Alex v. City of Chicago, The et al

Filing 79

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 2/29/2016. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GREGORY ALEX,
Plaintiff,
v.
THE CITY OF CHICAGO, et al.,

Case No. 14 C 3821
Judge John Robert Blakey

Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff, Gregory Alex, worked briefly for Chicago Public Schools as a parttime aide in 2013. After he was fired, he sued the Board of Education for the City of
Chicago and the principal of the school where he worked, alleging constitutional
claims, sexual harassment, defamation and intentional infliction of emotional
distress. Defendants moved for summary judgment [58]. For the reasons explained
below, the Court grants the motion and enters summary judgment in Defendants’
favor.
I.

Legal Standard
Summary judgment is appropriate if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.
2014). A genuine dispute as to any material fact exists if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The party seeking summary

judgment has the burden of establishing that there is no genuine dispute as to any
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining
whether a genuine issue of material fact exists, this Court must construe all facts
and reasonable inferences in the light most favorable to the nonmoving party, here,
Plaintiff. See Anderson, 477 U.S. at 255.
Because Plaintiff is a pro se litigant, the Defendants served him with a
“Notice to Pro Se Litigant Opposing Motion for Summary Judgment” as required by
the Court’s Local Rule 56.2 [62]. The notice explained the consequences of failing to
properly respond to a motion for summary judgment and to a statement of material
facts under Federal Rule of Civil Procedure 56(e) and Local Rule 56.1.
II.

Facts 1
Plaintiff started working as a part-time aide at Kozminski Elementary

Community Academy (“Kozminski”), a Chicago Public School run by the City of
Chicago’s Board of Education, on September 12, 2013.

DSOF, ¶1.

Defendant

Myron Hester, principal of Kozminski, recommended Plaintiff for the job. Id. ¶2.
When Plaintiff was hired, he was a probationary employee, and he remained a
probationary employee throughout the entire time he worked for the Board of
Education. DSOF, ¶¶1, 5. Pursuant to Board of Education policy, “probationary
employees are ‘at-will’ employees who may be discharged from Board employment
for any or no cause and with or without notice.” Id. ¶5 and Exhibit C (Declaration
The facts are taken from the parties’ Local Rule 56.1 statements and the exhibits
thereto. “DSOF” refers to Defendants’ statement of undisputed facts [60]. “DSOAF” refers
to Defendants’ statement of additional facts [73]. Plaintiff, who is pro se, incorporated his
responses to Defendants’ statement of undisputed facts in his response brief [68].
1

2

of Thomas Krieger, Assistant Director, Office of Employee Engagement; Employee
Discipline and Due Process Policy for School-Based Union Employees (Except CTU),
¶VI(B)). The Board defines “probationary employees” as all “employees, excluding
teachers, with less than one calendar year of service with the Board.”

Employee

Discipline and Due Process Policy for School-Based Union Employees (Except CTU),
¶III(7). Plaintiff admits that he was, at all times, a probationary employee subject
to the Board’s at-will policy. Plaintiff’s Response to DSOF, ¶5.
As an aide, Plaintiff’s duties included monitoring students during lunch and
recess and during teacher breaks.

DSOF, ¶10.

At times, Plaintiff was also

responsible for taking students from their classroom to the lunchroom. Id. ¶10.
Plaintiff was also asked to help with “putting in” attendance and filing student
paperwork, and he also helped with an afterschool mentoring program. Plaintiff’s
Response to DSOF, ¶10.
In November 2013, Plaintiff met with Principal Hester and Assistant
Principal Michelle Brumfield to discuss his performance; Hester called the meeting
shortly after a bus aide complained about Plaintiff’s behavior. DSOF, Exhibit B
(Declaration of Myron Hester, ¶4).

During that meeting, Assistant Principal

Brumfield told Plaintiff that she expected him to be more engaged with the students
while he monitored them at lunch time, so that he could help prevent little
problems from becoming big problems. DSOF, ¶8.

Hester reported that he had

personally observed Plaintiff’s poor work performance and knew that he sometimes
failed to show up at his assigned monitoring location. DSOF, ¶19 and Exhibit B

3

(Hester Dec., ¶8). In response, Plaintiff told Brumfield and Principal Hester that he
would do better with the kids. DSOF, ¶9.
At that meeting, the parties also discussed rumors about some inappropriate
comments Plaintiff was alleged to have made to co-workers; Plaintiff initially
denied that he made any inappropriate remarks.

DSOF, ¶¶6-7.

