Dent v. Constellation NewEnergy, Inc.

2022 IL 126795IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 126795)
RICHARD L. DENT et al., Appellees, v. CONSTELLATION NEWENERGY,
INC., et al., Appellants.
Opinion filed April 21, 2022.
JUSTICE MICHAEL J. BURKE delivered the judgment of the court, with
opinion.
Justices Theis, Overstreet, and Carter concurred in the judgment and opinion.
Justice Garman dissented, with opinion, joined by Justice Neville.
Chief Justice Anne M. Burke took no part in the decision.
OPINION
¶1 Petitioners, Richard L. Dent and RLD Resources, LLC (RLD), filed an Illinois
Supreme Court Rule 224 (eff. Jan. 1, 2018) petition seeking disclosure from
respondents, Constellation NewEnergy, Inc.; CNE Gas Supply, LLC; Constellation
Energy Gas Choice, LLC; and Constellation NewEnergy-Gas Division, LLC.
Petitioners sought the names and addresses of three unidentified individuals who
might be responsible in damages to petitioners, alleging that those individuals
publicized false and defamatory statements about Dent that caused respondents to
terminate their contractual relationships with petitioners. The Cook County circuit
court dismissed the petition with prejudice. The Appellate Court, First District,
reversed and remanded. 2020 IL App (1st) 191652.
¶2 BACKGROUND
¶3 Petitioners were party to several energy supply and marketing contracts with
respondents. Petitioners were independent contractors, and the contracts were
terminable at will. On October 18, 2018, respondents informed petitioners that it
was terminating the at-will consulting agreements with petitioners.
¶4 On March 18, 2019, petitioners filed a verified petition under Rule 224. The
petition alleged as follows. On September 14, 2018, Grace Speights and Theo
McKinney III, two attorneys representing respondents, visited Dent at RLD’s
offices. The attorneys told Dent that certain allegations had been made against him.
The allegations arose from a Senior-Pro Tour golf outing sponsored by respondents
in July 2018. Dent was a guest at a pregolf party at the Shedd Aquarium in Chicago,
Illinois. A woman at the event alleged that Dent groped her. The same woman also
alleged that, at a similar event in Philadelphia, Pennsylvania, in June 2016, Dent
told her she had “a butt like a sister.” Dent asked who had made the allegations, but
the attorneys refused to name her. Petitioners therefore identified the woman as
“Person A.”
¶5 The attorneys also told Dent that, at the same July 2018 golf outing, a gentleman
observed Dent collecting his golf outing materials at the Marriott Hotel in Chicago.
The gentleman described Dent as drunk and disorderly when picking up his
materials. The attorneys refused to identify the gentleman, so the petition described
him as “Person B.”
¶6 At the September 14, 2018, meeting, Dent told the attorneys that the allegations
against him were completely false. The attorneys informed Dent that respondents
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would be reviewing their contractual arrangements with petitioners in light of the
allegations. On or about October 1, 2018, petitioners received a letter from
respondents terminating all contracts between petitioners and respondents going
forward.
¶7 The Rule 224 petition also included exhibit B, a letter respondents’ counsel sent
to petitioners’ counsel on December 19, 2018, responding to petitioners’ claim that
respondents had impugned Dent’s name and reputation. The December 19, 2018,
letter stated that Dent had been the subject of an investigation by a third party hired
by respondents to investigate reports that Dent had engaged in “grossly
inappropriate behavior during the 2016 and 2018 Pro-Am Tournament events.” The
letter stated that respondents’ attorneys met with Dent to allow Dent to provide his
recollection of the events in question. The letter noted that Dent had denied the
allegations but that the investigators determined that Dent’s denials were not
credible and that the reports accurately described behaviors that were in violation
of respondents’ “code of business conduct, completely outside the norms of socially
acceptable behavior, and demeaning to Constellation employees.” The letter also
stated that respondents had not disclosed the findings of the investigation to any
third party, aside from privileged communications with respondents’ attorneys. The
letter concluded that any claim that respondents had impugned Dent’s name and
reputation was frivolous, given respondents’ legal obligation to investigate the
allegations and the protected nature of the findings of the investigation.
¶8 Petitioners’ Rule 224 petition alleged that respondents refused to identify the
third party hired to investigate the claims against Dent, so the petition referred to
the third party as “Person C.” The petition asserted that, on information and belief,
Person C investigated the claims made against Dent prior to respondents’ issuance
of the October 1, 2018, termination notice. The petition also alleged that, on
information and belief, Person C published or republished to respondents the
statements of Person A and Person B concerning Dent.
¶9 The petition then alleged that the statements published by Persons A, B, and C
were (1) made as statements of fact, (2) false, and (3) not privileged. The statements
published by Persons A, B, and C imputed acts of moral turpitude and impugned
Dent’s character, reputation, and good name. Further, respondents admitted in the
December 19, 2018, correspondence that the statements published by Persons A,
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B, and C concerning Dent were both the cause in fact and the proximate cause of
respondents’ termination of all contractual relationships with petitioners.
Petitioners alleged that Persons A, B, and C might be responsible in damages to
them and that petitioners wished to engage in discovery for the sole purpose of
ascertaining the identities and whereabouts of Persons A, B, and C. The discovery
sought by petitioners was necessary because respondents refused to provide
petitioners with the identities and addresses of Persons A, B, and C.
¶ 10 Respondents moved to dismiss the Rule 224 petition pursuant to section 2-615
of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2018)). Respondents
argued that the petition was substantially insufficient because the petition sought
discovery in support of a prospective lawsuit for defamation but the allegedly
defamatory statements were, as a matter of law, protected by qualified privilege. In
addition, petitioners did not, and could not, allege facts sufficient to overcome that
privilege. For that reason, the discovery sought by petitioners was not necessary to
pursue a cognizable claim, as required under Rule 224.
¶ 11 The trial court dismissed the Rule 224 petition with prejudice. In issuing its
ruling, the trial court sua sponte ruled that Rule 224 is satisfied when a petitioner
has identified someone who may be sued. In this case, petitioners knew the
identities of respondents and their attorneys, so petitioners had identified someone
who may be sued. The trial court cited Low Cost Movers, Inc. v. Craigslist, Inc.,
2015 IL App (1st) 143955, in support of its ruling.
¶ 12 The court in Low Cost Movers held that a Rule 224 petition may be dismissed
if the identity of a potential defendant is already known to the petitioner. Id. ¶ 16.
The Low Cost Movers court explained that “Rule 224 is not intended to permit a
party to engage in a wide-ranging, vague, and speculative quest to determine
whether a cause of action actually exists.” Id. ¶ 17. Nor could Rule 224 discovery
continue “until the identity of the party that engaged in the ‘wrongdoing’ coincides
with petitioner’s causes of action.” Id.
¶ 13 Based upon Low Cost Movers, the trial court stated that the respondents might
be liable for damages to petitioners, so a Rule 224 petition was an inappropriate
vehicle for petitioners to attempt to learn the names of other, unidentified
individuals.
