Reyes v. Walker et al
Filing
35
OPINION AND ORDER. Signed by the Honorable Charles R. Norgle, Sr on 11/19/2018. Mailed notice. (pk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NEIL REYES"
Plaintiff',
No. 18-cv-2065
V.
Hon. Charles R. Norgle
DEPUTY CHIEF BOBBY WALKER. et al..
Defendant.
OPINION AND ORDER
Plaintiff Neil Reyes ("Plaintiff') brings the instant action against Deputy Chief Bobby
Walker ("Walker"), Commander Todd Law ("Law"), and Soo Line Railroad Company d/b/a
Canadian Pacific ("Canadian Pacific"), (collectively, "Defendants") for their alleged torlious
conduct. Belore the Court is Defendants Walker and Law's motion to dismiss Counts I-V of
Plaintiff s First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure
l2(bx6).
I.
BACKGROUNDI
Plaintiff, an Asian male, was a police officer for Soo Line Railroad, a United
States
subsidiary of Canadian Pacif-rc. Plaintiff worked at Canadian Pacific's Bensenville Intermodal
Terminal ("Bensenville Terminal") located in Franklin Park, Illinois. Canadian Pacific's Police
Services ("Canadian Pacific Police")
is a railway law enforcement agency. Plaintiff
began
working with Canadian Pacific Police in 2010 as a special agent and was promoted to sergeant in
2012.ln his role a railway law enforcement agent, Canadian Pacific issued Plaintiff a tirearm. At
all relevant times, the Bensenville Terminal had the only minority special agents in the entire
I For the purposes of a Rule I 2(bX6) rnotion, the Cour-t accepts all well-pleaded facts in the FAC as true. Burke v.
401 N. Wabash Venture. LLC,7l4 F.3d 501, 504 (7th Cir. 2013).
United States. In2016, Walker was the highest-ranking railway officer in the United States and
Law was the commander to whom Plaintiff reported.
Plaintiff alleges that he received disparate treatment compared to the sergeants who were
white. This treatment included completing menial tasks, e.g., made to go to the grocery store to
purchase drinks and refreshments, pick up donuts, take Law's vehicle to the carwash, and act as
a personal valet for the Walker family. Plaintiff also alleges that Law told him that "white males
with blonde hair and blue eyes would typically be more successful in the workplace" and that
Plaintiff should read some books to improve his other strengths. FAC at flfl 145, 146.
Plaintiff fuither avers that after he was promoted to sergeant, his compensation
and
benefits were less than his non-Asian counterparts. Plaintiff also received less vacation time than
his non-Asian counterparts. Plaintiff claims that Bruce Nichols, a white male and subordinate
of
Plaintiff, had less experience and yet received more vacation time, as well as other fringe
benefits. Additionally, Plaintiff was assigned responsibilities that his non-Asian predecessors
were not required to complete despite all those predecessors being paid significantly more.
On November 9, 2016, Plaintiff had a conversation with Law to discuss
Canadian
Pacific's new policy that special agents would not be allowed to hold secondary employment.
FAC Ex. D, at 8. Plaintiff had requested an extension of time before the new policy applied to
him because he and his wife were expecting a child. Canadian Pacific denied Plaintiff s request.
Plaintiff told Law that as a result of the denial of his extension request, he was stressed out. Law
allegedly suggested that Plaintiff start his vacation early, which was planned for the following
week. Plaintiff said "[he] could not afford to go on vacation and that [he] would be better off
he jumped
if
in front of a train and won the [Canadian Pacific] lottery (the "Train Statement"). Id.
Plaintiff avers that this was a common joke among Canadian Pacific Police. After the Train
Statement, Plaintiff states that he continued
to converse with Law and began to discuss the
unequal pay and treatment Plaintiff faced compared
Police.
At this point, Law
to white
sergeants at Canadian Pacific
ended the conversation and drove Plaintiff home, before his shift
ending.