AP Brumfield

advised Hester that two staff members reported that Plaintiff made a comment
about just having oral sex after they told him he had crumbs on his face. DSOF
Exhibit B (Hester Dec., ¶9). Plaintiff admitted that Hester had no reason to doubt
Brumfield. Plaintiff’s Response to DSOF, ¶¶13, 18. Plaintiff admitted that he told
people he had sex with a certain bus aide as well. Plaintiff’s Response to DSOF, ¶7.
Attached to Plaintiff’s Complaint is an incident report completed by the bus
aide who was the subject of Plaintiff’s alleged boasts. In the incident report, she
complained that Plaintiff “had said he had sex with me and was over my house.”
November 8, 2013 Incident Report (attached as Exhibit B to Plaintiff’s Complaint).
The bus aide stated in the report that she talked to AP Brumfield about the issue
and that she “would like for Mr. Alex to apologize for the lies he told his coworkers”;
she also asked for “the principal to talk to him about the issue” because it is
“serious.” Id.
After the meeting, Hester decided that he no longer wanted Plaintiff at his
school and advised the Board that he planned to fire Plaintiff. DSOF, ¶12. In
response, Thomas Krieger, whose job responsibilities included the task of approving
requests from principals to terminate probationary employees, asked Hester to

4

explain his reasons for wanting to fire Plaintiff. DSOF, ¶12. Hester explained, in a
November 21, 2013 email, that he was firing Plaintiff because he “just has not been
an asset to Kozminski.” Complaint [11], Exhibit A (November 21, 2103 email from
Myron Hester to Thomas Krieger).

Hester noted that Plaintiff initiated

inappropriate conversations with colleagues and failed to closely monitor students
at lunch and recess; Plaintiff also failed to arrive at the appointed time to monitor
the students.

DSOF, ¶13.

Hester’s email cited the following justifications for

Plaintiff’s termination:
•

He left the building during his lunch break to have sexual
relations with a bus aide who later filed a sexual harassment
complaint about him and said he spread rumors about it to staff
members at the school; when my AP and I had a talk with him
in my office about this matter, he initially denied it but when we
brought in a staff member who he spoke to about the lunch
break encounter he ultimately admitted that he did meet with
the bus aide and had sex with her and that he did tell two
employees at the school what he did with her

•

Poor work performance; he constantly has to be reminded about
his duties and where he should be to fulfill those duties

•

He eats food in the office while working and assisting parents
and visitors

•

He has had inappropriate conversations with staff members
making sexual innuendos to them; according to teachers when a
staff member told him he had food/crumbs still on his face, he
responded that it was due to him finishing performing oral sex

•

His work performance during recess and lunch is also sub par;
he poorly supervises and monitors students during lunch and
recess, his primary work duty. My AP and I have repeatedly
reminded him about and modeled for him active monitoring and
engagement strategies with students, and he has not complied
with our expectations
5

November 21, 2103 email from Myron Hester to Thomas Krieger (attached to
Plaintiff’s Complaint as Exhibit A).
On December 16, 2013, Plaintiff, without the knowledge or consent of Hester
or Brumfield, transferred to Edward K. Ellington Elementary School. DSOF, ¶30.
The Board terminated Plaintiff on December 19, 2013. DSOF, ¶14. At that time,
they noted in his personnel file that he was “ineligible for rehire.” As a result,
Plaintiff lost his position at Ellington.
Plaintiff sued the Board of Education for the City of Chicago and Hester, in
both his official and individual capacities, alleging violation of Plaintiff’s Fifth and
Fourteenth Amendment rights (Counts I and II), arbitrary and capricious board
action (Count III), violation of Title IX (Count IV), violation of Title VII (Count V),
sexual harassment (Count VI), defamation (Count VII), slander (Count VIII), libel
(Count IX), fraud (Count X), and intentional infliction of emotional distress (Count
XI).

Complaint [11]. He claimed damages of $1,085,000. Id. He also sought to

have the “do-not-hire” designation removed from his personnel file.

Principal

Hester and the Board of Education filed separate answers [29], [30], and the Board
asserted ten affirmative defenses, which Plaintiff then moved to strike [36].
On February 12, 2015, the Board and Hester filed a joint motion for summary
judgment [58].

Plaintiff filed a response to that motion, opposing the entry of

summary judgment on all but one of his claims. The motion is now fully briefed.

6

III.

Analysis
A.

Plaintiff’s Title IX Claim

Plaintiff’s Complaint asserts eleven causes of action, and Defendants have
moved for summary judgment on all of them.

