Carter, Kevin C. v. Tennant Company ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2791
KEVIN C. CARTER,
Plaintiff-Appellant,
v.
TENNANT COMPANY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 1925—Harry D. Leinenweber, Judge.
____________
ARGUED JANUARY 6, 2004—DECIDED SEPTEMBER 13, 2004
____________
Before EASTERBROOK, DIANE P. WOOD, and WILLIAMS,
Circuit Judges.
DIANE P. WOOD, Circuit Judge. As Kevin Carter discov-
ered in this case, it rarely pays to lie. In applying for a
position with Tennant Company, Carter completed a “Health
History Questionnaire” that inquired about his prior work-
related injuries and medical care. Carter failed to report a
back injury from an earlier job, an omission that Tennant
discovered when Carter filed for workers’ compensation
benefits after “re-aggravating” the injury while working for
Tennant. Shortly thereafter, Tennant dismissed Carter.
2 No. 03-2791
Carter sued, alleging both that Tennant had discharged
him in retaliation for making his workers’ compensation
claims and that Tennant’s health history questionnaire
violated Illinois’s Right to Privacy in the Workplace Act
(Privacy Act), 820 ILCS 55/1 et seq. The district court
granted summary judgment for Tennant with respect to
both of Carter’s claims. We affirm.
I
From August 1998 until April 1999, Carter served as a
part-time custodian for Gurnee School District 56. On
November 30, 1998, Carter injured his back while at work
and filed a workers’ compensation claim. Carter’s workers’
compensation benefits paid for frequent chiropractic treat-
ments for his injury. In April 1999, Carter resigned from his
position with Gurnee to accept a full-time position with
Tennant. As part of the application process for the Tennant
position, Carter was required to complete and sign a health
history questionnaire. The questionnaire first asked Carter
to identify and explain any health conditions that he had
suffered. Carter answered: “Back/neck trouble—slight mis-
alignment of vertebrae; corrected by chiropractic adjustment.”
Carter then answered in the affirmative the following three
questions: “Have you ever had any occupational injuries, ac-
cidents or illnesses?”; “Did you lose time from work for a
work-related injury or illness? List injuries/illnesses, date
occurred and company worked for at the time . . . .”; and
“Did you see a medical doctor for any work-related in-
jury/illness?” In answering the second question, Carter
wrote only: “Hair caught on motor shaft, resulting in swell-
ing of scalp and face.” In response to the third question, he
answered, “Saw doctor for above incident.” At the conclu-
sion of the questionnaire, Carter signed below the following
statement: “I hereby certify that I have answered the above
No. 03-2791 3
questions to the best of my knowledge and that the answers
are complete and true. Any misrepresentation or omission
may be justification for refusal of employment, or if em-
ployed, termination of employment.” As Carter acknow-
ledges on appeal, he “did not tell Tennant about his Gurnee
injury or on-going medical care and benefits when he
completed the questionnaire.”
Tennant hired Carter on April 26, 1999. Carter continued
to receive workers’ compensation benefits for his Gurnee in-
jury until September 15, 1999, when he failed to attend a
mandatory medical examination. Two weeks later, on
September 28, 1999, Carter informed his Tennant supervisor
that he had injured his back while working at a customer
site. He immediately sought treatment from his regular
chiropractor, Dr. Jeffrey Watkin. The next day, Dr. Watkin
submitted a Workers’ Compensation Attending Physician’s
Supplement Report to Tennant, in which he described the
injury as lower back pain “reaggravated at work” and listed
the date of the injury as November 30, 1998, the date on
which Carter injured his back while at Gurnee. On Novem-
ber 9, 1999, Tennant’s workers’ compensation carrier
informed the company that it was denying Carter’s workers’
compensation claim because he had filed a prior claim with
Gurnee for his back injury and was receiving treatment for
this injury. Carter continued to work for Tennant following
his injury and the denial of his workers’ compensation claim,
during which time he received positive evaluations, as well as
a retroactive merit salary increase.
