                                                                             Digitally signed by
                            Illinois Official Reports                        Reporter of Decisions
                                                                             Reason: I attest to the
                                                                             accuracy and integrity
                                                                             of this document
                                   Appellate Court                           Date: 2016.09.29
                                                                             16:51:43 -05'00'




                  Carstens-Wickham v. Sedycias, 2016 IL App (5th) 150472



Appellate Court        BELINDA CARSTENS-WICKHAM, Plaintiff-Appellant, v. JOAO
Caption                SEDYCIAS and ALDEMARO ROMERO, Defendants-Appellees.



District & No.         Fifth District
                       Docket No. 5-15-0472



Filed                  August 2, 2016



Decision Under         Appeal from the Circuit Court of Madison County, No. 14-L-545; the
Review                 Hon. A.A. Matoesian, Judge, presiding.



Judgment               Reversed and remanded.



Counsel on             Leslie G. Offergeld and John D. Wendler, both of Walker & Williams,
Appeal                 P.C., of Belleville, for appellant.

                       Greg Roosevelt, of Roosevelt Law Office, of Edwardsville, for
                       appellee Joao Sedycias.

                       Ian P. Cooper, of Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C., of
                       St. Louis, Missouri, for appellee Aldemaro Romero.
     Panel                     JUSTICE STEWART delivered the judgment of the court, with
                               opinion.
                               Presiding Justice Schwarm and Justice Goldenhersh concurred in the
                               judgment and opinion.


                                                OPINION

¶1         The plaintiff, Belinda Carstens-Wickham, a tenured professor at Southern Illinois
       University Edwardsville (SIUE or University), brought this action in the circuit court of
       Madison County, seeking damages for alleged libel, slander, and intentional infliction of
       emotional distress. The defendants, Joao Sedycias, a former department chair at SIUE, and
       Aldemaro Romero, a former dean at SIUE, moved to dismiss the plaintiff’s complaint pursuant
       to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2014)). The
       defendants claimed that they were State employees immune from suit in court pursuant to the
       State Lawsuit Immunity Act (745 ILCS 5/1 (West 2014)) and argued that the Illinois Court of
       Claims had exclusive jurisdiction over the plaintiff’s tort claims. The circuit court agreed and
       dismissed the plaintiff’s complaint for lack of subject-matter jurisdiction. The plaintiff
       appeals. For the reasons that follow, we reverse and remand for further proceedings.

¶2                                            BACKGROUND
¶3         In her second amended complaint, the plaintiff alleged the following. She is a tenured
       professor in the foreign languages and literature department at SIUE, which is within the
       college of arts and sciences. At the time of the alleged incidents, Sedycias was chair of the
       foreign languages and literature department, and Romero was dean of the college of arts and
       sciences. The department chair is elected by a faculty vote. In early 2014, the plaintiff and
       Sedycias were on the ballot for the department chair position. Romero, as dean, removed the
       plaintiff from the ballot and supported Sedycias.
¶4         The plaintiff alleged that the defendants conspired to libel and slander her and to
       intentionally inflict emotional distress on her by communicating/publishing false allegations of
       sexual misconduct in a manner that was outside their employment duties to ruin her reputation
       and mentally harm her. She alleged that, knowing she would be elected chair, they conspired to
       remove her from the ballot based on false allegations.
¶5         The plaintiff protested her removal from the ballot to the provost, who found in her favor.
       The defendants appealed the provost’s decision, preparing and sending a letter dated February
       21, 2014, and signed by Sedycias to the president of the Southern Illinois University System.
       The plaintiff alleged that the letter was libelous and contained false allegations, including false
       allegations of sexual misconduct. The letter, which was incorporated by reference into the
       complaint, provides, in pertinent part, as follows:
               “In his memo of 10 January 2014, Dean Romero provides the following reasons for
               removing Dr. Carstens-Wickham from the list of possible candidates (emphasis
               [Sedycias’s]):
                                                     ***


