The Illinois Supreme Court has recognized that retaliatory discharge actions are
allowed in two settings: (1) when an employee is discharged for filing, or in anticipation
of the filing, of a claim under the Workers’ Compensation Act (the “Act”); and (2) when
an employee is discharged in retaliation for reporting of illegal or improper conduct. See
Jacobson, 185 Ml. 2d at 376. The court is disinclined to expand the tort of retaliatory
discharge. See Zimmerman v. Buchheit of Spata, Inc., 164 Ill. 2d 29, 37 (1995)
(Zimmerman).

In creating the tort of retaliatory discharge in relation to the filing of a workers’
compensation claim, the Court found that the legislature enacted the workers’
compensation law to provide for expeditious and efficient remedies for injured
employees. See Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 181-82 (1979) (Kelsay). This
purpose would be undermined if employers were allowed to terminate employees for
seeking compensation under the Act. See Kelsay, 74 Ill. 2d at 183. The court could not
“ignore” that many employees would be faced with the dilemma of having to choose to
retain their jobs in light of the Act supplanting the employees’ common law rights. See
Kelsay, 74 Ill. 2d at 183.

Stressing that the tort of retaliatory discharge is a limited one, the Illinois
Supreme Court has refused to allow a retaliatory discharge claim for an employee who
was demoted for allegedly filing a workers’ compensation claim, Zimmerman, 164 Ill. 2d
at 39, and for an employee who alleged that he was terminated after he reported his

employer’s violations of the Fair Debt Collection Practice Act and the Illinois Collection

Agency Act, Jacobson, 185 Ll. 2d at 376.



Premium moves to dismiss Lyons’ retaliatory discharge claim in Count Il,
arguing that a third-party cannot state a claim for retaliatory discharge. Lyons argues that
this Court should recognize such a claim. Both parties concede that no Illinois court has
recognized the right of a third person to claim retaliation where that person has not
exercised some protected right.

A federal court sitting in diversity ascertains the substantive content of state law
as it either has been determined by the highest court of that state or as the state’s highest
court would determine the issue if the issue was before that highest court. See Allstate
Ins. Co. v. Menards, Inc., 285 F.3d 630, 637 (7th Cir. 2002) (Allstate). When
undertaking this task, federal courts must take great care and thoroughness with a full
realization of the impact of the process. See Allstate, 285 F.3d at 638.

As the Illinois Supreme Court has not decided the issue before the Court, this
Court must determine how the Illinois Supreme Court would decide the instant issue,
Further complicating the Court’s task, no Illinois Appellate Court has decided the present
issuc.

Generally, an employee is an employee-at-will who can be fired for any reason or
no reason at all, See Jacobson v, Knepper & Moga, 185 Il, 2d 372, 375-76 (1998)
(Jacobson). The tort of retaliatory discharge is a limited and narrow exception to this
general rule. Jacobson, 185 Jl. 2d at 376. To establish a cause of action of retaliatory
discharge, a plaintiff must demonstrate that (1) she was discharged in retaliation for her
activities and (2) the discharge was in contravention of a clearly mandated public policy.

See Jacobson, 185 Ill. 2d at 376.


In the instant case, Lyons seeks to expand the tort of retaliatory discharge to
include third parties who have not exercised some protected right, ‘.e., the filing of a
workers’ compensation claim. Lyons does not allege, and the Act does not support the
theory, that Lyons could file a workers’ compensation claim on her own behalf because
of her husband’s injuries. However, Lyons seeks to expand the tort of retaliatory
discharge based on her husband’s exercising his protected right. The law fails to support
expanding the tort to allow Lyons’ claim.

The Workers’ Compensation Act makes it unlawful for an employer to interfere
with an employees’ rights under the Act “because of his or her exercise of the rights or
remedies granted to him or by this Act”. 820 ILCS 305/4(h). Importantly, it is the
injured employee’s rights that are protected; nothing in the statute indicates that a third
party’s rights are protected. See 820 ILCS 305/4(h); Kelsay, 74 Ill. 2d at 182 (“the
legislature enacted the workers’ compensation law ... to provide for efficient and
expeditious remedies for injured employees”) (Emphasis added).

Lyons argues at length that her discharge is contravention of clearly mandated
public policy, the second requisite of a retaliatory discharge claim. However, Lyons fails
to meet the first requisite, discharge in retaliation for her activities. Instead, Lyons
alleges that she was discharged in retaliation for her husband’s activities. Thus, Lyons
fails to establish the requisite of the first element of a retaliatory discharge claim.