Some time after November 10, 1999, Tennant’s Disability
Council met to consider Carter’s case. According to Tennant,
“[t]he purposes of the Disability Council were to analyze the
types of workplace injuries which occurred, in an effort to
reduce the occurrence of workplace injuries by developing
training; to develop back-to-work plans for injured em-
ployees; to assist employees in resuming their regular duties;
4 No. 03-2791
and to formulate specific action plans for individual em-
ployees.” The testimony of the Tennant employees who sat
on the Disability Council is inconsistent as to whether the
Council had final authority to terminate an employee, but
there seems to be some consensus that the Council made
the decision to discharge Carter. On November 30, Carter’s
supervisors informed him that he was being terminated
effective December 1, 1999.
On January 29, 2001, Carter filed a complaint with the
Illinois Department of Labor alleging that Tennant’s health
history questionnaire violated Section 10 of the Privacy Act.
After a hearing, the Administrative Law Judge issued a
notice stating: “Please take notice that the Department of
Labor has concluded its administration and enforcement of
the [Privacy] Act in the above captioned case. The Depart-
ment will take no further action in this matter. Therefore,
pursuant to 820 ILCS 55/15(c), the Complainant has leave
to pursue other civil remedies.” On February 7, 2002,
Carter filed this action in the Circuit Court of Cook County.
Carter first raised a retaliatory discharge claim, alleging
that Tennant “terminated Plaintiff as a direct consequence
of learning of his exercise of his rights as guaranteed under
the Illinois Workers’ Compensation Act before he became an
employee.” In addition, he charged that Tennant had violated
the Privacy Act by “wilfully and knowingly terminat[ing]
Plaintiff’s employment based upon its allegations that
Plaintiff’s failure to provide it with answers to prohibited
inquiries constituted falsification of his Health History.”
Tennant removed the case to the Northern District of Illinois
based on federal diversity jurisdiction. On June 16, 2003,
the district court granted summary judgment for Tennant
on both counts of Carter’s complaint. This appeal followed.
No. 03-2791 5
II
A
We first consider Carter’s claim that Tennant illegally
discharged him in retaliation for his filing a workers’ com-
pensation claim for his back injury. The district court granted
Tennant’s motion for summary judgment on this claim, a
decision that we review de novo. McDonald v. Vill. of
Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004). Under Illinois
law, “[a] valid claim for retaliatory discharge requires a
showing that (1) an employee has been discharged; (2) in
retaliation for the employee’s activities; and (3) that the dis-
charge violates a clear mandate of public policy.” Bourbon v.
Kmart Corp., 223 F.3d 469, 472 (7th Cir. 2000) (citing
Hartlein v. Ill. Power Co., 601 N.E.2d 720, 728 (Ill. 1992)).
“In the workers’ compensation context, a plaintiff must show
(1) that he was the defendant’s employee before his injury;
(2) that he exercised a right granted by the Workers’
Compensation Act; (3) and that he was discharged from his
employment with a causal connection to his filing a work-
ers’ compensation claim.” Hiatt v. Rockwell Int’l Corp., 26
F.3d 761, 767 (7th Cir. 1994) (citing Kritzen v. Flender Corp.,
589 N.E.2d 909, 915 (Ill. App. Ct. 1992)). “The element of
causation is not met if the employer has a valid basis, which
is not pretextual, for discharging the employee.” Hartlein,
601 N.E.2d at 728. An employee’s discharge for filing a
workers’ compensation claim against her current employer
or her prior employer “is equally offensive to the public
policy of this State as stated in the Workers’ Compensation
Act.” Darnell v. Impact Indus., Inc., 473 N.E.2d 935, 937
(Ill. 1984).
