Kozlowski v. Greenridge Farm, Inc. et al

Filing 50

MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 6/22/2018.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PAULINA KOZLOWSKI,
Plaintiff/Counter-Defendant,
vs.
GREENRIDGE FARM, INC. and MICHAEL
SHANNON,
Defendants/Counter-Plaintiffs.

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18 C 147
Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER
Paulina Kozlowski sued her former employer, Greenridge Farm, Inc., and her former
supervisor at Greenridge, Michael Shannon, alleging that Greenridge violated Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and that both defendants violated the Illinois
Human Rights Act (“IHRA”), 775 ILCS 5/1-101 et seq., when they demoted and then terminated
her after learning she was pregnant. Doc. 1. Greenridge counterclaimed, alleging that
Kozlowski unlawfully defamed it and tortiously interfered with its business when she told its
customers that she had been fired because she was pregnant. Doc. 21. Shannon now moves
under Civil Rule 12(b)(6) to dismiss Kozlowski’s claims against him, Doc. 23, while Kozlowski
moves under Rule 12(b)(6) to dismiss Greenridge’s counterclaim against her, Doc. 31.
Shannon’s motion is granted and Kozlowski’s is denied.
Background
In resolving a Rule 12(b)(6) motion, the court assumes the truth of the operative
pleading’s well-pleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am.
Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider
“documents attached to the [pleading], documents that are critical to the [pleading] and referred

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to in it, and information that is subject to proper judicial notice,” along with additional facts set
forth in the nonmovant’s brief opposing dismissal, so long as those additional facts “are
consistent with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019-20
(7th Cir. 2013). The facts are set forth as favorably to the nonmovant as those materials allow.
See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth those facts at this
stage, the court does not vouch for their accuracy. See Jay E. Hayden Found. v. First Neighbor
Bank, N.A., 610 F.3d 382, 384 (7th Cir. 2010). Given these principles, the court rejects
Kozlowski’s argument, which she advances to support dismissal of Greenridge’s counterclaim,
that Greenridge’s answer to her complaint contradicts certain allegations in its counterclaim,
Doc. 33 at 3-4, as the argument effectively asks the court to draw inferences against Greenridge
as the nonmovant.
A.

Kozlowski’s Complaint

Beginning in September 2009, Kozlowski worked in sales for Greenridge, a meat
distributor. Doc. 1 at ¶ 9. Kozlowski learned that she was pregnant on July 21, 2016, and
informed Shannon, her supervisor, two weeks later. Id. at ¶¶ 11-12. On August 24, Shannon
met with Kozlowski to let her know that he was reassigning her to an “inside sales” position. Id.
at ¶¶ 14-15. Her annual salary would be reduced from $78,000 to $40,000, and her existing
customers reallocated to other sales personnel. Id. at ¶ 15. Kozlowski objected that she was
being demoted because of her pregnancy; Shannon responded that the decision was final. Id. at
¶ 16. Kozlowski hired an attorney, who sent a letter to Shannon asserting that she had been
unlawfully demoted. Id. at ¶ 17.
On August 26, Kozlowski discovered that the password she used to log-in to
Greenridge’s email system had been changed, preventing her access. Id. at ¶ 18. Kozlowski

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reported the issue to Shannon, who told her to “go home” and “not do any work until
Greenridge’s attorney responds to your lawyer.” Id. at ¶ 19. On September 7, Kozlowski
received a letter from Greenridge stating that she was being terminated because she had not
returned to work since August 26. Id. at ¶ 23. On September 12, Kozlowski traveled to
Greenridge’s facility to return her company car, laptop, and uniforms. Id. at ¶ 24. Later that day,
she received a letter threatening her with a defamation suit. Ibid.
B.