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¶ 14 Petitioners filed a motion to reconsider the dismissal of their Rule 224 petition.
Petitioners argued the trial court erred in finding that they knew the identity of a
potential defendant. Petitioners noted that respondents were not the publishers of
the allegedly defamatory statements about Dent. Rather, respondents were the third
parties to whom Persons A, B, and C published their allegedly defamatory
statements. Consequently, no cause of action for defamation could lie against
respondents. In addition, no cause of action for breach of contract would lie against
respondents because respondents could terminate at-will contracts for any reason.
Consequently, any cause of action would lie solely against Persons A, B, and C. In
contrast to the Low Cost Movers case, no one who engaged in the wrongful conduct
alleged—the defamation of Dent—had been identified. The circuit court thus erred
in dismissing the Rule 224 petition with prejudice.
¶ 15 The circuit court denied petitioners’ motion to reconsider. The circuit court
stated that claims against respondents were not limited to those elaborated upon in
the underlying petition. Further, the damages alleged in the petition were based
upon the termination of contracts. The circuit court characterized the issue before
it as whether petitioners had identified any of the persons or entities who may be
the cause of those terminations. The circuit court stated that “Rule 224 has a
specific, narrow purpose that allows a petitioner to obtain the identity of a potential
defendant when the petitioner lacks knowledge of anyone who may be liable in
damages.” (Emphases in original.) The circuit court concluded that petitioners had
knowledge of an individual or entity that might be liable in damages to them and,
thus, claims were available to petitioners whether petitioners pursued claims for
defamation or otherwise.
¶ 16 The appellate court reversed and remanded. 2020 IL App (1st) 191652. The
appellate court held that the circuit court abused its discretion when it sua sponte
dismissed the petition with prejudice based upon its determination that petitioners
knew the identity of respondents and their attorneys. Id. ¶ 28. The appellate court
stated that, under the facts alleged by petitioners, respondents and their attorneys
were not “ ‘individuals or entities who stand in the universe of potential defendants’
responsible in damages for defamation or breach of contract.” Id. (quoting Beale v.
EdgeMark Financial Corp., 279 Ill. App. 3d 242, 252 (1996)). Respondents were
not the entity or individuals who made the allegedly false and defamatory
statements about Dent’s conduct. Respondents were merely participants in the
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subsequent investigation of the allegedly defamatory statements that caused
respondents to terminate petitioners’ at-will contracts. Id. Petitioners met the
requirements of Rule 224 in alleging that Persons A and B made false, defamatory
statements about Dent and then published those statements to Person C and that
Person C reported the defamatory statements to respondents, who then terminated
its at-will contracts with petitioners. Id.¶ 17 The appellate court then addressed the sufficiency of the Rule 224 petition.
Petitioners argued that their Rule 224 petition sufficiently alleged all the required
elements of a defamation claim against Persons A, B, and C. Id. ¶ 36. Petitioners
noted that they alleged that the statements about Dent were defamatory because
they imputed to Dent acts of moral turpitude and impugned his character, good
name, and reputation; the statements were completely false, were made as
statements of fact, and were not privileged; and the statements caused respondents
to terminate several contracts with petitioners, who suffered damages as a result.
Id.
¶ 18 Respondents denied that petitioners had stated a claim for defamation, so the
discovery sought by petitioners was not necessary for purposes of Rule 224. Id.
¶ 38. Respondents claimed that the alleged defamatory statements were all
qualifiedly privileged and that petitioners failed to overcome that privilege by
pleading sufficient facts to demonstrate that the privilege was abused. Id.
Respondents asserted that Person A’s statements were qualifiedly privileged as
statements by a victim of sexual harassment to an investigator hired by her
employer. Id. Person B’s statements were qualifiedly privileged because he was a
witness in the sexual harassment investigation. Person B told the investigator his
observations of Dent at the same July 2018 golf outing where one of the alleged
incidents of harassment occurred. Id. The statements of Person C, the investigator
hired by respondents, were qualifiedly privileged as relating to the findings of the
sexual harassment investigation. Id.
¶ 19 In addressing respondents’ argument, the appellate court first observed that, to
determine whether petitioners satisfied Rule 224’s necessity requirement, the court
must evaluate whether petitioners presented sufficient allegations of a defamation
claim to withstand a section 2-615 motion to dismiss. Id. ¶ 41. The appellate court
concluded that the Rule 224 petition did present sufficient allegations of a
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defamation claim to withstand a section 2-615 motion to dismiss. Id. ¶ 47. The
appellate court then rejected respondents’ claim that the allegedly defamatory
statements were protected by a qualified privilege for statements made in the
reporting and investigation of sexual harassment in the workplace. Id. ¶ 42. The
appellate court held that the defense of qualified privilege is an affirmative defense,
which should not be considered in resolving a section 2-615 motion to dismiss. Id.
¶ 44. For that reason, the appellate court reversed the circuit court’s dismissal with
prejudice of the Rule 224 petition. Id. ¶ 49.
¶ 20 This court subsequently allowed respondents’ petition for leave to appeal. Ill.
S. Ct. R. 315 (eff. Oct. 1, 2020). We also allowed a joint amicus brief in support of
respondents’ position by Women Employed, the American Civil Liberties Union
of Illinois, the National Women’s Law Center, and 28 additional organizations. Ill.
S. Ct. R. 345 (eff. Sept. 20, 2010).
¶ 21 ANALYSIS
¶ 22 The primary issue in this appeal is whether the appellate court erred in holding
that a court cannot consider qualified privilege in resolving a section 2-615 motion
to dismiss a Rule 224 petition.
¶ 23 Rule 224 provides a means to identify potential defendants prior to the
commencement of a lawsuit. Ill. S. Ct. R. 224(a)(1)(i) (eff. Jan. 1, 2018). Rule 224
allows a party to initiate discovery by filing a verified petition. Ill. S. Ct. R.
224(a)(1)(ii) (eff. Jan. 1, 2018). The rule states that the
“petition shall be brought in the name of the petitioner and shall name as
respondents the persons or entities from whom discovery is sought and shall set
forth: (A) the reason the proposed discovery is necessary and (B) the nature of
the discovery sought and shall ask for an order authorizing the petitioner to
obtain such discovery.” Id.
An order allowing a Rule 224 petition “will limit discovery to the identification of
responsible persons and entities.” Ill. S. Ct. R. 224, Committee Comments (adopted
Aug. 1, 1989).
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¶ 24 Under Rule 224, the unidentified individual or entity does not bear the burden
of demonstrating that the discovery request does not satisfy the rule. Doe v.
Catholic Diocese of Rockford, 2015 IL App (2d) 140618, ¶ 16. The petitioner bears
the burden of showing that his proposed complaint supports a cause of action, even
if the unidentified individual or entity does not challenge the request. Id. Rule 224
is intended to assist a petitioner in identifying a currently unidentified party who
might be liable. Id. In order to employ Rule 224, however, the petitioner must
demonstrate that the proposed identification is necessary. Id.¶ 25 To determine whether a petitioner has satisfied Rule 224’s necessity
requirement in a claim for defamation, a court must evaluate whether the petitioner
presented sufficient allegations to overcome a section 2-615 motion to dismiss.