                                                    -2-
                        [‘]*** [I]t has been reported to me by multiple sources that Dr. Carstens-
                    Wickham has *** shown a number of character flaws unbecoming of a member of
                    the SIUE community. I have received multiple reports from multiple sources that
                    she had a child from one of her undergraduate students and has had sexual
                    relationships in her office on the SIUE campus with a former SIUE faculty member.
                    I have witnesses who can testify about these and many other incidents that include,
                    but are not limited to, harassment, intimidation, and providing misleading
                    information to the faculty.’ ” (Emphases in original.)
¶6         The plaintiff alleged that SIUE policy mandates that material filed in the appeal process,
       including the letter, be kept confidential. In early 2014, she learned that Sedycias had been
       contacting all of the department chairs and other officials within the college of arts and
       sciences and giving them a copy of the letter. She alleged that, acting outside the scope of their
       employment, outside the appeal process, and outside SIUE rules and guidelines, the defendants
       distributed the letter and false information contained therein to all department chairs and other
       officials within the college of arts and sciences and orally distributed the false information to
       persons throughout SIUE. She alleged that, by distributing the letter and false information,
       they acted intentionally and maliciously to try to ruin her reputation and damage her mentally.
¶7         In counts I and III, the plaintiff alleged libel and slander claims. She alleged that the
       statements contained in the letter (1) were false, (2) were libel per se if written and slander
       per se if spoken, and (3) on their face provided a basis to cause her extreme emotional distress.
       She alleged that, by knowingly making false allegations of sexual misconduct to SIUE
       officials, the defendants acted in violation of state law and with malice.
¶8         In counts II and IV, the plaintiff alleged intentional infliction of emotional distress claims.
       She alleged that the defendants’ actions were intentional and were taken to damage her
       emotional and mental health to the extent that she could not perform her duties as a faculty
       member and that she would be held in such low regard that she could not be elected as
       department chair and her connection to SIUE would be terminated. She alleged that the false
       allegations of sexual misconduct and the attempt to spread the same throughout the college of
       arts and sciences was outrageous conduct, beyond the bounds of decency, and intended to
       destroy her mentally and professionally.
¶9         In count V, the plaintiff alleged a slander claim against Romero only. She alleged that on
       March 4, 2015, while interviewing for a position at Columbus State University in Georgia,
       Romero was questioned in a public forum by members of that community. When asked about
       the litigation involving the plaintiff, he stated that he had to remove her as department chair
       “because she was having sex with a student.” She alleged that, when he made the statement, he
       knew it was false and that he made it with malice and in an attempt to damage her. She alleged
       that a former colleague, who was present at the public forum, heard Romero’s statement, as did
       everyone else in attendance.
¶ 10       The defendants filed motions to dismiss the plaintiff’s complaint pursuant to section 2-619,
       arguing that they were State employees immune from suit in court pursuant to the State
       Lawsuit Immunity Act (745 ILCS 5/1 (West 2014)). They argued that the Illinois Court of
       Claims had exclusive jurisdiction over the plaintiff’s tort claims and that the circuit court,
       therefore, lacked subject-matter jurisdiction.
¶ 11       Romero filed an affidavit in support of his motion to dismiss, stating the following. He had
       been employed by SIUE since 2009 and was dean of the college of arts and sciences from 2009

                                                    -3-
       until 2014. Attached to his affidavit was a copy of the operating paper of the college of arts and
       sciences. The dean is the chief academic and administrative officer of the college, is the fiscal
       officer of the college, and has general responsibility for supervision and operation of the
       college. The dean’s responsibilities include making personnel decisions, including hiring
       faculty members. The dean is also involved in selecting department chairs and has the power to
       remove department chairs.
¶ 12        The plaintiff was under Romero’s oversight when he was dean. In Romero’s affidavit, he
       stated that, in his role as dean and as an SIUE employee, he had written and verbal
       communications with other SIUE personnel about the plaintiff; that all such communications
       were related to her status, conduct, and/or performance as an SIUE employee; that he did not
       have any communications with any SIUE employee about her that were unrelated to carrying
       out his responsibilities as dean; that his communications about her actions were conducted
       within the course and scope of his employment; and that his communications about her
       involved matters within his normal and official functions, including determining candidates
       for department chairs.
¶ 13        Romero’s affidavit stated that, pursuant to SIUE policy, he had a responsibility as dean and
       as an SIUE employee to help “maintain a work environment free from all forms of sexual
       harassment.” A copy of SIUE’s sexual harassment complaint procedures was attached to his
       memorandum of law in support of his motion to dismiss. His affidavit stated that SIUE policy
       provides that “Members of the University community who have knowledge of [sexual
       harassment] incidents should encourage victims of sexual harassment to consult with sexual
       harassment information advisors, if needed.”
¶ 14        In his memorandum of law in support of his motion to dismiss, Romero addressed the
       plaintiff’s allegation that, at a public forum at Columbus State University in Georgia, he stated
       that he had to remove her as department chair “because she was having sex with a student.” In
       his memorandum of law, he stated that the plaintiff alleged that he “made statements during a
       job interview about matters that were solely within his knowledge because of his employment
       with a State University” and that she made “no allegation that [he] volunteered this
       information during his job interview—merely that he responded to a question about his
       knowledge of a University-related matter.”
¶ 15        Sedycias also filed an affidavit in support of his motion to dismiss, stating as follows. He
       had been employed by SIUE since July 1, 2011, and was chair of the foreign languages and
       literature department from that date until June 30, 2014. The chair reports to the dean of the
       college of arts and sciences; is the chief academic and administrative officer of the department;
       and has broad duties and responsibilities, including evaluating faculty and making salary,
       promotion, and tenure recommendations.
¶ 16        The plaintiff was under Sedycias’s oversight when he was chair. In his affidavit, Sedycias
       stated that, as chair and as an SIUE employee, he had written and verbal communications with
       other SIUE personnel about the plaintiff; that any and all such communications were related to
       her status, conduct, and/or performance as an SIUE employee; that he did not have any
       communications with any SIUE employee about her that were unrelated to carrying out his
       responsibilities and role as chair; and that his communications about her actions were
       conducted within the course and scope of his employment and involved matters within his
       normal and official functions as chair.


