IL. Motion to Dismiss
A. Legal Standard

A motion to dismiss tests the sufficiency of the complaint, not its merits. Gibson vy. City of
Chicago, 910 F.2d 1510, 1520 (7th Cir, 1990). In ruling on a motion to dismiss, the court considers
“whether relief is possible under any set of facts that could be established consistent with the
allegations." Pokuta v. Trans World Airlines, Inc., 191 F.3d 834, 839 (7th Cir. 1999), citing Conley
vy. Gibson, 355 U.S. 41, 45-46 (1957). A motion under Rule 12(b)(6) should not be granted "unless
it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which
would entitic him to relief." Gibson, 355 U.S. at 45-46.
B. Retaliatory Discharge

Mlinois is an at-will employment state; an at-will employee may be fired at any time. Paz v.
Commonwealth Edison, 314 IlLApp.3d 591, 732 N.E.2d 696, 700 (2d Dist. 2000). The tort of
retaliatory discharge is a limited and narrow exception to this rule. Buckner vy. Atlantic Plant
Maintenance, Inc., 182 Ill.2d 12, 18-20, 694 N.E.2d 565 (1998), To state a claim for retaliatory
discharge, Thomas must allege (i) he was discharged, (ii) the discharge was in retaliation for his
activities, and (iii) the discharge violates a clear mandate of public policy. Stebbings vy. The
University of Chicago, 312 Ill. App.3d 360, 726 N.E.2d 1136, 1140 (1st Dist. 2000), Guardsmark
argues that ‘Thomas does not identify a clearly mandated public policy that his discharge allegedly
violated.
1. Public Policy

There is no prccise definition of the term “clearly mandated public policy.” Palmateer v,

International Harvester Company, 85 Ml.2d 124, 421 N.E.2d 876, 878 (1981). In general, “public



A. Fraudulent Joinder Doctrine

Diversity jurisdiction cannot be destroyed by joinder of non-diverse parties if that joinder is
fraudulent. //oosier Energy Rural Elec. Coop., Inc. v. Amoce Tax Leasing IV Corp., 34 F.3d 1310,
1315 (7th Cir. 1994). A defendant is fraudulently joined when there is no “reasonable possibility
that a state court would rule against” him. Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir.
1992), cited in Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir. 1999). Based
on Illinois law, the court must determine whethcr there is a reasonable possibility that Thomas could
recover against Healy for retaliatory discharge.

‘The Illinois Supreme Court has refused to extend the tort of retaliatory discharge to include
individual liability for supervisors who terminate employees. “[T]he tort of rctaliatory discharge
may be committed only by the employer, The agent or employee who carries out the employer's
decision to fire will not be subject to personal liability for retaliatory discharge.” Buckner v. Atlantic
Plant Maintenance, Inc., 182 1.2d 12, 22, 694 N.E.2d 565, 570 (1998). Therefore, the only proper
defendant to the retaliatory discharge claim is Guardsmark, Jd. Thomas argues that the Illinois
Supreme Court could distinguish Buckner on its facts and find Healy liable for Thomas’ discharge.
However, the fact that state law could change does not create a reasonable possibility that a state
court would rule against Healy in this case. Schwartz, 174 F.3d at 879, Consequently, Healy was

fraudulently joined, and complete diversity is not defeated. ‘The action was properly removed to this

court and Healy must be dismissed.



policy concerns what is right and just and what affects the citizens of the State collectively. It is to
be found in the State’s Constitution and statutes and, when they are silent, in its judicial decisions.”
Id. Thomas alleges he was discharged for publicly disclosing that Guardsmark was violating the
Private Detective, Private Alarm, Private Security, and Locksmith Act of 1993, 225 ILCS 446/1 et
seq. (the “Act”). The Act prohibits persons convicted ofa felony within ten years from obtaining
a private security contractor’s license. 225 ILCS 446/75.

Guardsmark responds that the Act evidences a public policy against Thomas’ disclosure of
information to the media. The Act provides:

Any person who . . . is an employee of a licensee under this Act shal] not divulge to

any person, other than his or her employer, except as required by law or at the

employer's direction, any confidential information acquired by him. . . during his .

. employment of any nature whatsoever,
225 ILCS 446/195, Guardsmark interprets this section to prohibit any disclosure of wrongdoing.
This interpretation is too broad. Thomas reported that Guardsmark employed a self-proclaimed
convicted {elon as a security guard. The Act declares this violation “inimical to the public welfare
and... constitute[s] a public nuisance.” 225 ILCS 446/20. Reports of activity that impinge on
public welfare or safety are easily and readily accepted as furthering public policy, whether or not
the activity is criminal. Anderson v. Village of Oswego, 109 F.Supp.2d 930, 933 (N.D. Ill. 2000),
citing Stebbings v. University of Chicago, 312 Il.App.3d 360, 372-73, 726 N.E.2d 1136, 1145

(2000); Moward v. Zack Company, 264 Mll.App.3d 1012, 637 N.E.2d 1183 (1st Dist. 1994). Thus,

Thomas states a claim and alleges a clearly mandated public policy that was violated by his

discharge.



Mime Qrer Form (0607)

United States District Court, Northern District of Illinois

lame of Assiy Sitting Tuc if Other
ser Nagtate Jude Suzanne B. Conlon tan Amigo lodge
CASE NUMBER 02 € 8848 DATE 1/6/2003
CASE CARL E. THOMAS vs. GUARDSMARK, INC., et al.
TITLE

Lin the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, detendant, 3rd party plaintiff, and (b) state briefly the nature

f i it d.
MOTION: of the motion being presented.]