Greenridge’s Counterclaim

Greenridge’s counterclaim disputes material portions of Kozlowski’s account of the
events leading up to her termination. It alleges that Kozlowski first met with Shannon on June
15, 2016 to discuss an “action plan” to put one of her accounts “back on track.” Doc. 21 at ¶ 7.
Kozlowski and Shannon met a second time on July 21, with Shannon telling Kozlowski that
Greenridge was planning to restructure the sales department and that she would be responsible
for new accounts. Id. at ¶ 8. Shannon promised that Kozlowski’s earning potential—including
salary, bonus, and commissions—would be higher than her then-current salary. Ibid.
When Shannon and Kozlowski again met on August 24, Shannon said that he was putting
in place the restructuring plan and that Kozlowski would be transitioning to a position as a “new
account specialist.” Id. at ¶ 10. Shannon acknowledged that Kozlowski would receive a lower
base salary, but noted that she would receive a $200 bonus for each new store she opened and a
commission on all new accounts. Ibid. Kozlowski refused the offer, protesting that it was a
pregnancy-related demotion—which Shannon disputed—and stating that she would “rather sit at
home than work for this money.” Id. at ¶¶ 11-13. The next day, Kozlowski’s attorney told
Greenridge that she would return to work, but only in her previous position. Id. at ¶ 14. From
August 24 through at least September 14, Kozlowski told Greenridge’s customers that she had

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been fired because she was pregnant. Id. at ¶ 17. Greenridge alleges that Kozlowski knew that
charge to be untrue. Id. at ¶¶ 17-19.
Discussion
I.

Kozlowski’s Claims Against Shannon
Kozlowski’s complaint has two counts, both arising under Title VII and the IHRA as to

Greenridge and only under the IHRA as to Shannon. Count I alleges that Greenridge and
Shannon unlawfully demoted and then terminated Kozlowski because she was pregnant. Doc. 1
at ¶¶ 26-42. Count II alleges that Greenridge and Shannon retaliated against Kozlowski by first
telling her not to return to work and then terminating her after she complained that her demotion
was due to her being pregnant. Id. at ¶¶ 43-55. As noted, Shannon seeks dismissal of the claims
against him.
A.

IHRA Pregnancy Discrimination Claim

The IHRA makes it a “civil rights violation … [f]or an employer to refuse to hire, to
segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment,
selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or
conditions of employment on the basis of pregnancy, childbirth, or medical or common
conditions related to pregnancy or childbirth.” 775 ILCS 5/2-102(I) (emphasis added). For
purposes of this pregnancy discrimination provision, the IHRA defines the term “employer” to
“include[] … [a]ny person employing 15 or more employees within Illinois … .” 775 ILCS 5/2101(B)(1)(a). Kozlowski contends that the definition of “employer” in Section 2-101(B)(1)(b)
governs. Doc. 34 at 3. That definition applies “when a complainant alleges [a] civil rights
violation due to unlawful discrimination based upon his or her physical or mental disability
unrelated to ability, pregnancy, or sexual harassment.” 775 ILCS 5/2-101(B)(1)(b) (emphasis

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added). Kozlowski does not allege that she suffered such discrimination, so that definition does
not apply here.
Thus, Kozlowski’s IHRA pregnancy discrimination claim against Shannon can proceed
only if he qualifies as an “employer” under Section 2-101(B)(1)(a). Because Kozlowski alleges
that Shannon was her “boss” and himself a Greenridge employee, Doc. 1 at ¶ 12, he does not
qualify as her employer. See Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 930 (7th Cir.
2017) (dismissing an IHRA sexual harassment claim because the defendants in question were not
the plaintiff’s employer) (citing Pickett v. Sharon Willow Health Care, 1999 WL 33256273, at *
3 (Ill. Human Rights Comm’n May 6, 1999)); Robertson v. Lofton, 2013 WL 5796780, at *3
(N.D. Ill. Oct. 25, 2013) (holding that the plaintiff’s supervisor “was not a proper defendant” in
an IHRA race discrimination claim); Zayadeen v. Abbott Molecular, Inc., 2013 WL 361726, at
*5 (N.D. Ill. Jan. 30, 2013) (explaining that it was “appropriate” that, while the plaintiff’s claims
against the company that employed him were brought under Title VII, the IHRA, and 42 U.S.C.
§ 1981, his claims against his former supervisor were “brought only under § 1981 … , as § 1981
provides for individual liability while Title VII and the IHRA do not”) (citing cases).
Kozlowski’s pregnancy discrimination claim against Shannon accordingly is dismissed.
In pressing the opposite result, Kozlowski relies on Title VII case law establishing a “de
facto employer,” “indirect employer,” or “joint employer” test for determining whether a
“putative defendant is so extensively involved with the plaintiff’s day to day employment that
the putative defendant is the ‘real’ employer for all intents and purposes.” Doc. 34 at 3-5. That
case law is inapposite. Given that Kozlowski alleges only that Shannon was her supervisor and
himself a Greenridge employee, not her de facto, joint, or indirect employer, Shannon cannot