Hadley v. Doe, 2015 IL 118000, ¶ 26. A section 2-615 motion tests the legal
sufficiency of the complaint, asking whether the allegations of the complaint,
construed in the light most favorable to the petitioner, state sufficient facts to
establish a cause of action upon which relief may be granted. Id. ¶ 29. A court will
consider all facts apparent from the face of the complaint, including any attached
exhibits. Id. A complaint should not be dismissed pursuant to section 2-615 unless
it is clearly apparent that no set of facts can be proved that would entitle the plaintiff
to recovery. Id. The standard of review is de novo. Id.
¶ 26 To state a claim for defamation, a plaintiff must allege facts showing that (1) the
defendant made a false statement about the plaintiff, (2) the defendant made an
unprivileged publication of that statement to a third party, and (3) the publication
caused damages. Id. ¶ 30. As noted, respondents challenged petitioners’ Rule 224
petition on the basis that the alleged defamatory statements were subject to
qualified privilege and that petitioners failed to overcome that privilege by pleading
sufficient facts to demonstrate abuse of that privilege. The appellate court declined
to consider that argument, finding that “[p]rivilege is an affirmative defense that
may be susceptible to resolution by a motion for summary judgment or a motion to
dismiss under section 2-619 of the Code [citations], but privilege should not be
considered when resolving a section 2-615 motion to dismiss.” 2020 IL App (1st)
191652, ¶ 44. The appellate court thus held that petitioners’ Rule 224 allegations
were “sufficient to withstand dismissal under a section 2-615 analysis, which does
not consider affirmative defenses like the alleged existence of a qualified
privilege.” Id. ¶ 47.
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¶ 27 Respondents challenge the appellate court’s finding in this court, arguing first
that a defamation claim is subject to dismissal under section 2-615 when the petition
pleads facts establishing a qualified privilege. In the alternative, respondents ask
this court to find that a Rule 224 respondent may file a motion to dismiss under
section 2-619 if affirmative matter is needed to establish the qualified privilege.
¶ 28 We need not consider respondents’ argument concerning section 2-619,
because we find that respondents can raise qualified privilege in their section 2-615
motion. As respondents argue, this court has held that an “affirmative defense may
be raised in a section 2-615 motion where the defense is ‘established by the facts
apparent on the face of the complaint’ and no other facts alleged in the complaint
negate the defense. 3 R. Michael, Illinois Practice § 27.2, at 492 (1989).” (Emphasis
in original.) K. Miller Construction Co. v. McGinnis, 238 Ill. 2d 284, 292 (2010).
As stated, all facts apparent from the face of the complaint must be considered,
including any attached exhibits. Hadley, 2015 IL 118000, ¶ 29.
¶ 29 Exhibit B to the Rule 224 petition is the letter from respondents’ counsel to
petitioners’ counsel, dated December 19, 2018. That letter stated, in pertinent part:
“Mr. Dent has been the subject of an investigation conducted by a third-party
hired by Constellation to investigate reports that Mr. Dent engaged in grossly
inappropriate behavior during the 2016 and 2018 Pro-Am Tournament events
where Mr. Dent was a guest of Constellation. The reports regarding Mr. Dent’s
behavior include among other things that Mr. Dent engaged in an inappropriate
and unwanted touching of a Constellation employee and that Mr. Dent made
unwelcome comments of a sexual nature to a Constellation employee. As you
note in the PGN [(petitioners’ counsel)] October Letter, on September 14, 2018,
there was a meeting between Richard L. Dent, Grace Speights, Theos
McKinney and Timothy W. Wright. That meeting was to allow Mr. Dent an
opportunity to provide his recollection of the events described above. The law
requires Constellation to investigate reports of such behavior and the EEOC
directs employers to conduct effective investigations. Although Mr. Dent
denied the allegations, his denials were not credible and the investigation
concluded that the reports accurately described behaviors that were, at a
minimum, in violation of Exelon’s code of business conduct, completely
outside the norms of socially acceptable behavior, and demeaning to
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Constellation employees. To date, neither Exelon nor Constellation has
disclosed the findings of the investigation to any third-party, other than in
privileged communications with its lawyers. Given Constellation’s legal
obligation to investigate such allegations and the protected nature of its
findings, any claim that Constellation has ‘impugn[ed] Mr. Dent’s … name and
reputation’ is frivolous.”
¶ 30 Qualified privilege in Illinois defamation law is based on a policy of protecting
honest communications of misinformation in certain favored circumstances in
order to facilitate the availability of correct information. Kuwik v. Starmark Star
Marketing & Administration, Inc., 156 Ill. 2d 16, 24 (1993). A privileged
communication is one that might be defamatory and actionable except for the
occasion on which, or the circumstances under which, it is made. Id. Qualified
privilege enhances a defamation plaintiff’s burden of proof. Id. In the absence of
qualified privilege, a plaintiff need only show that the defendant acted with
negligence in making the defamatory statements in order to prevail. Id. Once a
defendant establishes a qualified privilege, however, a plaintiff must show “ ‘ “a
direct intention to injure another, or *** a reckless disregard of [the defamed
party’s] rights and of the consequences that may result to him.” ’ [Citation.]” Id. at
30. Stated otherwise, “an abuse of a qualified privilege may consist of any reckless
act which shows a disregard for the defamed party’s rights, including the failure to
properly investigate the truth of the matter, limit the scope of the material, or send
the material to only the proper parties.” Id.¶ 31 This court has adopted the approach of the Restatement (Second) of Torts to
determine whether a qualified privilege exists. Id. at 28-29. Under that approach,
conditionally privileged occasions are divided into three classes. Id. at 29. Those
classes are:
“ ‘(1) situations in which some interest of the person who publishes the
defamatory matter is involved
(2) situations in which some interest of the person to whom the matter is
published or of some other third person is involved
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(3) situations in which a recognized interest of the public is concerned.’ (S.
Harper, F. James & O. Gray, The Law of Torts § 5.25, at 216 (2d ed. 1986).”
Id.
¶ 32 In addressing a claim of qualified privilege in the context of a defamation claim
arising from allegations of sexual harassment, our appellate court has concluded
that the three interests set forth above were implicated. Vickers v. Abbott
Laboratories, 308 Ill. App. 3d 393, 402 (1999). The plaintiff in Vickers filed suit
against Abbott Laboratories and certain employees alleging defamation and other
claims, based upon an Abbott investigation into allegations that the plaintiff
exhibited sexually harassing behavior. Id. at 395-96. The circuit court granted the
defendants’ motion for summary judgment and dismissed the plaintiff’s suit with
prejudice. Id. at 396. The plaintiff appealed, arguing, inter alia, that the circuit court
erred in entering summary judgment on the plaintiff’s claim for defamation because
no qualified privilege existed and, if it did exist, the defendants abused it. Id.