After dropping Plaintiff off, Law approached Walker to discuss Plaintiff and
his
statement about jumping in front of a train. Plaintiff claims that at this time Law and Walker
conspired to make false statements about Plaintiff, i.e., he is suicidal, with the intent to discredit
him and get him terminated from Canadian Pacific. Around 3 p.m. on November 9, 2016, Law
told Jesus Ramos ("Ramos") and Ben Pepich ("Pepich") that Plaintiff was suicidal, that he had
threatened to
kill himself,
and that he was sent home early as a result. Within days Plaintiff
s
Canadian Pacific Police issued firearm was taken from him and he was placed on leave. Law
informed Plaintiff that he would be required to undergo an assessment of his fitness in order to
return to work.
On November 21,2016, Plaintiff completed his fitness assessment, which concluded that
Plaintiff was emotionally stable and could return to work without restriction. On November 23,
2016, Canadian Pacific informed Plaintiff that it had received his paperwork and forwarded it to
Law. On December 21, 2016, Plaintiff was informed that he exceeded his 2016 performance
objectives. However, on January 4,2017, Plaintiff was terminated. Plaintiff states that he was not
afforded any pre or post-deprivation procedures, as he was entitled to. Plaintifl claims that Law
and Walker had an active role in the decision to terminate Plaintiff s employment, and that they
were motivated to do so on the basis
complaints of discrimination.
of Plaintiffs
race and
in
retaliation for Plaintiffs
In 2076, Plaintiff also worked part-time at Triton College as a security officer. On or
around December 21,2016, Plaintiff alleges Law called Plaintiffs supervisors at Triton College
(the "Triton Supervisors") and informed them that Plaintiff was on leave with Canadian Pacific
and that Plaintiff was suicidal. Plaintiff alleges that Law contacted Plaintiff s supervisors with
the intent to get Plaintiff terminated from Triton College.
Plaintiffls FAC sets forth five counts against Defendants Law and Walker; and five
separate counts against Canadian Pacific. Plaintiff alleges that Law and Walker engaged in:
conspiracy
to commit defamation per se (Count I); tortious interference with an economic
advantage (Count
II); intentional infliction of emotion distress ("IIED") (Count III); false light
invasion of privacy (Count IV); and violations of 42 U.S.C. $ 1981 (Count V). Defendants Law
and Walker now move to dismiss Counts
I
through
V of Plaintiffs FAC
pursuant to Rule
12(bX6).
TI.
A.
ANALYSIS
Standard of Review
A motion under Rule 12(b)(6) tests the sufficiency of the complaint under the plausibility
standard, Bell Atlantic Corporation v. Twombly, 550 U.S. 544,570 (2007), not the merits of the
suit. Gibson v. City of Chicago,9l0F.2d 1510, 1520 (7th Cir. 1990) (citation omitted). "[A]
plaintiffs claim need not be probable, only plausible: 'a well-pleaded complaint may proceed
even
if it strikes
a sawy judge that actual proof of those facts is improbable, and that a recovery
is very remote and unlikely."' Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930,
935 (7th Cir.2012) (quoting Twombly, 550 U.S. at 556). o'To meet this plausibility standard, the
complaint must supply 'enough fact to raise a reasonable expectation that discovery will reveal
evidence' supporting the plaintiff s allegations." Id. at 935. (quoting Twombly, 550 U.S. at 556).
4
In deciding a Rule 12(bX6) motion, the Court
accepts as true
all well-pleaded facts in
a
plaintifls complaint and draws all reasonable inferences in his favor. Burke, 714F.3d at 504
(citations omitted). "[T]he complaint must describe the claim in sufficient detail to give the
defendant fair notice
of what the claim is and the grounds upon which
rests." EEOC v.
Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007).
B. Law's Statements are Defamatory
Per Se
Plaintiff claims that Law and Walker conspired to commit defamation per se against him
with the intention to get Plaintiff terminated from Canadian Pacific. Before addressing the
conspiracy allegation of Count I, the Court turns to whether the alleged statements that Law
allegedly made to Ramos, Pepich, and the Triton Supervisors were defamatory per se. "To make
out a claim for defamation, the plaintiff must set out sufficient facts to show that the defendants
made a false statement conceming him, that there was an unprivileged publication to a third
party with fault by the defendant, which caused damage to the plaintiff." Krasinski v. United
Parcel Serv.. Inc., 530 N.E.2d 468, 471
(Ill.
1988).