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qualify as an “employer” under the IHRA’s definition of that term in Section 2-101(B)(1)(a)
even if the de facto, joint, or indirect employer doctrine applied to that provision.
B.

IHRA Retaliation Claim

Kozlowski’s retaliation claim raises a closer question. The IHRA makes it a “civil rights
violation for a person … to … [r]etaliate against a person because he or she has opposed that
which he or she reasonably and in good faith believes to be unlawful discrimination, … because
he or she has made a charge, filed a complaint, testified, assisted, or participated in an
investigation, proceeding, or hearing under this Act, or because he or she has requested,
attempted to request, used, or attempted to use a reasonable accommodation as allowed by this
Act.” 775 ILCS 5/6-101(A) (emphasis added). The IHRA defines the term “person” to
“include[] one or more individuals.” 775 ILCS 5/1-103(L).
Although the IHRA retaliation provision applies to a “person,” not an “employer,” the
Appellate Court of Illinois has held that in IHRA retaliation cases like this one, “where the action
is undertaken by a company official [here, Shannon] in the name of the employer [here,
Greenridge], the charge must be against the employer and not against the official personally.”
Anderson v. Modern Metal Prods., 711 N.E.2d 464, 471 (Ill. App. 1999); see also Watkins v.
Office of State Appellate Defender, 976 N.E.2d 387, 399 (Ill. App. 2012) (dismissing an IHRA
retaliation claim against the Illinois Appellate Defender personally, and noting that, “at least in
cases where the individual acted within the scope of his employment,” Modern Metal “explicitly
rejected” the argument that the IHRA provides for “liability against an individual employee …
because it prohibits a ‘person’ from retaliating against another for filing a charge”); Robinson v.
City of Evanston, 2017 WL 201374, at *5 (N.D. Ill. Jan. 18, 2017) (applying Modern Metal and
Watkins to dismiss an IHRA retaliation claim against two City of Evanston employees).

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The Supreme Court of Illinois has not weighed in on this issue, so the state appellate
court’s decisions in Modern Metal and Watkins are entitled to “great weight.” Commonwealth
Ins. Co. v. Stone Container Corp., 323 F.3d 507, 509 (7th Cir. 2003) (internal quotation marks
omitted). And Seventh Circuit precedent teaches that a federal court “ought to deviate from [the
state appellate court’s] holdings only when there are persuasive indications that the highest court
of the state would decide the case differently.” Ibid. (internal quotation marks omitted). The
decisions cited by Kozlowski provide no such indications.
The first decision, Dana Tank Container, Inc. v. Human Rights Commission, 687 N.E.2d
102 (Ill. App. 1997)—aside from not being decided by the state supreme court—was explicitly
distinguished in Modern Metal because it held that an employer with fewer than fifteen
employees could be liable under the IHRA retaliation provision, not that a plaintiff’s individual
supervisor, acting within the scope of his employment, could be held liable under that provision.
Id. at 104 (“A ‘person’ as defined in the [IHRA] can include an employer with fewer than 15
employees.”); see Modern Metal, 711 N.E.2d at 471 (noting that Dana Tank “pointed out … that
a ‘person’ as defined under the [IHRA] can include an employer with fewer than 15
employees”). The second decision, Anderson v. Pistner, 499 N.E.2d 566 (Ill. App. 1986), an
appellate court decision that predates both Watkins and Modern Metal, merely “stated in dicta
that [the] plaintiff could have brought a claim for retaliation against the individual defendants …
under the IHRA.” Robinson, 2017 WL 201374, at *5 (emphasis added). Pistner did not make a
holding on that particular issue because the plaintiffs there “consciously chose not to pursue” a
retaliation claim. 499 N.E.2d at 569.
Granted, the Seventh Circuit has held in a nonprecedential order, Nieman v. Hale, 541 F.
App’x 693 (7th Cir. 2012), that individuals, and not just employers, may be liable under the

