even though he had no written employment contract with defendant. Defendant’s motion to dismiss
the section 1981 claim is, therefore, denied.

Defendant also contends that plaintiff's Title VII claim must be dismissed because: (1) itis
outside the scope of his EEOC charge; and (2) he concedes that there was a legitimate reason for his
termination. Neither ground has any merit. Though “a Title VII plaintiff cannot bring claims in a

lawsuit that were not included in [his] EEOC charge,” Cheek v. Western & So. Life Ins. Co., 31 F.3d

497, 500 (7th Cir. 1994), plaintiff clearly raised his race claim in his charge. In relevant part,
plaintiff's EEOC charge states: “On or about April 1, 2002, I was involved in a verbal altercation
with a Black employee and was discharged on April 4, 2002. I believe I have been discriminated
against because of my... race, White... .” (Def.’s Mem. Supp. Mot. Dismiss, Ex. 5, EEOC
Charge.') Because those statements sufficiently apprised both defendant and the EEOC that plaintiff
believed his termination was motivated by race, the Title VII claim in plaintiff's complaint is not
outside the scope of his charge.

Plaintiffhas also not pleaded himself out of his Title VII claim. The fact that plaintiff recites
the proffered reason for his termination in his EEOC charge does not constitute an admission by him
that he was terminated for a nondiscriminatory reason. Rather, the gist of his charge is that
defendant’s proffered reason for terminating him was a pretext for race discrimination, a point he

fleshes out in his complaint. (See Compl. ff 15-18 (alleging that the African-American employee

"We can consider the charge in deciding the motion to dismiss, though plaintiff did not attach
it to his complaint, because it is referred to in the complaint and is central to his Title VII claim.
Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7" Cir. 1993) (‘Documents that
a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred
to in the plaintiffs complaint and are central to [his] claim.”).



mandatory occupational safety and health standards applicable to businesses affecting interstate
commerce,” 29 U.S.C. § 651(b)(3), and sets forth detailed procedures for doing so, 29 U.S.C. § 655.
The Act also empowers the Secretary of Labor to inspect and investigate places of employment
subject to the Act, 29 U.S.C. § 657, issue citations to any employer believed to have violated any
standard promulgated under the Act, 29 U.S.C. § 658, and impose penalties on violators, 29 U.S.C.
§ 659.

There is nothing, however, in either the language or framework of the Act that suggests
Congress intended to preempt state tort claims. In fact, the Act manifests the opposite intent by
explicitly preserving state “common law [and] statutory rights, duties, [and) liabilities of employers
and employees . . with respect to injuries, diseases, or death of employees arising out of, or in the
course of, employment,” 29 U.S.C. § 653(b)(4). Because the Occupational Health and Safety Act
specifically contemplates that it will be supplemented by state tort law, plaintiff's retaliatory
discharge claim is not barred by the doctrine of field preemption.

It is also not barred by conflict preemption. Permitting employees like plaintiff to pursue
state retaliatory discharge claims would not frustrate the Act’s goal of protecting worker health and
enhancing workplace safety. Such claims would not create new or conflicting occupational health
and safety standards or impose different or additional penalties on the employers who violate them.
Because plaintiffs common law claim for retaliatory discharge in no way encroaches on the federal
government’s exclusive prerogative to set standards for occupational health and safety, it is not

precluded by the doctrine of conflict preemption.



Cir. 1990) (describing employment at will as “a continuing contractual relation” in which all of the
terms but duration are specified). The same is not true for the other courts of appeal, however. The
Second, Fourth, Fifth, Eighth and Tenth Circuits have all held that at-will employment is a
contractual relationship to which section 1981 applies. See Skinner v. Maritz, 253 F.3d 337, 340-41
(8" Cir. 2001) (holding that at-will employee had contract with employer, albeit one without a
specified duration, and thus, section 1981 applied); Lauture v. International Bus. Mach. Corp., 216
F.3d 258, 260 (2d Cir. 2000) (“We join the emerging consensus of the district courts in this circuit,
and the other circuit courts of appeal that have squarely decided this issue, to hold that an at-will
employee may sue under § 1981 for racially discriminatory termination.”); Perry v. Woodward, 199
F.3d 1126, 1134 (10" Cir. 1999) (“The great weight of well-reasoned authority supports this court’s
conclusion that the employment-at-will relationship encompasses sufficient contractual rights to
support section 1981 claims for wrongful termination.”), cert. denied, 529 U.S. 1110 (2000); Spriggs
y. Diamond Auto Glass, 165 F.3d 1015, 1018-19 (4"" Cir. 1999) (“Having concluded that an at-will
employment relationship is contractual, we hold that such relationships may therefore serve as
predicate contracts for § 1981 claims.”); Fadeyi v. Planned Parenthood Ass’n of Lubbock, Inc., 160
F.3d 1048, 1049-50 (5" Cir. 1998) (“We conclude that the better view is that, irrespective of being
subject to at-will termination, [an at-will] employee stands in a contractual relationship with his
employer and thus may maintain a cause of action under § 1981.”); cf. Staples v. Pepsi-Cola Gen.