¶ 33 The appellate court held that the communications at issue were conditionally
privileged based upon the three interests. Id. at 402. First, the female defendants
had an interest in stopping harassment and abuse by the plaintiff. Id. Second, the
employer and its agents had an interest in investigating the employees’ concerns
and taking action to prevent further harassment. Id. Third, there was a definite
general public interest in eradicating sexual harassment in the workplace. Id.
¶ 34 The Vickers court also noted that a United States Supreme Court case, Faragher
v. City of Boca Raton, 524 U.S. 775, 806 (1998), had made clear that there is a
compelling interest in ridding workplaces of sexual harassment. Id. The Faragher
Court noted that the Code of Federal Regulations specifically obliged employers to
“ ‘take all steps necessary to prevent sexual harassment from occurring’ ” (id.
(quoting 29 C.F.R. § 1604.11(f) (1997)) and “to establish a complaint procedure
‘designed to encourage victims of harassment to come forward’ ” (id. (quoting
Policy Guidance on Current Issues of Sexual Harassment, U.S. Equal Emp.
Opportunity Comm’n (Mar. 19, 1990), https://www.eeoc.gov/laws/
guidance/policy-guidance-current-issues-sexual-harassment [https://perma.cc/
26TR-CWAN])). Vickers concluded that the qualified privilege in the defamation
context promotes the social policy recognized in Faragher and “provides protection
for the victims, witnesses and investigators of sexual harassment.” Vickers, 308 Ill.
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App. 3d at 402. Vickers explained that, if “no privilege existed, then victims of
harassment and companies with a goal of preventing harassment would be
‘handcuffed’ by a fear of defamation liability.” Id.¶ 35 We agree with the Vickers court that a qualified privilege exists in cases alleging
defamation in the context of workplace sexual harassment allegations. Petitioners’
Rule 224 petition, including exhibit B to the petition, establishes that respondents
hired Person C to investigate sexual harassment claims concerning Dent’s behavior
when Dent was respondents’ guest at their 2016 and 2018 Pro-Am golf
tournaments. Exhibit B states that the behavior included, “among other things,” that
Dent engaged in an “inappropriate and unwanted touching” of respondents’
employee. Exhibit B also states that the law required respondents to “investigate
reports of such behavior and the EEOC directs employers to conduct effective
investigations.” The statements of Persons A and B were part of Person C’s
investigation into those claims. We agree with respondents that the Rule 224
petition and exhibit B thus raise an affirmative defense of qualified privilege as to
Persons A, B, and C, as the statements at issue were made in the context of
respondents’ investigation of Dent’s alleged sexual harassment of respondents’
employee.
¶ 36 Petitioners claim that no qualified privilege applied to Person B, however,
because the Rule 224 petition does not allege that Person B was an employee of
respondents or that Person B was a witness to any sexual harassment by Dent. The
petition alleges only that Person B saw Dent acting “drunk and disorderly” at the
Marriott Hotel. Further, exhibit B does not mention Person B at all.
¶ 37 Although there are no allegations that Person B witnessed any sexual
harassment on the part of Dent, it is clear from the Rule 224 petition that Person
B’s statement was made as part of Person C’s investigation of the allegations of
sexual harassment. Further, although Person B’s statements were not expressly
referenced in exhibit B, exhibit B does state that Dent’s behavior included, “among
other things,” that Dent engaged in sexual harassment. Person B’s statements would
fall within the “among other things” reference. In any event, because Person B’s
statements were made in connection with the investigation of the sexual harassment
claims, those statements also fell within the qualified privilege surrounding that
investigation. The qualified privilege protects the investigation of sexual
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harassment claims. An investigation might cast a broad net in investigating and
interviewing witnesses in order to gather information concerning those claims.
Person B’s report to Person C was made as part of Person C’s investigation of the
sexual harassment claims. Person B should not lose his privilege based solely upon
the content of his report to the investigator. To hold otherwise might deter
individuals from participating in investigations of sexual harassment. For that
reason, we find that Person B, as well as Persons A and C, was protected by the
qualified privilege for investigation of workplace sexual harassment claims.
¶ 38 As noted, once a party has demonstrated a qualified privilege, the plaintiff must
show an abuse of that privilege, which consists of any reckless act showing a
disregard for the defamed party’s rights, including the failure to properly
investigate the truth of the matter, limit the scope of the material, or send the
material to only the proper parties. Petitioners assert that their Rule 224 petition
“states facts sufficient to show the actual malice” of Persons A and B and
“overcame any qualified privilege pertaining” to Persons A and B. Petitioners note
that their Rule 224 petition alleges that the statements of Person A and Person B
“were completely false” and that the fact that Person A and Person B had
knowledge of the falsity of her statements about Dent is obvious and
incontrovertible from the face of the Rule 224 petition. According to petitioners,
Dent’s averment in the verified petition, that the statements published by Person A
and Person B were false, defeats any qualified privilege.
¶ 39 We disagree. Allowing a conclusory denial to overcome qualified privilege
would, in essence, eviscerate the privilege. The allegations of the petition, including
exhibit B, fail to establish any reckless act showing a disregard for Dent’s rights.
Construing the allegations of the Rule 224 petition, including the attached exhibits,
in the light most favorable to petitioner, we find that there is no set of facts which
would show an abuse of the qualified privilege with regard to the statements of
Persons A, B, and C. For that reason, we find that the appellate court erred in
refusing to consider the affirmative defense of qualified privilege with regard to
Persons A, B, and C. Because qualified privilege applied to the allegations against
Persons A, B, and C, the appellate court erred in finding that the allegations in the
Rule 224 petition were sufficient to withstand dismissal under a section 2-615
analysis.
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¶ 40 The dissent disagrees that respondents can raise qualified privilege in their
section 2-615 motion to dismiss. The dissent contends that, without the identity of
the publisher, a Rule 224 petitioner cannot allege facts demonstrating that the
publisher directly intended to injure him or acted with reckless disregard for the
petitioner’s rights and of the resulting consequences to the petitioner. The dissent
states that the factual allegations necessary to overcome qualified privilege focus
on the intent and actions of the publisher, which presuppose that the Rule 224
petitioner knows the identity of the publisher.
¶ 41 Under the circumstances of this case, however, petitioners did not need to know
the identity of the publisher in order to allege facts sufficient to overcome qualified
privilege. Exhibit B to the Rule 224 petition establishes that respondents’ attorneys
met with Dent on September 14, 2018, “to allow Mr. Dent an opportunity to provide
his recollection of the events described” by Persons A and B. Although petitioners
did not know the identity of Persons A and B, petitioners had enough information
concerning the specific events and the circumstances described by Persons A and
B to assert more than a bare allegation that the statements published by Persons A,
B, and C were “false” and “not privileged.” Petitioners had enough information to
allege facts showing why those allegations were false, particularly given that the
alleged conduct occurred at public events, with a large number of guests present.
