Dobias v. Oak Park

2016 IL App (1st) 152205FOURTH DIVISION
June 23, 2016
No. 1-15-2205
DANIELLE DOBIAS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
) No. 13 L 11744
OAK PARK AND RIVER FOREST HIGH SCHOOL )
DISTRICT 200, THOMAS TARRANT, and )
JOHN STELZER, ) Honorable
) John P. Callahan
Defendants-Appellees. ) Judge Presiding.
JUSTICE ELLIS delivered the judgment of the court, with opinion.
Presiding Justice McBride and Justice Howse concurred in the judgment and opinion.
OPINION
¶1 In this appeal, we are asked to determine whether any or all of the following statements
made in writing by a high school coach about the plaintiff—one of his assistant coaches and also
a teacher at the school—constitute defamation per se:
i. That the plaintiff “[w]as rolling around on a bed in a hotel room alone with an athlete”;
ii. That the plaintiff visited athletes late one night while they were drinking alcohol and
using drugs and “hung out” with them, later taking them home without informing the
school or their parents about their behavior;
iii. That the plaintiff “[c]elebrated an athlete’s accomplishment by drinking alcohol”;
iv. That the plaintiff was “verbally and physically aggressive toward” him; and
v. That the plaintiff “[p]hysically assaulted [him] by grabbing [his] arm and trying to
force [him] into a room at the end of the school day.”
No. 1-15-2205
¶2 We hold that the first two statements constituted defamation per se, and we thus reverse
the dismissal of the defamation claims to this extent. We hold that all other statements did not
constitute defamation per se, and the claims relating to those statements were properly
dismissed.
¶3 Plaintiff, Danielle Dobias, a schoolteacher and assistant coach at Oak Park and River
Forest High School, sued her employer and her two supervisors, defendants Thomas Tarrant and
John Stelzer, alleging defamation per se and false-light invasion of privacy based on a number of
statements made by Tarrant about plaintiff concerning her interactions with athletes and with
Tarrant himself. The circuit court dismissed the third amended complaint, ruling that the
statements at issue were capable of innocent constructions, were nonactionable opinion, or were
not highly offensive to a reasonable person.
¶4 I. BACKGROUND
¶5 Plaintiff filed her original complaint on October 23, 2013, followed by several amended
complaints. She filed her third amended complaint on November 7, 2014. Count I alleged
defamation per se; count II alleged false-light invasion of privacy; count III alleged willful and
wanton misconduct against Tarrant; and count IV alleged willful and wanton improper
supervision against the high school. Only counts I and II are before us; plaintiff has waived her
claims in counts III and IV.
¶6 As the complaint was dismissed pursuant to section 2-615 of the Code of Civil Procedure
(735 ILCS 5/2-615 (West 2012)), we must accept all well-pleaded facts in the complaint as true.
Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 384 (2008). Our review
is limited to whether the third amended complaint stated a cause of action for defamation per se
or false-light invasion of privacy. Because the context in which an allegedly defamatory
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statement is made must be considered as part of a court’s analysis (see, e.g., Anderson v. Vanden
Dorpel, 172 Ill. 2d 399, 415 (1996)), we include most of plaintiff’s allegations. We also include
the entire statements contained in the exhibits on which plaintiff bases her complaint.
¶7 According to the allegations in the third amended complaint, both plaintiff and Tarrant
are schoolteachers for defendant Oak Park and River Forest High School District 200 (OPRF).
Plaintiff is a special education teacher; Tarrant was a special education behavioral interventionist
with OPRF’s behavioral intervention program whose duties included assisting students and staff,
including plaintiff, in maintaining discipline with disruptive and/or disorderly students. Tarrant’s
office was a short distance from plaintiff’s classroom on the fourth-floor.
¶8 Plaintiff is the assistant coach of the boys’ track and field team and was also a former
assistant coach for the girls’ cross-country team. Tarrant, as head coach for the girls’ cross-
country team, was plaintiff’s supervisor. Defendant, John Stelzer, OPRF’s athletic director, was
also plaintiff’s supervisor.
¶9 The complaint alleges that in March 2012, when plaintiff and Tarrant were both married
to other individuals, Tarrant told plaintiff that he was in love with her. Plaintiff rejected his
advances. In April 2012, Tarrant asked plaintiff about her marriage and told her he would be “the
perfect match” for her. Tarrant also gave plaintiff a blanket, telling her it was “good for fertility.”
Plaintiff again rejected his advances. She reported the incidents to OPRF officials but received
no response.
¶ 10 In July 2012, Tarrant began a pattern of retaliation against plaintiff. This alleged
retaliation involved Tarrant’s role as a behavioral interventionist, as well as his role as plaintiff’s
supervisor for the girls’ cross-country team.
¶ 11 A. Tarrant’s Alleged Retaliation as Behavioral Interventionist
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¶ 12 Tarrant began ignoring plaintiff’s requests for special education behavioral intervention.
These included her request that Tarrant meet with recently suspended students, who were being
returned to her classroom, to counsel them about avoiding fights in her classroom. Tarrant also
ignored plaintiff’s request for help after one of her students sent her a “crude paper” and made a
“sexual gesture” to her.
¶ 13 In September, plaintiff’s seventh-grade students stopped doing their work and said to
plaintiff: “You won’t be here for much longer.” Plaintiff sent the students to Tarrant’s office for
discipline. They returned laughing and said, “Everyone says you are getting fired.” A few days
later, Tarrant refused another request for help from plaintiff with students in her classroom.
Tarrant also ignored plaintiff’s e-mail request for help after a student walked out of her
classroom after she reprimanded the student for discussing drugs.
¶ 14 Tarrant continued to ignore plaintiff’s requests for behavioral intervention from October
through December 2012. Plaintiff continued to complain to superiors and continued to request
that Tarrant perform his duty. There was no investigation, corrective action, or response. In
November 2012, plaintiff requested peer mediation through human resources regarding Tarrant’s
continued refusals to assist her in her job. Tarrant refused to participate.
¶ 15 B. Tarrant’s Alleged Retaliation as Head Coach
¶ 16 Plaintiff also alleged that Tarrant retaliated against her in his role as her supervisor for the
girls’ cross-country team. Starting in July 2012, Tarrant, who had previously rated plaintiff as
“excellent” in all of her coaching performance evaluations, began rating her as only “good” to
“satisfactory.” Tarrant asked plaintiff if he needed to get another assistant coach for the girls’
cross-country team. He also began refusing her requests for coaching schedule changes that he
had previously allowed. He ignored plaintiff during girls’ cross-country team matches and
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refused to meet with her for coach meetings, stating he would talk only with the other female
assistant coach. He refused to provide plaintiff with a copy of his girls’ cross-country team
schedule. Plaintiff therefore had to, for the first time, create her own schedule.
¶ 17 In September 2012, plaintiff told Tarrant to stop asking other school personnel questions
about her. Tarrant asked others where plaintiff was moving her residence. When plaintiff and the
other female assistant coach took a weekend trip, Tarrant asked the other coach where plaintiff
would be sleeping. He also told plaintiff she should not coach the cross-country team with him.
¶ 18 C. Alleged Retaliation Against Plaintiff by OPRF, Tarrant, and Stelzer
¶ 19 In October 2012, plaintiff complained to OPRF supervisors that Tarrant had made
inappropriate romantic and sexually harassing overtures to her. Ten days later, in retaliation for
her complaint about Tarrant, OPRF’s human resource director ordered plaintiff not to attend the
State cross-country match that plaintiff was supposed to coach.
