Williams v. Shell Oil Co.

• Decision Date: 02 March 1994
• Docket Number: No. 93-1745,93-1745
• Citation: 18 F.3d 396
• Parties: 127 Lab.Cas. P 57,641, 9 Indiv.Empl.Rts.Cas. (BNA) 398 Darrell WILLIAMS, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 396

18 F.3d 396

127 Lab.Cas. P 57,641, 9 Indiv.Empl.Rts.Cas.

(BNA) 398

Darrell WILLIAMS, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.

No. 93-1745.

United States Court of Appeals Seventh Circuit.

Argued Nov. 29, 1993.

Decided March 2, 1994.

William J. Meacham, Edwardsville, IL (argued), for plaintiff-appellant.

Vincent H. Venker, II, Kathy A. Wisniewski, Coburn & Croft, St. Louis, MO, Thomas M. Zulim (argued), Chris Butler, Shell Oil Co., Legal Dept., Houston, TX, for defendant-appellee.

Before BAUER and FLAUM, Circuit Judges, and ROSZKOWSKI, District Judge. ^*

ROSZKOWSKI, District Judge.

The plaintiff, Darrell Williams ("Williams"), appeals from the district court's dismissal of his action after granting the defendant, Shell Oil Company's ("Shell"), motion for judgment as a matter of law.

The plaintiff, Williams, alleged that he was wrongfully terminated by Shell Oil, and, alternatively, that Shell wrongfully interfered with his employment relationship. The plaintiff filed his action in the Illinois Circuit Court and the defendant removed the action to the United States District Court for the Southern District of Illinois based on diversity of citizenship. This court has jurisdiction pursuant to 28 U.S.C. Sec. 1291.

I.

In September 1989, Darrell Williams was a laborer hired by ANCO Insulators, Inc. ("ANCO") through the local laborer's union. ANCO was contracting for Shell Oil to do a project referred to as a "cat cracker turnaround job" at Shell's Wood River Manufacturing Complex at Wood River, Illinois. This project involved shutting down the refinery's catalyst cracking unit in order to perform maintenance. ANCO's part in the project consisted of removing and replacing large amounts of a chemical catalyst from the catalyst cracking unit. The catalyst used at the refinery is a fine, powdery substance, used in the manufacture of various petroleum fuels. Removal of the catalyst requires the workers to be exposed to heavy concentrations of the catalyst.

Shell states that this turnaround job lasted from September 16, 1989, to September 19, 1989, at which time ANCO laid off the employees it had engaged for the job. The plaintiff disputes the length of the job, but agrees that the other employees were laid off, at least on a temporary basis.

The plaintiff was referred to ANCO by the union. He reported to the ANCO on-site office at the refinery and was hired by ANCO. To enter the refinery, the plaintiff went to the contractor's gate, signed in, and was issued a pass identifying him as an ANCO employee. From the gate, an ANCO supervisor took him to ANCO's office, where he filled out several employment forms, and was issued safety equipment and ANCO guidelines. The plaintiff and other ANCO laborers were then taken to the worksite. There ANCO supervisors or foremen would instruct the laborers and set them to work. Additionally, there were occasions when Shell supervisors would direct the workers, and the workers had been previously instructed to follow such directions. At the end of the work shift, an ANCO supervisor or foreman would again take the workers back to the ANCO on-site office to change clothes, and then to the contractor's gate to exit.

Prior to the September 1989 turnaround job, there were two incidents at the refinery in which some of the catalyst was released into the air. Apparently, a cloud of catalyst blew over the neighboring area where the plaintiff resided. After those incidents, but before he was employed for the turnaround job, the plaintiff complained to Shell, and in the public, expressing a strong health concern about exposure to the catalyst. He complained of congestion, headaches, sores, burning eyes and skin, and hair loss. Shell encouraged the plaintiff to seek medical attention at its cost, which the plaintiff did. Subsequently, the plaintiff got his job with ANCO and began working with the catalyst.

At the time, Shell was not aware of the plaintiff working at the refinery. However, on the morning of September 19, 1989, Shell learned of the plaintiff's employment. A Shell supervisor asked the plaintiff if he felt exposure to the catalyst was bad for him, and if he did not believe it was bad, would he sign a release to that effect. The plaintiff stated he didn't know what the effects were, and, therefore, he would not sign a release. Shell thereupon directed ANCO to remove the plaintiff from the turnaround job. There was no other job for the plaintiff at the refinery where he could be assured of no exposure to the catalyst, and, apparently, ANCO had no other available jobs for him. Therefore, the plaintiff was laid off that morning.