DOCKET ENTRY:

(ap) QO Filed motion of [ use listing in “Motion” box above.}

(2) oO Brief in support of motion duc

(3) Q Answer brief to motion due___. Reply to answer brief due____-

(4) Oo Ruling/Hearingon_ set for at,

() oO Status hearing[held/continued to] [set for/re-set for]on__—ssetfor_— ss at_

(6) im Pretrial conterencefhetd/continued to] [set for/re-set for]on__——ssetfor_——at_—
(7) Oo ‘Trial[set for/re-set for]on at

(8) o [Bench/Iury trial] [Hearing] held/continued to___at

(9) gO This casc is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) C) Local Rule 41.1 OOFRCP41(ay(1) CIFRCP41(aX(2).

qo) i [Other docket entry} Plaintiff's motion to remand [10-1] is denied. Defendant Edward Healy is
dismissed with prejudice. Defendant Guardsmark’s motion to dismiss [3-1] is denied. Guardsmark shall
answer the complaint by January 17,2003. ENTER MEMORANDUM OPINION AND ORDER. Status

hearing on January 14, 2003 stands. ¢ a 4 ]

dl) sf [For further detail sce order attached to the original minute order.]

No notices required, advised in open court.

No notives required. umber ofnatices

v | Notices mailed by judge’s statf. - WAN 07 2003

‘Notified counsel by telephone. date dackered

Dacketing to mail notices.

Mail AQ 450 form.

Copy to judge/magistrate judge.

16/2003

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initials

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2. Thomas’ Employment Agreement

Guardsmark attaches Thomas’ employment contract and argues that the complaint is time-
barred. The proffered employment contract is not central to Thomas” complaint or referenced in it.
Matters outside the pleadings may not be considered in ruling on a motion to dismiss under 12(b)(6).
Fed. R. Civ. P. 12(b); Travel All Over the World v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1430
(7th Cir. 1996). Guardsmark’s arguments based on the contract are outside the scope of this motion
and are not considered.

CONCLUSION

Guardsmark meets its burden of establishing that removal was proper. Edward Healy was
fraudulently joined as a defendant and is dismissed. The complaint states a claim of retaliatory
discharge, identifying an alleged violation of a clearly mandated public policy. The court will not
consider defendants’ proffered employment contract because it is a matter outside the pleadings and

inappropriate for consideration on a motion to dismiss.

January 6, 2003 ENTER:

Cron.

Suzan B. Conlon
United States District Judge



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION DOCKETED
JAN 07 2003
CARL E. THOMAS, )
)
Plaintiff, ) No. 02 C 8848
)
v. ) Suzanne B. Conlon, Judge
)
GUARDSMARK, INC. and EDWARD D. )
HFALY, )
)

Defendants.
MEMORANDUM OPINION AND ORDER

Carl Thomas initially filed this action against Guardsmark, Inc. (“Guardsmark”) and Edward
Healy (collectively “defendants”) in the Circuit Court of Cook County, Illinois, claiming common
law retalialory discharge. Defendants removed the action to this court based on diversity
jurisdiction. Thomas moves to remand the action to state court for lack of subject matter
jurisdiction. Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure
12(b)(6).

BACKGROUND

For purposes of a motion to dismiss, the court accepts all well-pleaded allegations in the
complaint as true and draws all reasonable inferences in favor of the nonmovant. Stachon v. United
Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir. 2000), Thomas, a citizen of Illinois, was
employed by Guardsmark to provide security at an oil refinery. Guardsmark is a Delaware
corporation with its principal place of business in Tennessee. Healy, Guardsmark Vice President

of Regional Management, is a citizen of Mlinois. In November 2001, Thomas participated in an

LA



investigative newscast about lax regulation of sccurity officers following the attacks of September
11, 2001. During the telecast, Thomas stated that he believed an oil refinery is a likely target for
terrorists, and that convicted felons should not be licensed as security officers in facilities that are
potential targets of terrorist activity. He stated that one security officer with whom he worked openly
bragged about his prior felony convictions to fellow workers. After the telecast was aired, Ilealy
informed Thomas that his employment with Guardsmark was suspended due to his statements on
the telecast. Guardsmark did not reinstated Thomas’ employment.
DISCUSSION

I. Subject Matter Jurisdiction

Thomas claims this action was improperly removed. When the court's exercise of
jurisdiction is challenged, the burden of establishing federal jurisdiction rests on the party seeking
to preserve removal. Shaw v. Dow Brands. Inc., 994 F.2d 364, 366-67 (7th Cir, 1993). Courts
interpret the removal statute narrowly and ptesume that the plaintiff may choose his forum. Dve v.
Allied-Signal, Ine., 985 F.2d 908, 911 (7th Cir. 1993). Any doubts regarding jurisdiction should be
resolved in favor of remanding the action to state court. /brahim v, Old Kent Bank, 1999 WL
259944, at *2 (N.D. Ill. 1999), citing Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th
Cir. 1976).

The parties do not dispute the absence of complete diversity. Thomas and Healy are citizens
of Tllinois, When complete diversity or an independent basis for federal jurisdiction is absent,
federal subject matter jurisdiction does not exist. See 28 U.S.C. § 1332(a)(1). In response,
defendants assert removal was proper because Healy, the non-diverse defendant, was fraudulently

joined to defeat subject matter jurisdiction.