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IHRA’s retaliation provision. Absent a ruling on the pertinent issue from the state supreme
court, an on-point Seventh Circuit decision ordinarily trumps the state appellate court’s contrary
decisions—at least as far as a federal district court is concerned. See Reiser v. Residential
Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004).
But Nieman, aside from being non-precedential, arose in a materially distinct factual
posture and so does not control here. The defendant there—sued after the plaintiff was not hired
for a claims-processing position at an insurance company—was an independent recruiting
consultant “retained” by the company “to conduct a search for qualified applicants.” 541 F.
App’x at 694. Thus, although Nieman held that the district court “was wrong in concluding that
[the plaintiff] does not state a claim” under the IHRA retaliation provision “simply because [the
defendant] is not the employer from whom he sought a job,” id. at 698, the Seventh Circuit had
no occasion to consider the key issue here: whether the provision extends liability to an
individual employee for actions he allegedly took “in the name of his employer,” Modern Metal,
711 N.E.2d at 471 (emphasis added). As Nieman explained, the defendant was the company’s
“employment agent,” not its employee, and so “sat squarely between the company and [the
plaintiff].” 541 F. App’x at 698.
Accordingly, because Nieman does not require this court to deviate from the rule the
Appellate Court of Illinois set forth in Modern Metal and reaffirmed in Watkins, Kozlowski’s
IHRA retaliation claim against Shannon is dismissed along with her IHRA pregnancy
discrimination claim against him. See Robinson, 2017 WL 201374, at *5.
II.

Greenridge’s Counterclaim Against Kozlowski
Greenridge’s counterclaim against Kozlowski has two counts, both arising under Illinois

law. Count I alleges that Kozlowski’s telling Greenridge’s customers that she had been fired

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because she was pregnant harmed its reputation and business, and thus was defamatory per se.
Doc. 21 at ¶¶ 15-21. Count II alleges that the same conduct damaged Greenridge’s business
relationships with its customers and thus constituted intentional interference with prospective
business advantage. Id. at ¶¶ 22-28.
“Under Illinois law, a statement is defamatory if it harms the reputation of another,
lowering him in the eyes of the community, or if it discourages others from associating with
him.” Cody v. Harris, 409 F.3d 853, 857 (7th Cir. 2005) (citing Bryson v. News Am. Publ’ns,
Inc., 672 N.E.2d 1207, 1214 (Ill. 1996)). “Some statements … expose the subject to such great
obloquy that they are actionable without proof of injury. This is defamation per se.” Pippen v.
NBCUniversal Media, LLC, 734 F.3d 610, 613 (7th Cir. 2013) (citing Tuite v. Corbitt, 866
N.E.2d 114 (Ill. 2006)). “‘In Illinois, there are five categories of statements that are defamatory
per se: (1) statements imputing the commission of a crime; (2) statements imputing infection
with a loathsome communicable disease; (3) statements imputing an inability to perform or want
of integrity in performing employment duties; (4) statements imputing a lack of ability or that
otherwise prejudice a person in his or her profession or business; and (5) statements imputing
adultery or fornication[.]’” Muzikowski v. Paramount Pictures Corp., 477 F.3d 899, 904 (7th
Cir. 2007) (quoting Tuite, 886 N.E.2d at 121); see also Dobias v. Oak Park & River Forest High
Sch. Dist. 200, 57 N.E.3d 551, 563 (Ill. App. 2016). “However, a statement that is defamatory
per se is not actionable if it is reasonably capable of an innocent construction. … Additionally, if
a statement is defamatory per se, but not subject to an innocent construction, it still may enjoy
constitutional protection as an expression of opinion.” Solaia Tech., LLC v. Specialty Publ’g
Co., 852 N.E.2d 825, 839 (Ill. 2006) (citation omitted); see also Dobias, 57 N.E.3d at 563-64.