There is some uncertainty, however, with respect to the
applicability of this framework when a retaliatory discharge
case “wander[s] into federal court by virtue of . . . diversity
jurisdiction.” Bourbon, 223 F.3d at 474 (Posner, J., concur-
ring); see McEwen v. Delta Air Lines, Inc., 919 F.2d 58, 59-
6 No. 03-2791
60 (7th Cir. 1990). The alternative would be the burden-
shifting method presented in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). The latter is appropriate if it
merely establishes procedures for federal courts to use in
adjudicating cases; the state-law approach is required if it
is substantive.
This is of potential importance because “the Supreme
Court of Illinois expressly rejected the application of
McDonnell Douglas to Illinois retaliatory-discharge cases in
Clemons v. Mech. Devices Co., 704 N.E.2d 403, 407-08 (Ill.
1998).” Bourbon, 223 F.3d at 474 (Posner, J., concurring). The
Illinois court was concerned that use of the McDonnell
Douglas framework “would, in essence, expand the tort of
retaliatory discharge by reducing plaintiff’s burden of prov-
ing the elements of the tort.” Clemons, 704 N.E.2d at 408.
Application of McDonnell Douglas, it thought, would relieve
plaintiffs of their burden to prove as an element of their
prima facie case under Illinois law a causal link between
their workers’ compensation claims and their discharge. Id.
Despite the substantive tone of the Illinois court’s com-
ments, this court has previously stated that “Illinois re-
taliatory discharge cases brought in federal court may be
analyzed using the burden-shifting method presented in
McDonnell Douglas,” rather than the approach outlined by
the Illinois courts. Id. at 473 (citing Hiatt, 26 F.3d at 767).
The Supreme Court has repeatedly emphasized that the
plaintiff bears the ultimate burden of persuasion throughout
the burden-shifting process. See, e.g., Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Texas
Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
As we noted in McEwen, supra, this implies that McDonnell
Douglas merely structures a procedure. And that procedure
is by now very well-known. “To establish a prima facie case
using this method, [the plaintiff] must show that he was in
a protected class, that he was performing his job satisfacto-
rily, that he was nevertheless the subject of a materially
No. 03-2791 7
adverse employment action, and that others outside the class
were treated more favorably.” Id. If a plaintiff makes out a
prima facie case, the employer “must then articulate a
legitimate, non-discriminatory reason for his termination. The
burden then shifts back to [the plaintiff] to show that [the em-
ployer’s] proffered reason is nothing more than a pretext for
unlawful discrimination.” Id.
Although “[s]omeday we’ll have to decide what the prima
facie case of retaliation is in the Seventh Circuit,” Bourbon,
223 F.3d at 476 (Posner, J., concurring), this is not the
moment of truth. First, as in Bourbon, the question whether
the Illinois standard or the McDonnell Douglas standard
should control was “ignored by the parties, hence waived”
on appeal. Id. at 473. Second, under either standard, Carter
loses if Tennant can provide a valid, non-pretextual reason
for its decision to terminate Carter. We agree with the
district court that Tennant has provided such a reason.
Tennant has consistently argued that it discharged Carter
not because he filed a workers’ compensation claim, but be-
cause he falsified his answers on the health questionnaire
when he failed to report his Gurnee back injury despite
being asked whether he had suffered any occupational in-
juries. Tennant’s decision to terminate Carter on this basis
is consistent with the questionnaire’s warning that “[a]ny
misrepresentation or omission may be justification for refusal
of employment, or if employed, termination of employment,”
as well as Tennant’s employee manual, which cautions that
“[p]roviding false or misleading information in personnel
records, time cards, information about injuries, or other com-
pany records or documents” may lead to “suspension and
disciplinary action, up to and/or including termination.”
