Walter Spearman v. Exxon Coal Usa, Inc.

16 F.3d 722, 9 I.E.R. Cas. (BNA) 408, 1994 U.S. App. LEXIS 2425, 1994 WL 39375

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 11, 1994
• Docket: 92-3837
• Status: Published

Opinions

EASTERBROOK, Circuit Judge.

Exxon Coal USA has a progressive discipline system. Exxon resorted to ever-higher levels of discipline for Walter Spearman’s absenteeism. In September 1988 Exxon fired Spearman for this unreliability. In lieu of filing a grievance under the collective bargaining agreement, Spearman signed a “last chance agreement” permitting him to keep his job. This agreement provided that Spearman would be sacked, without any opportunity for further complaint, if he missed 84 hours of scheduled work “for any reason” between September 15, 1988, and July 26, 1989. Spearman was sent home on February 2, 1989, because his supervisor smelled alcohol on his breath; the time he missed that day put him over the 84-hour mark, and his employment ended.

Exxon counted toward the 84 hours 44.5 that Spearman took off in January 1989 because of a bruised chest. Spearman filed this suit in state court, contending that including time he missed because of injury produced a discharge in retaliation for the exercise of his rights under the workers’ compensation laws of Illinois. Although no state statute establishes such a rule, the Supreme Court of Illinois treats retaliatory discharge as a tort. Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978). Exxon removed the ease to federal court. A jury concluded that Exxon had not retaliated against Spearman for the exercise of any right afforded by the workers’ compensation laws. The verdict is beyond serious challenge, for the jury was entitled to find that Exxon acted because of the number of hours Spearman missed rather than the reason he missed them, and Illinois does not block an employer from taking account of an employee’s inability to work as opposed to his exercise of legal rights. See McEwen v. Delta Air Lines, Inc., 919 F.2d 58 (7th Cir.1990); Hartlein v. Illinois Power Co., 151 Ill.2d 142, 160, 176 Ill.Dec. 22, 30, 601 N.E.2d 720, 728 (1992) (“[A]n employer may fire an employee for excess absenteeism, even if the absenteeism is caused by a compensable injury- Simply put, ‘Illinois allows employers to act on the basis of their employee’s physical disabilities; it is only the request for benefits that state law puts off limits as a ground of decision.’ ” (quoting from McEwen, 919 F.2d at 60)); Hess v. Clarcor, Inc., 237 Ill.App.3d 434, 177 Ill.Dec. 888, 603 N.E.2d 1262 (2d Dist.1992); Miller v. J.M. Jones Co., 225 Ill.App.3d 799, 807, 167 Ill.Dec. 385, 391, 587 N.E.2d 654, 660 (4th Dist.1992). Spearman’s quibbles with the jury instructions do not require analysis beyond citation to these cases. His only serious argument is that the inquiry into Exxon’s motive should have been made by a jury in state court rather than a jury in federal court.

Exxon removed the case under the diversity jurisdiction. See 28 U.S.C. § 1441(a). The potential obstacle is 28 U.S.C. § 1445(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.” According to Spearman, a claim of retaliation for the exercise of rights under the workers’ compensation laws “arises under” those laws even though the claim rests on general tort doctrines rather than the contents of the statutes. We have considered and rejected this claim before, in a case dealing with the Kelsay tort in Illinois. Lingle v. Norge Division of Magic Chef, Inc., 823 F.2d 1031, 1038-39 (7th Cir.1987) (en banc). Nonetheless, Spearman believes, the Supreme Court’s reversal, 486 U.S. 399 (1988), albeit on other grounds, drains force from Lingle, even though that Court did not mention § 1445(c). The fifth circuit has since gone into conflict with Lingle, although it does not appear to have recognized that it was doing so. Jones v. Roadway Express, Inc., 931 F.2d 1086, 1091-92 (5th Cir.1991). Spearman asks us to abandon Lingle and follow Jones.

Like this ease, Lingle was removed under the diversity jurisdiction. We added that federal-question jurisdiction was independently available because the claim necessarily rested on a collective-bargaining agreement, a circumstance that also preempted state remedies; with that conclusion the Supreme Court disagreed. It did not question our holding that § 1445(c) did not require remand, because the Kelsay tort did not “arise under the workmen’s compensation laws” of Illinois. The basis of removal, whether diversity or a federal question, was logically irrelevant to the scope of § 1445(c). Even a case containing a federal claim may not be removed if it also arises under state workers’ compensation law. Lingle gave two reasons for concluding that the case did not arise under workers’ compensation law. First, we observed, § 1445(c) is designed to prevent removals that would nullify the “expeditious] and inexpensive” procedures states had devised for workers’ compensation claims (828 F.2d at 1038, quoting from a legislative report). Retaliatory-discharge litigation is anything but simple and expeditious; tort litigation in federal court is no more cumbersome than tort litigation in state court. Second, we believed, workers’ compensation regimes entail limited compensation without fault, the antithesis of the motive-based Kelsay tort in which unlimited compensatory and punitive damages are available:

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. See Larson, Workmen’s Compensation § 1.10 (desk ed. 1986). The Illinois tort of retaliatory discharge lacks, for purposes of § 1445(c), the essential elements of a worker’s compensation law.