Plaintiff opposes the entry of

summary judgment as to all but one claim: he does not oppose the entry of summary
judgment as to Count IV, which is his Title IX claim. As Defendants correctly point
out, that claim (which relates solely to Plaintiff’s employment) is preempted by Title
VII, and summary judgment in Defendants’ favor is, therefore, appropriate. E.g.,
Ludlow v. Nw. Univ., No. 14 C 4614, 2015 WL 5116867, at *4 (N.D. Ill. Aug. 28,
2015); Jones v. Sabis Educ. Sys., Inc., No. 98 C 4252, 1999 WL 1206955, at *10 n. 7
(N.D. Ill. Dec. 13, 1999); Kowal-Vern v. Loyola Univ. of Chicago, No. 97 C 6409,
2002 WL 1880131, at *5 (N.D. Ill. Aug. 14, 2002); Blazquez v. Bd. of Educ. of City of
Chicago, No. 05 CV 4389, 2006 WL 3320538, at *11 (N.D. Ill. Nov. 14, 2005).
Accordingly, summary judgment in Defendants’ favor is appropriate on this claim.
The Court turns next to the disputed claims.
B.

Plaintiff’s Constitutional Claims

In Count I of his Complaint, Plaintiff alleges that Defendants violated his 5th
Amendment right to procedural due process “by conducting a proceeding that was
not factually related with respect to proof of the claims made against him.”
Complaint [11], ¶57. Plaintiff also alleges that Defendant create a false allegation
that a sexual harassment complaint had been filed against him, and that the
creation of that allegation “was so severe, pervasive and objectively offensive that it

7

deprived Plaintiff of access to an educational career within his chosen field and
stripped him of the benefits provided by the school when hired to a better position,
based on the arbitrary and capricious manner in which Defendants acted.” Id. ¶61.
This claim appears to be based on Hester’s email, which stated that a sexual
harassment complaint had been filed against Plaintiff. But the record is clear that
a “sexual harassment complaint” was filed against Plaintiff.

The bus aide’s

incident report claims sexual harassment against Plaintiff. Plaintiff was aware of
the incident report completed by the us aide, and Plaintiff agreed at his deposition
that, if she had complained to the principal about what happened, that would be a
“complaint.” See Alex Deposition, p. 70 (DSOF Exhibit A).
In Count II, Plaintiff alleges that Defendants violated the Fourteenth
Amendment’s Equal Protection Clause; he also cites 42 U.S.C. § 1981. Complaint
[11], ¶¶62-75. This claim appears to allege that Hester’s email and the decision to
fire Plaintiff deprived Plaintiff of his right to work in his chosen profession. To be
sure, the right to work is “of the very essence of the personal freedom and
opportunity that it was the purpose of the (Fourteenth) Amendment to secure . . . ”
Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 317 (1976)(citing Truax v. Raich,
239 U.S. 33, 41 (1915)). “Decades ago, the Supreme Court recognized that the ‘right
to work for a living in the common occupations of the community’ is a form of liberty
interest originating in the Constitution.” Becker v. Illinois Real Estate Admin. &
Disciplinary Bd., 884 F.2d 955, 957 (7th Cir. 1989) (quoting Truax, 239 U.S. at 41;
Hampton v. Mow Sun Wong, 426 U.S. 88, 102-03, n. 23 (1976)).

8

Neither the Fifth Amendment nor the Fourteenth Amendment, however,
require the Board to retain Plaintiff after it determined that his performance was
subpar and his judgment with respect to workplace behavior was poor.

The

Constitution precludes a State from passing laws that deprive individuals of their
right to work based upon arbitrary and capricious delineations or requirements; it
does not preclude the routine type of employment decision at issue here. Courts do
not “sit as a super-personnel department with authority to review an employer’s
business decision as to whether someone should be fired or disciplined because of a
work-rule violation.” Ballance v. City of Springfield, 424 F.3d 614, 621 (7th Cir.
2005) (citing Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000)). “The Equal
Protection clause of the Fourteenth Amendment is violated only if the defendants
have acted with a discriminatory purpose or intent.” Minority Police Officers Ass’n
of South Bend v. City of South Bend, 801 F.2d 964, 966 (7th Cir. 1986) (citing
Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65
(1977)). There is no evidence of discriminatory purpose or intent in this case.
Section 1981 proscribes discrimination based on race in the “making,
performance, modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C.
§ 1981(a)-(b).