"A
statement is considered defamatory
tends to cause suchharm to the reputation of anotherthat
it lowers thatperson inthe
if it
eyes of the
community or deters third persons from associating with him." Kolegas v. Heftel Broad. Corp.,
607 N.E.2d
20r,206 (1992)
To state a claim for defamation per se the alleged defamatory statements must fall into
one of four categories: "(1) words that impute the commission of a criminal offense; (2) words
that impute infection with a loathsome communicable disease; (3) words that impute the inability
to perform or want of integrity in the discharge of duties or office or employment; or (4) words
that prejudice a party, or impute a lack of ability, in his trade, profession or business." Swick v.
Liautaud, 662 N.E.2d 1238, 1245
(lll.
1996). With defamation per se "[t]he words themselves
are considered to be so obviously and inevitably hurtful to the plaintiff that damage to his
reputation may be presumed." Mittelman v. Witous, 552 N.E.2d973,982 (1989).
Here, Plaintiff alleges that Law informed Pepich, Ramos, and the Triton Supervisors that
Plaintiff was suicidal, he had threatened to kill himself, and that he was sent home early as a
result. Plaintiff argues that these statements imputed an inability to perform his duties, or
imputed his lack of ability to perform. See Pippen v. NBCUniversal Media. LLC ,734 F.3d 610,
613 (7th Cir. 2013) (explaining that inability to perform his duties "seems to imply some sort
of
on-the-job malfeasance" whereas lack of ability to perform "covers suitability for a trade or
profession."). Defendants respond by arguing that the alleged statements are not defbmatory
because they relate
to PlaintifPs character, not his job performance. Cody v. Harris, 409 F.3d
853, 858 (7th Cir. 2005) (Generally, "attacks related to personal integrity and the character have
not been deemed defamatory per se.").
For the purposes of this motion, the Court disagrees with Law and Walker's argument.
As alleged, Law informed Pepich, Ramos, and the Triton Supervisors that Plaintiff was sent
home early because he was suicidal. These statements convey that Plaintiff was unable to
perform his required job duties because he was suicidal, and thus he was relieved of his duties
and sent home early. The events after Plaintiff made the Train Statement further support this
interpretation. After Plaintiff made the Train Statement, Law and Walker took away Plaintiff
s
Canadian Pacific Police issued firearm and placed him on leave. While on leave, Plaintiff
received a letter stating that since he was in a "safety sensitive position" he would need to be
cleared by a treating medical provider prior to returning to work. FAC, Ex. D, at 8. Plaintiff's
allegations sufficiently demonstrate that Law's statements that Plaintiff was suicidal imputed his
ability to perform his job. See Ha),nes v. Alfred A. Knopf. Inc., 8 F.3d 1222, 1226 (7th Cir.
1993)
("Illinois courts (and federal courts when interpreting Illinois law) have been quick to find
implications of criminal conduct or of employee or business misconduct in statements that might
have seemed susceptible of an interpretation that would have taken them out of the per
se
categories.") (internal citation omitted) (citing cases). Accordingly, Plaintiff has sufficiently
alleged that Law's statements were defamatory per se.
Next, Law and Walker argue that even
if Law's
statements qualify as defamation per se
category, Plaintiff fails to demonstrate that Law's statements were unprivileged. This argument
is not well taken in a Rule l2(bX6) motion. "A qualified privilege is an affirmative defense to
a
defamation claim." Babb v. Minder, 806 F.2d 749,753 (7th Cir. 1986). "[The Seventh Circuit
has] held many times that, because complaints need not anticipate defenses, Rule l2(bX6) is not
designed for motions under Rule
8(c)(l)." Richards v. Mitsheff, 696 F.3d 635, 637 (7th Cir.
2012). As such, "there is no need for a plaintiff to plead facts showing that a communication is
not privileged in order to properly allege a cause of action for defamation." Walker v. Braes Feed
Ingredients. Inc., No. 02 C 9236,2003 U.S. Dist. LEXIS 25108, at*22 (NI.D. Ill. Apr. 3,2003).
Where the complaint affirmatively shows the statement is protected by privilege, a motion to
dismiss may raise the issue of privilege. However, there has been no such showing here. See
Beasle),
v. St Mar),'s Hospital,558 N.E. 2d 677 (lll.