¶ 20 1. Stelzer Fires Plaintiff as Assistant Head Coach
¶ 21 On January 15, 2013, two days after returning from Christmas break, Stelzer, the athletic
director, told plaintiff she would be fired as assistant cross-country coach for the following year.
This decision was based on a poor evaluation by Tarrant and caused plaintiff to lose her coach’s
stipend of approximately $6000 per year. Stelzer told plaintiff that she could reapply for the
position if her relationship with Tarrant improved. Tarrant refused to go over the latest
performance evaluation with plaintiff.
¶ 22 2. OPRF Reassigns Tarrant
¶ 23 In January 2013, plaintiff complained to school officials about having no behavioral
interventionist support from Tarrant. A day later, she also complained that Tarrant stalked her
while she coached the boys’ track and field team.
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¶ 24 In February 2013, Tarrant was removed as plaintiff’s behavioral interventionist. Tarrant’s
office remained on the fourth floor near plaintiff’s classroom, and plaintiff was told to call
someone on the first floor if she needed assistance.
¶ 25 3. Plaintiff and Tarrant Sign No-Contact Agreements
¶ 26 In March 2013, plaintiff was told that, due to an investigation regarding her complaints
against Tarrant, she was to stay away from the school until told to return. Five days later, both
plaintiff and Tarrant signed documents that they would not talk to, or about, the other or park
next to the other (signed written no-contact agreement).
¶ 27 4. Tarrant Refuses Plaintiff’s Request for Assistance in Her Classroom
¶ 28 On March 15, 2013, one of plaintiff’s special education students became out of control,
threw a computer and shouted that he was going to “kill” plaintiff and the students in her
classroom. Plaintiff called Tarrant’s assistant for help because she believed she was in immediate
danger. The assistant told Tarrant there was an “out-of-control” student, but Tarrant refused to go
to plaintiff’s aid. A teacher in a nearby classroom heard the commotion, went to plaintiff’s
classroom and escorted out all of the students, except for the threatening student who then
charged at plaintiff. Plaintiff talked the threatening student down, but she later complained to
officials that Tarrant had refused to assist her.
¶ 29 5. OPRF Reassigns Plaintiff
¶ 30 Four days later, plaintiff was told that her classroom would be moved the following year
and she would not be teaching four special education classes. Plaintiff was instead assigned to
four study halls, even though no other teacher had more than two study halls. When plaintiff
complained to school officials, they told her she was part of a “messed up situation” with a
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“messed up guy” and that everyone wanted “it to go away.” When plaintiff asked why she was
being punished with a different schedule, she was told “it’s just how it worked out.”
¶ 31 When plaintiff returned to school the following August, she had no desk, telephone, or
computer. On August 26, 2013, plaintiff’s e-mail to another teacher suddenly appeared on
students’ computer screens. A school information technology (IT) employee told her that he was
looking at her e-mails.
¶ 32 D. Alleged Defamatory Statements
¶ 33 We first clarify which statements are relevant to our analysis. In her third amended
complaint, plaintiff stated that the statements at issue were: (1) the written statements contained
in Exhibit A (the September 2013 e-mails); (2) the written statements contained in Exhibit B
(Tarrant’s grievance); (3) the oral statement, “You won’t be here for much longer”; and (4) the
oral statement, “Everyone says you are getting fired.” Plaintiff alleged that these last two
statements were made by her seventh-grade students. Plaintiff does not attribute these statements
to defendants. And even if an inference could be made that Tarrant made the statement that
plaintiff was getting fired (because it was made by the students after they returned from his
office), plaintiff has not argued that an inference can be made that Tarrant made these
statements. In fact, plaintiff does not address these statements at all and, in her opening brief,
argues only that “Tarrant and/or Stelzer made and/or republished false statements regarding
plaintiff in two written complaints, dated September 14 and November 12, 2013, to school
administrators and other third parties, including Hardin, a Union Representative.” Points not
argued in the appellant’s brief are forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013); BAC
Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 23 (The Illinois Supreme Court has
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“repeatedly held an appellant’s failure to argue a point in the opening brief results in forfeiture
under Supreme Court Rule 341(h)(7).”).
¶ 34 And even after defendants addressed those two oral statements in their response brief,
presumably out of an abundance of caution, plaintiff did not address them in her reply, either. So
there is no doubt that she has forfeited these claims. We will not consider these oral statements
further. We will focus on the written statements contained in the referenced exhibits.
¶ 35 We also do not address any of the allegedly defamatory statements contained in the first
three complaints, e.g., statements in plaintiff’s performance appraisal, which were not in the third
amended complaint and have been abandoned. See, e.g., Skarin Custom Homes, Inc. v. Ross, 388
Ill. App. 3d 739, 745-46 (2009) (allegations in former complaints, not repleaded or incorporated
in final amended complaint, are deemed waived). We further note that, although defendants
addressed these additional statements in their response brief, plaintiff failed to do so in either her
opening brief or reply brief.
¶ 36 So we will only consider (1) the written statements contained in Exhibit A to the third
amended complaint (the September 2013 e-mails) and (2) the written statements contained in
Exhibit B (Tarrant’s grievance).
¶ 37 1. September 2013 E-mails
¶ 38 On September 14, 2013, Tarrant sent an e-mail to the athletic director, Stelzer, and the
assistant athletic director, Courtney Sakellaris, with the subject heading of “Big Problem,”
complaining about plaintiff’s recent actions that Tarrant claimed were in violation of the signed
written no-contact agreement. Tarrant also sent a copy of this e-mail to plaintiff’s union
representative, Sheila Hardin. Tarrant requested that the problem be taken care of or he would
need to file a formal complaint with human resources.
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¶ 39 Tarrant’s September 14, 2013, e-mail, in its entirety, states as follows:
“Hey John and Courtney. I hate to report this, but it has to be done.
Every morning when I get up I open my closet and get my gear. On the
door is the paper I was advised to sign by my union rep outlining what I was
accused of last year regarding Danielle Dobias. I look at it every day so I am
reminded to be smarter than last year. I signed even though I knew it was all B.S.
Today at my meet at Marmion Daniel [sic] Dobias showed up. Not only
did she show up, she also walked into my camp, and was at the finish line where
the racers and I meet. She was grabbing my runners, giving them advice, talking
to my parents at the awards ceremony and generally was a huge distraction for
myself and my athletes. This is totally unfair. This fired up more questions from
Parents and athletes. On a day I should have been celebrating my first win and my
seniors[’] first win in their careers the moment was ruined. I have documented
other items as well, but these were not as egregious. She exits the building daily
thru the athletic doors, as you know we meet in the 1 east classroom. She almost
knocked my [sic] over last Monday. Also Friday September 6th I parked in the
garage for the 7[ ] am coaches[’] meeting. When I came out her car was right
across from mine. A clear violation of the agreement I signed.
I asked for a change last year because the coach was verbally and
physically aggressive towards me, made inappropriate contacts with athletes, and
met with athletes without my knowledge, and was not supportive of our program
even as our team improved.
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I need to have this taken care of ASAP or I will need to go to HR and file
a formal complaint. I have done everything I can to avoid this person including
leaving a job I loved and move out of the building into unfamiliar territory that
will most likely lead to a lower evaluation next year.
So when I look at that letter I hated to sign I sound like a stalker. My
question is. Who is stalking who?
I am prepared to bring forth solid evidence that as a coach this person did
the following:
1) Celebrated an athlete[’]s accomplishment by drinking alcohol.
2) Was rolling around on a bed in a hotel alone with an athlete as
witnessed by another coach who walked in.
3) Was called after 2 am by athletes who were drunk and high.
Went to where the athletes were. Hung out with them then took them
home without notifying parents or the athletic office.