“Although section 1981 and Title VII differ in the types of

discrimination they proscribe, the methods of proof and elements of the case are
essentially identical.” Johnson v. City of Fort Wayne, 91 F.3d 922, 940 (7th Cir.
1996). A Plaintiff asserting race discrimination may defeat a summary judgment

9

motion by presenting: (1) direct or circumstantial evidence of discrimination (the
“direct method”); or (2) indirect evidence that establishes a prima facie case and
satisfies the burden-shifting approach set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 801–02 (1973) (the “indirect method”). See, e.g., Adams v. City
of Indianapolis, 742 F.3d 720, 735 (7th Cir. 2014). Under the indirect method, a
plaintiff must “establish a prima facie case of discrimination by showing that: (1) he
is a member of a protected class; (2) he was satisfying his employer’s legitimate
expectations; (3) he suffered an adverse employment action; and (4) similarly
situated employees outside his protected class were treated more favorably.” Cyrus
v. Union Pac. R.R. Co., No. 12 C 10248, 2015 WL 5675073, at *4 (N.D. Ill. Sept. 24,
2015)(citing McGowan v. Deere & Co., 581 F.3d 575, 579 (7th Cir. 2009)).
Here, the record contains no evidence of direct discrimination, and Plaintiff
has offered no evidence to prove the elements of a prima facie case under the
indirect method. On the contrary, the record shows that Plaintiff was not satisfying
his employer’s legitimate expectations, and Plaintiff admits that he is not aware of
any other similarly-situated employee who was treated more favorably. DSOF, ¶24.
The record contains no evidence to support a claim of race discrimination and no
evidence to suggest that Hester, who is African-American, fired Plaintiff because of
his race. As Hester stated in his declaration, he did not make any recommendations
regarding Plaintiff’s employment, or make any decisions regarding Plaintiff’s
employment, based upon Plaintiff’s race.
Declaration, ¶11).

10

DSOF, ¶35 and Exhibit B (Hester

Failing to create any genuine issue of material fact, Plaintiff has offered no
evidence of discrimination and no evidence of discriminatory purpose or intent. The
record shows that Hester believed Plaintiff’s performance was subpar and that
Hester personally witnessed Plaintiff’s poor performance. The record shows that
Hester believed Plaintiff made inappropriate vulgar comments to colleagues and
believed Plaintiff had bragged to another employee about having sex with a bus
aide; Hester had in his possession an incident report from the bus aide claiming
that Plaintiff had told others he had sex with her, demanding that Plaintiff
apologize and that Hester take action.

These were all valid reasons for firing

Plaintiff and nothing in the record implicates constitutional concerns.
Likewise, the Board’s discipline and due process policy specifically provided
that probationary employees like Plaintiff could be fired for any reason, or for no
reason. “Although it is true that under certain circumstances an individual has a
constitutional property interest in continued employment, such a property interest
arises only when there is an existing rule or a ‘mutually explicit understanding’ to
support an employee’s claim of entitlement.” Common v. Williams, No. 86 C 5169,
1987 WL 26152, at *2 (N.D. Ill. Dec. 1, 1987) (citing Board of Regents v. Roth, 408
U.S. 564, 577-78 (1972) and quoting Perry v. Sindermann, 408 U.S. 598, 601 (1972)).
Under the Board’s policy, probationary employees are not entitled to continued
employment, but are “at will” employees who may be terminated at any time, with
or without cause, and with or without notice; they do not enjoy the same due process
rights as permanent employees. Plaintiff concedes that this is so.

11

For all of these reasons, the Court finds that Plaintiff’s due process and equal
protection claims fail, and that no factfinder could reasonably infer discrimination
or discriminatory purpose or intent from the record evidence.

Accordingly,

Defendants are entitled to summary judgment on Plaintiff’s constitutional claims.
C.

Arbitrary and Capricious Board Action

In Count III, Plaintiff alleges that Defendants arbitrarily and capriciously
determined that he was not fit for continued employment.

Defendants seek

summary judgment, arguing that this is not a cause of action and they are right.
In response to Defendants’ summary judgment motion, Plaintiff argues that
this claim may proceed because the Board’s decision to fire him was arbitrary and
capricious in that it failed to take into account his side of the story. There are two
problems with Plaintiff’s claim. First, Plaintiff admits that at least some of the
reasons Hester gave for firing him were true. He contends that no one ever filed a
sexual harassment complaint against him, but the record shows that the bus aide
did file an incident report asking the Principal to address what she perceived to be
sexual harassment, and Plaintiff admitted that if she complained to Hester about
sexual harassment, that would be a “complaint.” Second, even if the Court accepted
Plaintiff’s characterization, the reasons for Plaintiff’s termination are largely
irrelevant. Plaintiff admits that, as a probationary employee, he could be fired for
any reason or for no reason.

Accordingly, the Court finds that Defendants are

entitled to summary judgment on Count III.

12

D.

Title VII Claims

In Count V, Plaintiff alleges that defendants subjected him to a hostile work
environment in violation of Title VII.