Furthermore, while Lyons recites general principles of policy found in Kelsay,
she fails to establish a compelling reason for expanding judicial oversight of the
workplace to include alleged retaliation against the family of person who has engaged in

some protected activity. See Zimmerman, 164 Ill. 2d at 39 (plaintiff failed to establish a

5



Minute off Form (06°97)

United States District Court, Northern District of Llinois

Name of Assigned Judge John W. Darrah Sitting Judge if Other
or Magistrate Judge . thun Assigned Judge
CASE NUMBER 02 C3779 DATE 12/18/2002
CASE SARA JEAN LYONS vs. PREMIUM ARMORED SERVICES, INC.
TITLE
[ln the following box (a) indicate the party filing he motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(a3) o Filed motion of [ use listing in “Motion” box above.}
(2) im Brief in support of motion due
3) Oo Answer brief to motion due . Reply to answer brief due
(4) o Ruling/Hearing on .__ set for at
(5) o Status hearing[held/continued to] [sct for/re-set for] on set for at
(6) a Pretrial conference[held/continued to] [set for/re-set for] on _. set for at :
(e) o Trial[set for/re-sct for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) a) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CLocal Rule 41.1 OFRCP41(a)(t) O FRCP41(a)(2).
qo ff [Other docket entry] Status hearing held and continued to 1/29/03 at 9:00 a.m. Plaintiff's motion
for default as to defendant [4-1] is withdrawn as moot. Enter Memorandum Opinion And Order.
Premium’s motion to dismiss Count II of plaintiff's complaint is granted with prejudice.
al) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required, umber of notices
Notices mailed by judge's staff. pee 2 2002
Notified counsel by telephone, date docketes
ao | Docketing to muil notices.
Mail AO 450 form. Puqge bag’ sn wl inate
Copy to judge/magistrate judge.
, : vate
courtroom CO J bi Gago
LG deputy's pone va
tials +—5 =
_ Baveliiine received
central Clerk's Office naling deputy inital



compelling reason to expand the tort to include retaliatory demotions, transfers, or other
adverse work conditions); see also Fogleman y, Mercy Hosp., Inc., 283 F.3d 561, 570
(3rd Cir. 2002) (denying third-party retaliation claims brought under the Age
Discrimination in Employment Act and Pennsylvania Human Relations Act).

In light of the limited and narrow tort of retaliatory discharge, and the facts and
law set forth above, Premium’s Motion to Dismiss Count II of Plaintiff's Complaint is

granted with prejudice. \

Dated: i 19 2002-

IOHN W. DARRAH
United States District Judge



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
SARA JEAN LYONS, )
)
Plaintiff, )
) No: 02 C 3779
v. )
)
PREMIUM ARMORED SERVICES, INC., )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Sara Jean Lyons (“Lyons”), filed a complaint against Defendant,
Premium Armored Services, Inc., (“Premium”), alleging discrimination (Count I) and
retaliatory discharge (Count II). Presently pending before the Court is Premium’s
Motion to Dismiss Count I of Plaintiff’s Complaint.

In considering a motion to dismiss, the court reviews all facts alleged in the
complaint and any inferences reasonably drawn therefrom in the light most favorable to
the plaintiff Marshall-Mosby v. Corporate Receivables, Inc., 205 F,3d 323, 326 (7th
Cir. 2000). Dismissal is warranted only if the plaintiff can prove no set of facts in
support of its claims that would entitle it to relief, Conley v. Gibson, 355 U.S. 41, 45-46
(1957).

A reading of Lyons’ complaint supports the following summary of the alleged
conduct of the parties.

In August 2000, Premium hired Lyons as an Administrative Assistant. In

November 2000, Lyons learned that she was pregnant; and she and her husband, Phillip



Lyons (“Phillip”), who was also an employee of Premium, advised their respective
supervisors of the pregnancy. That same month, the Premium’s Human Resources
Director repeatedly questioned Lyons about her pregnancy.

While in Premium’s employment, Lyons always asked for approval in advance
for any absences; all of which were approved and needed for health reasons and for
scrious family matters, Lyons also successfully completed her probationary period with
Premium, received high praise for job performance, and never received notice of any
deficiencies in her job performance.

On February 16, 2001, Phillip was injured in a vehicular accident that was work-
related. Phillip completed a company accident report shortly after the accident and
underwent medical treatment. When receiving medical treatment, Phillip advised the
health care providers to bill Premium’s workers’ compensation insurance cartier for
medical services provided. Subsequent to February 16, 2001, Lyons was instructed, or
otherwise obtained preapproval beforehand from her supervisor, to take time off from
work to transport Phillip to and from the health care providers rendering care for his
injuries from the accident.

On February 26, 200], Lyons’ employment at Premium was terminated for
excessive absenteeism, poor job performance, and using delivery services for personal
reasons. Subsequently, Lyons filed the present lawsuit, alleging in Count | that she was
discriminated against because of her pregnancy and, in Count II, that she was terminated

in retaliation for her husband’s pursuing his rights under the Illinois Worker's

Compensation Act.