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Greenridge’s defamation counterclaim implicates only the third and fourth categories of
defamation per se. See Pippen, 734 F.3d at 613 (noting that “[t]he difference between the two
[categories] is subtle”). The key question is thus whether Kozlowski’s alleged statements to
Greenridge’s customers about its reasons for terminating her either (1) imputed to Greenridge
“an inability to perform or want of integrity in performing employment duties” or (2) imputed “a
lack of ability or … otherwise prejudice [Greenridge] in [its] profession or business.”
Muzikowski, 477 F.3d at 904.
Although Greenridge is a corporation, not an individual, the Seventh Circuit has rejected
the proposition that “the standards for proof of defamation are different for corporations than for
other plaintiffs,” and instead has explained that “[Illinois] cases treat corporate plaintiffs just like
individuals.” Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 269 (7th Cir.
1983) (citing Halpern v. News-Sun Broad. Co., 368 N.E.2d 1062 (Ill. App. 1977)); see also
Swengler v. ITT Corp. Electro-Optical Prods. Div., 993 F.2d 1063, 1071 (4th Cir. 1993)
(holding, under Virginia law, that “a corporation may be defamed per se by statements which
cast aspersion on its honesty, credit, efficiency or its prestige or standing in its field of business”)
(internal quotation marks omitted); Miller UK Ltd. v. Caterpillar Inc., 2015 WL 6407223, at *11
(N.D. Ill. Oct. 21, 2015) (“Although certain forms of defamation do not apply to corporate
entities, Illinois defamation law in general protects corporations as well as individuals.”); Levitt
v. S.C. Food Serv., Inc., 820 F. Supp. 366, 367 (N.D. Ill. 1993) (“Aspersions which undercut a
corporation’s reputation for discharging its duties with integrity and have the likely effect of
harming the business, fall within the ambit of defamation per se.”) (citing Am. Pet Motels, Inc. v.
Chi. Veterinary Med. Assoc., 435 N.E.2d 1297, 1300 (Ill. App. 1982)). Under Illinois law, then,
“[a] corporation … can have a reputation for adhering to the moral standards of the community

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in which it sells its products and if that reputation is assailed in a fashion likely to harm the
corporation seriously the corporation has been libeled.” Brown & Williamson, 713 F.2d at 269.
Given this legal backdrop, Kozlowski’s alleged statements to Greenridge’s customers
could qualify as defamation per se. Brown & Williamson helps to illustrate why. That case
concerned a television broadcast critical of the tobacco industry. Id. at 266. During the
broadcast, the defendant (Channel 2’s Walter Jacobson) accused the plaintiff, a cigarette
manufacturer, of targeting children with specific marketing strategies designed to link cigarettes
with independence and self-discovery; the defendant described the plaintiff’s strategy as follows:
“Go for the youth of America, go get ‘em guys. … Hook ‘em while they are young, make ‘em
start now—just think how many cigarettes they’ll be smoking when they grow up.’” Ibid.
(ellipses in original). The Seventh Circuit held that the “broadcast fit[] the fourth category” of
defamation per se. Id. at 267. As the court explained: “Accusing a cigarette company of what
many people consider the immoral strategy of enticing children to smoke … is likely to harm the
company. It may make it harder for the company to fend off hostile government regulation and
may invite rejection of the company’s product by angry parents who smoke but may not want
their children to do so.” Id. at 268-69.
The same reasoning applies here. Because pregnancy discrimination “violates federal
law, public policy, and commonly accepted morality,” Kozlowski’s alleged statements
compromised Greenridge’s reputation for adhering to the community’s moral standards. Levitt,
820 F. Supp. at 367 (“The simple statement declares that Manchu Wok discharged employees
based on their national origin … . Such a statement, published amongst Manchu Wok’s peers
and accessible to potential managerial employees, impugns the restaurant’s method of doing
business and denigrates its integrity and lawfulness.”); see also Miller UK, 2015 WL 6407223, at