In Count VI, Plaintiff alleges sexual

harassment in violation of Title VII. These claims appear to be based upon the fact
that Defendants raised the subject of sexual activity and discussed sex-related
comments during the November 2013 meeting.
Defendants first argue that they are entitled to judgment as a matter of law
on Plaintiff’s Title VII claims because Plaintiff failed to exhaust all available
administrative remedies.

“A condition precedent to bringing a Title VII hostile

work environment is that the employee must have ‘afford[ed] the EEOC and the
employer an opportunity to settle the dispute through conference, conciliation, and
persuasion.’” Hottenroth v. Village of Slinger, 388 F.3d 1015, 1035 (7th Cir.
2004)(quoting Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.
1994)). There is no evidence in the record to suggest that Plaintiff ever pursued a
charge with the EEOC, and Defendants are entitled to summary judgment on this
basis.
Even if the Court were to ignore Plaintiff’s failure to file an administrative
charge, his claims fail on the merits as well.

To establish a prima facie sexual

harassment or hostile work environment claim under Title VII, Plaintiff would first
have to demonstrate that he was harassed because of his sex by a co-worker or
supervisor. Hottenroth v. Vill. of Slinger, 388 F.3d 1015, 1034-35 (7th Cir. 2004)
(citing Hilt–Dyson v. City of Chicago, 282 F.3d 456, 462 (7th Cir. 2002)). There is no

13

evidence that this was the case. In fact, at his deposition, he testified that he had
no reason to think that his gender had anything to do with Hester sending the
email to Krieger. Alex Dep., pp. 66-67. And he testified that he was not claiming
sexual harassment.
Additionally, for any sexual harassment to be actionable, “the conduct must
be severe or pervasive.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998)
(citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998); Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). Similarly, to state a hostile work
environment claim, Plaintiff must show that the alleged harassment was “so severe
or pervasive as to alter the conditions of employment and create an abusive working
environment.” Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998); Huri v.
Office of the Chief Judge of the Circuit Court of Cook County, 804 F.3d 826, 833-34
(7th Cir. 2015). In Faragher, the Supreme Court explained that a hostile workplace
is “both objectively and subjectively offensive, one that a reasonable person would
find hostile or abusive, and one that the victim in fact did perceive to be so.” 524
U.S. at 787.

In deciding whether a workplace is “hostile” courts consider the

“frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employees' work performance.” Id. at 787-88.
Here, there is no evidence of severe or pervasive conduct; nor is there
evidence establishing that the environment at Kozminski was hostile. At most, the
evidence shows that Hester and Brumfield discussed sexual activity and sexually-

14

charged comments in a single meeting that lasted less than 30 minutes. And the
topic came up only because Plaintiff allegedly made the comments to co-workers;
what was said in the meeting was merely an echo of what Plaintiff was alleged to
have said. In fact, the record shows that, despite his allegations, Plaintiff did not
believe he was sexually harassed. At his deposition, Plaintiff testified that he was
not complaining that he was sexually harassed. Alex Dep., p. 59. When asked
whether anyone created a hostile work environment for him, he testified, “no, not
that I know.” Id., pp. 66-67. In short, there is no evidence in the record to support a
sexual harassment or hostile work environment claim, and the Court grants
Defendants’ motion for summary judgment as to Counts V and VI.
E.

Plaintiffs’ Defamation Claims

Plaintiff asserts three defamation claims: Count VII alleges defamation of
character; Count VIII alleges slander and Count IX alleges libel. All of these claims
are based upon the email Principal Hester sent on November 21, 2013 to Thomas
Krieger.
“A defamatory statement is a statement that harms a person’s reputation to
the extent it lowers the person in the eyes of the community or deters the
community from associating with her or him.” Huon v. Breaking Media, LLC, 75
F.Supp. 3d 747, 762 (N.D. Ill. 2014) (quoting Green v. Rogers, 917 N.E.2d 450, 459
(Ill. 2009)). Illinois recognizes two types of defamation: defamation per quod and
defamation per se. The two types of defamation claims differ only with respect to
the plaintiff's burden to plead and prove damages (with defamation per quod, a

15

plaintiff must plead and prove special damages, whereas with defamation per se,
damages are presumed). Huon (citing Tuite v. Corbitt, 866 N.E.2d 114, 121 (Ill.
2006); Imperial Apparel, Ltd. v. Cosmo's Designer Direct, Inc., 882 N.E.2d 1011,
1018 (Ill. 2008)).
To prevail on either type of defamation claim, a plaintiff must prove “that the
defendant made a false statement about the plaintiff, that the defendant made an
unprivileged publication of that statement to a third party, and that this
publication caused damages.” Huon, 75 F.Supp. 2d at 762 (quoting Green, 917
N.E.2d at 459). See also Roberts v. Columbia Coll. Chicago, 102 F.Supp. 3d 994,
1006-07 (N.D. Ill. 2015); Seitz–Partridge v. Loyola Univ. Chi., 987 N.E.2d 34, 41 (Ill.
App. Ct. 2013)).