While Carter concedes that he failed to report his Gurnee
injury on the questionnaire, he nonetheless argues that his
discharge was impermissible because Tennant’s proffered
explanation for his termination was pretextual. He has
three arguments in support of this position. First, he
8 No. 03-2791
suggests that the timing of Tennant’s discovery of Carter’s
workers’ compensation claims and its decision to fire him
shows that his discharge was retaliatory. Carter points to
three relevant dates: on or about September 29, 1999, he
filed his Tennant workers’ compensation claim; on Novem-
ber 9, 1999, Tennant learned of his back injury and his
Gurnee workers’ compensation claim for the first time; and
sometime between November 10 and November 30, 1999, the
Disability Council decided to terminate him. Carter has
waived this argument, however, because he presented it for
the first time in his reply brief. See APS Sports Collectibles,
Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th Cir. 2002).
Moreover, nothing in this sequence of events helps us to
distinguish between a discharge for filing workers’ compensa-
tion claims and a discharge for a dishonest omission on the
questionnaire.
Next, Carter argues that the deposition of Ryan Rebman,
Chair of Tennant’s Disability Council, provides direct evi-
dence that Carter was terminated because of his workers’
compensation claims. When asked why Tennant discharged
Carter, Rebman stated: “[M]y understanding is his termina-
tion is because of filing a work comp claim.” Rebman then
went on to explain: “In my judgment, he didn’t talk about
his . . . being treated for work comp injury while employed
at Tennant Company.” Rebman’s comments are subject to
several interpretations, given that Tennant learned of Carter’s
preexisting back injury and his Gurnee workers’ compensa-
tion claim at the same time. It is therefore just as likely
that Rebman meant that Tennant terminated Carter
because he failed to report his prior injury, rather than his
prior workers’ compensation claim. Thus, Rebman’s state-
ment does not establish that Tennant’s explanation for its
decision to discharge Carter was pretextual. Finally, Carter
argues that Tennant admitted that it terminated him be-
cause of his workers’ compensation claims when it stated in
a filing to the district court: “Rebman’s testimony, whether
No. 03-2791 9
corrected or not, refers only to Carter’s claim against
Gurnee.” But this is disingenuous; the very next sentence
in that filing says, “Thus, Rebman’s testimony . . . suggests
only that Rebman believed Carter’s termination resulted in
part from issues arising from his undisclosed, pre-Tennant
injury.” Read together, these statements support Tennant’s
proffered explanation for its decision to fire Carter.
Carter next argues that, even if Tennant’s explanation is
non-pretextual, Tennant should not be allowed to avoid
liability on his retaliatory discharge claim because its
questionnaire illegally required him to disclose whether he
had received workers’ compensation. But the Illinois Supreme
Court’s decision in Darnell shows that the two laws (the
Privacy Act and the workers’ compensation law) do not
work together in that way. In Darnell, the court had to
decide whether Impact Industries impermissibly terminated
Darnell for lying on her employment application. The
application required Darnell to state whether she “had a
serious illness or injury in the past 5 years” and whether
she had “ever received compensation for injuries.” 473
N.E.2d at 936. She answered both questions in the nega-
tive. Id. After Impact Industries learned that she had filed
a workers’ compensation claim for injuries sustained at her
previous job, it terminated her, and she filed a retaliatory
discharge claim. Id. The majority held that the circuit court
erred in directing a verdict for Impact Industries because
there was some evidence suggesting that it had fired her
because she had received workers’ compensation. Id. at 937.
In his concurrence, which joined the opinion and concurred in
the result, and thereby provided the deciding vote in favor
of the majority position, Justice Simon emphasized that the
“opinion does not suggest, however, much less hold, that the
defendant could not have discharged the plaintiff for
dishonesty if it demonstrated, as it contends was the case,
that she had lied on her application.” Id. at 937-38 (Simon,
J. concurring). Following this reasoning, we hold that
10 No. 03-2791
Carter cannot prevail on his retaliatory discharge claim
simply because he was required to answer questions that
may be invalid under Illinois law. Carter did not decline to
answer Tennant’s questions, as he might have done if he
had thought they were impermissible. He answered them
dishonestly, and this provides a valid, non-pretextual
reason for Tennant’s decision to discharge him. We there-
fore affirm the district court’s grant of summary judgment
to Tennant on Carter’s retaliatory discharge claim.