The above were not done under my guidance as head coach. I did not want
any more trouble after last year however I am prepared to protect myself and my
athletes from this person.
I have a 13 year old daughter, and if any coach did the unsafe things this
coach has done I would be an extremely irritated parent.
Tom.”
¶ 40 Stelzer forwarded Tarrant’s e-mail, on September 16, 2013, to two (interim) human
resource directors, Frank Bogner and John Carlson after discussing it with Nate Rouse, the
OPRF principal. In his e-mail, Stelzer stated:
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“John and Frank,
Per Nate’s recommendation, I am forwarding you this email, please read
and feel free to contact me with questions/concerns. There is too much to tell
regarding this issue in an email. Suffice it to say, these two employees have a
history, and the most recent events were dealt with last spring by Dr. Isoye. I am
not sure how to handle this new situation. Please let me know when you are
available to meet on this matter.
Thank you.
John Stelzer.”
¶ 41 Plaintiff attached a copy of these e-mail messages to her complaint as “Exhibit A.”
Plaintiff alleged that Tarrant’s written complaint charging her with verbal and physical
aggression and violating the signed written no-contract agreement was “false.” She also alleged
she became the subject of a human resources investigation of Tarrant’s complaint that required
her to answer questions and make a statement about the charges. Plaintiff received a written
reprimand even though, according to the complaint, Tarrant’s allegations “were determined to be
unfounded, and therefore false.”
¶ 42 2. November 2013 “Grievance”
¶ 43 On November 12, 2013, Tarrant filed a “grievance” against plaintiff, a copy of which
plaintiff attached to her complaint as “Exhibit B.” The document states:
“Confidential State Meet,
I am filing a grievance against Danielle Dobias for intimidation and
harassment based on the following event.
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On Saturday November 9, 2013 Danielle Dobias knowingly and purposely
disrupted my team preparation for the State Cross country Championships held at
Detwieller Park. At approximately 12:00 pm Danielle Dobias entered our team
camp area just as we were preparing our warm up. During this time I address my
team and begin the mental process of preparing for the biggest race of the season
and for all my athletes the biggest race of their careers. During this time Ms.
Dobias engaged athletes and parents. It created such an awkward moment that I
and parents left the area. Ms. Dobias then disrupted the post race gathering by
again coming into our meeting area and engaging with the athletes before I
released them to do the cool down. For the next several hours Ms. Dobias hung
around our team camp area engaging athletes, placing her just a few feet away
from me. This is clearly intimidation and harassment.
Ms. Dobias is well aware of cross country protocol and knows what she
did was a violation of that protocol. It is the equivalent of walking into the
football coaches’ pregame speech/half time talk, or standing on the sidelines as
opposed to being in the stands. I felt threatened and intimidated. This event
follows several other intimidation attempts that I have documented with the HR
department. I would have had no issues or right to file a complaint if Ms. Dobias
had been a spectator in the race. I probably would not have even seen her there if
that was her intent. It is clear that her intent was to harass and intimidate me.
These events have affected my ability to teach and coach at OPRF to my full
capabilities.
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The following is a series of the major documented events leading to this
complaint:
1) Left her classroom assignment and verbally assaulted me for
over 15 minutes last year over my cross-country program.
2) Physically assaulted me by grabbing my arm and trying to force
me into a room at the end of the school day.
3) Entered my work space again demanding changes to the XC
program
4) After it was clear I would not likely have her back as a coach
filed false reports about me in March 2013, over 4 full months after the
season ended.
5) Entered the Team camp area and finish area at the Marmion
invite this season
6) Sat next to me at the Climate survey assembly forcing me to
move per agreement I signed
7) Knowingly entered the technology repair area I was required to
be in for no reason 2 weeks ago
I believe the series of events paints a very clear picture of intentionally
intimidating and harassing. In short I feel unsafe and threatened. Ms. Dobias
drove over 300 miles to disrupt my team. This is scary to me and my family and
has made it very difficult to perform my job at 100 percent.
I have the utmost respect for the leadership in the building and have done
everything asked of me to rectify this situation. I am hoping my superiors will
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realize it is now nearly impossible for me to follow the directive I signed on
March 6, 2013 due to the above incidents. I am also hoping a pattern is emerging
that is clear. I am asking building leadership to respond to this immediately. I
respectfully request the following:
1) I respectfully request the letter in my file be removed or revised.
It should be clear that I cannot abide by it’s [sic] terms if Danielle Dobias
continues to put herself in my path on a near weekly basis
2) I respectfully request *** a full review of the actions taken
against me in light of the patterns of behaviors
3) I respectfully request a clear follow up to the actions taken due
to these events
4) I respectfully request that clear parameters are put in place for
the track season. I cannot see how her coaching in my area will be
possible given the past behaviors.
Finally, I just want to do my job and be a professional at OPRF. I have
always felt my bosses have been supportive and professional. I am counting on
that in this case again.
Respectfully Submitted,
Tom Tarrant.”
¶ 44 Plaintiff alleged that she again became the subject of a human resources investigation of
these “false” accusations, which required her to make a statement about the charges. According
to plaintiff, Tarrant’s allegations “were determined to be unfounded, and therefore false.”
¶ 45 E. Publication of Statements
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¶ 46 Plaintiff alleged that her union contract, styled “Agreement between The Oak Park and
River Forest High School District 200 and The Oak Park and River Forest High School Faculty
Senate, IEA/NEA” (union contract), required that Tarrant first bring his complaint to the
attention of his immediate supervisor, Stelzer. Plaintiff attached a copy of the union contract to
her complaint as “Exhibit C.” Plaintiff alleged that Tarrant violated the union contract by
sending his e-mail complaint and grievance to other individuals who were not his immediate
supervisor. Plaintiff further claimed that Tarrant and/or Stelzer inappropriately sent the
documents to Hardin, Rouse, Sakellaris, Bogner, and Carlson.
¶ 47 F. Circuit Court’s Ruling
¶ 48 On February 26, 2015, the circuit court dismissed all counts of the third amended
complaint with prejudice pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS
5/2-615 (West 2012)) for failing to state a cause of action. On July 7, 2015, the court denied
plaintiff’s motion for reconsideration and clarification. The trial court agreed with defendants
that the statements at issue were capable of innocent construction. The trial court also found that
the statements were opinion and were not highly offensive to a reasonable person. This appeal
followed.
¶ 49 II. ANALYSIS
¶ 50 A motion to dismiss under section 2-615 challenges the legal sufficiency of a complaint.
Bonhomme v. St. James, 2012 IL 112393, ¶ 34. Our review is de novo. Id. As noted earlier, we
must accept as true all well-pleaded facts in the complaint, as well as all reasonable inferences
that can be drawn from those facts. Imperial Apparel, Ltd., 227 Ill. 2d at 384. A motion to
dismiss, however, does not admit allegations in the complaint that are in conflict with the facts
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disclosed in the exhibits. Farmers Automobile Insurance Ass’n v. Danner, 394 Ill. App. 3d 403,
412 (2009).
¶ 51 A. Count I: Defamation Per Se
¶ 52 Plaintiff first argues that the circuit court erred in granting defendants’ section 2-615
motion to dismiss count I of the third amended complaint for defamation per se. The preliminary
construction of an allegedly defamatory statement is a question of law, and our review therefore
is de novo. Green v. Rogers, 234 Ill. 2d 478, 492 (2009).
¶ 53 To state a claim for defamation, a plaintiff must allege facts that show: (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 her damages. Green, 234 Ill. 2d at
491. A defamatory statement is one that harms a person’s reputation to the extent that it lowers
the person in the eyes of the community or deters the community from associating with her or
him. Id. There are two types of defamation: defamation per se and defamation per quod. Stone v.
