Arres, Janice v. IMI Cornelius Remcor ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3374
JANICE ARRES,
Plaintiff-Appellant,
v.
IMI CORNELIUS REMCOR, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 00 C 6542—Blanche M. Manning, Judge.
____________
ARGUED FEBRUARY 11, 2003—DECIDED JUNE 25, 2003
____________
Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit
Judges.
EASTERBROOK, Circuit Judge. IMI Cornelius Remcor,
Inc., a manufacturer of soft drink dispensing machines,
hired Janice Arres as a human resources administrator
in 1996 and fired her three years later. Arres brought
suit under Title VII of the Civil Rights Act of 1964, alleg-
ing that Remcor acted because of her race and national
origin. She also contended that Remcor violated Illinois
law by retaliating against her for attempting to follow
immigration law. The district court granted summary
judgment to Remcor. 2002 U.S. Dist. LEXIS 15177 (N.D. Ill.
August 15, 2002). On appeal Arres has abandoned her
claims under federal law and contends only that Illinois
2 No. 02-3374
law blocks an employer from firing someone who tries to
remove from the payroll aliens not entitled to work in
the United States.
In March 1999 the Social Security Administration
informed Remcor that 10% of the W-2 forms filed by its
employees showed names or numbers that did not agree
with federal records. After cross-checking, Arres found
that the fault lay with the workers rather than with
Remcor. She believed that persons who would furnish
bogus Social Security numbers must be aliens who lack
visas that authorize work within the United States. Arres
recommended to both her immediate supervisor, Dan
Weinick, and Weinick’s supervisor, Mike Long, that
Remcor immediately fire these employees. According
to Arres, Remcor’s longstanding practice had been to
discharge persons who furnished fraudulent information.
At Long’s direction, Weinick informed Arres that he
would handle the situation. After consulting with the So-
cial Security Administration and one of Remcor’s attor-
neys, Weinick decided to send letters to the employees
asking them to correct any errors. Arres believed that
approach to be unlawful, and she refused to process the
information employees submitted in response. Arres sub-
mits that Remcor fired her because of this refusal, a
step that she says constitutes retaliatory discharge in
violation of Illinois law.
This theory required Arres to show: (1) that she had
been discharged; (2) that her discharge was in retaliation
for her activities; and (3) that her discharge violated a
clearly mandated public policy of the state of Illinois.
Hinthorn v. Roland’s of Bloomington, Inc., 119 Ill. 2d 526,
529, 519 N.E.2d 909, 911 (1988). In seeking summary
judgment, Remcor argued that the existence of a federal
anti-retaliation rule, 8 U.S.C. §1324b(a)(5), forecloses
any state remedy, and alternatively that the real cause
of Arres’ discharge was poor performance. The district
No. 02-3374 3
court, relying on the first argument, awarded summary
judgment to Remcor, concluding that:
[b]ecause §1324b(a)(5) . . . unequivocally sets forth
a remedy for individuals who have filed a charge
or complaint with the INS and then were conse-
quently retaliated against, a claim for retaliatory
discharge in Illinois is not actionable.
2002 U.S. Dist. LEXIS 15177 at *16-17 (citation omitted).
That reasoning is inconsistent with Brandon v.
Anesthesia & Pain Management Associates, Ltd., 277
F.3d 936 (7th Cir. 2002), which holds that the availability
of a federal remedy does not automatically preclude a
state retaliatory-discharge claim. What’s more, §1324b(a)(5)
does not provide a remedy for Arres in the first place.
Section 1324b(a)(5) states (emphasis added):
It is also an unfair immigration-related employ-
ment practice for a person or other entity to . . .
retaliate against any individual for the purpose
of interfering with any right or privilege secured
under this section or because the individual in-
tends to file or has filed a charge or complaint . . .
under this section.
This does not cover all activities that implicate any pro-
vision of the immigration laws; it is limited to complaints
and charges regarding discrimination based on national
origin and citizenship, the subject of §1324b. Arres does
not contend that her refusal to process the employees’
paperwork was designed to ensure the correct implemen-
tation of §1324b. Instead, she says, her acts were designed
to prevent Remcor from violating 8 U.S.C. §1324 and
§1324a, which concern employment of aliens. There is
accordingly no overlap between §1324b and the state-
law theory Arres presents.