1990) (similar facts). Moreover,
it
is
incumbent upon the Defendant to show a qualified privilege. Coqhlan v. Beck, 984 N.E.2d 132,
147 (Itt. App. 2013).
Turning now to the conspiracy element of Count I, Plaintiff alleges that Law and Walker
conspired to make false statements about Plaintiff. The elements of a civil conspiracy are:
(l)
a
combination of two or more persons, (2) for the purpose of accomplishing by some concerted
action either an unlawful purpose or a lawful purpose by unlawful means, (3) in the furtherance
of which one of the conspirators committed an overt tortious or unlawful act. Fritz v. Johnston,
807 N.E.2d 461, 470
(Ill. 2004). Plaintiff
alleges that Law and Walker met on November 9,
2016, between l:00 p.m. and 3:00 p.m. and agreed
to make deceitful
statements regarding
Plaintiff. The aim of these statements was to get Plaintiff terminated from Canadian Pacitic. Law
and Walker desired to terminate Plaintiff based on
Plaintiff s race and in retaliation for Plaintiff
s
complaints of discrimination. In furtherance of this agreement, Law told Ramos and Pepich that
Plaintiff was suicidal and was sent home as a result. Further, for the purposes of a claim for civil
conspiracy,
it is sufficient
that only Law made the defamatory remarks. American Hardware
Mfrs. Ass'n v. Reed Elsevier. Inc., No. 03 CY 9421,2010 WL 55708, at 10 (N.D. Ill. Jan. 4,
2010) ("Liability for
civil conspiracy is joint and several, and only one tortfeasor need commit
the overt act in order for bother parties to be liable for civil conspiracy[.]"). These allegations,
viewed in the light most favorable to Plaintiff, are sufficient to allege a conspiracy to defame
Plaintiff.
However, Plaintiff fails to allege a conspiracy to defame against Walker as it pertains to
the alleged statements Law made to the Triton Supervisors. Plaintiff does not allege any
agreement between Walker and Law to make deceitful statements to the Triton Supervisors.
Thus, Law's alleged defamatory statements to the Triton Supervisors are actionable as it pertains
to Law but not Walker. Plaintiff has sufficiently alleged conspiracy to defame against both Law
and Walker with regard to the alleged defamatory statements Law made to Canadian Pacific
employees.
C. Law Intentionally Interfered with Plaintiff s Employment with Triton College
In Count II, Plaintiff alleges tortious interference with economic advantage against Law
and Walker. To state a claim for tortious interference with prospective economic advantage,
Plaintiff must show: "(1) a reasonable expectancy of entering into a valid business relationship,
(2) the defendant's knowledge of the expectancy, (3) an intentional and unjustified interference
by the defendant that induced or caused a breach or termination of the expectancy, and (4)
damage
to the plaintiff resulting from the defendant's interference." Borsellino v. Goldman
Sachs Grp.. Inc. , 477 F.3d 502, 508 (7th
Cir. 2007) (citing Voyles v. Sandia Morteage Corp.,75l
N.E.2d 1126, ll33-34 (Ill. 2001)). A reasonable expectation of continued employment can be
the basis for a tortious interference in business relationship claim. Redd v. Nolan, 663 F.3d 287,
291 (7th
WL
Cir.20ll);
see James
529444, at 3 (N.D.
v. Intercontinental Hotels Gm. Res.. Inc., No.09-CV-781,2010
Ill. Feb. 10, 2010) ("ln Illinois, the terms otortious
business relations' and 'tortious interference
interference with
with prospective economic advantage'
are
interchangeable.").
Plaintifls alleged at will employment with Triton College creates a
reasonable
expectation of continued employment. Anderson v. Anchor Ors. for Health Maint., 654 N.E.2d
675,685 (lll. App. 1995) ("Until terminated, the relationship created by a contract terminable at
will is subsisting and will presumptively continue in effect
Kemper v. Worcester, 435 N.E.2d 827 , 831
(lll. App.
so long as the parties are satisfied.");
1982) (holding that an at
will employment
relationship is sufficient to support an action for tortious interference). Plaintiff alleges that Law
intentionally interfered with Plaintiff s employment with Triton College when he told the Triton
Supervisors that Plaintiff was suicidal and on leave from Canadian Pacific. Defendants argue that
Plaintiff fails to sufficiently allege that Law's statements caused Plaintiff to be suspended by
Triton College. The Court disagrees. Plaintiff alleges that shortly after Law's statements to the
Triton Supervisors, Plaintiff was placed on indefinite suspension from Triton College. The Court
finds that the temporal relationship Plaintiff alleges is sufficient to infer causation to withstand
the present motion to dismiss. In re Rust-Oleum Restore Mktg.. Sales Practices
Litig.,
155 F. Supp.
&
Prods. Liab.