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*12 (holding that statements “suggest[ing] that Caterpillar produces and distributes an unsafe
product” constituted defamation per se under Illinois law). Indeed, now more than ever,
allegations that a company handled a discrimination complaint poorly or itself discriminated are
likely to prejudice that company in its business, particularly when the audience is the business’s
customers, who risk accusations of complicity if they do not take their accounts elsewhere.
To be sure, depending on the context in which they are made, statements alleging that a
company discriminated may be subject to a recognized privilege. See Mauvais-Jarvis v. Wong,
987 N.E.2d 864, 881 (Ill. App. 2013) (“Even statements that are defamatory per se, however, are
not actionable if they are protected by privilege.”). But Kozlowski does not invoke any such
privilege, and so has forfeited the point for purposes of the present motion. See Nichols v. Mich.
City Plant Planning Dep’t, 755 F.3d 594, 600 (7th Cir. 2014) (“The non-moving party waives
any arguments that were not raised in [a] response … .”); G & S Holdings LLC v. Cont’l Cas.
Co., 697 F.3d 534, 538 (7th Cir. 2012) (“We have repeatedly held that a party waives an
argument by failing to make it before the district court.”).
Nor are Kozlowski’s alleged statements reasonably capable of an innocent construction.
“The so-called ‘innocent-construction’ rule requires a court to consider the statement in context
and to give the words of the statement, and any implications arising from them, their natural and
obvious meaning.” Solaia, 852 N.E.2d at 839. “Courts must therefore 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 [listener].” Bryson, 672 N.E.2d at 1217 (citation omitted).
But “[w]hen a defamatory meaning was clearly intended and conveyed,” a court should not
“strain to interpret allegedly defamatory words in their mildest and most inoffensive sense in
order to hold them nonlibellous.” Ibid.; see also Antonacci v. Seyfarth Shaw, LLP, 39 N.E.3d

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225, 235 (Ill. App. 2015) (“[W]hen the defendant clearly intended or unmistakenly conveyed a
defamatory meaning, a court should not strain to see an inoffensive gloss on the statement.”)
(internal quotation marks omitted).
Applying those principles, Kozlowski’s alleged statements that Greenridge fired her
because she was pregnant would have conveyed to Greenridge’s customers exactly that
message—that her pregnancy was the basis for her termination. Indeed, it is hard to see what
else Kozlowski could have meant, as she is not alleged to have “conditioned” her statement on
anything. Goral v. Kulys, 21 N.E.3d 64, 78-79 (Ill. App. 2014) (holding that a statement was
capable of an innocent construction because the defendant “did not directly state that plaintiff is
violating state election or property tax law,” but instead phrased her accusations in the
conditional and noted that “authorities … would ultimately decide whether plaintiff had violated
any laws”). Accordingly, absent any apparent innocent construction, Kozlowski’s statement
must be understood as a statement about why she was fired. See Bryson, 672 N.E.2d at 1217
(“When we consider the allegedly defamatory language in context, and give the words and
implications their natural and obvious meaning, it is evident that the word ‘slut’ was intended to
describe Bryson’s sexual proclivities.”); Dobias, 57 N.E.3d at 565-66 (holding that the statement
that a “teacher [was] rolling around on a bed with a student, when the two of them [were] alone
in a hotel room,” was not reasonably capable of an innocent construction); Hadley v. Doe, 12
N.E.3d 75, 85 (Ill. App. 2014) (“Applying the innocent-construction rule … we determine that
the idea intended to be conveyed to the reasonable reader by the words at issue—‘Hadley is a
Sandusky waiting to be exposed. Check out the view he has of Empire [an elementary school]
from his front door’—is that Hadley is a pedophile.”).