Although Remcor is wrong to argue that Illinois never
protects employees who try to follow federal law, Arres
4 No. 02-3374
is wrong to suppose that either state or federal law gives
her any right to follow an idiosyncratic view of the law’s
demands. Remcor did exactly what the Social Security
Administration and its legal counsel suggested: before fir-
ing anyone, it tried to separate those who had made
inadvertent errors from those who are not entitled to
work in the United States. Doing this enabled Remcor to
respect the rights of aliens who have work authoriza-
tion while also following its duties under §§ 1324 and
1324a. A human resources manager is not free to impose
a different approach unilaterally; that’s nothing but
insubordination. Imagine the disruption in workplaces
everywhere if every person were legally privileged to act
(or not act) based on her own view of what the law (federal
or state) requires, and managers were helpless to do
anything in response. Neither state nor federal law
creates such an untenable system. That Arres did not
agree with counsel’s view of Remcor’s legal obligations is
not a justification for insubordination. Brandon does not
hold otherwise. Dr. Brandon reported suspicions to his
colleagues. Rather than consult with federal authorities
or counsel, they dismissed his concerns and fired him. The
employer in Brandon spurned its legal duties; Remcor
sought out and followed legal advice. It was entitled to
insist that Arres, like its other employees, follow the ad-
vice received from counsel—which is not alleged to be
erroneous, let alone so transparently wrong that even a
lay person is bound to know better. (Even with the aid
of discovery, Arres has not established that the employees
in question were aliens, let alone that any aliens among
them lacked green cards. For all this record shows, each
had made a simple error in transcribing a Social Se-
curity number.)
Arres faces another problem. Her brief states that the
Illinois public policy is found at 8 U.S.C. §1324a, which
prohibits the employment of aliens who lack proper creden-
No. 02-3374 5
tials. We observed in Brandon that “it is a clearly estab-
lished policy of Illinois to prevent its citizens from vio-
lating federal law and that the state’s public policy
encourages employees to report suspected violations of
federal law if that law advances the general welfare of
Illinois citizens.” 277 F.3d at 942. This follows from the
principle that federal law is the law of the states. The
Supremacy Clause of the federal Constitution requires
Illinois to treat federal law as part of state law. See Claflin
v. Houseman, 93 U.S. 130, 136-37 (1876). Although the
state’s Supreme Court has acknowledged that “[t]here is
no precise definition of [public policy]”, it has explained
that public policy “concerns what is right and just and
what affects the citizens of the State collectively. . . .
[The] matter must strike at the heart of a citizen’s social
rights, duties, and responsibilities before the tort will
be allowed.” Palmateer v. International Harvester Co., 85 Ill.
2d 124, 130, 421 N.E.2d 876, 878-79 (1981). Discharg-
ing persons who endeavor to implement federal law thus
usually violates Illinois law. See Brandon, 277 F.3d at 942-
43; Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502,
511, 485 N.E.2d 372, 377 (1985).
Usually differs from always, however; some rules of
federal law must be implemented only as the national
government determines. Labor law is one such subject;
states may not adopt rules that require, or prohibit, things
arguably prohibited or arguably required by federal labor
law. See San Diego Building Trades Council v. Garmon,
359 U.S. 236 (1959). Immigration law is another domain
of this kind. “[T]he supremacy of the national power in the
general field of foreign affairs, including power over
immigration, naturalization and deportation, is made
clear by the Constitution”. Hines v. Davidowitz, 312 U.S. 52,
62 (1941). “[T]he states are granted no such powers; they
can neither add to nor take from the conditions lawfully
imposed by Congress upon admission, naturalization and
6 No. 02-3374
residence of aliens in the United States or the several
states.” Takahashi v. Fish & Game Commission, 334 U.S.
410, 419 (1948). See also Toll v. Moreno, 458 U.S. 1 (1982);
Plyler v. Doe, 457 U.S. 202 (1982). Federal immigration
power is not just superior to that of the states; it is exclu-
sive of any state power over the subject. Illinois is not
entitled to have a policy on the question what precautions
should be taken to evaluate the credentials of aliens who
may, or may not, hold visas authorizing them to work.
Whether persons in Arres’ position are entitled to imple-
ment private understandings of federal immigration policy,
free from any risk to their status within the firm, is a
question of federal law alone. Congress provided an anti-
retaliation provision in §1324b and omitted one from
§1324a. Illinois is not free to obliterate this difference
through state law—and we have no reason to suppose that
the Supreme Court of Illinois would try. That leaves Arres
without a legal footing for her claim of retaliatory discharge
and makes it unnecessary for us to explore the question
whether Arres has established causation.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-25-03