Bottlers, Inc., 312 F.3d 294, 298 n.3 (7" Cir. 2002) (noting that the issue remains undecided in this

circuit but suggesting that the court might concur with its sister circuits if the issue were squarely
presented to it). Given the clear trend of authority, and the Seventh Circuit’s apparent willingness

to reconsider its dicta in Gonzalez, the Court holds that plaintiff can maintain a section 1981 claim,


with whom plaintiff argued received more favorable treatment).) In short, there is no basis for
dismissing plaintiff's Title VII race discrimination claim.

Defendant also argues that plaintiff’s federal common law claim for retaliatory discharge
must be dismissed. This time the Court agrees, Plaintiff has not cited, and we could not find, a
single case that recognizes the cause of action plaintiff asserts. Because there is no legal basis for
that claim, it is dismissed.

Plaintiff fares better with his state law claim for retaliatory discharge.” To plead sucha claim
under Illinois law, plaintiff must allege that he was “(1) discharged; (2) in retaliation for [his]
activities; and (3) that the discharge violates a clear mandate of public policy.” Zimmerman v.
Bucheit of Sparta, Inc., 645 N.E.2d 877, 880 (Ill. 1994). Defendant argues that the third element is
absent in this case.

The Court disagrees. The Illinois Supreme Court has said that the State’s public policy

interests are defined by its constitution, statutes and judicial decisions. Palmateer v. International

Harvester Co., 421 N.E.2d 876, 878 (Ill. 1981). In Fragassi v. Neiburger, 646 N.E.2d 315 (ill. App

Ct. 1995), the Illinois Appellate Court upheld a retaliatory discharge claim, filed by a plaintiff who
said she was fired for making complaints to OSHA, against a claim of preemption. Id. at 318. In
the course of the opinion, the court characterized the State’s interest in protecting the jobs of workers

who expose workplace hazards as a “strongly rooted public policy,” and concluded that the claim

“Because plaintiff's state and federal claims arise from the same adverse employment action,
it is appropriate for the Court to exercise supplemental jurisdiction over it. See United Mine
Workers of Am. v. Gibb, 383 U.S. 715, 725 (1966) (stating that supplemental jurisdiction may be
exercised whenever “[t]he state and federal claims . . . derive from a common nucleus of operative
fact.”); 28 U.S.C. § 1367(a) (authorizing district courts to exercise supplemental jurisdiction over
state claims “that are so related to claims in the action within [the court’s] original jurisdiction that
they form part of the same case or controversy under Article II of the United States Constitution.”).

-5-


Conclusion
For the reasons set forth above, defendant’s Rule 12(b)(6) motion to dismiss is granted as to
plaintiffs federal common law claim for retaliatory discharge, which is dismissed with prejudice.

In all other respects the motion is denied.

UNITED STATES DISTRICT JUDGE

ENTER:

DATED: _3- 7-03


w. Minute Order Eorm (06/97)

United States District Court, Northern District of Mlinois

Name of Assigned Judge Paul E. Plunkett Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 7454 DATE 3/7/2003
CASE Charles T. Spielman vs. Fisher Printing, Inc.
TITLE

{in the following box (a) indicate the party filing the motion, e.,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.)

(1)

MOTION:

DOCKET ENTRY:

q@ ao Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due.

(4) oO Ruling/Hearingon___setfor___—_at

(5) o Status hearing[held/continued to] [set for/re-set for]on____—s set for att

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__—_—setfor_—s——sat__—s

(o) Oo Trial[set for/re-set for]on___—_att

(8) Oo [Bench/Jury trial] [Hearing] held/continued to__at

(9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CO Local Rule 41.1 O)FRCP41(a)(1) OO FRCP41(a)(2).

qo) [Other docket entry] | ENTER MEMORANDUM OPINION AND ORDER: Defendant’s Rule

12(b)(6) motion to dismiss is granted as to plaintiff's federal common law claim for retaliatory discharge,

which is dismissed with prejudice. In all other respects the motion is denied.

| [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

number of notices

Notices mailed by judge’s staff.