                                                   -4-
¶ 17        Sedycias’s affidavit stated that, pursuant to SIUE policy, he had a responsibility as chair
       and as an SIUE employee to help “maintain a work environment free from all forms of sexual
       harassment.” Sedycias’s affidavit stated that SIUE policy provides that “Members of the
       University community who have knowledge of [sexual harassment] incidents should
       encourage victims of sexual harassment to consult with sexual harassment information
       advisors, if needed.”
¶ 18        The plaintiff filed responses to the defendant’s motions to dismiss. She denied that her
       claims were barred by the doctrine of sovereign immunity and argued that the circuit court had
       subject-matter jurisdiction.
¶ 19        The plaintiff also filed an affidavit in support of her responses to the defendants’ motions to
       dismiss, stating the following. She is employed in the foreign languages and literature
       department at SIUE and was department chair from 2002 to 2011. She has also served on
       administrative committees at SIUE and has direct knowledge of the interaction between the
       faculty, department chair, and dean. She was on the committee to evaluate Romero’s
       performance and voted with the majority (7 to 3) to terminate him as dean.
¶ 20        The plaintiff’s affidavit stated that she was on the ballot for department chair, that the
       defendants conspired to and did remove her from the ballot, and that they told the faculty that
       they could either vote for Sedycias or not vote at all. She stated that she led the opposition to
       Sedycias’s election as chair, and he got only 3 out of 11 possible votes.
¶ 21        In her affidavit, the plaintiff stated that she appealed her removal from the ballot to the
       provost, who determined that the allegations contained in the letter were unfounded, voided the
       election, and reinstated her to the ballot. The defendants appealed the provost’s decision to the
       president of the Southern Illinois University System and sent the letter as part of the appeal
       process. The president affirmed the provost’s decision.
¶ 22        The plaintiff’s affidavit stated that the allegations contained in the letter were to be kept
       confidential as part of the appeal process and that the defendants violated SIUE policy by
       failing to do so. She stated that, at the conclusion of the appeal, the defendants published
       (communicated) the letter to other department chairs within the college of arts and sciences, to
       other faculty, and to various unknown persons—all of whom had nothing to do with the appeal
       of the provost’s decision, the ballot for department chair, or the day-to-day operations of the
       department and had no supervisory authority over her.
¶ 23        In her affidavit, the plaintiff expressed opinions based on her background and experience
       and her review of SIUE policies and procedures and the operating paper of the college of arts
       and sciences. She opined that distributing the letter to persons outside the appeal process,
       outside the department, and with no supervisory authority over her was not related to the
       defendants’ jobs as dean or chair. She asserted that, upon losing the appeal of the provost’s
       decision, they decided to slander and libel her and to inflict emotional distress on her to try to
       destroy her reputation and make her leave her job.
¶ 24        The plaintiff’s affidavit opined that the defendants’ actions in distributing the letter outside
       the appeal process were not part of their duties or responsibilities under the operating paper of
       the college of arts and sciences or SIUE policies and procedures. She stated that the operating
       paper did not include the commission of intentional torts within the realm of the administrative
       duties of dean or department chair.



                                                     -5-
¶ 25       In her affidavit, the plaintiff disputed the defendants’ claims that distribution of the letter
       outside the department was related to her status, conduct, and/or performance as an SIUE
       employee. She stated that distribution of the letter outside the department was not related to the
       defendants’ jobs as dean or chair because the recipients of the letter had nothing to do with her.
¶ 26       The plaintiff’s affidavit stated that, as a faculty member and former department chair, she
       was aware of the administrative requirements and responsibilities of handling sexual
       harassment or assault reports or claims. She stated that the defendants did not use SIUE
       procedures to investigate a claim of any sexual misconduct by her. She stated that SIUE’s
       sexual harassment complaint procedures provide for informal and formal notice of sexual
       harassment allegations and that she was never given such notice as to the allegations contained
       in the letter. She stated that SIUE procedures also include complaint procedures that provide
       for confidential resolution of unfounded claims.
¶ 27       In her affidavit, the plaintiff stated that, under SIUE procedures, claims of sexual
       misconduct, harassment, and/or assault are not to be handled by the chair of the foreign
       languages and literature department or the dean of the college of arts and sciences. Rather, such
       complaints are to be addressed by independent SIUE personnel under procedures that give the
       person complained of an opportunity to refute the charges.
¶ 28       On October 16, 2015, the circuit court dismissed the plaintiff’s complaint with prejudice
       for lack of subject-matter jurisdiction. The plaintiff filed a timely appeal.

