Sutherland v. Norfolk Southern Ry. Co., 1-04-1631.

CourtUnited States Appellate Court of Illinois
Citation292 Ill.Dec. 585,826 N.E.2d 1021,356 Ill. App.3d 620
Docket NumberNo. 1-04-1631.,1-04-1631.
PartiesJoseph M. SUTHERLAND, Plaintiff-Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant-Appellee.
Decision Date28 March 2005

826 N.E.2d 1021
356 Ill.
App.3d 620
292 Ill.Dec.

Joseph M. SUTHERLAND, Plaintiff-Appellant,

No. 1-04-1631.

Appellate Court of Illinois, First District, First Division.

March 28, 2005.

826 N.E.2d 1023
John S. Bishof, Jr., Law Office of John Bishof, Chicago, for Appellant

Raymond H. Groble III, Daley & Mohan, P.C.; James S. Whitehead, Sidley Austin Brown & Wood, LLP, Chicago, for Appellee.

Justice GORDON delivered the opinion of the court:

Plaintiff Joseph M. Sutherland filed a three-count complaint against his former employer, Norfolk Southern Railway Company (Norfolk Southern). Counts I and II sought relief under the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (2000)) and the Federal Boiler Inspection Act (FBIA) (49 U.S.C. § 20701 (2000)), respectively, for personal injuries Sutherland sustained while employed by Norfolk Southern. Count III was a common-law claim for retaliatory discharge. The circuit court granted Norfolk Southern's motion to dismiss count III. For the reasons that follow, we affirm.


The factual allegations common to all three counts are summarized as follows. Sutherland was employed by Norfolk Southern as a conductor/yard foreman at Norfolk Southern's Calumet Yard. On April 21, 2000, Sutherland and his crew were engaged in moving groups of railcars to different tracks in the Calumet Yard. During one of the movements, Sutherland entered a cab of the locomotive in use by his crew and sat in a chair. The chair's back support broke, and he fell to the cab floor, sustaining injuries.

On July 3, 2000, Sutherland was terminated from his employment. On March 5, 2003, Sutherland filed his complaint, alleging, as noted, personal injury in counts I and II, and retaliatory discharge in count III. Sutherland claimed that Norfolk Southern discharged him in order to prevent him from presenting damages for wage loss in his FELA/FBIA action,1 to avoid reporting his on-the-job injury to the Federal Railroad Administration (FRA) and to avoid reporting Norfolk Southern's violation of the FBIA to the Secretary of Transportation. Norfolk Southern moved to dismiss count III pursuant to section 2-615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2002)) on the grounds that Sutherland's right of action is not protected under the Illinois retaliatory discharge law. The circuit court agreed with Norfolk Southern and dismissed count III. Upon receiving Rule 304(a) (155 Ill.2d R. 304(a)) certification, Sutherland filed this appeal.


The central issue on this appeal is whether a railroad employee has the protection of the Illinois retaliatory discharge law, where his discharge was brought about in anticipation or as a result of his filing a claim under the FELA and/or the FBIA. Sutherland contends that the Illinois retaliatory discharge law affords him that protection. Norfolk Southern, on the other hand, argues that Sutherland's claim of retaliatory discharge falls outside the scope of the tort.

826 N.E.2d 1024
A section 2-615 motion to dismiss attacks the legal sufficiency of the complaint by alleging defects appearing on its face. Illinois Graphics Co. v. Nickum, 159 Ill.2d 469, 484, 203 Ill.Dec. 463, 639 N.E.2d 1282, 1289 (1994). Such a motion should be granted if the complaint does not allege sufficient facts to state a cause of action. Bianchi v. Savino Del Bene International Freight Forwarders, Inc., 329 Ill.App.3d 908, 918, 264 Ill.Dec. 379, 770 N.E.2d 684, 692-93 (2002). Our review on appeal is generally de novo. Unterschuetz v. City of Chicago, 346 Ill. App.3d 65, 68, 281 Ill.Dec. 367, 803 N.E.2d 988, 991 (2004)

The parties agree that, as a railroad employee, Sutherland was covered by the FELA, which provides the sole remedy for workplace injuries to the exclusion of the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2002)). See, e.g., Hines v. Industrial Comm'n, 295 Ill. 231, 234, 129 N.E. 175, 176 (1920) ("Where an injury occurs to an employee while engaged in interstate commerce there is no choice of remedy. The remedy under the Federal Employers' Liability act is exclusive and all State laws covering the same character of facts are superseded"); Starks v. Northeast Illinois Regional Commuter R.R. Corp., 245 F.Supp.2d 896, 899 (N.D.Ill. 2003) (the FELA offers exclusive remedy for railroad employees seeking to recover for personal injury incurred in course of employment). The Workers' Compensation Act itself provides that "[e]mployees are not included within the provisions of this Act when excluded by the laws of the United States relating to liability of employers to their employees for personal injuries where such laws are held to be exclusive." 820 ILCS 305/1(b)(3) (West 2002).

