Nance v. Comcast Business Communications, Inc.

Filing 29

MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 5/8/2018.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EDWARD NANCE,
Plaintiff,
vs.
COMCAST BUSINESS COMMUNICATIONS, INC.,
Defendant.

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17 C 8094
Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER
Edward Nance brought this suit in state court against his former employer, Comcast
Business Communications, Inc., alleging common law retaliatory discharge. Doc. 1-1 at pp. 5255. Comcast removed the suit under the diversity jurisdiction, Doc. 1, and now moves under
Federal Rule of Civil Procedure 12(b)(6) to dismiss for failure to state a claim, Doc. 11. The
motion is granted.
Background
In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative
complaint’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N.
Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider
“documents attached to the complaint, documents that are critical to the complaint and referred
to in it, and information that is subject to proper judicial notice,” along with additional facts set
forth in Nance’s brief opposing dismissal, so long as those additional facts “are consistent with
the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013). The
facts are set forth as favorably to Nance as those materials allow. See Pierce v. Zoetis, Inc., 818
F.3d 274, 277 (7th Cir. 2016). In setting forth those facts at the pleading stage, the court does

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not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d
382, 384 (7th Cir. 2010).
Nance began working for Comcast in July 2004. Doc. 1-1 at p. 52, ¶ 3. On May 24,
2015, he injured his shoulder while off duty. Id. at ¶ 4. Nance continued working for a week,
but was unable to perform his duties due to the injury and decided to go on short-term disability
leave. Id. at ¶ 5. He returned to work on March 14, 2016, but the injury still hampered his work.
Id. at ¶ 6.
On July 1, 2016, Nance had rotator cuff surgery. Ibid. He was unable to work while
recuperating over the next six months. Id. at p. 53, ¶ 7. During that time, Nance repeatedly
attempted to collect from Comcast disability payments to which he was contractually entitled.
Id. at ¶ 8. On December 30, 2016, he submitted doctor’s reports to Comcast indicating that he
needed to remain off work but would be re-evaluated after an MRI. Id. at ¶ 9. While Nance was
awaiting the MRI, Comcast fired him on January 9, 2017. Id. at ¶ 10.
Discussion
Nance’s common law retaliatory discharge claim alleges that he was wrongfully
discharged in violation of two Illinois public policies: (1) a policy against retaliating against
employees who assert disability benefits to which they are contractually entitled; and (2) a policy
against discharging employees who are under doctor’s orders not to work. Id. at pp. 53-54.
Comcast argues that neither purported policy can ground a retaliatory discharge claim under
Illinois law. Doc. 11-1 at 5-7.
Nance’s opposition brief does not defend his second retaliatory discharge theory, Doc.
20, thereby abandoning and forfeiting that theory. See G & S Holdings LLC v. Cont’l Cas. Co.,
697 F.3d 534, 538 (7th Cir. 2012) (“We have repeatedly held that a party waives an argument by

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failing to make it before the district court. That is true whether it is an affirmative argument in
support of a motion to dismiss or an argument establishing that dismissal is inappropriate.”)
(citations omitted); Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (“Our system of
justice is adversarial, and our judges are busy people. If they are given plausible reasons for
dismissing a complaint, they are not going to do the plaintiff’s research and try to discover
whether there might be something to say against the defendants’ reasoning.”) (internal quotation
marks omitted). That leaves Nance’s first theory, which rests on the policy against retaliating
against employees who assert their contractually-mandated disability benefits.
Illinois is an at-will employment state, meaning that “an employer may discharge an
employee-at-will for any reason or for no reason.” Turner v. Mem’l Med. Ctr., 911 N.E.2d 369,
374 (Ill. 2009) (internal quotation marks omitted); see also Brandon v. Anesthesia & Pain Mgmt.
Assocs., Ltd., 277 F.3d 936, 940 (7th Cir. 2002). The Supreme Court of Illinois, however, “has
recognized the limited and narrow tort of retaliatory discharge as an exception to the general rule
of at-will employment.” Jacobson v. Knepper & Moga, P.C., 706 N.E.2d 491, 492 (Ill. 1998).
“To state a valid retaliatory discharge cause of action, an employee must allege that (1) the
employer discharged the employee, (2) in retaliation for the employee’s activities, and (3) that
the discharge violates a clear mandate of public policy.” Turner, 911 N.E.2d at 374; see also
Darchak v. City of Chi. Bd. of Educ., 580 F.3d 622, 628 (7th Cir. 2009); Blount v. Stroud, 904
N.E.2d 1, 9 (Ill. 2009); Palmateer v. Int’l Harvester Co., 421 N.E.2d 876, 877-78 (Ill. 1981).
The public policy invoked by the employee must “strike at the heart of a citizen’s social rights,
duties, and responsibilities.” Turner, 911 N.E.2d at 374 (internal quotation marks omitted).
As the Supreme Court of Illinois recently recognized, “a review of Illinois case law
reveals that retaliatory discharge actions have been allowed in two settings: where an employee