3d772,815 (N.D. I11.2016) ("[A] finding of proximate cause is generally a
fact question for the jury and less amenable to resolution on a motion to dismiss."). The Court
finds that Plaintiff has sufficiently alleged tortious interference with economic advantage against
Law.
However, similar to Count I, Plaintiff fails to sufficiently allege tortious interference with
economic advantage against Walker. Plaintiff does not allege that Walker took any action to
contact Triton College or otherwise intentionally interfere with Plaintiffs employment with
Triton College. For these reasons, Count II as it pertains to Walker is dismissed with prejudice.
D. Law and Walker's Alleged Conduct was not Extreme and Outrageous.
Plaintiff claims that Law and Walker conspiring and working together to get Plaintiff
fired was extreme and outrageous with the intent to inflict emotion distress upon Plaintiff.
"Under Illinois law, a plaintiff may recover damages for intentional infliction of emotional
distress only
if
she establishes that
(l)
the defendant's conduct was truly extreme
and
outrageous; (2) the defendant intended to inflict severe emotional distress (or knew that there
was at least a high probability that its conduct would cause severe emotional distress); and (3)
the defendant's conduct did in fact cause severe emotional distress." Richards v. United States
Steel, 869 F.3d 557, 566 (7th Cir. 2017) (citing Feltmeier v. Feltmeier, 798 N.E.2d 75, 80 (lll.
2003). To establish the first element, Plaintiff must show the conduct as 'oso outrageous in
character and
so extreme in degree, as to go beyond all possible bounds of
decency."Oatesv. DiscoveryZone, Il6F.3d
Il6l,
human
1174(7thCir.1997). "Itisclearthatthetort
'does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities." Schweihs
v.
Chase Home Fin..
LLC, 77 N.E.3d 50, 63 (lll. 2016) (quoting
10
Restatement (Second)
of Torts $ 46 cmt. d), nor conduct that is "inconsiderate, rude, vulgar,
uncooperative, unprofessional and unfair." Oates v. Discovery Zone, 116 F.3d 1161,
ll74 (7th
Cir. 1997). Rather, IIED is reserved for conduct that is to "be regarded as atrocious, and utterly
intolerable in a civilized community." Schweihs, 77 N.E.3d at 63 (emphasis added).
Plaintiffs IIED claim arises from alleged conduct that occurred in the employment
setting. "Liability for emotional distress
...
as a common-law tort, is even more constrained in
the employment context." Richards v. United States Steel, 869 F.3d 557, 567 (7th Cir. 2017).
"lllinois courts have limited recovery to
cases
in which the employer's conduct has been truly
egregious." Id. (citing Van Stan v. Fancy Colours
& Co.,
125 F.3d 563, 568 (7th Cir. 1997)).
"[T]he circumstances surrounding a typical or even an atypical employment dispute will rarely
rise to the level of outrageous conduct." Mazeika v. Architectural Speciality Prods., No. 05 C
415,2005 U.S. Dist. LEXIS 1553 I , at 14 Of .D. Ill. July 26,2005) (emphasis added).