Paddock Publications, Inc., 2011 IL App (1st) 093386, ¶ 24. Here, plaintiff has only alleged
defamation per se, and we will confine our analysis accordingly.
¶ 54 A statement is defamatory per se where the harm to a person’s reputation is obvious and
apparent on its face. Green, 234 Ill. 2d at 491. If a plaintiff claims that a statement constitutes
defamation per se, the plaintiff need not plead or prove actual damages, because the statement is
considered so obviously and materially harmful that injury to the plaintiff’s reputation may be
presumed. Green, 234 Ill. 2d at 495; Tuite v. Corbitt, 224 Ill. 2d 490, 501 (2006); Bryson v. News
America Publications, Inc., 174 Ill. 2d 77, 87 (1996).
¶ 55 “In Illinois, there are five categories of statements that are considered defamatory per se:
(1) words that impute a person has committed a crime; (2) words that impute a person is infected
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with a loathsome communicable disease; (3) words that impute a person is unable to perform or
lacks integrity in performing her or his employment duties; (4) words that impute a person lacks
ability or otherwise prejudices that person in her or his profession; and (5) words that impute a
person has engaged in adultery or fornication.” Green, 234 Ill. 2d at 491-92. The first four
categories were recognized under our common law; the fifth category was added by statute. See
Bryson, 174 Ill. 2d at 88-89; 740 ILCS 145/1 et seq. (West 1992). Plaintiff raises only the first,
third, and fourth categories.
¶ 56 Even if an alleged statement falls into one of these categories, the statement may not be
actionable. A defendant may avoid liability if he can demonstrate: (1) that the statement is
reasonably capable of an innocent construction (Hadley v. Doe, 2015 IL 118000, ¶ 31; Green,
234 Ill. 2d at 499); (2) that the statement is an expression of opinion (Hadley, 2015 IL 118000,
¶ 33); or (3) that the statement is subject to a privilege. Solaia Technology, LLC v. Specialty
Publishing Co., 221 Ill. 2d 558, 585 (2006); Pompa v. Swanson, 2013 IL App (2d) 120911, ¶ 26.
¶ 57 First, a statement that may appear to be defamatory will not be actionable if it is capable
of a reasonable, innocent construction. Green, 234 Ill. 2d at 500. Although a court must accept as
true the facts alleged in the complaint, we are not required to accept plaintiff’s interpretation of
the statements as defamatory per se, because the meaning of a statement “is not a fact that can be
alleged and accepted as true.” Tuite, 224 Ill. 2d at 510. Accordingly, the preliminary
determination of whether a statement is capable of a reasonable, innocent construction is
properly a question of law for the court to decide de novo. Id.; Bryson, Inc., 174 Ill. 2d at 90.
¶ 58 The court must give the allegedly defamatory words, and any implications arising from
them, their natural and obvious meaning. Green, 234 Ill. 2d at 499. The innocent-construction
rule does not apply simply because the allegedly defamatory words are “capable” of an innocent
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construction. Bryson, 174 Ill. 2d at 93. “Only reasonable innocent constructions will remove an
allegedly defamatory statement from the per se category.” (Emphasis in original.) Id. at 90.
¶ 59 The context of the statement is critical, “as a given statement may convey entirely
different meanings when presented in different contexts.” Green, 234 Ill. 2d at 499; see also
Tuite, 224 Ill. 2d at 512 (innocent-construction rule requires writing to be read as whole). Courts
must “interpret the allegedly defamatory words as they appeared to have been used and
according to the idea they were intended to convey to the reasonable reader.” Bryson, 174 Ill. 2d
at 93; Hadley, 2015 IL 118000, ¶ 31.
¶ 60 If, when taken in context, a statement is reasonably capable of a nondefamatory
interpretation, that innocent construction should be adopted. Green, 234 Ill. 2d at 500; Anderson,
172 Ill. 2d at 412-13. “There is no balancing of reasonable constructions ***.” Green, 234 Ill. 2d
at 500. On the other hand, if the defendant “clearly intended and unmistakably conveyed a
defamatory meaning, a court should not strain to see an inoffensive gloss on the statement.” Id.¶ 61 Second, the law distinguishes between a defamatory statement of fact and an opinion; an
expression of opinion is not defamation. See Hadley, 2015 IL 118000, ¶ 33; Solaia Technology,
221 Ill. 2d at 581. A false assertion of fact can be defamatory even when couched within
apparent opinion or rhetorical hyperbole. Hadley, 2015 IL 118000, ¶ 33. “The test is restrictive: a
defamatory statement is constitutionally protected only if it cannot be reasonably interpreted as
stating actual fact.” (Internal quotation marks omitted.) Id. In analyzing whether a statement is a
nonactionable expression of opinion or a defamatory statement of fact, the court considers
“whether the statement has a precise and readily understood meaning; whether the statement is
verifiable; and whether the statement’s literary or social context signals that it has factual
content.” (Internal quotation marks omitted.) Id.; see also Kumaran v. Brotman, 247 Ill. App. 3d
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216, 228 (1993) (“In determining whether a statement is one of fact or opinion, a court should
consider the totality of the circumstances and whether the statement can be objectively verified
as true or false.”). A statement will receive first amendment protection from a defamation suit
only if it cannot be reasonably interpreted as stating actual facts about the plaintiff. Kolegas v.
Heftel Broadcasting Corp., 154 Ill. 2d 1, 14-15 (1992).
¶ 62 The questions of whether a particular statement is subject to a reasonable, innocent
construction, and whether it constitutes an opinion as opposed to fact, obviously must be
determined on a statement-by-statement basis. Thus, we will take up those questions first, and
then turn to the question of whether defendants were protected by a qualified privilege, a
question that applies equally to all the statements communicated in a particular written
document.
¶ 63 1. Statements Concerning Plaintiff’s Interaction With Student-Athletes
¶ 64 We first consider defendant Tarrant’s e-mail to defendant Stelzer on September 14, 2013,
which Stelzer then republished two days later, which concerned three specific statements Tarrant
made concerning plaintiff’s interactions with student-athletes. We previously quoted the entire e-
mail verbatim (supra ¶ 39) and will highlight only the relevant portion here. According to the
exhibit attached to the complaint, defendant Tarrant wrote to defendant Stelzer (the athletic
director), Courtney Sakellaris (the assistant athletic director), and Sheila Hardin (plaintiff’s union
representative) the following:
“I am prepared to bring forth solid evidence that as a coach this person did
the following:
1) Celebrated an athlete[’]s accomplishment by drinking alcohol.
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2) Was rolling around on a bed in a hotel alone with an athlete as
witnessed by another coach who walked in.
3) Was called after 2 am by athletes who were drunk and high.
Went to where the athletes were. Hung out with them then took them
home without notifying parents or the athletic office.
The above were not done under my guidance as head coach. I did not want
any more trouble after last year however I am prepared to protect myself and my
athletes from this person.
I have a 13 year old daughter, and if any coach did the unsafe things this
coach has done I would be an extremely irritated parent.”
¶ 65 Plaintiff argues that each of these three statements above (conveniently numbered for us)
constituted defamation per se under two different but related categories−words that impute a
person is “unable to perform or lacks integrity in performing her or his employment duties” and
words imputing that a person “lacks ability or otherwise prejudices that person in her or his
profession.” Green, 234 Ill. 2d at 492. As one court has observed, the difference between these
two defamatory per se categories is “subtle.” Pippen v. NBCUniversal Media, LLC, 734 F.3d
610, 613 (7th Cir. 2013). “The former seems to imply some sort of on-the-job malfeasance; the
latter covers suitability for a trade or profession.” Id.; see also Haynes v. Alfred A. Knopf, Inc., 8
F.3d 1222, 1226 (7th Cir. 1993) (describing former category as “malfeasance or misfeasance in
the performance of an office or a job” and latter as “unfitness for one’s profession or trade”).