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is discharged for filing, or in anticipation of filing, a claim under the Workers’ Compensation
Act; or where an employee is discharged in retaliation for the reporting of illegal or improper
conduct, otherwise known as ‘whistleblowing.’” Michael v. Precision Alliance Grp., LLC, 21
N.E.3d 1183, 1188 (Ill. 2014) (citation omitted); see also Bourbon v. Kmart Corp., 223 F.3d 469,
472 (7th Cir. 2000) (“Illinois law allows claims for retaliatory discharge when an employee is
terminated for filing a workers’ compensation claim or because the employee has reported the
employer’s criminal conduct, either to law enforcement personnel or to the company itself.”).
“The Illinois Supreme Court has defined ‘public policy’ only within these limited bounds and
thus has consistently sought to restrict the common law tort of retaliatory discharge.” Darchak,
580 F.3d at 629.
Accepting Nance’s invitation to recognize a third setting for the retaliatory discharge tort
would broaden liability under that tort without the imprimatur of the Illinois courts. That is
significant, as the Seventh Circuit has repeatedly cautioned that when “faced with two opposing
and equally plausible interpretations of state law,” a federal court should generally “choose the
narrower interpretation which restricts liability, rather than the more expansive interpretation
which creates substantially more liability.” Home Yalu, Inc. v. Pep Boys-Manny, Moe & Jack of
Del., Inc., 213 F.3d 960, 963 (7th Cir. 2000) (internal quotation marks omitted); see also
Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 636 (7th Cir. 2007); S. Ill. Riverboat Casino
Cruises, Inc. v. Triangle Insulation & Sheet Metal Co., 302 F.3d 667, 676 (7th Cir. 2002). This
principle governs even where, as here, the defendant removes to federal court a case initially
filed in state court. See Pisciotta, 499 F.3d at 636 n.5 (“We have applied this restrictive
approach to a plaintiff's novel theory of liability under state law even where the plaintiff had no
choice but to litigate his claim in federal court.”); Insolia v. Philip Morris Inc., 216 F.3d 596,

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607 (7th Cir. 2000) (holding that, although “[t]he plaintiffs are in a predicament because state
law in this area is stunted by the ability of [the defendants] to remove cases under diversity
jurisdiction[,] … that does not justify the federal courts imposing a new tort claim on
Wisconsin”). Accordingly, Nance may proceed only if he can overcome the strong presumption
erected by Seventh Circuit precedent against recognizing the heretofore unrecognized theory
underlying his retaliatory discharge claim. He has failed to overcome that presumption; in fact,
his claim would fail even absent the presumption.
To properly plead a retaliatory discharge claim, a plaintiff must articulate the relevant
public policy with specificity. The Supreme Court of Illinois repeatedly emphasized this point in
Turner, holding that “[a] broad, general statement of policy is inadequate to justify finding an
exception to the general rule of at-will employment”; that “[a]ny effort to evaluate the public
policy exception with generalized concepts of fairness and justice” is insufficient; that “unless an
employee at will identifies a specific expression of public policy, the employee may be
discharged with or without cause”; and that “[a]n employer should not be exposed to liability
where a public policy standard is too general to provide any specific guidance or is so vague that
it is subject to different interpretations.” 911 N.E.2d at 375-76 (internal quotation marks
omitted). “[T]he mere citation of a constitutional or statutory provision in a complaint will not,
by itself, be sufficient to state a cause of action for retaliatory discharge. Rather, an employee
must show that the discharge violated the public policy that the cited provision clearly
mandates.” Id. at 377.
Nance identifies three sources for a public policy against discharging workers for
asserting their contractual rights to disability payments. None suffices under Turner. First, he
points to the Health Insurance Claim Filing Act, which provides that “[n]o employer … shall