It has long been held that the FELA provisions do not in themselves prohibit the discharge of an employee for invoking their protections and benefits.2 See Shrader v. CSX Transportation Inc., 70 F.3d 255, 257-58 (2nd Cir.1995) (an employee discharged for filing his or her own FELA claim does not have a cause of action under the FELA for retaliatory discharge); accord Mayon v. Southern Pacific Transportation Co., 805 F.2d 1250, 1252-53 (5th Cir.1986) ("one who helps a co-worker file an FELA claim may have a cause of action under [the FELA] for retaliatory discharge. One who is discharged for filing his own FELA claim, however, does not"); Landfried v. Terminal R.R. Ass'n of St. Louis, 721 F.2d 254, 256 (8th Cir.1983); Lewy v. Southern Pacific Transportation Co., 799 F.2d 1281, 1289 (9th Cir.1986). As one court explained:

"Courts have not treated injuries resulting from allegedly wrongful discharges and other labor law violations as `on the job' injuries in [the FELA] context, and therefore, with the single exception [of Sharkey v. Penn Central Transportation Co., 493 F.2d 685 (2d Cir.1974)], they have not authorized the award of damages under [the] FELA * * * for such injuries." Lewy, 799 F.2d at 1289.

Rather, discharged employees have recourse under the grievance and arbitration procedures of the Railway Labor Act

826 N.E.2d 1025
(RLA) (45 U.S.C. § 151 et seq. (2000)). Shrader, 70 F.3d at 258; Mayon, 805 F.2d at 1252-53; Landfried, 721 F.2d at 256; Lewy, 799 F.2d at 1289. Both reinstatement and back pay are available under the RLA. See Maas v. Frontier Airlines, Inc., 676 F.Supp. 224, 227 (D.Colo.1987)

Until the Supreme Court's decision in Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994), it had been held that the RLA remedies were exclusive and foreclosed an action in federal and state courts. See Lewy, 799 F.2d at 1289 (in enacting the RLA, "Congress specifically intended * * * to keep railroad labor disputes out of the courts and instead requires the use of grievance procedures and arbitration" (emphasis in original)).3 Hawaiian Airlines, however, carved out an exception to that rule, holding that a state-law claim of retaliatory discharge is not preempted by federal law if it involves rights and obligations that exist independent of the collective-bargaining agreement. Hawaiian Airlines, 512 U.S. at 260, 114 S.Ct. at 2247, 129 L.Ed.2d at 216. In other words, a state-law claim of retaliatory discharge is not preempted by the RLA where it involves "only the purely factual inquiry into any retaliatory motive of the employer." Hawaiian Airlines, 512 U.S. at 266, 114 S.Ct. at 2251, 129 L.Ed.2d at 220. Sutherland's claim of retaliatory discharge is, therefore, excluded from federal preemption under Hawaiian Airlines since Norfolk Southern does not contend that Sutherland's claim implicates a collective-bargaining agreement so as to allow Norfolk Southern to avoid the retaliatory discharge analysis under Illinois law.

We therefore proceed to the main issue in the instant case — whether Illinois law recognizes Sutherland's cause of action for retaliatory discharge, where the discharge occurred either in anticipation or as a result of his filing a claim under the FELA and where the provisions of the collective-bargaining agreement are not implicated. For the reasons that follow, we hold that it does not. The tort of retaliatory discharge has unusual origins. In Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978), the supreme court first recognized a common-law remedy for retaliatory discharge as implied from the provisions of and the public policy underlying the Workers' Compensation Act. Kelsay, 74 Ill.2d at 181-82, 23 Ill.Dec. 559, 384 N.E.2d at 357. Subsequent decisions of the supreme court progressively defined the scope of the new tort. In Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981), the supreme court extended the tort of retaliatory discharge beyond its workers' compensation origins to provide a remedy to an employee fired for reporting criminal activity of a coworker.4 In Midgett v. Sackett-Chicago, Inc., 105 Ill.2d 143, 85 Ill.Dec. 475, 473 N.E.2d 1280 (1984), the supreme court held that the action for retaliatory discharge was available to unionized employees, independently of the collective-bargaining agreement. However, in Barr v. Kelso-Burnett Co., 106 Ill.2d 520, 88 Ill.Dec. 628, 478 N.E.2d 1354 (1985), Hinthorn v. Roland's

826 N.E.2d 1026
of Bloomington, Inc., 119 Ill.2d 526, 116 Ill.Dec. 694, 519 N.E.2d 909 (1988), and Hartlein v. Illinois Power Co., 151 Ill.2d 142, 176 Ill.Dec. 22, 601 N.E.2d 720 (1992), the supreme court expressed disinclination to further expand the tort of retaliatory discharge.5 Similarly, in Zimmerman v. Buchheit of Sparta, Inc., 164 Ill.2d 29, 206 Ill.Dec. 625, 645 N.E.2d 877 (1994), after tracing the "guarded development" and "narrow construction" of the tort of retaliatory discharge, the supreme court declined to extrapolate from the rationale of Kelsay a cause of action predicated upon retaliatory demotion. Most recently, in ...

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