasons stated in a memorandum opinion entered in a similar, but unrelated case: Moreland v. Gold Kist, Inc., 908 F.Supp. 898 (N.D.Ala.1995).² Thereafter the action was reassigned to the undersigned judge, and, plaintiff filed a motion to reconsider the motion to remand.

1. SUMMARY OF DISPOSITION

Upon full consideration of the pleadings, briefs, oral arguments of counsel, and independent research, this Judge deferentially disagrees with his more senior and respected colleague, and concludes this action should be remanded to state court.

The remedy created by Alabama Code § 25-5-11.1 is essential to the efficacy of Alabama's statutory worker's compensation scheme and, therefore, retaliatory discharge claims based on that statute "aris[e] under the workmen's compensation laws of such State [and] may not be removed to any district court of the United States." 28 U.S.C. § 1445(c). Further, because state courts neither have cause nor authority to address this issue, state court opinions may not contradict that conclusion. See Subra v. CMS Therapies, Inc., 900 F.Supp. 407 (M.D.Ala.1995) (Albritton, J.); see also Pettaway v. Wayne Poultry Company, 791 F.Supp. 290 (M.D.Ala.1992) (Albritton, J.).

With its basic decision thus expressed, this court — being keenly aware of the diversity of opinions on this issue among the circuits, and even among the judges of the Northern District of Alabama³ — feels compelled to explain the reasoning which leads to the conclusion reached today.

II. POSITIONS OF THE CIRCUITS

A. The Fifth Circuit

In Jones v. Roadway Express, Inc., 931 F.2d 1086 (5th Cir.1991), the Fifth Circuit held that a Texas action for retaliatory discharge based upon an act of that State's legislature⁴ was a claim "arising under the workmen's compensation laws of such State" and, thus, could not be removed to a federal court. In that case, defendant removed an action by an injured truck driver to the U.S. District Court for the Western District of Texas, which denied plaintiff's motion to remand, siding with three other federal district courts in Texas.⁵ The Fifth Circuit reversed, holding that § 1445(c) should be read broadly to encompass the retaliatory discharge claim created by Texas statute:

Federal law governs the construction of removal statutes.... Because Congress intended that all cases arising under a state's workers' compensation scheme remain in state court, we believe that we should read section 1445(c) broadly to further that purpose.

This court has declared, in analyzing the statute that grants federal question jurisdiction, 28 U.S.C. § 1331, that "`[a] suit arises under the law that creates the cause of action.'" ... We do not see any reason not to define "arising under" in section 1445(c) as we have defined it in section 1331.

When we apply this definition to [a Texas retaliatory discharge] lawsuit, we are satisfied that such a suit arises under the workers' compensation laws of Texas within the meaning of section 1445(c). Article 8307c [the Texas statute creating the remedy⁶] enables injured workers to exercise their rights under that scheme.... The Texas Legislature enacted article 8307c to safeguard its workers' compensation scheme.... Were workers to refrain from filing claims for benefits or otherwise to refuse to participate in compensation proceedings for fear of retaliation, the legislature's elaborate workers' compensation scheme would be adversely affected.... In short, were it not for the workers' compensation laws, article 8307c would not exist, as its incorporation in Title 130 of the revised civil statutes of Texas covering workers' compensation suggests.

Jones, 931 F.2d at 1092 (emphasis supplied).

B. The Seventh Circuit

In contrast, the Seventh Circuit held that an Illinois plaintiff's retaliatory discharge claim was removable. Spearman v. Exxon Coal USA, Inc., 16 F.3d 722 (7th Cir.1994). In Spearman, defendant fired plaintiff, allegedly for excessive absenteeism, but plaintiff claimed retaliation for filing a workers' compensation claim (and cited as proof the fact that Exxon had included in his total absentee hours the period of time plaintiff missed work due to injury). Unlike Texas, an Illinois retaliatory discharge claim is a common law tort. No state statute codifies the remedy, which is known in Illinois as a "Kelsay tort," flowing from the style of the case which created it: Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978). Exxon removed the action to federal court where a jury returned a verdict in its favor. On appeal, the Seventh Circuit held the case was properly removed, because the Kelsay tort is a "fault-based regime with common law damages [and it] is not a `workmen's compensation law' no matter what the state calls it"; accordingly, such an action does not "arise under" the Illinois workers' compensation statutes for purposes of 28 U.S.C. § 1445(c):

Section 1445(c) was enacted in 1958. An apt way to understand its meaning is to ask how a sophisticated legal audience would have understood the words "workmen's compensation law" at the time. As we observed in Lingle [v. Norge Division of Magic Chef, Inc., 823 F.2d 1031 (7th Cir.1987) (en banc), rev'd, 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), on remand, 857 F.2d 422 (7th Cir.1988)], liability without fault (and with limited recovery) for injuries in the course of employment was the standard definition in 1986, and it was the prevailing definition in 1958 and before.... There are many similar descriptions of the workers' compensation principle in judicial decisions and legal dictionaries. No case or definition from the 1950s and before — at least none that we could find — treats unlimited liability for an intentional tort as part of a workers' compensation program. Perhaps this is because such liability is relatively recent. Illinois did not add an anti-retaliation component to its statutes until 1975, ... and even then it omitted any private remedy. Kelsay, decided in 1978, is among the first cases in the nation to create a remedy in tort for retaliatory discharge.... Thus, after independent consideration of the subject we adhere to Lingle. A fault-based regime with common law damages is not a "workmen's compensation law" no matter what the state calls it.

What is more, Illinois does not believe that the Kelsay tort is a workers' compensation law. Kelsay called its rule an "independent tort action".... Later cases have emphasized that the tort is distinct from the workers' compensation laws....

Workers' compensation law serves as the background of the Kelsay tort, furnishing the "public policy" that the employer must respect. That workers' compensation law is a premise of the tort does not mean that the tort "arises under" the worker's compensation laws, any more than a state tort based on the violation of a federal safety standard `arises under' that standard for purposes of the federal question jurisdiction in 28 U.S.C. § 1331....

Spearman v. Exxon Coal USA, Inc., 16 F.3d at 724-25 (citations omitted) (emphasis supplied).

Essentially, the Seventh Circuit's rule became: a retaliatory discharge claim is removable to federal court, despite the policy of 28 U.S.C. § 1445(c), when the remedy was woven by judges from threads of the state's common law, rather than being forged in a legislative furnace and welded into the framework of a state's statutory workers' compensation scheme. Id.; see also Hanna v. Fleetguard, Inc., 900 F.Supp. 1110, 1118 (N.D.Iowa 1995) (infra note 7).

C. The Eighth Circuit

In Humphrey v. Sequentia Inc., 58 F.3d 1238 (8th Cir.1995), the Eighth Circuit held a retaliatory discharge action brought pursuant to Missouri Revised Statute § 287.780 (1994) was one arising under the Missouri Workers' Compensation Act for purposes of applying § 1445(c). In Humphrey, p...