B
We now turn to Carter’s Privacy Act claim. Initially, we
address our jurisdiction over this claim. As we noted earlier,
Carter began this litigation in state court, and Tennant
removed it to federal court in reliance on the diversity
jurisdiction. See 28 U.S.C. § 1332. The two parties are
citizens of different states: Carter is an Illinois citizen and
Tennant is incorporated in Minnesota and has its principal
place of business there. The amount in controversy was also
satisfied at the outset of the suit, taking both of Carter’s
claims against Tennant into account. See FED. R. CIV. P.
18(a). For his retaliatory discharge claim, he sought
compensatory damages for the loss of his job and associated
pain, suffering, and emotional distress, and punitive
damages of at least $100,000; for his Privacy Act claim, he
asked for unspecified actual damages including pain, suffer-
ing, and emotional distress, $200 because the violation of
the Act was wilful and knowing, and further relief in the
court’s discretion. Although the $75,000 jurisdictional amount
was easily met by aggregating both claims, as the law per-
mits, see Snyder v. Harris, 394 U.S. 332, 335 (1969), once
the retaliatory discharge claim disappeared a claim argu-
ably worth less than $75,000 was all that remained.
There is a conflict in the circuits on the way to handle this
situation. The Second Circuit takes the position that the
No. 03-2791 11
propriety of diversity jurisdiction must be assessed at the
outset of the case, and that later changes—even in some-
thing like the amount in controversy—do not operate to
strip the court of jurisdiction. See Wolde-Meskel v. Voca-
tional Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 62
(2d Cir. 1999). The Fourth Circuit, in contrast, takes the
position that if dismissal of some claims has the effect of
bringing the aggregate amount in controversy below the
required level, then the court has only supplemental
jurisdiction over the remaining claim(s) and it must
exercise its discretion as directed by 28 U.S.C. § 1367(c) in
deciding whether to retain the remaining claims or to
dismiss them (or, in the case of removals, to remand them
to state court). Shanaghan v. Cahill, 58 F.3d 106 (4th Cir.
1995).
This court has already questioned whether the approach
of Shanaghan is consistent with the diversity statute and
the rules permitting a single plaintiff to aggregate all of her
claims. Herremans v. Carrera Designs, Inc., 157 F.3d 1118,
1121 (7th Cir. 1998). See also Johnson v. Wattenbarger, 361
F.3d 991 (7th Cir. 2004). We hold today that it is not. The
Second Circuit’s Wolde-Meskel opinion explains thoroughly
why aggregated claims of a single plaintiff do not fit the
supplemental jurisdiction model. We add only the following
observations. First, the diversity statute itself, 28 U.S.C.
§ 1332, already provides for the situation in which a
plaintiff ultimately recovers less than the jurisdictional
amount. See § 1332(b). While that section addresses what
happens once that recovery has been awarded, it nec-
essarily implies that jurisdiction continues to exist once the
possibility of such a result manifests itself. In any case with
aggregated claims, success on less than all of the claims may
easily lead to a judgment of less than the jurisdictional
amount. We held in Johnson, supra, that a district court
could not dismiss a claim for failure to meet the jurisdic-
tional amount after it had disposed of other claims on the
12 No. 03-2791
merits. 361 F.3d at 993. The same approach is appropriate
here. The district court had jurisdiction over Carter’s
Privacy Act claim, and we must therefore decide whether it
was properly dismissed.
The relevant section of Illinois’s Right to Privacy in the
Workplace Act provides as follows:
Prohibited inquiries. It shall be unlawful for any em-
ployer to inquire, in a written application or in any other
manner, of any prospective employee or of the prospec-
tive employee’s previous employers, whether that pro-
spective employee has ever filed a claim for benefits
under the Workers’ Compensation Act or Workers’
Occupational Diseases Act or received benefits under
these Acts.