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discharge an employee where the basis for such discharge is retaliation for the filing of a
legitimate claim or the actual use or receipt of medical or health services by an employee under
[an employer-provided] insurance policy.” 820 ILCS 45/2. Second, he cites Kelsay v. Motorola,
Inc., 384 N.E.2d 353 (Ill. 1978), which recognized the retaliatory discharge tort under
circumstances where an employee is terminated for filing a workers’ compensation claim. Id. at
357. As Nance recognizes, however, a disability benefits claim is not a health insurance claim or
a workers’ compensation claim, so neither the Health Insurance Claim Filing Act nor Kelsay
applies. Nance retorts that the policy behind the Health Insurance Claim Filing Act and Kelsay
“is naturally extended to disability benefits,” Doc. 20 at 4, but that extension is forbidden by
Turner, which requires a plaintiff to “show that the discharge violated the public policy that the
cited provision [or case] clearly mandates.” 911 N.E.2d at 377 (emphasis added); see also
Teschky v. Buschman Residential Mgmt. LLC, 2012 WL 6970847, at *12 (Ill. App. July 25,
2012) (rejecting a retaliatory discharge claim where the defendant’s conduct was not covered by
the statutory prohibition cited by the plaintiff).
Third, Nance cites the declaration-of-policy provision of the Illinois Unemployment
Insurance Act, which states that “[e]conomic insecurity due to involuntary unemployment has
become a serious menace” and that “[i]nvoluntary unemployment is … a subject of general
interest and concern.” 820 ILCS 405/100. That is the very sort of vague, general statement of
policy that Turner held cannot support a retaliatory discharge claim. See 911 N.E.2d at 375-76
(citing cases holding that the “right to marry,” “product safety,” “promoting quality health care,”
and “the Hippocratic Oath” were “insufficient allegations of public policy” for purposes of the
retaliatory discharge tort). Taken to its logical conclusion, that provision would lend support to

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any retaliatory discharge claim; it does nothing to explain why Illinois should extend the tort to
employees who are fired for seeking disability benefits.
Whether or not the presumption against expanding Illinois tort liability applies, Nance
has not come close to establishing that the retaliatory discharge tort covers employees seeking
contractual disability benefits. His retaliatory discharge claim accordingly fails as a matter of
law. Because that defect cannot be cured by repleading, the dismissal is with prejudice. See
Tribble v. Evangelides, 670 F.3d 753, 761 (7th Cir. 2012) (“District courts have broad discretion
to deny leave to amend … where the amendment would be futile.”). In any event, Nance’s
opposition brief does not request a chance to replead in the event his complaint is dismissed. See
Haywood v. Massage Envy Franchising, LLC, 887 F.3d 329, 335 (7th Cir. 2018) (“Nothing … in
any of our cases suggests that a district court must give leave to amend a complaint where a party
does not request it … . To the contrary, we have held that courts are within their discretion to
dismiss with prejudice where a party does not make such a request … .”).
Conclusion
Comcast’s motion to dismiss is granted. This suit is dismissed with prejudice, and
judgment will be entered in favor of Comcast and against Nance.

May 8, 2018
United States District Judge

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