Illinois Retaliatory Discharge Claim May Not Be Removed to Federal Court

A retaliatory discharge action filed under 820 Ill. Comp. Stat. Ann. § 305/4(h)—part of the Illinois Workers’ Compensation Act—may not be removed from an Illinois trial court to a federal district court on the basis of diversity of citizenship, held a federal district court sitting in that state [Craig v. Ford Motor Co., 2015 U.S. Dist. LEXIS 139554 (N.D. Ill. Oct. 14, 2015)]. The federal district court indicated that the defendant’s reliance on a “two-decades-old split decision” [Spearman v. Exxon Coal USA, Inc., 16 F.3d 722 (7th Cir. 1994)], which distinguished between Workers‘-Compensation-Act-based claims under Illinois law and general tort claims that had an asserted workers’-compensation “gloss,” was misplaced.

28 U.S.C. § 1445(c) Generally Prohibits Removal of Comp Claims

Readers will recall that 28 U.S.C. § 1445(c) provides:

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.

Ford argued that the plaintiff’s retaliatory discharge claim did not so much arise from the workers’ compensation laws of Illinois as it did from common law tort principles, that the plaintiff’s action had a workers’ compensation “gloss,” but that workers’ compensation law was not at the core of the claim. Ford pointed to Spearman as establishing this point for federal courts sitting in Illinois.

The Divided Spearman Decision

Indeed, in the Seventh Circuit’s Spearman decision, the majority, quoting Lingle v. Norge Div. of Magic Chef, Inc., 823 F.2d 1031, 1038–39 (7th Cir. 1987) (en banc, and also a split decision), had said:

Our view that the tort of retaliatory discharge is not a worker’s compensation law is supported by the fact that, as a matter of federal law, worker’s compensation laws provide limited no-fault compensation for an injury; this limit on damages is in exchange for the elimination of general tort rules and defenses. The Illinois tort of retaliatory discharge lacks, for purposes of § 1445(c), the essential elements of a worker’s compensation law.

The the instant district court case, the court observed, however, that Lingle had expressly relied upon on the 1978 decision of the Illinois Supreme Court in Kelsay v. Motorola, Inc., 384 N.E.2d 353, 74 Ill. 2d 172, 23 Ill. Dec. 559 (1978), which was a decision at common law dealing with a time before 1975, when the Illinois General Assembly amended the state’s Workers’ Compensation Act to add what is now the 820 ILCS 305/4(h) prohibition.

It Never Hurts to Quote Holmes

Discarding Ford’s workers’ compensation “gloss” argument, the court said that a statement by Justice Holmes just over a century ago in The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S. Ct. 410, 57 L. Ed. 716, 1913 Dec. Comm’r Pat. 530 (1913) remained good law today:

Of course the party who brings a suit is master to decide what law he will rely upon and therefore does determine whether he will bring a “suit arising under” … [any] law of the United States by his declaration or bill.

Here the plaintiff, Mr. Craig, had predicated his claim on what the district court said was a “flat-out prohibition” in the Illinois Act. All the acts that the plaintiff complained were expressly attributed by him to Ford’s denial of his workers’ compensation claim and to its directly related defiance of his physician-imposed work restrictions. Removal was, therefore, precluded by § 1145(c).