“In defamation actions, statements that are capable of being

proven true or false are actionable, whereas opinions are not.” Seitz, 987 N.E.2d at
43 (citing Moriarty v. Greene, 732 N.E.2d 730, 739 (Ill. App. Ct. 2000). “The test for
determining whether an allegedly defamatory statement of opinion is actionable is
‘whether the statement contains an objectively verifiable assertion.’”

Seitz, 987

N.E.2d at 43 (quoting Wynne v. Loyola Univ. Chi., 741 N.E.2d 669, 676 (Ill. App. Ct.
2000).
After the meeting with Plaintiff, Hester advised the Office of Employee
Engagement that he wanted to fire Plaintiff. Thomas Krieger responded to Hester’s
request with an email asking Hester to provide a list of reasons for the termination.
See Complaint, Exhibit A. Hester replied with an email listing his reasons:
•

He left the building during his lunch break to have sexual
relations with a bus aide who later filed a sexual harassment
16

•
•
•

•

complaint about him and said he spread rumors about it to staff
members at the school; when my AP and I had a talk with him
in my office about this matter, he initially denied it but when we
brought in a staff member who he spoke to about the lunch
break encounter he ultimately admitted that he did meet with
the bus aide and had sex with her and that he did tell two
employees at the school what he did with her
Poor work performance; he constantly has to be reminded about
his duties and where he should be to fulfill those duties
He eats food in the office while working and assisting parents
and visitors
He has had inappropriate conversations with staff members
making sexual innuendos to them; according to teachers when a
staff member told him he had food/crumbs still on his face, he
responded that it was due to him finishing performing oral sex
His work performance during recess and lunch is also sub par;
he poorly supervises and monitors students during lunch and
recess, his primary work duty. My AP and I have repeatedly
reminded him about and modeled for him active monitoring and
engagement strategies with students, and he has not complied
with our expectations
In sum, Mr. Alex just has not been an asset to Kozminski.

November 21, 2103 email from Myron Hester to Thomas Krieger (attached to
Plaintiff’s Complaint as Exhibit A).
Initially, much of what is conveyed in the email is undisputedly true.
Plaintiff admitted that his supervisor discussed his performance deficiencies at the
November 2013 meeting, and that he responded by telling his supervisor that he
would do better. Alex Dep., pp. 30-31. Indeed, Plaintiff does not argue that the
statements about his performance were false, and he testified that he didn’t think
anything Hester said in his email was a lie. Id., p. 105. When asked to identify
what in Hester’s email was defamatory, Plaintiff testified that “the oral sex and the
sexual harassment complaint about the Ms. McDonald – so that is it. The sexual
harassment complaint about the oral crumb situation.” Alex Dep., p. 70. But, as
17

noted before, Plaintiff admitted at his deposition that if the bus aide told the
principal that she felt sexually harassed, that would constitute the filing of a sexual
harassment complaint.

Id.

She did so when she filed the incident report.

Accordingly, because truth is an absolute defense to a defamation action, Hester’s
email cannot be actionable. E.g., Rivera v. Allstate Ins. Co., No. 10 C 1733, 2015
WL 5722256, at *6 (N.D. Ill. Sept. 29, 2015)(citing Republic Tobacco Co. v. North
Atlantic Trading Co., Inc., 381 F.3d 717, 727 (7th Cir. 2004); Haynes v. Alfred A.
Knopf, Inc., 8 F.3d 1222, 1227-28 (7th Cir. 1993); Seitz–Partridge, 987 N.E.2d at 41;
Restatement (Second) of Torts § 581A cmt. a (1977)). Similarly, Hester’s opinions as
to Plaintiff’s competence are not actionable. “Statements that an employee was
discharged because he was incompetent have been held to be non-actionable
opinions.” Roberts, 102 F.Supp.3d at 1007 (citing Marron v. Eby–Brown Co., LLC,
No. 1:11–cv–2584, 2012 WL 182234, at *3-4 (N.D. Ill. Jan. 23, 2012); Hopewell v.
Vitullo, 701 N.E.2d 99, 103-04 (Ill. App. Ct. 1998)).
Finally, even if Hester’s email could be construed to include false statements
of fact, Plaintiff’s defamation claims still fail.