¶ 42 The dissent also distinguishes the decision in Hadley v. Doe and the two
appellate court cases that the Hadley court found persuasive—Maxon v. Ottawa
Publishing Co., 402 Ill. App. 3d 704 (2010), and Stone v. Paddock Publications,
Inc., 2011 IL App (1st) 093386. The dissent points out that Hadley and the appellate
court decisions it relied upon involved anonymous speech that was argued to be
constitutionally protected by the first amendment and did not involve qualified
privilege. The dissent again maintains that the showings and concomitant factual
allegations necessary to overcome qualified privilege in this case presuppose that
the Rule 224 petitioner knows the identity of the publisher.
¶ 43 We do not find Hadley, Maxon, and Stone to be so limited. In fact, the Stone
court expressly stated that, “[w]hile the Maxon court correctly found that this
standard protects an anonymous individual’s constitutional rights in the context of
a defamation claim, we add that the appropriateness of this standard is not limited
to speech-based claims.” (Emphasis added.) 2011 IL App (1st) 093386, ¶ 18.
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Hadley found the reasoning of the Maxon and Stone courts to be persuasive and
thus held that, to “ascertain whether a petitioner has satisfied Rule 224’s necessity
requirement, the court must evaluate a defamation complaint to determine whether
it will withstand a section 2-615 motion to dismiss.” 2015 IL 118000, ¶ 27. We do
not read Hadley as limiting its holding to first amendment defamation cases.
¶ 44 Finally, the dissent claims that our opinion effectively elevates what is supposed
to be a qualified privilege into an absolute privilege, because “there is no realistic
way for a Rule 224 petitioner to sufficiently allege that the publishers of the
allegedly defamatory statements directly intended to injure him or acted with
reckless disregard for the petitioner’s rights and of the resulting consequences to
the petitioner.” Infra ¶ 70. The dissent states that Dent did not know his accuser,
the witnesses, or the evidence against him. Infra ¶ 72.
¶ 45 This is incorrect. Although Dent did not know his accuser or the witness, Dent
did know that he was accused of groping a woman at a large gathering on the patio
of the Shedd Aquarium and that he was drunk and disorderly while picking up his
golf materials at the Marriott Hotel. In petitioners’ Rule 224 petition, they allege
that Dent was one of a “large number” of guests at the events where the alleged
conduct occurred. Nonetheless, Dent did not allege any facts showing that
respondents failed to investigate the truth of the matter, for example, by
interviewing other guests, nor did Dent allege that other guests at the event could
verify that he was not drunk or disorderly and did not otherwise exhibit grossly
inappropriate behavior. Under these circumstances, we find that petitioner’s bare
allegations that the statements of Person A and Person B “were completely false”
is not sufficient to defeat the qualified privilege in this case.
¶ 46 In summary, then, we find that the appellate court erred in holding that a section
2-615 motion to dismiss cannot consider affirmative defenses apparent on the face
of the petition, such as the existence of qualified privilege. We further find that the
existence of qualified privilege on the part of Persons A, B, and C was apparent
from the face of the petition and that respondents, having raised nothing more than
a conclusory denial, failed to sufficiently allege an abuse of that privilege. For that
reason, we find that the Rule 224 petition should be dismissed in its entirety based
upon qualified privilege.
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¶ 47 CONCLUSION
¶ 48 For all the foregoing reasons, the judgment of the appellate court, which
reversed the judgment of the circuit court, is reversed. The Rule 224 petition is
dismissed with prejudice, pursuant to section 2-615.
¶ 49 Appellate court judgment reversed.
¶ 50 Circuit court judgment affirmed.
¶ 51 JUSTICE GARMAN, dissenting:
¶ 52 I respectfully dissent for the following reasons. First, I disagree that, in this
context, respondents can raise qualified privilege in their motion to dismiss
pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West
2018)). Second, I believe that the majority erroneously accepts respondents’
somewhat obscured representation that a qualified privilege protects not only
statements but also identity. Finally, I am concerned that the majority opinion
essentially treats the qualified privilege as an absolute privilege, which in turn
endows a private company and its third-party investigators with quasi-judicial
status and impermissibly deprives a class of individuals of the ability to restore their
reputations following investigations that arguably lack procedural safeguards.
¶ 53 To begin, the majority opinion avoids a meaningful analysis of whether
respondents can raise qualified privilege in their section 2-615 motion to dismiss.
The majority simply concludes this is permissible where an affirmative defense is
established by the facts apparent on the face of the complaint and where the defense
is not negated by any other facts in the complaint. For this proposition the majority
cites K. Miller Construction Co. v. McGinnis, 238 Ill. 2d 284, 292 (2010). See supra
¶ 28.
¶ 54 At issue in McGinnis was whether a home remodeling contractor who violated
section 15 of the Home Repair and Remodeling Act (815 ILCS 513/15 (West
2006)) could nevertheless enforce an oral contract or recover in quantum meruit
against a homeowner who refused to pay for a completed home remodeling project.
McGinnis, 238 Ill. 2d at 286. Section 15 of that act stated that, “ ‘[p]rior to initiating
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home repair or remodeling work for over $1,000, a person engaged in the business
of home repair or remodeling shall furnish to the customer for signature a written
contract or work order.’ ” Id. (quoting 815 ILCS 513/15 (West 2006)). The
complaint in part alleged that the plaintiff construction company entered into an
oral contract with the defendants to complete a remodeling project for the sum of
$187,000. Id. at 287. The defendants subsequently asked for modifications, which
raised the cost of the project to roughly $500,000. Id. at 287-88. Ultimately, the
defendants refused to pay a substantial amount, and the plaintiff filed a three-count
complaint against the defendants. Id. at 288.
¶ 55 Relevant here, count II of the complaint alleged a breach of contract. Id. The
defendants filed a section 2-615 motion to dismiss. Id. As to count II, defendants
asserted that the oral contract between the parties was in violation of Illinois law,
i.e., section 15 of the Home Repair and Remodeling Act, and thus was not
enforceable. Id. at 289. At the time plaintiff filed its complaint, section 15
additionally stated that it was “ ‘unlawful’ ” to engage in home remodeling prior to
“ ‘obtaining a signed contract or work order over $1,000.’ ” Id. (quoting 815 ILCS
513/30 (West 2006)). The defendants observed that the complaint itself alleged that
the contract was not in writing and was for work totaling over $1000. Id.¶ 56 The McGinnis court first noted that “[a] section 2-615 motion to dismiss
challenges the legal sufficiency of a complaint based on defects apparent on its
face.” Id. at 291 (citing Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d
463, 473 (2009)). The plaintiff asserted that the motion to dismiss instead should
have been brought under section 2-619(a)(9) because it raised an affirmative
defense. Id. In response to this argument, the McGinnis court explained:
“section 2-619(a)(9) speaks in terms of affirmative matter, not affirmative
defenses: ‘If the grounds do not appear on the face of the pleading attacked the
motion shall be supported by affidavit: *** (9) That the claim asserted against
defendant is barred by other affirmative matter avoiding the legal effect of or
defeating the claim.’ 735 ILCS 5/2-619(a)(9) (West 2006). An affirmative
defense may be raised in a section 2-615 motion where the defense is
‘established by the facts apparent on the face of the complaint’ and no other
facts alleged in the complaint negate the defense.” (Emphases in original.) Id.- 17 -
at 291-92 (quoting 3 Richard A. Michael, Illinois Practice § 27.2, at 492
(1989)).