Here, Plaintiff.s his allegations do not amount to extreme and outrageous conduct. In his
Response, Plaintiff first argues that Law and Walker inflicted emotional distress by requiring
him to perform menial tasks, such as picking up coffee and donuts, washing Law's car, and
chauffeuring Walker's family. Pl. Resp. at 7. While such conduct may be unfair, insulting, or
grounds for indignation,
it
does not amount to extreme and outrageous conduct. See Oates, 116
F.3d at 1174 (affirming dismissal of an African American plaintifls IIED claim where his
supervisor refused to remove a picture of a monkey with the plaintiff s name written above after
concluding the refusal was not "truly extreme and outrageous."); Harriston v. Chicaeo Tribune
Co., 992 F.2d 697, 703 (7th Cir. 1993) (affirming dismissal of IIED claim where plaintiff was
not allowed to supervise white subordinates, was reprimanded for no reason, forced out of her
management position, falsely accused of having poor sales, was threated with discipline, had her
l1
telephone call monitored through use of eaves-dropping device, and had management ignore her
concerns for her property and safety after her vehicle was damaged on company property);
Briegs v. N. Shore Sanitary Dist.,9l4 F. Supp. 245,252 (N.D.
Ill.
1996) (holding that the
plaintiff s co-employees' conduct of hanging a racist doll in the plaintiff
s
office, subjecting her
to racial slurs, excluding her from office social activities, placing her on probation, and refusing
to train her properly was deplorable, but not a sufficient basis to sustain an IIED claim).
Plaintiff also alleges that Law and Walker's defamatory statements and his subsequent
termination support his claim
for IIED. The Court
disagrees. First, regarding the alleged
defamatory statements, under Illinois Law, a Plaintiff s claim of IIED generally cannot rest upon
a defendant's alleged defamatory statements. Fields v. Jackson, No. 16 C 1961, 2017 WL
4150682, at 5 (N.D.
Ill.
Sept. 19,2017) (citing Cook v. Winfrey, 141 F.3d 322,331 (7th Cir.
1998) ("[Defamatory] statements generally do not clear the high hurdle
for extreme and
outrageous conduct."). The court in Fields determined that the defendant's social media posts
accusing the plaintiff of committing criminal acts, calling her pejorative names and a con artist,
were offensive and distressing, but not so extreme and outrageous to sustain an IIED claim.
Fields, 2017 WL 4150682, at 6. Here, the Court finds that Law and Walker's alleged defamatory
statements are comparable
to those in Fields. and likewise, do not qualify as extreme
outrageous conduct. Moreover, Plaintiff points
to no authority where defamatory
and
comments
supported a claim of IIED.
Finally, Plaintiffs termination does not support this IIED claim. "[T]here is general
hesitation
everyday
'to find intentional infliction of
job
emotional distress
in the workplace
stresses resulting from discipline, personality conflicts,
because,
job transfers or
if
even
terminations could give rise to a cause of action for intentional infliction of emotional distress,
t2
nearly every employee would have a cause of action."'Richards v. United States Steel, 869 F.3d
557, 567 (7th Cir. 2017) (quoting Naeem v. McKesson Druq Co. , 444 F.3d 593, 606 (7th Cir.
2006). Accordingly, "lllinois courts generally disfavor application of the tort to employment
termination." Macchia v. Loyola Univ. Med. Ctr., No. 04 C 5049,2004 WL 2392201, at 7 (N.D.
Ill. Oct. 25,2004).
Plaintiff alleges that his termination was discriminatory and or retaliatory and thus
unlawful. However, Illinois has a high standard for extreme and outrageous conduct, and even
unlawful terminations generally do not support IIED claims. Jaskowski v. Rodman & Renshaw.
Inc., 813 F. Supp. 1359,1363 (l{.D.
Ill.
1993) (holding that the
plaintiff
s allegation that she was
unlawfully demoted to a position earning half of her original salary when she returned from
maternity leave was not sufficient support for IIED claim); see also Stoecklein v. Illinois Tool
Works. Inc., 589 F. Supp. 139,146 (N.D.
Ill.
1984) (finding that allegations that the plaintiff was
demoted, forced to retire due to his age, and that his employer reneged on a promise to provide
26 pay periods of severance pay and job counseling was not extreme and outrageous conduct as a
matter of law).
For these reasons, Law and Walker's alleged conduct does not pass the high bar to
qualify as extreme and outrageous conduct. Schweihs, 77 N.E.3d at 63; see. e.g., Clay v. Quartet
Mfg. Co.,644 F. Supp. 56 (N.D.
benefits, coercion
Ill.