820 ILCS 55/10. Carter alleges that Tennant’s questions
regarding whether he had suffered prior occupational in-
juries, lost time from work for a work-related injury or illness,
or seen a medical doctor for any work-related injury/illness
violate this provision of the Privacy Act. The district court
denied Carter’s claim on two grounds: First, it held that his
claim was time-barred under ILL. ADMIN. CODE tit. 56, §
360.120, which provides that complaints under the Privacy
Act shall be filed with the Illinois Department of Labor
“within 180 days after termination or the complained of
incident.” Carter filed his complaint with the Illinois
Department of Labor more than 600 days after he com-
pleted Tennant’s health questionnaire and over 400 days
after Tennant terminated him. Second, the court held that
Carter “has no standing to bring a private cause of action
pursuant to section 55/15(c)” of the Privacy Act.
While we do not find either of these arguments to be
sound, we agree with the district court’s ultimate outcome.
We explain briefly why we do not rely on either standing or
timeliness of the claim. First, there is simply no problem with
Carter’s standing to sue. We reiterate that standing
No. 03-2791 13
requires “(i) an injury in fact, which is an invasion of a le-
gally protected interest that is concrete and particularized
and, thus, actual or imminent, not conjectural or hypotheti-
cal; (ii) a causal relationship between the injury and the
challenged conduct, such that the injury can be fairly traced
to the challenged action of the defendant; and (iii) a likeli-
hood that the injury will be redressed by a favorable deci-
sion.” Lee v. City of Chi., 330 F.3d 456, 468 (7th Cir. 2003)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)). Carter readily satisfies these criteria, as his
Privacy Act claim describes an injury in fact caused by
Tennant that could be redressed by a favorable verdict.
We also reject the district court’s conclusion that Carter
failed to satisfy the requirements set out in Section 15(c) of
the Privacy Act as to when an employee may sue to enforce
the Act’s provisions. Under Section 15(c), an employee may
sue “where efforts to resolve the employee’s . . . complaint
concerning the violation by conference, conciliation or
persuasion under subsection (b) have failed and the Depart-
ment has not commenced an action in circuit court to
redress the violation.” Tennant asserted below, and the
district court agreed, that Carter had “adduce[d] no evidence
that the Department of Labor failed to resolve his Complaint.”
Rather, the court found, “it appears that an agreement was
reached between the parties and that the Department of
Labor found that the issue had been resolved.” On this bas-
is, the court concluded that Carter could not bring his
Privacy Act claim.
This conclusion is difficult to square with the Department
of Labor’s notice to the parties, which is entitled, “Conclu-
sion of Department of Labor Administrative and Enforce-
ment Actions.” This notice, which is included in the record,
states:
Please take notice that the Department of Labor has
concluded its administration and enforcement of the Act
14 No. 03-2791
in the above captioned case. The Department will take
no further action in this matter. Therefore, pursuant to
820 ILCS 55/15(c), the Complainant has leave to pursue
other civil remedies.
Had the Department of Labor concluded that Carter failed
to satisfy the requirements of Section 15(c), or that the 180-
day limitations period provided in ILL. ADMIN. CODE tit. 56,
§ 360.120 barred his private action, it seems unlikely that
it would have issued Carter what is essentially a right-to-
sue letter. Indeed, this notice specifies that pursuant to
Section 15(c), Carter may bring a civil action, indicating
that the Act’s prerequisites are no barrier to his filing suit.
In light of the Department of Labor’s notice, as well as the
Privacy Act’s silence as to the period within which an
employee must file a civil action, we conclude that the
substance of Carter’s Privacy Act claim was properly before
the district court.