Critically, the McGinnis court explained that “the factual basis of defendants’
affirmative defense is found in plaintiff’s own allegations that the remodeling
contract was oral and was for work totaling more than $1,000.” (Emphasis added.)
Id. at 292. Accordingly, the plaintiff’s own complaint admitted facts that
established the defendant’s affirmative defense. 1
¶ 57 Here, we have vastly different circumstances. Unlike in McGinnis, petitioners
represent that they do not know the identities of the allegedly responsible parties—
thus leading to petitioners filing the instant petition pursuant to Illinois Supreme
Court Rule 224 (eff. Jan. 1, 2018). I do not disagree with the majority recognizing
that statements made in the context of a workplace sexual harassment investigation
are subject to a qualified privilege. However, as described in more detail below, I
am troubled by the majority’s lack of concern regarding how a party seeking to sue
for defamation in this context is realistically expected to allege concrete facts to
overcome the qualified privilege. Under the majority’s holding, a Rule 224
petitioner—who does not know the identity of the publisher—must allege facts
demonstrating that the publisher directly intended to injure him or acted with
reckless disregard for the petitioner’s rights and of the resulting consequences to
the petitioner. See Kuwik v. Starmark Star Marketing & Administration, Inc., 156
Ill. 2d 16, 30 (1993) (noting that “an abuse of a qualified privilege may consist of
any reckless act which shows a disregard for the defamed party’s rights, including
the failure to properly investigate the truth of the matter, limit the scope of the
material, or send the material to only the proper parties”). Yet, in the Rule 224
context, “ ‘the focus is on identity and not on the determination of the responsibility
of those identified.’ ” Kamelgard v. American College of Surgeons, 385 Ill. App.
3d 675, 685 (2008) (quoting Roth v. St. Elizabeth’s Hospital, 241 Ill. App. 3d 407,
414 (1993)). However, the majority opinion necessarily requires petitioners to
establish the responsibility of Persons A, B, and C.
1
Respondents also cite several appellate court cases in support of their argument that an Illinois
Supreme Court Rule 224 (eff. Jan. 1, 2018) petitioner must overcome the qualified privilege at issue.
In every case, the defamation plaintiff knew the identities of the defendants. See Pompa v. Swanson,
2013 IL App (2d) 120911, ¶¶ 30-31; Dobias v. Oak Park & River Forest High School District 200,
2016 IL App (1st) 152205, ¶ 1; O’Callaghan v. Satherlie, 2015 IL App (1st) 142152, ¶ 1.
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¶ 58 Here, not only do petitioners not know the identities of Persons A and B, but
exhibit B to the Rule 224 petition—the letter from respondents’ counsel to
petitioners’ counsel—states that “neither Exelon nor Constellation has disclosed
the findings of the investigation to any third-party, other than in privileged
communications with its lawyers.” Though this statement goes to whether the
publication was limited to the proper parties, it also demonstrates that the only
context petitioners have for attempting to overcome the qualified privilege with
factual allegations is petitioners’ attendance at two presumably very large outings
in 2016 and 2018. Exhibit B and the complaint establish that the third-party
investigators met one time with Richard Dent to allow him “an opportunity to
provide his recollection of the events.”
¶ 59 In their briefs, respondents also cite Hadley v. Doe, 2015 IL 118000, in support
of their argument that presuit discovery is unnecessary where the underlying
defamation claim is subject to dismissal under section 2-615 because Dent’s Rule
224 petition failed to allege facts to overcome the qualified privilege. In Hadley,
this court found persuasive two lower courts’ conclusions that, in ascertaining
“whether a petitioner has satisfied Rule 224’s necessity requirement, the court must
evaluate a defamation complaint to determine whether it will withstand a section 2-
615 motion to dismiss.” Id. ¶ 27. The Hadley appellate court likewise relied on
those two cases and held that,
“ ‘[i]n ordering the disclosure of a potential defendant’s identity pursuant to
Rule 224, a court must balance the potential plaintiff’s right to redress for
unprotected defamatory language against the danger of setting a standard for
disclosure that is so low that it effectively chills or eliminates the right to speak
anonymously and fails to adequately protect the chosen anonymity of those
engaging in nondefamatory public discourse.’ ” Id. ¶ 26 (quoting Hadley v.
Doe, 2014 IL App (2d) 130489, ¶ 17).
However, Hadley and the appellate court decisions it relied upon dealt with a
different scenario. It was necessary to show that the allegations could withstand a
motion to dismiss under section 2-615 so as “to protect any first amendment interest
possessed by the online commentator to engage in nondefamatory, anonymous
speech.” Id. ¶ 9. In Hadley, the defendant anonymously posted defamatory
statements in the comments section of a newspaper website. Id. ¶ 1. The Hadley
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court rejected the defendant’s argument that the statements were not actionable
because they were reasonably capable of an innocent construction. See id. ¶¶ 31-
42. Instead, the comments “conveyed the idea that Hadley was a pedophile or had
engaged in sexual acts with children and, thus, had committed criminal conduct.”
Id. ¶ 37. No qualified privilege was at issue in Hadley.
¶ 60 Furthermore, the two appellate court cases relied upon by Hadley likewise
involved anonymous speech that was argued to be constitutionally protected by the
first amendment. See Maxon v. Ottawa Publishing Co., 402 Ill. App. 3d 704, 706
(2010); Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, ¶¶ 17-18,
26 (observing that “our supreme court has recognized that there are three types of
actions in which an allegedly defamatory statement has been held to be protected
by the first amendment in the absence of a showing that the statement is factual:
(1) actions brought by public officials; (2) actions brought by public figures; and
(3) actions brought against media defendants by private individuals” (emphasis in
original)). The main thrust of this inquiry necessarily focuses on the contents of the
statements themselves. See Stone, 2011 IL App (1st) 093386, ¶ 26; see also
Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 398 (2008)
(explaining that “[t]he test for determining whether a statement is protected from
defamation claims under the first amendment is whether it can reasonably be
interpreted as stating actual fact” and noting that the courts consider “(1) whether
the statement has a precise and readily understood meaning, (2) whether the
statement is verifiable, and (3) whether the statement’s literary or social context
signals that it has factual content”).
¶ 61 By contrast, to overcome a qualified privilege in the instant context, a Rule 224
petitioner would have to allege facts showing that the publisher directly intended
to injure him or acted with reckless disregard for the petitioner’s rights and of the
resulting consequences to the petitioner. See Kuwik, 156 Ill. 2d at 30. These
showings and concomitant factual allegations instead focus on the intent and
actions of the publisher—which presuppose that the Rule 224 petitioner knows the
identity of the publisher.