1986)(holding that the unlawful denial of employment
of employee to engage in
sexual relationship, offensive remarks, and
unwanted touchings constituted extreme and outrageous conduct); Pavilon
v. Kaferly,
561
N.E.2d 1245 (Ill. App. 1990) (holding that the defendant's conduct was extreme and outrageous
where he was aware that the plaintiff was susceptible
r3
to emotional distress; he repeatedly
propositioned the plaintiff with money in exchange for sex; he threatened to kill her and rape her;
and he challenged the
E.
plaintiff
s
right to custody of her son).
The Defamatory Statement was not Placed in False Light Before the Public
In Count IV, Plaintiff claims the tort of false light invasion of privacy against Law
and
Walker. Illinois law identifies three elements that are necessary to state a claim for false light
invasion of privacy: (1) the plaintiff was placed in a false light before the public as a result of the
defendants' action; (2) the false light in which the plaintiff was placed would be highly offbnsive
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." Thompson v. Vill. of Monee, No. 12 C 5020, 2013 WL 3337801 . at *24 (N.D. Ill. July I ,
2013) (citing Kolegas v. Heftel Broad. Corp.,607 N.E.2d 201,209-10
(lll.
1992); Ravelins v.
HarperCollins Publishers Inc. ,04-2963,2005 WL 900232 (7th Cir. Mar. 4,2005).
Defendants argue that Law's alleged statements
to
Ramos, Pepich, and the Triton
Supervisors that Plaintiff was suicidal is insufficient for a false light claim. The Court agrees.
"[T]he heart of this tort lies in the publicity." Lovqren v. Citizens First Nat'l Bank, 534 N.E.2d
987,989 (1989)."To be actionable, the statement must not merely be published to a third person,
as in defamation, but publicized, which is defined as making the matter public by communicating
it to the public at large, or to
so many persons that the matter must be regarded as substantially
certain to become one of public knowledge." Moriarty v. Dyson. Inc., No. 09 C 2777 , 2010 WL
2745969,
at *4 (N.D. Ill. July 8, 2010). Law's alleged
supervisors and
statement
to the Triton College
two of Plaintifls co-employees at Canadian Pacific does not equate to
communicating to the public at large.
l4
In response, Plaintiff cites Duncan v. Peterson,947 N.E.2d 305, 317 (2010), for the
proposition that a "limited publication to recipients who are in a speciol relationship with the
plaintiff satisfies the publicity element." However, Plaintiff s argument ignores Seventh Circuit
precedent refusing to accept special relationship reasoning where allegedly false statements were
communicated to the Plaintiffs coworkers and/or supervisors. Frobose v. Am. Sav.
&
Loan
Ass'n, 152 F.3d 602,618 (7th Cir. 1998) ("[C]ommunications and actions between and among
the employees, off,rcers, and directors of the association, who by virtue of their positions would
have a natural interest in,
if not a responsibility to know about, the matters
communicated" do
not support a false light claim).
While some Illinois Appellate courts have accepted the special relationship reasoning,
Duncan, 947 N.E.2d at 305, the Court must follow the Seventh Circuit decision in Frobose, 152
F.3d at 618. "In the absence of a superseding decision by the Illinois Supreme Court, this Court
is bound by Seventh Circuit precedent." Davis v. Jewish Vocational Serv., No. 07 C 4735,2010
WL
1
172537, at 6 Q'{.D.
Ill. Mar.
17
,2010) (citing Reiser v. Residential Funding Corp., 380 F.3d
1027, 1029 (7th Cir. 2004) (While "[intermediate state courts] could in principle persuade us to
reconsider and ovemrle our precedent; assuredly they do not themselves liberate district judges
from the force of our decisions."). Thus, the Court rejects Plaintiff s argument that
it
should
apply the special relationship reasoning. Therefore, Plaintiff fails to allege he was placed in a
false light before the public. Accordingly, his claim
of false light
invasion
of privacy
is
dismissed.
F. Plaintiff Sufficiently
Alleges Law and Walker Violated S 1981.