Notified counsel by telephone.
Docketing to mail notices,

Mail AO 450 form.

secre ins

Copy to judge/magistrate judge.

courtroom 80 OY L- wey tne rated notes
TBK deputy's
initials OT g3 a
Datdhimerecldval in
central Clerk’s Office mailing deputy initials:

ii am



was not preempted because “a State remedy supplementing that available under the Federal statute
effectuates the State’s strong pubic policy while doing no violence to the Federal statute.” Id,
Because Fragassi demonstrates that firing an employee for making a complaint to OSHA violates
Illinois public policy, plaintiff has adequately pled the last element of his retaliatory discharge claim.

Moreover, that claim is not, as defendant contends, preempted by federal law. Federal law
may preempt state law expressly, or impliedly through the doctrines of field and conflict preemption.
Boomer v. AT&T Corp., 309 F.3d 404, 417 (7th Cir. 2002). The Act does not contain a express
preemption provision. Thus, we must determine whether it nonetheless evinces congressional intent
to preempt state tort claims for retaliatory discharge.’

“The question whether a certain state action is pre-empted by federal law is one of
congressional intent.” Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 95, 96 (1992) (internal
quotation marks and citation omitted). To divine that intent, “we examine the explicit statutory
language and the structure and purpose of the statute.” Id. (internal quotation marks and citation
omitted). The stated purpose of the Occupational Health and Safety Act is “to assure as far as
possible every working man and woman in the Nation safe and healthful working conditions.” 29

U.S.C. § 651(b). To accomplish that goal, the Act authorizes “the Secretary of Labor to set

*The Supreme Court has held that the Act impliedly preempts “any state law or regulation
that establishes an occupational health and safety standard on an issue for which OSHA has already
promulgated a standard, unless the State has obtained the Secretary’s approval for its own plan.”
Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 97 (1992). A tort claim for retaliatory
discharge is not, however, an occupational health and safety standard within the meaning of the Act.
See id. at 107 (“[A] state law requirement that directly, substantially, and specifically regulates
occupational safety and health is an occupational safety and health standard within the meaning of
the Act.”); 29 U.S.C. § 652(8) (“The term ‘occupational safety and health standard’ means a standard
which requires conditions, or the adoption or use of one or more practices, means, methods,
operations, or processes, reasonably necessary or appropriate to provide safe or healthful
employment and places of employment.”) Thus, defendant can take no solace in Gade.

-6-



IN THE UNITED STATES DISTRICT COURT MAR ie 2003

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
CHARLES T. SPIELMAN )
)
Plaintiff, )
)
v. ) No. 02 C 7454
) Paul E. Plunkett, Senior Judge
FISHER PRINTING, INC., >)
) MA .
) Bes dy.
Defendant. )

MEMORANDUM OPINION AND ORDER

Charles Spielman has sued Fisher Printing, Inc. for its alleged violations of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., 42 U.S.C. § 1981 (“section 1981”) and federal
and state common law. Defendant has filed a Federal Rule of Civil Procedure (“Rule”) 12(b)(6)
motion to dismiss the complaint. For the reasons set forth below, the motion is granted in part and

denied in part.

The Legal Standard

On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded factual

allegations of the complaint, drawing all reasonable inferences in plaintiffs favor. Forsethy. Village

of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). No claim will be dismissed unless “it is clear that no
relief could be granted under any set of facts that could be proved consistent with the allegations.”

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984),

-1-

2003



Facts

Plaintiff, who is white, worked for defendant as a pressman. (Compl. {ff 8-9.) In January
2001, plaintiff complained to the Occupational Health and Safety Administration (“OSHA”) about
safety in the workplace. (Id. § 12.) On February 21, 2002, during a monthly safety meeting, plaintiff
discussed safety issues that he believed existed as a result of the language barrier among defendant’s
employees. (Jd. { 13.) The same day, defendant threatened to fire plaintiff and plaintiff made a
retaliation complaint to OSHA. (Id. § 14.)

On April 1, 2002, an African-American employee instigated an argument with plaintiff. (Id.
415.) After this incident, defendant suspended and, later, fired plaintiff. (Id. 17.) The African-
American employee suffered no repercussions and was ultimately promoted, despite having a long

history of disciplinary problems, (Id. { 18.)

Discussion

Section 1981 prohibits racial discrimination in “the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship.” 42 U.S.C. § 1981(a)-(b). Plaintiff admits that he was an at-will employee
of defendant. (Pl.’s Resp. at 2.) Because plaintiff cannot allege that he and defendant had a written
employment contract, defendant says that his section 1981 claim must be dismissed.

The Seventh Circuit has yet to decide whether section 1981 extends to at-will employees.
Compare Gonzalez _v. Ingersoll Milling Mach, Co., 133 F.3d 1025, 1034-35 (7" Cir. 1998)
(expressing doubt, in dicta, that “employment at-will provides a sufficient contractual relationship

to support section 1981 claims”) with McKnight v. General Motors Corp., 908 F.2d 104, 109 (7

-2-