dissenting in part.
With all respect I do not agree that Monroe’s asserted state law claim involves interpretation of the collective bargaining agreement to any significant extent. If the claim has any merit under Illinois law, it exists “independent of the collective bargaining agreement.” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 264-66, 114 S.Ct. 2239, 2250, 129 L.Ed.2d 203 (1994).
That leads to other questions, not addressed by the majority.
I. Removal.
Monroe brought his action in an Illinois court. Defendant Railroad Companies removed it to federal district court. 28 U.S.C. § 1445(a) provides that a civil action in any state court against a railroad arising under the FELA may not be removed to any district court of the United States.
In Count I Monroe invoked only the FELA and claimed:
10. The sole reason for the hearing and termination of Plaintiffs employment was to defeat any claim Plaintiff might have for personal injury against the Defendants in an action under the FELA.
11. Such wrongful discharge was illegal in that it violated the 45 U.S.C. § 55 in that it is a device designed to prevent plaintiff from enforcing his rights under the FELA.
In Count II Monroe invoked both the public policy of the FELA and the State of Illinois, alleging that the “discharge violated the public policy of the FELA and the State of Illinois in that it attempted to prevent him from fully exercising his right to collect damages for injuries on the job.”
Monroe’s theory, sound or not, is that the discharge “arguably eliminates the railroad’s liability for Mr. Monroe’s lost wages in his injury claim, effectively eliminating much of his remedy under the FELA.” Appellant’s Brief, pp. 35-36.
There may be two reasons why 28 U.S.C. § 1445(a) does not require remand to state court. (1) Waiver. Years ago it was held that the antecedent of 28 U.S.C. § 1445(a) did not limit the jurisdiction of a district court over an FELA case removed to it, but conferred a personal privilege which may be waived. Carpenter v. Baltimore & O.R. Co., 109 F.2d 375, 379 (6th Cir.1940). Not all courts have agreed, but a majority of those considering the question appear to have done so. Steve Kline, Waiver of the Right of Non-Removability of Jones Act Claims: Lirette v. N.L. Sperry Sun, Inc., 12 Tul. Mar. L.J. 397, 401 (Spring 1988). (The Jones Act adopted relevant portions of the FELA). (2) The part of Count II which invokes state law may be sufficiently independent from claims arising under the FELA that § 1445(a) would not prevent removal.
II. Claims are not predicated on breach of contract.
Both Counts I and II allege that the discharge was wrongful because of defendants’ purpose to defeat or impair plaintiffs rights under the FELA. There is no allegation that it was wrongful because defendants breached some term of the collective bargaining agreement. It is true that paragraph 9 of both counts alleged that defendants had a right to a physical examination of plaintiff, but failed to exercise it. Presumably the collective bargaining agreement was the source of the right. Whatever evidentiary bearing failure to exercise this right might have in proving that the discharge was motivated as alleged, and therefore wrongful, the defendants’ failure to exercise their contract right was not an element of the claim. The majority said (see supra p. 518) that “Monroe questions the propriety of his disciplinary hearing as well as the sufficiency of the evidence,” but there is nothing in the complaint challenging the disciplinary hearing.
The majority cites Bielicke v. Terminal R.R. Ass’n, 30 F.3d 877 (7th Cir.1994) and Hammond v. Terminal R.R. Ass’n of St. Louis, 848 F.2d 95 (7th Cir.1988). In neither was a state-law claim asserted. Bielicke was *521argued April 12, 1994, and the opinion was issued July 26, 1994. Hawaiian Airlines Inc. v. Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994), was decided June 20, 1994, and was not mentioned in Bielicke. On their face, the two decisions are not inconsistent. The Bielicke plaintiffs alleged that the railroad’s investigation and discharge of them violated the FELA, while Hawaiian dealt directly with state law claims. The Bielicke panel concluded that
One cannot determine whether Terminal Railroad conducted the investigations for legitimate purposes under the collective bargaining agreements or if they abused the investigation procedures allowed by the collective bargaining agreements ... without focusing the case on the collective bargaining agreements themselves.... [T]hese claims are directly connected with the collective bargaining agreements and thus the claim arises under the RLA, not the FELA.
30 F.3d at 878. Monroe’s state law claim requires no such focus.
In Hammond, a pre-Hawaiian decision, this court held that a claim which nominally invoked the FELA did not arise under the FELA, but under the RLA. The court said that the complaint as it stood at the time of removal “complained only about the railway’s having filed allegedly unmeritorious disciplinary charges; it was a pure breach of contract claim_” 848 F.2d at 97.
Neither Bielicke nor Hammond supports the proposition that Monroe’s state-law claim is a breach of contract claim, governed by the RLA.
III. The validity of Monroe’s state-law claim.
Monroe’s state-law claim relies on Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978), recognizing the tort of wrongful discharge where an employee was discharged because she filed a worker’s compensation claim. “Because of the similarity of purpose between FELA and the Illinois worker’s compensation statute, no principled distinction can be made which will disallow a finding of wrongful discharge where the Illinois courts have recognized the tort in the context of worker’s compensation.” Appellant’s Brief p. 28.
There will be difficulties in deciding that issue, but I am convinced that that is the question this case presents to this court. As already indicated, I think there is no foundation for a holding that Monroe’s state law claim is preempted.