Opinion
Case No. 02 C 7330.
July 16, 2003.
ORDER
Plaintiff James Bishopp brings this suit against his employer, related entities and his former supervisors alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA") (Count I), defamation (Count II), Consolidated Omnibus Reconciliation Act, 29 U.S.C. § 1161-1169 ("COBRA") (Count EI), and the Illinois Wage Payment and Collection Act, 820 ILCS § 115/1 ("WPCA") (Count IV). Presently before the court are three motions to dismiss various counts of plaintiff's complaint.
Facts
Bishopp was employed by ABN-AMRO Services Co., Inc. from February 1995 until May 17, 2002 when he was terminated. During that time, Bishopp was promoted several times and held the position of First Vice President when he was fired. Despite the fact that Bishopp received superior marks on his performance reviews, ABN-AMRO Services Co., Inc. terminated Bishopp for an "unsatisfactory audit." Asserting that his employer's stated reason was pretextual, Bishopp claims that his employer replaced him with a younger, less experienced employee. According to Bishopp, Bruce Jacobs and Robert Boor, his former supervisors, defamed Bishopp when each made certain statements relating to the reason ABN-AMRO Services, Co., Inc. terminated Bishopp. Further, Bishopp maintains that his employer failed to satisfy their duties under COBRA and the WPCA.
Analysis
On a Rule 12(b)(6) motion to dismiss, the court considers all allegations in the complaint to be true and draws all reasonable inferences in the plaintiff's favor. Jacobs v. City of Chicago, 215 F.3d 758, 765 (7th Cir. 2000). A complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss, a pleading need "only contain enough 'to allow the court and the defendant to understand the gravamen of the plaintiff's complaint.'" McCormick v. City of Chicago, 230 F.3d 319, 323-24 (7th Cir. 2000) (quoting Payton v. Rush Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir. 1999)). A court should dismiss a complaint only where it is clear that no relief could be granted consistent with the allegations. Hishon v. King Spaulding, 467 U.S. 69, 73 (1984).
AANA and AABNA's Motion to Dismiss
The court grants defendants ABN AMRO North America, Inc. ("AANA") and ABN AMRO Bank N.V.'s ("AABNV") motion to dismiss Counts I, III and IV of plaintiff's complaint. AANA and AABNV argue that these counts should be dismissed against them as they are merely the corporate parents of Bishopp's employer, ABN AMRO Services, Co., Inc. Plaintiff's ADEA, COBRA and WPCA claims are properly brought only against ABN AMRO Services Co., Inc., his employer. Mere allegations of corporate parent status do not properly state a claim for liability based on a subsidiary's actions. Kahalnik v. John Hancock Funds, Inc., No. 95 C 3933, 1996 WL 145842, at *5 (N.D. Ill. Mar. 27, 1996). Because Bishopp failed to respond to defendants' arguments, and he has not alleged any facts that suggest that AANA and AABNV, two separate legal entities, should also be deemed to be his employer, Counts I, 11 and IV are dismissed against AANA and AABNV.
Jacobs and Boor's Motion to Dismiss
The court grants defendants Jacobs and Boor's motion to dismiss Counts I, III and IV of plaintiff's complaint. From an exhibit attached to the motion, it appears that plaintiff has agreed not to pursue these three counts against the individual defendants. In addition, for the reasons explained above, Jacobs and Boor are not Bishopp's employer and therefore the ADEA, COBRA and WPCA claims are not properly brought against them. Further, Jacobs and Boor are not listed in Bishopp's EEOC charge and therefore the ADEA claim cannot be brought against them in any event.
Defendants' Motion to Dismiss Defamation Claim
Illinois courts have not created a "general rule defining what words are defamatory, [and] each case must be decided based upon its own facts." Heerey v. Berke, 544 N.E.2d 1037, 1040 (Ill.App.Ct. 1989). Generally, a statement is considered defamatory if it "tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him." Van Home v. Muller, 705 N.E.2d 898,903 (Ill. 1998). Illinois recognizes two forms of defamation: (1) defamation per se which includes statements so obviously defamatory that it is unnecessary to allege or prove special damages; and (2) defamation per quod which includes statements for which proof of special damages is necessary. Rosner v. Field Enters., Inc., 564 N.E.2d 131, 143 (Ill.App.Ct. 1990).
Illinois law recognizes five categories of words as defamatory per se for which special damages are presumed: (1) words imputing the commission of a criminal offense; (2) words imputing infection with a loathsome communicable disease; (3) words imputing an inability to perform or want of integrity in the discharge of duties of office or employment; (4) words that prejudice a party, or impute lack of ability, in his or her trade, profession or business; (5) words imputing adultery or fornication. Van Home, 705 N.E.2d at 903.