Proving defamation in Illinois

requires more than just publication; a plaintiff is required to show that the
publication was not privileged.

“An otherwise defamatory statement is not

actionable if made under a qualified privilege.” Phillips v. Quality Terminal Servs.,
LLC, 855 F.Supp. 2d 764, 789 (N.D. Ill. 2012)(quoting Haywood v. Lucent
Technologies, Inc., 169 F.Supp.2d 890, 916 (N.D. Ill. 2001)). “Illinois law confers a
privilege upon ‘[s]tatements made within a legitimate business context.’” Id.

18

(quoting Republic Tobacco, 381 F.3d at 727).

For the privilege to apply, the

statement must be: (1) made in good faith; (2) with an interest or duty to be upheld;
(3) limited in scope to that purpose; (4) on a proper occasion; and (5) published in a
proper manner only to proper parties. Id. (citing Republic Tobacco, 381 F.3d at 727;
Zeinfeld v. Hayes Freight Lines, Inc., 243 N.E.2d 217, 221 (Ill. 1968)).

“The

existence of qualified privilege is a question of law.” Phillips, 855 F.Supp.2d at 789.
Here, there is no question that Hester sent the email to Krieger “within a
legitimate business context.” Plaintiff does not allege that Hester sent the email to
anyone else; nor does he allege that Hester sent the email for any improper purpose
or for any purpose other than to explain his decision to fire Plaintiff. For all of
these reasons, Defendants are entitled to summary judgment on Plaintiff’s
defamation claims (Counts VII, VIII and IX).
F.

Plaintiff’s Fraud Claim

In Count X, Plaintiff alleges fraud.

As a subtitle to this claim, Plaintiff

alleges that “Defendants deliberately created a false scenario which led to Plaintiff
losing his job.” Complaint [11], Count X. He also alleges that “Defendants used
dishonest methods to take something valuable from Plaintiff, which was his
livelihood, his liberty and freedom to work where he please[s], in addition to
damage to his reputation, his standing in the community, his Civil, Human and
Constitutional Rights and lost wages.” Id. ¶124.
“Under Illinois law, the ‘elements of common law fraud are: (1) a false
statement of material fact; (2) defendant’s knowledge that the statement was false;

19

(3) defendant’s intent that the statement induce the plaintiff to act; (4) plaintiff’s
reliance upon the truth of the statement; and (5) plaintiff’s damages resulting from
reliance on the statement.’”

Ohio National Life Assurance Corp. v. Davis, 13

F.Supp. 3d 876, 882 (N.D. Ill. 2014)(quoting Connick v. Suzuki Motor Co., Ltd., 675
N.E.2d 584, 591 (Ill. 1996)). Federal Rule of Civil Procedure 9(b) requires that,
when alleging fraud, a plaintiff “must state with particularity the circumstances
constituting the fraud . . . .” A complaint “alleging fraud must provide ‘the who,
what, when, where, and how.’” Borsellino v. Goldman Sachs Group, Inc., 477 F.3d
502, 507 (7th Cir. 2007)(quoting U.S. ex rel. Gross v. AIDS Research Alliance–
Chicago, 415 F.3d 601, 605 (7th Cir. 2005); DiLeo v. Ernst & Young, 901 F.2d 624,
627 (7th Cir. 1990)).
Ostensibly based upon Hester’s email, Plaintiff’s claim fails here because, as
explained above, the statements Hester made were largely true. Certainly, there is
no evidence in the record to suggest that Hester knew any part of his email was
false. Plaintiff does not dispute that his performance was subpar; he admits that he
needed to do a better job of monitoring the students; he admits that if the bus aide
complained to the principal about sexual harassment, that would constitute the
filing of a complaint; he admits that she, in fact, filed an incident report and spoke
to Brumfield about Plaintiff’s conduct; he admits that AP Brumfield had no reason
to doubt the staff who passed along Plaintiff’s oral sex comment; and he admits the
Principal Hester had no reason to doubt his AP when she reported what the staff

20

had told her. The record simply does not support Plaintiff’s claim that Defendants
used “dishonest methods” or otherwise committed fraud.
G.

Plaintiff’s Intentional Infliction of Emotion Distress Claim

In Count XI, Plaintiff alleges intentional infliction of emotional distress. This
claim is based on Hester’s email and his being placed on the “do not hire” list.
Complaint [11], ¶¶128-129.