Plaintiff claims that each of these three statements imputed her lack of integrity as a school
professional and otherwise prejudiced her in that profession.
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¶ 66 Defendants argue that each of these three statements is capable of an innocent
construction and, in any event, the statements were expressions of opinion and not fact.
¶ 67 We begin with the statement that plaintiff “[w]as rolling around on a bed in a hotel alone
with an athlete as witnessed by another coach who walked in.” Plaintiff claims that this statement
is defamatory because, as a teacher and a coach, she is expected to be a role model for the
students. She argues that Tarrant’s statement imputed that she lacked integrity in her
employment and/or prejudiced her in her trade as a teacher, because a teacher is expected to set a
good example and to function as a role model for young, impressionable students.
¶ 68 Defendants, on the other hand, claim that this statement may be reasonably construed as
mere “roughhousing.” And defendants downplay the negative connotation attached to this
statement by pointing to the conclusion of the e-mail, where Tarrant wrote that, if they knew of
the complained-of conduct listed in the e-mail, parents would be “extremely irritated.”
Defendants claim that, if Tarrant were conveying the notion of sexual contact or even grossly
inappropriate student-teacher contact, he would have predicted a far more aggressive reaction
from parents than extreme irritation; he would have predicted that parents would demand
criminal charges, remove their child from the cross-country team, storm a school board meeting
in protest, or something of that nature. The circuit court agreed with defendants, finding this
statement to be subject to an innocent construction and noting in its oral ruling that Tarrant
“never said that the plaintiff was having sex with students.”
¶ 69 We hold that this statement was not subject to a reasonable, innocent construction. A
teacher rolling around on a bed with a student, when the two of them are alone in a hotel room, is
inappropriate no matter how it could reasonably be viewed. While this statement may have fallen
short of implying sexual intercourse, sexual behavior is not limited to intercourse. And even if
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we could interpret this statement as describing purely nonsexual behavior, it is undeniably
contact between a teacher and student-athlete that is far more intimate than would be appropriate.
If the defendant “clearly intended and unmistakably conveyed a defamatory meaning, a court
should not strain to see an inoffensive gloss on the statement.” Green, 234 Ill. 2d at 500; see
Kumaran, 247 Ill. App. 3d at 227 (statement that substitute teacher was “working a scam” by
filing frivolous lawsuits to extract monetary settlements was defamation per se because “a
teacher would be expected to set a good example and function as a role model for his young,
impressionable students” and statement “prejudice[d] his teaching ability and integrity because it
presented him as someone who would not be an acceptable role model for young students”).
¶ 70 Defendants rely heavily on Green in support of their claim that Tarrant’s statements are
reasonably capable of an innocent construction. In Green, plaintiff alleged that defendant made
statements that plaintiff had “ ‘exhibited a long pattern of misconduct with children which was
not acceptable for [Little League] coaches’ ”; and had “ ‘abused players, coaches, and umpires in
[Little League].’ ” Green, 234 Ill. 2d at 500. The court concluded that the alleged statements
were reasonably capable of an innocent construction. Id. at 501. As the court explained: “These
statements were made in the context of selecting coaches for the [Little League] season, and both
statements were specifically confined to the context of Little League coaching.” Id.¶ 71 Green is factually distinguishable. While the statements in Green were confined to the
context of Little League coaching, the accusation here that plaintiff was rolling around on a bed
with a student-athlete, while they were alone in a hotel room, was not confined to the context of
what plaintiff did on the track as a coach. And the court in Green noted that the alleged
defamatory statements were immediately followed by multiple assurances from the defendants
that, although the plaintiff would not be selected as a coach, he would be free to assist his son’s
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team with practices and pregame activities, and the plaintiff was “repeatedly and
contemporaneously invited to participate in any way he could work out with his son’s coach,”
which further clarified that the references to “abuse” or “misconduct” did not suggest anything of
a sexual or immoral nature but rather misbehavior in the context of coaching. Here, in contrast,
Tarrant referred to plaintiff’s conduct as that from which he needed to “protect” himself and his
athletes, and further noted that the “unsafe things” would extremely irritate him as a parent of a
13-year-old daughter.
¶ 72 The statement that plaintiff was rolling around on a bed in the privacy of a hotel room
with a student-athlete clearly imputed a lack of integrity in her profession and prejudiced her in
that profession. We can adopt no reasonable, innocent construction of this statement.
¶ 73 We turn next to Tarrant’s statement attributing the following conduct to plaintiff:
“Was called after 2 am by athletes who were drunk and high. Went to where the athletes
were. Hung out with them then took them home without notifying parents or the athletic
office.”
¶ 74 In their effort to construct a reasonable, innocent construction of this statement,
defendants argue that Tarrant merely stated that plaintiff “safely resolved a situation in which
athletes were drunk and high.” And the circuit court reasoned that Tarrant “never said that the
plaintiff *** was drinking or doing drugs with” the students.
¶ 75 Both of those points have merit. But this passage must be read as a whole and in the
context of the entire e-mail. Green, 234 Ill. 2d at 499; Tuite, 224 Ill. 2d at 512; Bryson, 174 Ill.
2d at 93; Hadley, 2015 IL 118000, ¶ 31. This passage, in full, also says that plaintiff “hung out
with” the student-athletes that were drunk and high, and that she failed to notify either the
parents or the athletic office of the underage drinking and drug use.
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¶ 76 We fail to see how those statements can be innocently construed. While anyone would
credit an adult who helped intoxicated students get home safely, the passage imputes that
plaintiff, at a minimum, condoned the alcohol and drug use that took place in her presence.
“Hanging out with” students cannot be reasonably construed as simply picking them up and
taking them home; it means socializing with them while they were using these substances. Even
if a teacher-coach did not herself use alcohol or drugs, it would reflect unfavorably on any
teacher’s reputation if she socialized with underage students while they were engaged in drug
and alcohol abuse.
¶ 77 The presence of a favorable fact—getting the intoxicated students home safely—does not
insulate the unfavorable statements from a claim of defamation. And again, the fact that Tarrant
summed up his e-mail by referring to this conduct as “unsafe” behavior for which children
required protection gives the lie to any claim by defendants that Tarrant was merely
complimenting her on “safely resolv[ing]” a situation. We find no reasonable, innocent
construction of this statement. These claims imputed a lack of integrity in plaintiff’s profession
and prejudiced her in that profession.
¶ 78 Nor can either of these two statements above be characterized as nonactionable opinion.
The circuit court ruled that Tarrant’s statement, at the end of the e-mail, that “if any coach did
the unsafe things this coach has done I would be an extremely irritated parent”—was an
expression of opinion, an argument defendants likewise raise before us. That particular, isolated
statement may have been an opinion, but it does not change the fact that the two statements we
have discussed above set forth specific facts—that plaintiff rolled around on a bed in a private
hotel room with a student-athlete and “hung out” with student-athletes while they drank alcohol
and used drugs. A defendant cannot avoid the defamatory statements he has made merely by
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inserting his opinion of those facts alongside them. Hadley, 2015 IL 118000, ¶ 33; Solaia
Technology, 221 Ill. 2d at 581. Whatever opinion Tarrant may have expressed about this
complained-of conduct, the statements of fact themselves could be readily verifiable as true or
false. See Solaia Technology, 221 Ill. 2d at 581; Kumaran, 247 Ill. App. 3d at 228
(distinguishing between fact and opinion based on whether, under totality of circumstances,
statement can be “objectively verified as true or false”).
