Opinion
No. 01 C 9393
June 25, 2002
MEMORANDUM OPINION AND ORDER
E.B.N. Enterprises, Inc. ("EBN") has filed a Fed.R.Civ.P. ("Rule") 12(b)(6) motion to dismiss four counts of the Verified Amended Complaint ("Complaint") filed against it by Eric Ralford ("Ralford"). In turn, Ralford's appointed counsel have filed a responsive memorandum addressing EBN's contentions at some length. No extended discussion is needed to establish that only one of EBN's four attacks succeeds.
Count III
Rule 12(b)(6) does not set a particularly high hurdle for a plaintiff's pleading — see the standard reconfirmed in Hishon v. King Spalding, 467 U.S. 69, 73 (1984). In this instance Ralford's allegation in Complaint ¶ 22 sufficiently supports the element of age-based employment discrimination challenged by EBN, at least at this threshold stage. Count III will not be dismissed.
Count IV
If our Court of Appeals were to convert its dictum in Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025, 1034-35 (7th Cir. 1998) to an actual holding to the same effect at some future time, it would stand alone among Courts of Appeals in holding that an at-will employee may not sue under 42 U.S.C. § 1981 ("Section 1981"). Like other judges in this District, this Court will not assume such a result. Instead it leaves Count IV in place — a determination that may always be reexamined if the legal climate were to change before the final disposition of this action.
Count V
Because Ralford's defamation claim sounds in state law and not federal law, he cannot rely on the pendency of his EEOC charge to toll the one-year statute of limitations on his defamation-based claim (see, e.g., Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir. 1992)). Though Ralford seeks to avoid dismissal on the Macawber-like premise that "something may turn up" in discovery that would evidence a republication by EBN of the assertedly defamatory comments that would render his claim timely, that speculative argument cannot save the day. Count V is dismissed.
This is of course an interlocutory order, so that if such an eventuality were to occur Ralford could move to reinstate Count V.
Count VI
Because Ralford's claims of intentional and negligent infliction of emotional distress draw in material part on some egregious defamatory statements that he ascribes to EBN, those claims are not preempted by the Illinois Human Rights Act (see, e.g., Maksimovic v. Tsogalis, 177 Ill.2d 511, 516, 687 N.E.2d 21, 23-24 (1997)). Nor, because those defamatory statements were uttered post-termination, are they blocked by the Illinois Workers' Compensation Act. Finally, the pattern of EBN's claimed activity that includes those statements satisfies the "extreme and outrageous" standard established by Illinois caselaw. Count VI will also stand.
Conclusion
For the reasons stated here, EBN's Rule 12(b)(6) motion is granted only as to Complaint Count V and is denied as to Complaint Counts III, IV and VI. EBN is ordered to answer those remaining counts on or before July 8, 2002.