This brings us to the merits of Carter’s claim. Whether
Section 10 of the Privacy Act bars the type of inquiries in
Tennant’s health questionnaire requires an interpretation
of state law, and no court in Illinois has addressed this
issue. “We therefore determine the question as we predict
the Supreme Court of Illinois would if it were deciding the
case.” Adams v. Catrambone, 359 F.3d 858, 862 (7th Cir.
2004). According to the Illinois Supreme Court, “[t]he primary
rule of statutory construction is to ascertain and give effect
to the intent of the legislature.” People v. Donoho, 788 N.E.2d
707, 715 (Ill. 2003). “The best evidence of legislative intent is
the statutory language. When possible, the court should
interpret the statute according to the plain and ordinary
meaning of the language.” Id.; see also Conn. Nat'l Bank v.
Germain, 503 U.S. 249, 253-54 (1992). The Illinois Supreme
Court has made clear that “[i]f the statutory language is
clear and unambiguous, then there is no need to resort to
other aids of construction.” In re D.L., 727 N.E.2d 990, 994
(Ill. 2000). The Illinois Appellate Court has explicitly ap-
No. 03-2791 15
plied this approach in interpreting provisions of the Privacy
Act. Hampton v. Vill. of Washburn, 739 N.E.2d 1019, 1022
(Ill. App. Ct. 2000).
Here, the “plain and ordinary meaning of the statutory
language” is clear: Section 10 of the Privacy Act specifically
bars employers from inquiring “whether that prospective
employee has ever filed a claim for benefits under the
Workers’ Compensation Act or Workers’ Occupational
Diseases Act or received benefits under these Acts.” 820
ILCS 55/10 (emphasis added); see also ILL. ADMIN. CODE tit.
56, § 360.100 (1992) (defining the “purpose and scope” of
the Privacy Act as “prohibit[ing] employers from making
inquiries regarding claims filed by prospective employees
under the Workers’ Compensation Act or the Workers’
Occupational Diseases Act” (emphasis added)). Tennant’s
questionnaire asked nothing about claims filed or benefits
received. It inquired only whether Carter “ever had any
occupational injuries, accidents, or illnesses”; “los[t] time
from work for a work-related injury or illness”; or saw “a
medical doctor for any work-related injury/illness.” Natu-
rally, as Tennant’s counsel conceded at argument, the
answers to these questions provide a fairly good clue about
who might have previously sought workers’ compensation
benefits, given the questions’ exclusive focus on “occupational”
and “work-related” injuries. But the fact remains that the
inquiries are different, and that it is conceivable that someone
might have suffered a workplace injury and refrained from
filing a claim related to it. Most importantly, Illinois’s
principles of statutory construction direct us first to the
language of the statute, which we find to be unambiguous.
Had the Illinois legislature wished to bar a wider set of
inquiries regarding an employee’s work-related medical
history through the Privacy Act, it could have done so.
“Our role as a federal appellate court in this diversity
action is simply to apply the language of the [Illinois]
16 No. 03-2791
statute and to ascertain and give effect to the intent of the
[Illinois] legislature. In many diversity cases a court is
called upon to construe and apply ambiguous statutory lan-
guage, the ambiguity compounded by unilluminating or
non-existent case law construing the provision. This is not
one of those cases.” Yorger v. Pittsburgh Corning Corp., 733
F.2d 1215, 1219 (7th Cir. 1984) (internal citation omitted).
One can imagine arguments on either side of the question
whether to read the Privacy Act broadly, but we are not the
right audience for them. As a federal court sitting in
diversity and in the absence of any Illinois case law to guide
us on this issue, we decline to expand the Act’s scope beyond
its plain language. To find that Section 10 encompasses
questions regarding applicants’ prior occupational injuries
and the care they received would significantly expand its
reach. We therefore hold that Tennant’s questionnaire falls
outside the scope of the Privacy Act.
III
For these reasons, we AFFIRM the judgment of the district
court.
No. 03-2791 17
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-13-04