¶ 79 We thus hold that the two statements made by Tarrant in the September 14, 2013 e-mail,
accusing plaintiff of rolling around on a bed in a hotel room with a student-athlete, and accusing
plaintiff of “hanging out” with student-athletes while they drank alcohol and used drugs, were
defamatory per se.
¶ 80 Next, we consider Tarrant’s statement in this same e-mail that plaintiff “[c]elebrated an
athlete[’]s accomplishment by drinking alcohol.” This one is admittedly a close call. On the one
hand, as defendants note, the statement does not literally accuse plaintiff of drinking alcohol with
a student-athlete, or even in the presence of one. On the other hand, one might question why this
incident would even be worth reporting if all that Tarrant meant was that plaintiff was drinking
alcohol with other adults, or even by herself; there is nothing illegal or improper in doing so. If
that was all that Tarrant intended to convey by this statement, why would he characterize it as
“unsafe,” feel compelled to protect children from such conduct, and find it necessary to distance
himself from this behavior by emphasizing that her alcohol consumption “was not done under
[his] guidance as head coach?” For that matter, if all that Tarrant meant was that plaintiff
consumed alcohol outside the presence of student-athletes, why even mention that the reason she
was drinking alcohol was to celebrate an athlete’s success?
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¶ 81 While plaintiff validly raised all of these questions, our duty is to adopt an innocent
construction of the statement if it is reasonable to do so. Green, 234 Ill. 2d at 500; Anderson, 172
Ill. 2d at 412-13. We think it would be reasonable to innocently construe this statement. We do
agree with plaintiff on one point: this statement can only be reasonably interpreted as implying
that plaintiff drank the alcohol in the presence of athletes, because if it did not, there would be no
point in including this statement in the e-mail at all.
¶ 82 But that does not necessarily mean that what plaintiff was accused of doing was illegal,
immoral, or even objectively inappropriate. There is no law prohibiting adults from consuming
alcohol in the presence of minors. It happens every day in restaurants, at professional sporting
events, in backyard barbeques, in private homes, and the like. We have no context in this e-mail
regarding the circumstances under which plaintiff consumed the alcohol−maybe, for example,
the team went to a restaurant for a celebratory dinner after a successful outing−and while it may
be possible to imagine situations where plaintiff’s consumption of alcohol in the presence of her
athletes would have been clearly inappropriate, we have already listed several examples where it
would be perfectly legal and not inherently inappropriate.
¶ 83 We recognize that the statement here did not concern just any adult drinking in front of
just any minor; the adult accused of drinking the alcohol was a high school teacher and coach,
and the minors were her student-athletes. It could well have been Tarrant’s subjective opinion
that it is never appropriate for a coach to drink alcohol in front of his or her athletes. Others
might subscribe to that view, too. But we think it would go too far to hold, as a matter of law,
that the claim that a teacher-coach drank alcohol in the presence of her student-athletes, even in a
perfectly legal and responsible context, would impugn a teacher-coach’s professional integrity or
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otherwise prejudice her in that profession. We hold that this statement was not defamatory per se
and was properly dismissed as a claim of defamation in this case. 1
¶ 84 2. Statements Concerning Plaintiff’s Interaction With Tarrant
¶ 85 We next consider allegedly defamatory statements made by Tarrant regarding plaintiff’s
interactions not with athletes, but with Tarrant himself. In Tarrant’s September 14 e-mail, he
stated: “I asked for a change last year because [plaintiff] was verbally and physically aggressive
toward me.” In the November 12 written complaint, Tarrant wrote that plaintiff “[p]hysically
assaulted me by grabbing my arm and trying to force me into a room at the end of the school
day.”
¶ 86 Plaintiff first argues that these statements impute the commission of a crime, a recognized
category of defamation per se. Specifically, plaintiff contends that Tarrant imputed that she
committed a battery. A person commits the crime of battery if she “knowingly without legal
justification by any means (1) causes bodily harm to an individual or (2) makes physical contact
of an insulting or provoking nature with an individual.” 720 ILCS 5/12-3 (West 2012).
¶ 87 Many decisions have held that, to constitute defamation per se based on imputing the
commission of a crime, “the crime must be an indictable one, involving moral turpitude and
punishable by death or by imprisonment in [lieu of a] fine.” Doe v. Catholic Diocese of
Rockford, 2015 IL App (2d) 140618, ¶ 46; Kirchner v. Greene, 294 Ill. App. 3d 672, 680 (1998);
accord Jacobson v. Gimbel, 2013 IL App (2d) 120478, ¶ 27. One would not ordinarily think of
verbal and physical aggression, or the grabbing of a coworker’s arm to force him or her in a
different direction, to be crimes of “moral turpitude.” In other contexts, that phrase has been
1
At oral argument, plaintiff’s counsel conceded that this statement did not constitute defamation per se. We
have chosen to consider the question in full regardless.
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defined as “ ‘conduct which is inherently base, vile, or depraved, and contrary to the accepted
rules of morality and the duties owed between persons or to society in general.’ ” People v.
Valdez, 2015 IL App (3d) 120892, ¶ 21, appeal allowed, No. 119860 (Ill. Nov. 25, 2015)
(quoting In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999) (per curiam)). Thus, for example, this
court has held that an accusation that the plaintiff committed the crime of “criminal housing
management”—allowing residential real estate to fall into such deterioration that the lives of the
inhabitants become endangered—was not libelous per se, and was properly dismissed, because
the crime alleged was not one of moral turpitude. Rasky v. Columbia Broadcasting System, Inc.,
103 Ill. App. 3d 577, 583 (1981).
¶ 88 On the other hand, our supreme court has appeared not to limit crimes to those involving
moral turpitude, or at least has not limited it explicitly. See Van Horne v. Muller, 185 Ill. 2d 299,
308 (1998) (accusation that plaintiff committed assault by accosting defendant in elevator and
verbally threatening his life was defamatory per se under imputation-of-crime category); Tuite,
224 Ill. 2d at 501 (discussing imputation-of-crime category of defamation per se without
requiring that crime be one of moral turpitude, though crime in that case was bribery of judicial
officers); Stewart v. Howe, 17 Ill. 71, 72-73 (1855) (suggesting that accusation of crime of moral
turpitude might be one basis for defamation but not explicitly limiting it to such crimes). We
would further note, as an aside, that the Restatement provides that accusations of a criminal act
are actionable if the criminal act is either punishable by prison or one involving moral turpitude.
Restatement (Second) of Torts § 571 (1977).
¶ 89 We need not decide whether the crime must be one of moral turpitude under Illinois law,
because we hold, in any event, that each of the two statements at issue is amenable to a
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reasonable, innocent construction. See Guinn v. Hoskins Chevrolet, 361 Ill. App. 3d 575, 586
(2005) (reviewing court may affirm dismissal of complaint on any basis in record).
¶ 90 First, the September 14 e-mail, which concerned past conduct that had been part of a
previous dispute resolution between Tarrant and plaintiff, merely references “verbally and
physically aggressive” behavior and does not even arguably suggest the commission of a battery.
There is no specific claim of bodily harm or physical contact of any kind. That claim was
properly dismissed.
¶ 91 The November 12 written complaint, where Tarrant claimed that plaintiff “[p]hysically
assaulted [him] by grabbing [his] arm and trying to force [him] into a room at the end of the
school day,” is a closer question. We agree that the conduct described in this statement covered
all of the elements for the misdemeanor crime of battery, as it constituted physical contact of an
insulting or provoking nature. See 720 ILCS 5/12-3 (West 2012). In fact, though plaintiff failed
to call as much to our attention, battery of a school teacher on school grounds, as alleged here,
constitutes the Class 3 felony of aggravated battery. 720 ILCS 5/12-3.05(d)(3) (West 2012)
(person commits aggravated battery if she commits battery on an individual she knows to be “[a]
teacher or school employee upon school grounds”).