823 F.2d at 1039 n. 9. That federal law supplies the definition of “workmen’s compensation laws” is beyond doubt. Grubbs v. General Electric Credit Corp., 405 U.S. 699, 705, 92 S.Ct. 1344, 1349, 31 L.Ed.2d 612 (1972); Standard Oil Co. v. Johnson, 316 U.S. 481, 483, 62 S.Ct. 1168, 1169, 86 L.Ed. 1611 (1942); Burda v. M. Ecker Co., 954 F.2d 434, 437 (7th Cir.1992). A state could not prevent removal of ordinary tort cases by calling its common law of torts a “workmen’s compensation law.” Lingle, 823 F.2d at 1039. Our conclusion that the Kelsay tort lacks the essential no-fault element of workers’ compensation laws stands untouched by the Supreme Court’s analysis in Lingle — and we continue to believe that it is correct.

*

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, 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. When dealing with a federal workers’ compensation act, the Supreme Court wrote: “A prime purpose of the Act is to provide residents of the District of Columbia with a practical and expeditious remedy for their industrial accidents and to place on District of Columbia employers a limited and determinate liability.” Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 476, 67 S.Ct. 801, 806, 91 L.Ed. 1028 (1947). 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, see 820 ILCS 305/4(h), 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. It cited only two predecessors, one from 1973 and the other from 1976. See 74 Ill.2d at 182, 28 Ill.Dec. at 563, 384 N.E.2d at 357. Old words may gain new meaning as circumstances change, but old words in statutes retain their meaning; change depends on amendment. West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 97-102, 111 S.Ct. 1138, 1146-48, 113 L.Ed.2d 68 (1991); National Broiler Marketing Co. v. United States, 436 U.S. 816, 827, 98 S.Ct. 2122, 2129, 56 L.Ed.2d 728 (1978). Thus after an 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”. 74 Ill.2d at 184, 23 Ill.Dec. at 564, 384 N.E.2d at 358. Later cases have emphasized that the tort is distinct from the workers’ compensation laws. E.g., Rubenstein Lumber Co. v. Aetna Life & Casualty Co., 122 Ill.App.3d 717, 719, 78 Ill.Dec. 541, 542-43, 462 N.E.2d 660, 661-62 (1st Dist.1984); Suddeth v. Caterpillar Tractor Co., 114 Ill.App.3d 396, 70 Ill.Dec. 329, 449 N.E.2d 203 (2d Dist.1983) (because the tort is independent of the workers’ compensation laws, a settlement discharging the employer from aU UabUity under the workers’ compensation laws does not bar a suit aUeging retaliatory discharge). See also Lingle, 823 F.2d at 1035-36. Because the Kelsay tort is independent of the workers’ compensation claim, an employee is forbidden to join the two in a single action before the agency that administers the state’s compensation program. Garrison v. Industrial Commission, 83 Ill.2d 375, 47 Ill.Dec. 347, 348, 415 N.E.2d 352, 354 (1980). Shortly after deciding Kelsay, the Supreme Court of Illinois generalized its principle to bar retaliation that interfered with any substantial pubUc poUcy of the state, thus Uberating the tort from dependence on the workers’ compensation laws. E.g., Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981); Darnell v. Impact Industries, Inc., 105 Ill.2d 158, 85 Ill.Dec. 336, 473 N.E.2d 935 (1984). The anti-retaUation rule in the workers’ compensation law, which lacks any enforcement mechanism, has played no role in this development and plays no role in Utigation under Kelsay — a fact demonstrated by the expansion of the tort into other bodies of law lacking any counterpart to § 305/4(h).

Workers’ compensation law serves as the background of the Kelsay tort, furnishing the “pubUc poUcy” that the employer must respect. That workers’ compensation law is a premise of the tort does not mean that the tort “arises under” the workers’ 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. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). Many federal rules serve as the jumping-off point for state claims without converting these into claims under federal law. For example, if there were no copyright laws, there could be no dispute about who owns a copyright. Yet it is settled that a dispute about the ownership of a copyright arises under state rather than federal law. T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir.1964) (Friendly, J.). Workers’ compensation laws play the same role in the Kelsay tort as copyright laws did in T.B. Harms and the federal safety standard did in Merrell Dow. A claim of retahatory discharge may be adjudicated without any inquiry into the meaning of the workers’ compensation laws; the question for decision usuaUy is the employer’s motive for adverse action rather than the entitlement to compensation for injury on the job. Cf. Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 809, 108 S.Ct. 2166, 2174, 100 L.Ed.2d 811 (1988); Gully v. First National Bank in Meridian, 299 U.S. 109, 114—15, 57 S.Ct. 96, 98, 81 L.Ed. 70 (1936); Shulthis v. McDougal, 225 U.S. 561, 569-70, 32 S.Ct. 704, 706, 56 L.Ed. 1205 (1912), among the many cases stating that the dependence of a claim on federal law does not mean that the claim arises under that law, unless the suit presents a dispute about the validity, construction, or effect of the law. So even if Lingle were wrong in concluding that only a system of liability without fault can be a “workmen’s compensation law” under § 1445(c), the Kelsay tort would not “arise under” the industrial accident compensation system of Illinois. This case was properly removed and properly decided after removal.

AFFIRMED.

This opinion was circulated before release to all judges in regular active service. See Circuit Rule 40(f). A majority did not favor a hearing en banc on the question whether the tort of retaliatory discharge "arise[s] under the workmen's compensation laws” of Illinois. Judges Cudahy, Flaum, Ripple, and Rovner voted to hear the case en banc. Judges Cummings and Coffey did not participate in the consideration or decision of this case.