¶ 62 The appellate court case of Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070,
aptly illustrates, among other things, how knowing the identity of alleged
publishers of defamatory statements enables the Rule 224 petitioner to overcome a
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qualified privilege by sufficiently alleging facts that go to the publishers’ intent and
actions. There, the plaintiff sued several individual defendants and Northwestern
University for either defamation or conspiracy to defame by “formally presenting
to the Northwestern internal inquiry committee allegations that Mauvais-Jarvis
submitted inaccurate data for publication in a scientific paper.” Id. ¶ 1. The plaintiff
appealed from the circuit court’s dismissal of the defamation counts due to the
court’s finding that the statements were protected by absolute privilege. Id.
¶ 63 On appeal, the appellate court noted at the outset that, because Northwestern
University “receives federal funding for biomedical and behavioral research[,] it is
governed by a complex set of federal regulations with respect to investigating
research misconduct.” Id. ¶ 3. Of note, “the regulations impose[d] conditions of
strict confidentiality on allegations of research misconduct.” Id. ¶ 13 (providing
that “ ‘[d]isclosure of the identity of respondents and complainants in research
misconduct proceedings is limited, to the extent possible, to those who need to
know, consistent with a thorough, competent, objective and fair research
misconduct proceeding, and as allowed by law’ ” (quoting 42 C.F.R. § 93.108(a)
(2005))). Furthermore, the regulation limited disclosure of records or other
evidence from which research subjects could be identified to “ ‘those who have a
need to know to carry out a research misconduct proceeding.’ ” Id. (quoting 42
C.F.R. § 93.108(b) (2005)). Northwestern University’s own policy and procedures
closely mirrored the federal regulations. Id. ¶¶ 15-16.
¶ 64 Nevertheless, the plaintiff knew the identities of at least a few individuals who
had accused him of research misconduct. Id. ¶ 27. This was because Northwestern’s
office of research integrity had sent the plaintiff a letter notifying him of who had
accused him of the misconduct. Id. After an inquiry committee reviewed the
allegations and interviewed witnesses, it issued a final report unanimously
concluding that the charges were not credible and did not merit a full investigation.
Id. However, a second inquiry committee was thereafter convened after it became
apparent that other data contained in a manuscript was inaccurate. Id. ¶ 28. The
committee concluded that sufficient evidence was presented to warrant a full
investigation into the charges, and the plaintiff filed suit. Id.
¶ 65 The appellate court in Mauvais-Jarvis analyzed in detail whether the circuit
court had properly held that the statements made by certain individuals were
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absolutely rather than conditionally privileged. Id. ¶¶ 65-103. As the court noted,
“[w]here absolute privilege is granted, no cause of action for defamation lies against
the person making the statement even if it is made with malice.” Id. ¶ 71 (citing
Starnes v. International Harvester Co., 141 Ill. App. 3d 652, 653-54 (1986)); see
also id. (stating that “ ‘[a]n absolute privilege provides a complete immunity from
civil action even though the statements were made with malice because public
policy favors the free and unhindered flow of such information’ ” (quoting Zych v.
Tucker, 363 Ill. App. 3d 831, 834 (2006))). The court explained that the category
of defamatory statements protected by absolute privilege is very narrow and “has
generally been limited to legislative, judicial and some quasi-judicial proceedings
and ‘other acts of State,’ including ‘communications made in the discharge of a
duty under express authority of law.’ ” Id. ¶ 74 (quoting Busch v. Bates, 323 Ill.
App. 3d 823, 833 (2001)).
¶ 66 After rejecting several cases cited in support of respondents’ argument that the
statements were absolutely privileged, the Mauvais-Jarvis appellate court noted
that it had not discovered “any Illinois case that has found a quasi-judicial
proceeding or a ‘necessarily preliminary’ step toward one in a proceeding before a
private entity (which the parties concede[d] Northwestern is) rather than one
involving a governmental agency or another type of state actor.” Id. ¶ 91. The court
noted that, even if a private entity could be considered a quasi-judicial entity,
Northwestern’s office of research integrity lacked the requisite powers necessary
to act as such an entity. See id. ¶¶ 92-97. The court observed that “jurisdictions that
have explicitly addressed the applicability of absolute privilege to university
research misconduct proceedings have refused to define such proceedings as quasi-
judicial, noting that they lack the requisite procedural safeguards to protect those
accused of research misconduct.” (Emphasis added.) Id. ¶ 96 (citing Arroyo v.
Rosen, 648 A.2d 1074, 1077-78 (Md. Ct. Spec. App. 1994) (holding that statements
were not absolutely privileged because the complaint commencing the
investigatory committee’s proceedings was not made under oath, the proceedings
were not public, the witnesses were not sworn under oath nor subject to cross-
examination, and no discovery was available)).
¶ 67 Still, the defendants in Mauvais-Jarvis maintained that public policy warranted
application of absolute privilege, asserting that
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“because society has a vital interest in the soundness of scientific research and
because the ‘need for protection is greater in the educational setting where the
subject of the complaint—the educator—is in a position of authority over the
student, so fear of retaliation presents a potential obstacle to open airing of
grievances.’ ” Id. ¶ 98.
Again, the court rejected this attempt by the respondents to extend absolute
privilege to their statements. Id. The court noted that Northwestern’s policies,
which were modeled after the federal regulations, “recognize[d] the need for and
str[uck] a balance between protecting complainants and whistleblowers.” Id. ¶ 99.
Furthermore, the court explained that “[p]ublic policy is *** better served by the
rule of qualified privilege, since it encourages open communications on matters of
research misconduct while not shielding the use of such communications for an
individual’s malicious purposes.” Id.
¶ 68 Finally, the Mauvais-Jarvis appellate court considered whether the allegedly
defamatory statements in that case were protected by qualified privilege. Id. ¶ 101.
Because the defendants did not alternatively argue that the statements were
protected by qualified privilege, the court noted that it had no basis upon which to
determine that they were protected by qualified privilege. Id. ¶ 103. Still, the court
held that the complaint set forth detailed allegations of ill will and malice by the
three defendants subject to the defamation count. Id. The complaint alleged that
one defendant had acted in retaliation for being fired by the plaintiff and the other
two defendants acted in reprisal after the plaintiff sought redress with
Northwestern’s provost and accused its office of research integrity of violating his
rights under its policies and federal regulations. Id. Accordingly, the court reversed
the circuit court’s dismissal of the plaintiff’s defamation claims and allowed the
case to proceed to discovery. Id.
¶ 69 The Mauvais-Jarvis case—though dealing with a different type of internal
investigation—illuminates several facets of the instant case. First, the case
demonstrates how knowledge of one’s accusers enables a Rule 224 petitioner to
sufficiently allege facts to overcome the qualified privilege. For example, the
plaintiff alleged that one of the complainants had retaliated against him because he
had terminated her employment after documenting what he dubbed “substandard
performance in the laboratory” and mistakes she had made with respect to the
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manuscript at issue. See id. ¶¶ 33-35. She also allegedly had threatened to destroy
his career. Id. ¶ 35. Obviously, knowledge of one’s accuser enables a petitioner to
draw upon his or her experience in dealing with that individual, which necessarily
informs the question of whether the accuser had acted with malice or reckless
disregard. See Kuwik, 156 Ill. 2d at 30.