The plaintiff then filed an action against Shell Oil in the Illinois state court. The defendant removed the action to federal court based on diversity of citizenship. In his complaint, the plaintiff alleged, first, that due to the nature and degree of control Shell had over ANCO and its employees, including him, he was a loaned servant to Shell, and that Shell had wrongfully discharged him. He contended that because he had expressed a health concern about the exposure to the catalyst compound, his termination was in violation of his rights under, and the public policy behind, the Workers' Compensation Act of Illinois. 820 ILCS 305/1 et seq. Alternatively, he alleged that Shell had tortiously interfered with his employment relationship with ANCO.

At the final pretrial conference, the district court granted the defendant's motion for judgment as a matter of law. In a written opinion, the district court, relying on Occidental Fire & Casualty Co. v. International Ins., 804 F.2d 983, 992-93 (7th Cir.1986), and Richard v. Illinois Bell Tel. Co., 66 Ill.App.3d 825, 23 Ill.Dec. 215, 222, 383 N.E.2d 1242, 1249 (1978), found the uncontroverted facts established that the plaintiff could not maintain an action for retaliatory discharge as a matter of law. Occidental and Richard stand for the proposition that one cannot be considered a loaned servant unless the power to control the employee is totally given over to the second employer.

As to the claim for tortious interference with employment or contractual relations, the court found the plaintiff was an at will employee and had no enforceable contract rights. The court further found that because Shell was both the party charged with tortious interference and the party for whom the work was being performed that "[c]ertainly that party ought to have a say as to who will be doing the work." Williams v. Shell Oil Co., No. 90 C 3390, slip op. at 3 (S.D.Ill. Jan. 27, 1993) (quoting Lusher v. Becker Bros., Inc., 155 Ill.App.3d 866, 108 Ill.Dec. 748, 750, 509 N.E.2d 444, 446, leave to appeal denied, 115 Ill.2d 542, 110 Ill.Dec. 458, 511 N.E.2d 430 (1987)).

II.

A district court's grant of judgment as a matter of law is reviewed de novo. Hayes v. Otis Elevator Co., 946 F.2d 1272, 1275 (7th Cir.1991). Under diversity jurisdiction, the standard for a directed finding is determined by the law of the state in which the court is sitting. The Illinois standard allows a court to make a directed finding when there are no substantial factual disputes. Davis v. FMC Corp., 771 F.2d 224, 229 (7th Cir.1985); Pedrick v. Peoria & Eastern Railroad Co., 37 Ill.2d 494, 229 N.E.2d 504 (1967). A directed verdict is proper if "all the evidence when viewed in its aspect most favorable to the opponent so overwhelmingly favors movant, that no contrary verdict based on that evidence could ever stand." Pedrick, 229 N.E.2d at 514; Darnell v. Impact Industries, Inc., 105 Ill.2d 158, 85 Ill.Dec. 336, 338, 473 N.E.2d 935, 937 (1984).

III.

The district court found that the plaintiff had not established he was an employee of Shell for the purposes of raising a claim of retaliatory discharge. To state a claim for retaliatory discharge, "a plaintiff must show that he was 1) discharged; 2) in retaliation for his activities; and 3) that the discharge violated a clear mandate of public policy." Wieseman v. Kienstra, Inc., 237 Ill.App.3d 721, 178 Ill.Dec. 603, 605, 604 N.E.2d 1126, 1128 (1992), leave to appeal denied, 148 Ill.2d 654, 183 Ill.Dec. 32, 610 N.E.2d 1276 (1993) (citing Hinthorn v. Roland's of Bloomington, Inc., 119 Ill.2d 526, 116 Ill.Dec. 694, 519 N.E.2d 909 (1988)). This tort was first recognized by the Illinois Supreme Court in Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978), and is a limited exception to "the general rule that an 'at-will' employee can be discharged at any time for any cause." Thomas v. Zamberletti, 134 Ill.App.3d 387, 89 Ill.Dec. 387, 388, 480 N.E.2d 869, 870 (1985).

The first element that the plaintiff must establish in order to support a claim for retaliatory discharge, is that he was discharged by the defendant. Williams acknowledges that he was discharged, although he asserts only nominally, by ANCO. The plaintiff argues that he was a loaned employee from ANCO to Shell, such that Shell was his employer for the purposes of this action.

The loaned servant doctrine is a principle of agency law in which the first principal "loans" his agent to a second principal, giving the second principal a heightened degree of control over the agent, along with the corresponding responsibility for the agent's acts and omissions. The use of the loaned servant doctrine in Illinois has generally been limited to instances in which the agent, or employee, "is wholly free from the control of the first employer and wholly subject to the control of the second employer." Richard v. Illinois Bell Tel. Co., 23 Ill.Dec. at 222, 383 N.E.2d at 1249 (citations omitted); see also Occidental Fire & Casualty Co. v. International Ins., 804 F.2d at 992-93. Generally, whether an employee is "loaned" is a factual question, and the factors considered in the control of an employee include such things as the power to hire and fire the employee and the power to control the direction and manner...