Finally, Plaintiff alleges that Law and Walker violated $ l981. "Section 1981 prohibits
discrimination in the making and enforcement of private contracts." Black Agents
15
&
Brokers
Aeency. Inc. v. Near N. Ins. Brokeraqe, 409 F.3d 833, 837 (7th Cir. 2005). "To establish a claim
under $ 1981, the plaintiffs must show that
(l) they are members of a racial minority; (2) the
defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned
one or more of the activities enumerated in the statute[.]" Monis v. Office Max,89 F.3d
413 (7th
4ll,
Cir. 1996). Individual employees can be held liable under $ 1981 if they participated in
the unlawful conduct. Carter v. Chi. State Univ. ,778
F
.3d 651 , 657 (7th Cir. 201 5).
Law and Walker argue that Plaintiff fails to allege a $
l98l violation and fails
to allege a
causal relationship between Law and Walker's racially motivated actions and the adverse
employment actions Plaintiff suffered. The Court disagrees. For a Title VII claim, it is sufficient
for a complaint to state "I was turned down for a job because of my race." Bennett v. Schmidt,
153 F.3d 516, 518 (7th Cir. 1998). "Althoughsection 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. Ind., 91 F.3d 922, 940 (7th Cir. 1996) (emphasis
added). Plaintiff alleges that he is an Asian male and was terminated as a result of his race and
for voicing complaints about the discriminatory treatment he endured. See CBOCS W.. Inc. v.
Humphries, 553 U.S. 442, 451 (2008) (holding that
$ l98l
encompasses retaliation claims).
Plaintiff alleges that Law and Walker were not only aware of the alleged discrimination; but had
an active role in Canadian Pacific's decision to terminate Plaintiff due to his race and in
retaliation for him raising concerns about racially biased conditions. See James F. Jackson v.
Local 705. Int'l Bhd. of Teamsters, No. 95 C 7510,2002 WL 460841, at *9 (N.D. Ill. Mar. 26,
2002) ("[T]he element of personal involvement may be satisfied by proof that a supervisor had
knowledge of the alleged acts of discrimination and failed to remedy or prevent them."). For
these reasons, Plaintiff has sufficiently alleged Law and Walker violated
t6
$
1981 by
discriminating against Plaintiff on the basis of his race and in retaliation to his complaints of
discrimination, as it pertains to Plaintiff
s
termination Canadian Pacific.
Plaintiff has also sufficiently alleged that Law violated $ 1981, in regards to Law's
alleged statement to the Triton Supervisors that Plaintiff was placed on leave because he was
suicidal. The fact that Law is not a party to Plaintifls employment agreement with Triton
College is irrelevant, as the Seventh Circuit as held that "tortious interference with contract
rights violates [$] 1981 when the motivation for the interference is racial." Muhammad v. Oliver,
547 F.3d874,878 (7th
Cir.2008); (citing Vietnamese Fishermen's Ass'n v. Knights of Ku Klux
Klan, 518 F.Supp.993,1007-08 (S.D.Tex.1981)) (The Ku Klux Klan violates $ l98l when they
beat up nonwhites who try to enforce their contracts, despite the Klan not being a party to those
contracts); see also Shaikh v. City of Chi., 341 F.3d 627, 630 (7th Cir. 2003) ("[The plaintiffl is
correct in noting that a third party's interference with an individual's equal opportunity to enter
into contracts ... can support civil-rights claims under $ 1981[.]"). This is what Plaintiff alleges:
Law used his position with Canadian Pacific to interfere with, for racial reasons, Plaintiffs
employment with Triton College.
As discussed throughout, Plaintiff fails to allege a connection between Walker and Triton
College. Accordingly, Plaintiff s $ 1981 claim against Walker fails to the extent that it is based
upon Plaintiff s suspension from Triton College.
III.
CONCLUSION
Plaintiff has sufficiently alleged that Law and Walker engaged in a conspiracy to commit
defamation per se. Plaintiff failed to allege that Walker interfered with Plaintiff s economic
advantage, and thus, Walker is dismissed from Count
II with prejudice. Plaintiff s IIED claim,
Count III, is dismissed with prejudice. Plaintiffls false light invasion of privacy claim, Count IV,
t7
is dismissed with prejudice. Finally, Plaintiff sufficiently alleged that both Law and Walker
violated
$
1981. For the reasons stated, Defendant Law and Walkers' motion to dismiss is
granted in part and denied in part.
IT IS SO ORDERED.
CHARLES RONALD NORGLE,
United States District Court
DATE: November 19,2018
l8
J
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