¶ 70 Because the majority buys into the respondents’ representations that accusers
and witnesses in a sexual harassment investigation are entitled to anonymity even
outside the company’s internal investigation, the majority effectively elevates what
is supposed to be a qualified privilege to an absolute privilege. Unless we presume
that a Rule 224 petitioner in this context did what he or she was accused of, already
knows who the accusers and witnesses are, or has a verifiable alibi, there is no
realistic way for a Rule 224 petitioner to sufficiently allege that the publishers of
the allegedly defamatory statements directly intended to injure him or acted with
reckless disregard for the petitioner’s rights and of the resulting consequences to
the petitioner. See id.; see also Mauvais-Jarvis, 2013 IL App (1st) 120070, ¶ 71
(explaining that a defamation defendant’s malice or motive in making a defamatory
statement are irrelevant where an absolute privilege applies). This is an alarming
notion when one considers that this setup will easily enable false reporting of sexual
misconduct.
¶ 71 For example, if several employees would like to get their supervisor fired, they
could simply concoct a story that the supervisor inappropriately touched Employee
A and maintain a consistent description of the event. Maybe Employee A resents
the supervisor for criticizing her work product. Perhaps Employee B knows that, if
the supervisor is fired, he or she will receive a promotion and thus has sufficient
motive. Such behavior will be emboldened where the employees know that their
identities will remain confidential not only in the workplace investigation but even
if the supervisor tries to sue for defamation because the supervisor will not be able
to sufficiently plead around the qualified privilege. Though I make clear that I do
not cast doubt upon the believability of accusers and victims of sexual harassment
or the findings of internal sexual harassment investigations—I will not vote in favor
of a holding that makes it impossible for a class of individuals to seek relief from
what may very possibly be an unjustified injury to their reputation.
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¶ 72 Unlike in Mauvais-Jarvis, where the appellate court detailed the numerous
federal regulations and policies that were aimed at ensuring some semblance of
procedural safeguards for the accused, here, we have no idea of the depth and
breadth of the investigation undertaken by the third-party investigators in this case
or about the specifics of Exelon’s own workplace policies or investigation
procedures. We do know that Dent knew not his accuser, the witnesses, or the
evidence against him, nor did he have an ability to confront or cross-examine the
accuser or witnesses. See Mauvais-Jarvis, 2013 IL App (1st) 120070, ¶ 97. Yet, the
effect of elevating the qualified privilege to an absolute privilege also effectively
treats Constellation and its third-party investigators as though they are a quasi-
judicial body. See id. ¶ 92. I am not content depriving potential defamation
plaintiffs who do not know the identities of their accusers or witnesses, nor the
evidence against them, of the ability to fight for their reputations by placing them
in a position where they must allege sufficient facts to establish malice or reckless
acts against shadows.
¶ 73 Nor do I believe that barring consideration of qualified privilege in a section 2-
615 motion will inhibit employers’ interest in ridding the workplace of sexual
harassment by handcuffing victims, witnesses, and investigators by a fear of
defamation liability. 2 See Vickers v. Abbott Laboratories, 308 Ill. App. 3d 393, 402
(1999). That is what the qualified privilege guards against—statements made in the
course of a sexual harassment investigation will not be actionable unless the
defamation plaintiff can meet his heightened burden of proof. See Kuwik, 156 Ill.
2d at 24. Were it not for the qualified privilege, the defamation plaintiff would only
have to show that the statements were negligently made. Id. The qualified privilege
assures participants that they will not be unnecessarily subjected to defamation
liability—not that they will not be sued for defamation. Furthermore, we have been
2
In their brief, respondents assert that
“[t]he appellate court’s decision, if upheld, would strongly undermine the State’s policy against
sexual harassment by making it effectively impossible for employers to ensure victims and
witnesses that their identities will be kept confidential. *** The use of Rule 224 to compel
disclosure of their identities to the harasser, so as to enable a retaliatory defamation claim, will
only increase that reluctance and hamper employers’ ability to address sexual harassment in the
workplace.” (Emphasis added.)
Again, respondents ask this court to accept without question the conclusion that the third-party
investigation produced a correct finding or that accusers and witnesses are entitled to blanket
anonymity.
- 25 -
provided with zero authority to support the idea that accusers and witnesses
partaking in a private company’s sexual harassment investigation are legally
entitled to have their identities remain confidential once before a judicial forum. In
the one case cited by respondents dealing with such a sexual harassment
investigation, the defamation plaintiff knew the identities of the accuser(s) and the
witness(es). See Vickers, 308 Ill. App. 3d at 395-96. Certainly, companies and their
third-party investigators must abide by various rules in undertaking their
investigations into workplace sexual harassment claims and must undertake to
protect witnesses’ identities or may themselves be subject to liability. Of critical
distinction is the fact that the publisher’s identity is confidential by virtue of a
private corporation’s internal investigatory procedures and related rules—not due
to the qualified privilege itself or constitutional protection. Accordingly, I disagree
with the majority’s statement that “[a]llowing a conclusory denial to overcome
qualified privilege would, in essence, eviscerate the privilege.” Supra ¶ 39. The
statement assumes that a qualified privilege goes to identity rather than a
defamation plaintiff’s heightened burden.
¶ 74 Because the publishers’ identities are kept confidential by virtue of a private
company’s and their third-party investigators’ obligations in the sexual harassment
investigation context—I do not believe that a Rule 224 petitioner must allege
sufficient facts establishing that the publishers abused the qualified privilege to
meet the rule’s necessity requirement. This is because, for all practical purposes,
this is next to impossible, such that it deprives an individual of the ability to attempt
to restore his reputation. A section 2-615 motion to dismiss should not be granted
“unless it is clearly apparent that no set of facts can be proved that would entitle
the plaintiff to recovery.” (Emphasis added.) Marshall v. Burger King Corp., 222
Ill. 2d 422, 429 (2006). It is not clearly apparent that petitioners could not prove
any set of facts demonstrating that the statements are not qualifiedly privileged
where petitioners are without requisite knowledge of the publishers’ intents and
actions. See Kuwik, 156 Ill. 2d at 30. This is circular and self-defeating. As a result,
it is unsurprising that petitioners only set forth conclusory allegations in support of
their claim for defamation. See Colson v. Stieg, 86 Ill. App. 3d 993, 998 (1980)
(noting that “bare allegations of knowledge of falsity without underlying supporting
facts are not legally sufficient” to overcome a qualified privilege in a case where
the plaintiff knew the identity of the defendant); Coghlan v. Beck, 2013 IL App
(1st) 120891, ¶ 56 (holding that the plaintiffs failed to sufficiently plead malice in
- 26 -
a case where the plaintiffs knew the identity of the defendant). Accordingly, I
believe that the majority prematurely holds that the statements of Persons A, B, and
C are qualifiedly privileged. I express no opinion on the underlying merits of
petitioners’ defamation claim. For these reasons, I respectfully dissent.
¶ 75 JUSTICE NEVILLE joins in this dissent.
¶ 76 CHIEF JUSTICE ANNE M. BURKE took no part in the consideration or
decision of this case.
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