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For substantially the same reasons, Kozlowski’s alleged statements do not qualify as
protected statements of opinion. “Several considerations aid [this] analysis: 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.” Solaia, 852
N.E.2d at 840. Kozlowski’s statements are verifiable—after all, in resolving her pregnancy
discrimination claim against Greenridge, the court or a jury will determine whether she was, in
fact, terminated because she was pregnant. See Jacobson v. Gimbel, 986 N.E.2d 1262, 1273 (Ill.
App. 2013) (“To determine whether an alleged defamatory statement is protected under the first
amendment, or whether it can be reasonably interpreted as stating actual facts, the emphasis is on
whether it contains an objectively verifiable assertion.”). Kozlowski’s statement that Greenridge
terminated her because she was pregnant “has a precise and readily understood meaning,” given
that Greenridge’s customers would have taken it as the reason why they would no longer be
working with her. Hadley, 12 N.E.3d at 87. And it is almost certain that Kozlowski “intended to
present a fact (as opposed to an opinion) about” Greenridge’s conduct, as she maintains—as
demonstrated by the existence of this suit—that her pregnancy was, as a factual matter, the
reason for her termination. Ibid.; see also Dobias, 57 N.E.3d at 567 (“A defendant cannot avoid
the defamatory statements he has made merely by inserting his opinion of those facts alongside
them. Whatever opinion Tarrant may have expressed about this complained-of conduct, the
statements of fact themselves could be readily verifiable as true or false.”) (citations omitted).
These features of Kozlowski’s alleged statements distinguish this case from those where Illinois
courts have treated an allegedly defamatory statement as an opinion. See Solaia, 852 N.E.2d at
841 (holding that “[t]he phrase ‘deeply greedy people’ has no precise meaning, and it is not
verifiable,” and noting that “the context in which that phrase appeared indicates that it may have

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been judgmental, but it was not factual”); Schivarelli v. CBS, Inc., 776 N.E.2d 693, 699 (Ill. App.
2002) (holding that a statement in a television commercial that the plaintiff was “cheating the
city” was “not made in any specific factual context” because the speaker “did not explain the
evidence that she was referring to, nor did she state why she thought [the plaintiff] was cheating
the city, how he was cheating the city, or even what she meant by the term ‘cheating’”);
Dubinsky v. United Airlines Master Exec. Council, 708 N.E.2d 441, 451 (Ill. App. 1999)
(“Richards’ statement that Dubinsky was a ‘crook’ was not actionable because it was not made
in any specific factual context. One cannot rely on an assumption that those heard the statement
were completely apprised of all the developments in the [relevant] controversy so as to create a
definitive factual context for the use of the word ‘crook.’”).
As to Greenridge’s tortious interference claim, it is plausible to infer that Kozlowski’s
alleged statements could have prompted customers to take their accounts elsewhere, and thus that
the statements “interfered” with Greenridge’s “business relationships with its customers.” Doc.
21 at ¶ 26. That suffices at the pleading stage to forestall dismissal. See Chapman v. Yellow Cab
Coop., 875 F.3d 846, 848 (7th Cir. 2017) (“It is enough to plead a plausible claim, after which ‘a
plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the
complaint.’”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007)). Kozlowski argues
that Greenridge’s tortious interference claim must be dismissed because it rises and falls with
Greenridge’s defamation per se claim—a premise Greenridge seemingly accepts. Doc. 33 at 10
(contending that “alleged conduct that does not establish a viable defamation claim is of no use
for a claimant’s intentional interference action”); see also Doc. 21 at ¶ 26 (alleging that
Kozlowski’s allegedly defamatory statements also give rise to a tortious interference claim).

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Because Greenridge’s defamation per se claim survives dismissal, that argument for dismissing
the tortious interference claim necessarily fails.
Conclusion
Kozlowski’s IHRA claims against Shannon are dismissed, and because amendment
would be futile, the dismissal is with prejudice. See Gonzalez-Koeneke v. West, 791 F.3d 801,
807 (7th Cir. 2015) (“District courts … have broad discretion to deny leave to amend … where
the amendment would be futile.”) (internal quotation marks omitted); Culver Franchising Sys.,
Inc. v. Steak N Shake Inc., 2016 WL 4158957, at *9 (N.D. Ill. Aug. 5, 2016) (dismissing a
complaint with prejudice where “repleading would appear to be futile” given a “fatal flaw in [the
plaintiff’s] case” that “[could not] be cured by amendment”). Kozlowski’s motion to dismiss
Greenridge’s counterclaims is denied.

June 22, 2018
United States District Judge

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