To win on his intentional infliction of emotional

distress claim, Plaintiff would have to prove that: (1) Defendants’ conduct was
extreme and outrageous; (2) Defendants either intended to inflict severe emotional
distress or knew that there was a high probability that their conduct would do so;
and (3) Defendants’ conduct actually caused Plaintiff to suffer severe emotional
distress. E.g., Welsh v. Commonwealth Edison Co., 713 N.E.2d 679, 683 (Ill. App.
Ct. 1999); McGrath v. Fahey, 533 N.E.2d 806 (Ill. 1988). None of these elements is
satisfied here.
First, nothing in the record suggests that anything Defendants did was
extreme and outrageous. In the employment context, courts generally decline to
find an employer’s conduct to be actionable unless it is “calculated to coerce an
employee to do something illegal”; “[t]his reluctance seems to be grounded in a fear
that, if the anxiety and stress resulting from discipline, job transfers, or even
terminations could form the basis of an action for emotional distress, virtually every
employee would have a cause of action.” Welsh v. Commonwealth Edison Co., 713
N.E.2d 679, 684 (Ill. App. Ct. 1999). See also Edwards v. Commonwealth Edison,
No. 15 C 3260, 2015 WL 6445417, at *3 (N.D. Ill. Oct. 23, 2015)(noting that “Courts

21

police the line of ‘extreme and outrageous’ conduct, particularly where employers
are involved, only allowing especially abusive and atrocious transgressions to
survive a motion to dismiss . . .”). As a general proposition, the Court would agree
that work place discussions initiated by supervisors concerning an employee’s
sexual activity can be offensive (though not necessarily extreme and outrageous).
But here, given the nature of staff complaints about Plaintiff, Hester and Brumfield
had no choice but to raise those topics. Under the circumstances, even if such
discussions could rise to the level of “extreme and outrageous” (and the case law
suggests that they ordinarily would not), they do not support an intentional
infliction of emotion distress claim.

And there is nothing else in the record to

support Plaintiff’s claim.
Moreover, there is no evidence that Hester intended to inflict severe
emotional distress. Nor does the record include evidence showing that Plaintiff
actually suffered severe emotional distress. The Illinois Supreme Court has long
instructed that, to give rise to liability, the emotional distress suffered by a plaintiff
“must be severe.”

Public Finance Corp. v. Davis, 360 N.E.2d 765, 767 (1976).

“Although fright, horror, grief, shame, humiliation, worry, etc., may fall within the
ambit of the term ‘emotional distress,’ these mental conditions alone are not
actionable”; “[t]he law intervenes only where the distress inflicted is so severe that
no reasonable man could be expected to endure it.” Id. Plaintiff alleges that he
“has suffered mentally, emotionally and physically due to the actions of Defendants
and the effect the damaging, false, defamatory slanderous email will have on his

22

future.” Complaint [11], ¶133. He alleges that he has experienced “many sleepless
nights, headaches, upset stomach, loss of appetite, emotional and mental distress,
and continued worrying over the slanderous, defamatory false statements made
against him, and the effect it had on his new position.” Id. ¶134. These allegations
alone, even if true, do not suggest the level of distress required under the law. 2
Defendants are entitled to judgment as a matter of law on Count XI.

The record includes several affidavits, which Plaintiff attached to his Complaint. Plaintiff
submitted his own affidavit, which states that he “cannot eat, I am having nightmares, problems
sleeping. I want to be alone, when previously I was a social butterfly. The damage is intense. I am
humiliated, damaged beyond imagination and I don’t know what my future holds.” Sworn Affidavit
of Gregory Alex, p. 2 (attached to Plaintiff’s Complaint at Exhibit C). His mother submitted an
affidavit stating that Plaintiff is depressed, has trouble eating and keeping food down and has lost
weight; she stated that she has never seen him so “down and out.” Sworn Affidavit of Stanlene Alex,
¶¶7, 9, 14. Plaintiff’s brother states in another affidavit that Plaintiff “has slipped into a depressive
state.” Sworn Affidavit of Jaleel Muhammad, ¶2. Putting aside the competence of such evidence
(which is clearly designed to go to the truth of the sexual harassment complaint and not to Hester’s
justification for firing Plaintiff), these statements simply do not establish the level of distress
required to impose liability on an employer.
2

23

IV.

Conclusion
For the reasons explained below, the Court finds that Defendants are entitled

to judgment as a matter of law on all of the claims asserted in Plaintiff’s complaint.
Defendants’ summary judgment motion [58] is granted. Judgment is entered in
favor of Defendants and against Plaintiff. All other pending motions, including
Plaintiff’s motion to strike and dismiss Defendant’s affirmative defenses [36], are
denied as moot. Civil case terminated.
Dated: February 29, 2016
Entered:

____________________________
John Robert Blakey
United States District Judge

24