¶ 92 We know these things because we are lawyers and judges, trained to research criminal
statutes and case law. We know, for example, that the standard for a criminal battery is an
extremely low one−that “[a]ny offensive touching of the person or clothing of the victim
constitutes a battery.” (Emphasis added.) People v. Tiller, 61 Ill. App. 3d 785, 795 (1978).
Taking a box of matches away from the hand of another in anger has been held to constitute
battery. People v. Beifeld, 171 Ill. App. 614, 615 (1912). Spitting on someone’s arm is a battery.
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People v. Wrencher, 2011 IL App (4th) 080619, ¶ 55 (“For hundreds of years, the common law
has regarded deliberate spitting on someone as a battery.”).
¶ 93 But we are not to read this statement through the eyes of a judge or attorney; we are to
view this statement through the eyes of the “reasonable reader.” (Internal quotation marks
omitted.) Hadley, 2015 IL 118000, ¶ 31; Tuite, 224 Ill. 2d at 504; Bryson, 174 Ill. 2d at 93. The
question is whether the statement “fairly impute[s] the commission of a crime” in the eyes of the
reasonable reader. Kirchner, 294 Ill. App. 3d at 680; Doe, 2015 IL App (2d) 140618, ¶ 46.
¶ 94 Would a reasonable reader of this statement know that the complained-of acts constituted
not only misdemeanor battery but, in fact, the Class 3 felony of aggravated battery? Tarrant
himself did not; he called what happened an “assault.” See Tiller, 61 Ill. App. 3d at 795
(offensive touching is a battery, not an assault). It is a fairly common misapprehension for the
public (and sometimes even lawyers) to confuse the offenses of assault and battery, which only
reinforces our concern.
¶ 95 While there is no doubt that Tarrant’s statement checked all the boxes for the elements of
a battery and even aggravated battery, it does not automatically follow that this would be fairly
imputed from the standpoint of the reasonable reader. To use the examples of battery we have
noted above, if Tarrant accused plaintiff of angrily yanking a book of matches from his hand, or
spitting on his arm, we would not expect the community at large to brand her a criminal. We
would not expect a reasonable reader to even think of those acts as crimes. Inappropriate, no
doubt, but not crimes.
¶ 96 We believe the same could be said of the act for which Tarrant accused plaintiff. We
would expect that a reasonable reader of this statement would not know that a teacher’s act of
grabbing a fellow teacher by the arm, during school hours on school property, in order to redirect
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them to a room, in and of itself, is a criminal act, much less an aggravated form of a criminal act
that elevated it from a misdemeanor to a Class 3 felony.
¶ 97 A reasonable person would clearly infer criminal conduct from a statement that a person
is a murderer, a rapist, a child molester, even an embezzler or a thief, or from acts that fairly
implied those criminal acts. We simply cannot accept that an employee’s act of grabbing a
coworker’s arm to steer him into a room, in a workplace setting, without more, falls into that
category.
¶ 98 We must emphasize that our analysis here is limited to these specific facts and
surrounding context. See Green, 234 Ill. 2d at 499 (“context of the statement is critical”). There
is no accusation that plaintiff tried to force Tarrant into a room for the purpose of committing a
further act of aggression. Certainly, we could conceive of many situations where grabbing
someone and redirecting their movement toward a private location would be suggestive of an
intent to commit some further criminal act like robbery or sexual assault or even a more obvious
form of battery—even murder—but in the context of this complaint, we see nothing remotely
suggesting such a possibility. Rather, this statement concerns two coworkers arguing on school
grounds during the school day, where one was trying to get the attention of the other in an
admittedly inappropriate way, but nothing that makes this anything more than a heated moment
between coworkers, among many such heated moments over the previous year.
¶ 99 We have long held that, to state a claim for defamation per se on this basis, the defendant
need state the particularities of the elements of a crime, as would an indictment, so long as the
statement fairly imputes the commission of a crime. Kirchner, 294 Ill. App. 3d at 680; Doe, 2015
IL App (2d) 140618, ¶ 46; Adams v. Sussman & Hertzberg, Ltd., 292 Ill. App. 3d 30, 47 (1997).
We think the converse must be true as well; just because the challenged statement might
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technically state the elements of a crime, it does not necessarily follow that, to the reasonable
reader, the commission of a crime has been fairly imputed. Most of all, we do not think that this
accusation of plaintiff’s conduct, inappropriate though it may have been, would so harm
plaintiff’s reputation that it lowered her in the eyes of the community or deterred the community
from associating with her−which in the end is the standard for defamation. See Green, 234 Ill. 2d
at 491.
¶ 100 We hold that Tarrant’s statement that plaintiff “[p]hysically assaulted [him] by grabbing
[his] arm and trying to force [him] into a room at the end of the school day” could be reasonably
construed as not imputing the commission of a criminal offense. We affirm the dismissal of this
claim as well.
¶ 101 Plaintiff also alleges, as she did with the previous allegations, that these statements
constituted defamation per se because they challenged her integrity in her profession and
otherwise prejudiced her standing in the profession. A generic description of verbal and physical
aggression, and an isolated example of grabbing someone’s arm to get his attention, may not be
flattering statements, but they are not so harmful that they would lower plaintiff’s reputation in
the eyes of the community and deter the community from associating with her. See Green, 234
Ill. 2d at 491. Unlike two of the statements in Tarrant’s e-mail regarding plaintiff’s “unsafe”
activities with students, the statements made by Tarrant in his grievance do not constitute
statements impugning plaintiff’s integrity as a schoolteacher and are not defamatory per se. See,
e.g., Heying v. Simonaitis, 126 Ill. App. 3d 157, 164-65 (1984) (when read in context, doctors’
statements criticizing nurse for her personality conflicts with other hospital staff did not impugn
her professional abilities as nurse or prejudice her in her profession and, thus, were not
defamatory per se).
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¶ 102 We hold that these statements regarding physical and verbal confrontations between
plaintiff and Tarrant were not defamatory per se, and the claims of defamation based on these
statements were properly dismissed.
¶ 103 3. Qualified Privilege
¶ 104 Thus far, we have held that only two statements made by Tarrant in the September 14,
2013, e-mail—that plaintiff was “rolling around on a bed in a hotel room with an athlete” and
that plaintiff “hung out” with athletes who were drinking and using drugs—constituted
defamation per se. We have held that all other statements at issue were properly dismissed, as
they were not defamatory per se.
¶ 105 As to the two statements that have survived our analysis, we must next determine the
question of qualified privilege. Defendants raised this issue in their motion to dismiss and argue
the issue again before this court. The circuit court did not rule on the privilege issue. But we may
affirm the circuit court’s judgment on any basis contained in the record, regardless of whether it
was the basis on which the circuit court relied. Beacham v. Walker, 231 Ill. 2d 51, 61 (2008).
¶ 106 A defamatory statement is not actionable if it is privileged. Solaia Technology, 221 Ill. 2d
at 585. Privilege is an affirmative defense that may be raised as a basis for dismissal of a
defamation action (Anderson v. Beach, 386 Ill. App. 3d 246, 248 (2008)), even in a section 2-615
motion if the defense is apparent on the face of the complaint. O’Callaghan v. Satherlie, 2015 IL
App (1st) 142152, ¶ 18.