In the present case, Bishopp argues that statements made by defendants Jacobs and Boor fall within categories (3) and (4). Specifically, Bishopp alleges that three statements are defamatory: (1) Jacobs stated that "James Bishopp received an unsatisfactory audit on the Lotus Notes project"; (2) Boor stated that Bishopp was "terminated as a result of an unsatisfactory audit and for failing to make the required corrections pursuant to previous warnings"; (3) Jacobs and Boor told other employees that "James Bishopp had been terminated based on an unsatisfactory audit and because he failed to make corrections to Lotus Notes pursuant to prior warnings." (Compl. ¶¶ 33, 35-37.) Bishopp contends that these statements were false and resulted in his termination.
Under Illinois law, even if a statement fits within one of the recognized per se categories, recovery is precluded if the statement reasonably can be given an innocent construction. Bryson v. News America Publ'n, Inc., 672 N.E.2d 1207, 1215 (Ill. 1996). Whether a statement is reasonably capable of an innocent construction is a question of law for the court to decide. Id. Under the innocent construction rule, allegedly defamatory statements must be "considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, so construed, the statement may reasonably be innocently interpreted . . . it cannot be actionable per se." Chapski v. Copley Press, Inc., 442 N.E.2d 195, 199 (Ill. 1982). Illinois courts protect employers from defamation per se liability for statements that may be limited "to a particular setting or single instance." Skolnick v. Corr. Med. Servs. Inc., 132 F. Supp.2d 1116, 1124 (N.D. Ill. 2001).
In Anderson v. Vanden Dorpel, 667 N.E.2d 1296 (m1. 1996), plaintiff brought suit against a former employer, alleging that defendant had defamed her by informing a prospective employer that she "did not follow up on assignments." Id. at 1298. The Illinois Supreme Court concluded that "the remark, construed in context, may be understood to mean simply that the plaintiff did not fit in with the organization of the employer making the assessment and failed to perform well in that particular job setting, and not as a comment on her ability to perform in other, future positions." Id. at 1302. Likewise, in Taradash v. Adelet/Scott-Fetzer Co., 628 N.E.2d 884 (Ill.App.Ct. 1993), the court held that an employer's statements that plaintiff was terminated for "lack of performance" were subject to the innocent construction rule. The court explained that there are a variety of explanations that could explain why plaintiff did not perform, such as economic conditions, unrealistic standards, or conflicting obligations or commitments. Id. at 887; see Marczak v. Drexel Nat'l Bank, 542 N.E.2d 787 (Ill.App.Ct. 1989) (applying innocent construction rule to statements in termination report that plaintiff did not "perform up to the high standards expected," was uncooperative and refused to perform a task); Dunlap v. Alcuin Montessori Sch., 698 N.E.2d 574, 581 (Ill.App.Ct. 1998) (finding that a letter regarding the plaintiff's termination stating that there had been a total breakdown of trust and confidence between the plaintiff and the employer and that the plaintiff was not satisfactorily performing her duties may be reasonably construed as an assessment of the plaintiff's failure to perform in employer's particular job, not an inability to perform in future positions).
Based on a review of the Illinois cases where similar comments were deemed innocent, the court concludes that the statements at issue are not defamatory per se as they fall under the innocent construction rule. Based on this theory, as it has been developed by the Illinois courts, the statements at issue in this case do not go directly to the plaintiff's ability in general, but rather to the specific performance standards of one particular employer. Skolnick, 132 F. Supp.2d at 1123 ("There is no balancing of reasonable constructions. If a statement taken in context is reasonably capable of a nondefamatory interpretation, the court should so construe it."). Plaintiff's claim for defamation per se fails.
Having found that Bishopp does not state a claim for defamation per se, the court now must decide whether he has stated a claim for defamation per quod. Statements where "extrinsic facts are required to explain the defamatory meaning" are considered defamation per quod. Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201, 206 (M1. 1992). In order to plead a claim for defamation per quod, a plaintiff must plead special damages. Brown and Williamson Tobacco Corp. v. Jacobsen, 713 F.2d 262, 270 (7th Cir. 1983). Federal Rule of Civil Procedure 9(g) mandates that "[w]hen items of special damage are claimed, they shall be specifically stated."
Plaintiff failed to plead with specificity the special damages required to support a claim of defamation per quod. The only reference plaintiff makes to damages is: "the Plaintiff suffered substantial damages, including loss of employment, income and benefits, harm to his personal and professional reputation, embarrassment, humiliation and severe emotional distress." (Compl. ¶ 38.) "General allegations as to damages, such as damage to one's health, emotional distress, damage to reputation and economic loss, are insufficient to state a cause of action for defamation per quod." Heerey, 544 N.E.2d at 1041; Schaffer v. Zekman, 554 N.E.2d 988, 992 (Ill.App.Ct. 1990) ("General allegations, such as damage to an individual's health or reputation, economic loss, and emotional distress, are insufficient to support an action per quod."). Plaintiff has failed to show the kind of specific, quantifiable economic losses that are required to state a claim for defamation per quod.
Because Bishopp has failed to state a claim under either defamation per se or defamation per quod, defendants' motion to dismiss plaintiff's defamation claim is granted.