¶ 107 The qualified privilege in Illinois defamation law is based on “the 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); Pompa v. Swanson, 2013 IL App (2d) 120911, ¶ 27. A qualified
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privilege generally applies “where society’s interest in compensating a person for loss of
reputation is outweighed by a competing interest that demands protection.” (Internal quotation
marks omitted.) Solaia Technology, 221 Ill. 2d at 599 (Freeman, J., concurring in part and
dissenting in part) (quoting J.D. Lee & Barry A. Lindhal, Modern Tort Law § 36:32, at 36-47 (2d
ed. 2002)).
¶ 108 But even if a privilege exists in a given case, defendant may not rely on that privilege if
he abuses it. Kuwik, 156 Ill. 2d at 30. A plaintiff claiming a defendant abused a qualified
privilege must show a direct intention to injure another or a reckless disregard of the plaintiff’s
rights and of the consequences that may result to the plaintiff. Id.; accord Pompa, 2013 IL App
(2d) 120911, ¶ 26 (qualified privilege can be exceeded, and thereby defeated, in circumstances
where defendant makes false statements with intent to injure or with reckless disregard for
statements’ truth). Conduct constituting an abuse of the privilege thus includes not only an intent
to injure but also “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.” Kuwik, 156 Ill. 2d at 30; see also
Restatement (Second) of Torts § 599 cmt. a, at 286 (1977) (protection that qualified privilege
gives to publication of defamatory matter can be defeated by unreasonable exercise of privilege).
¶ 109 The complaint sufficiently alleges an abuse of any qualified privilege that may have
existed. As to both written documents containing the statements at issue, the complaint alleges
that the statements were “false” and determined to be unfounded after an internal investigation,
that they were “made and published in bad faith,” and that “if the statements were protected by a
qualified privilege, [d]efendants abused the privilege because the statements were false and
[d]efendants knew that they were false and/or were not investigated prior to the statements[’]
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publication.” (Emphasis added.) The complaint adds that the allegedly defamatory statements
“were made with the knowledge of their falsity and with actual malice.” We would further note
that the complaint alleges that at least one of the defendants, Tarrant, acted as he did toward
plaintiff as part of a “pattern of retaliation” after plaintiff rebuffed his romantic advances.
¶ 110 Because we accept these allegations as true at the pleading stage, we must find that the
complaint sufficiently pleads an abuse of any possible qualified privilege. See, e.g., Colson v.
Stieg, 89 Ill. 2d 205, 215-16 (1982) (allegations that defendant had made subject statement
“knowing it to be false” and that statement was made maliciously, willfully and intentionally was
sufficient to defeat claim of privilege on motion to dismiss); Id. at 216 (allegation that
defamatory statement was “false and that the statement was made knowing it to be false were
sufficient allegations” to avoid dismissal against claim of privilege (citing Weber v. Woods, 31
Ill. App. 3d 122 (1975), with approval)); Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070,
¶ 103 (complaint sufficiently alleged “ill-will” and “malice” to overcome privilege where
plaintiff alleged retaliation against him for reporting alleged wrongdoing by defendants).
¶ 111 Because the complaint has sufficiently alleged that any qualified privilege that may have
existed was abused, it is not necessary for us to decide whether such a privilege existed in the
first place. We express no opinion on that question one way or other. We would only point out
that, contrary to some of the argument from plaintiff on this issue, the question of qualified
privilege is governed by our supreme court’s decision in Kuwik, 156 Ill. 2d at 25-27, in which the
supreme court adopted the Restatement (Second) of Torts §§ 593-599 (1977) for determining
whether a qualified privilege exists and abandoned the five-element test previously applied in
Illinois. See also Barakat v. Matz, 271 Ill. App. 3d 662, 668 (1995).
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¶ 112 Plaintiff has raised two additional arguments as to why defendants abused their qualified
privilege, namely, that they published the statements (1) for an improper purpose and (2) to
improper parties. In view of our determination that plaintiff sufficiently pleaded abuse of the
qualified privilege, we need not address these arguments. Plaintiff will be free to argue these
points in the circuit court on remand, just as defendants may raise the issue of qualified privilege
below.
¶ 113 We reverse the trial court’s dismissal of count I of the third amended complaint insofar as
it dismissed the claims related to the two statements we have found were defamatory per se, the
statement concerning plaintiff rolling around on a hotel bed with a student, and the statement
concerning plaintiff “hanging out” with intoxicated students. As to any and all other statements
alleged as defamatory in count I, we affirm the dismissal of the third amended complaint.
¶ 114 B. Count II: False-Light Invasion of Privacy
¶ 115 To state a cause of action for false-light invasion of privacy, a plaintiff must allege that:
(1) the plaintiff was placed in a false light before the public as a result of the defendants’ actions;
(2) the false light in which the plaintiff was placed would be highly offensive to a reasonable
person; and (3) the defendant acted with actual malice, that is, with knowledge that the
statements were false or with reckless disregard for whether the statements were true or false.
Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 17-18 (1992); Lovgren v. Citizens First
National Bank of Princeton, 126 Ill. 2d 411, 419-23 (1989).
¶ 116 In their motion to dismiss count II, defendants noted that plaintiff’s false-light claim was
based on the same alleged false statements on which her defamation claim was based.
Defendants argued that, as a result, the false-light claim suffered from the same fatal deficiencies
that defendants had raised regarding count I. Likewise, in dismissing count II for false-light
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invasion of privacy, the trial court stated: “As the defamation count falls, so does the false-[light]
count. These statements taken in context are not highly offensive to a reasonable person. These
statements are subjectively offensive to the plaintiff because she wants to settle a score with the
track coach.” We have now held that two of Tarrant’s statements in count I were defamatory
per se and that count I should not have been dismissed to that extent.
¶ 117 In Tuite, 224 Ill. 2d 490, as in the instant case, the plaintiff’s false-light invasion of
privacy claim was based on the defamatory per se nature of the statements. The appellate court
held that the failure of the plaintiff’s defamation per se claim required the dismissal of his false-
light claim. Id. The Illinois Supreme Court, however, reversed the dismissal of the plaintiff’s
defamation per se claim and explained that it therefore followed “that the dismissal of his false
light invasion of privacy claim must also be reversed.” Id. at 515.
¶ 118 We believe the same reasoning applies here. We reverse the dismissal of count II of the
third amended complaint insofar as it relates to the two statements we have found to constitute
defamation per se, and in all other respects we affirm its dismissal. 2
¶ 119 III. CONCLUSION
¶ 120 For the reasons stated, we reverse the judgment of the circuit court of Cook County and
remand for further proceedings consistent with this opinion.
2
In their response brief, defendants argue that plaintiff’s action is barred by section 2-210 of the Local
Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-210 (West
2012)), which states that “[a] public employee acting in the scope of his employment is not liable for an injury
caused by his negligent misrepresentation or the provision of information either orally, in writing, by computer or
any other electronic transmission, or in a book or other form of library material.” Defendants contend that Tarrant
was acting in the scope of his employment and his statements provided information.
But defendants did not raise, brief, or argue the affirmative defense of immunity under the Tort Immunity
Act in the trial court. The trial court, therefore, did not enter any order on this issue or even address it. “It is well
settled that ‘issues not raised in the trial court are deemed forfeited and may not be raised for the first time on
appeal.’ [Citations.]” (Internal quotation marks omitted.) Mauvais-Jarvis, 2013 IL App (1st) 120070, ¶ 102.
Although we recognize that we may affirm the trial court’s judgment on any basis appearing in the record, the issue
has not been fully developed in the record before us. We believe that it would be premature for us to address the
merits of this issue until it has. See id. ¶ 103.
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¶ 121 Reversed and remanded.
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