¶ 29                                            ANALYSIS
¶ 30       The standards governing this appeal are familiar. A motion to dismiss pursuant to section
       2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2014)) admits the legal
       sufficiency of the complaint but asserts affirmative matter that defeats the claim. Leetaru v.
       Board of Trustees of the University of Illinois, 2015 IL 117485, ¶ 40. Among those affirmative
       matters is that the court lacks subject-matter jurisdiction. 735 ILCS 5/2-619(a)(1) (West 2014).
       That is the basis for the motion filed in this case.
¶ 31       When reviewing an order granting a motion to dismiss pursuant to section 2-619, we may
       consider all facts presented in the pleadings, affidavits, and depositions in the record. See
       Doe A. v. Diocese of Dallas, 234 Ill. 2d 393, 396 (2009). Accordingly, despite the defendants’
       argument to the contrary, we may consider the plaintiff’s response to their motions to dismiss
       and her affidavit in support even though they were filed in response to the defendants’ motions
       to dismiss her amended complaint rather than her second amended complaint. The plaintiff’s
       amended complaint and second amended complaint were almost identical, the defendants’
       motions to dismiss both complaints were almost identical, and the defendants used the same
       affidavits in support of their motions to dismiss both complaints.
¶ 32       Consistent with their decision to invoke section 2-619, the defendants do not and cannot
       challenge the legal sufficiency of the plaintiff’s complaint. For present purposes, the
       defendants accept that the plaintiff has stated legally cognizable claims against them. Their
       contention is simply that she has brought her claims before the wrong tribunal. In their view,
       the only tribunal authorized by law to consider her complaint is the Illinois Court of Claims.
¶ 33       The circuit court agreed and dismissed the plaintiff’s complaint for lack of subject-matter
       jurisdiction. We review de novo a circuit court’s dismissal for lack of subject-matter
       jurisdiction. Leetaru, 2015 IL 117485, ¶ 41.


                                                    -6-
¶ 34       The defendants’ jurisdictional challenge is premised on principles of sovereign immunity.
       “The doctrine of sovereign immunity was abolished in Illinois by the 1970 Constitution
       ‘[e]xcept as the General Assembly may provide by law.’ ” Id. ¶ 42 (quoting Ill. Const. 1970,
       art. XIII, § 4). As it was authorized to do under this provision, the General Assembly
       subsequently reinstated the doctrine of sovereign immunity through enactment of the State
       Lawsuit Immunity Act (745 ILCS 5/0.01 et seq. (West 2014)). Leetaru, 2015 IL 117485, ¶ 42.
       Section 1 of the State Lawsuit Immunity Act provides that except as provided in the Court of
       Claims Act (705 ILCS 505/1 et seq. (West 2014)) and several other specified statutes, “the
       State of Illinois shall not be made a defendant or party in any court.” 745 ILCS 5/1 (West
       2014). Section 8 of the Court of Claims Act, in turn, provides that the Court of Claims shall
       have exclusive jurisdiction over nine enumerated matters, including “[a]ll claims against the
       State for damages in cases sounding in tort, if a like cause of action would lie against a private
       person or corporation in a civil suit.” 705 ILCS 505/8(d) (West 2014).
¶ 35       This language is clear and unambiguous; all claims against the State for damages sounding
       in tort must be brought in the Court of Claims, and no other tribunal, including our circuit
       courts, has jurisdiction of any such claim. Fritz v. Johnston, 209 Ill. 2d 302, 310 (2004). The
       question is, thus, whether this case involves “claims against the State.”
¶ 36       The plaintiff does not purport to assert a claim against the State. Rather, she names as
       defendants two individual employees of the State. The defendants contend, however, that the
       exclusive jurisdiction provision of the Court of Claims Act should nevertheless apply because,
       notwithstanding the formal designation of the parties, the lawsuit actually seeks to control the
       actions of the State or subject it to liability and that it is, therefore, tantamount to an action
       against the State itself.
¶ 37       The defendants are correct that the formal designation of the parties is not dispositive for
       purposes of the Court of Claims Act. Leetaru, 2015 IL 117485, ¶ 44. In determining whether
       sovereign immunity is applicable in a given case, substance takes precedence over form. Id.
       That an action is nominally one against individual State employees does not mean that it will
       not be considered as one against the State itself. Id.
¶ 38       The determination of whether an action is, in fact, one against the State and, therefore, one
       that must be brought in the Court of Claims depends on the issues involved and the relief
       sought. Id. ¶ 45. Sovereign immunity cannot be avoided by making an action nominally one
       against State employees when the real claim is against the State itself and when the State is the
       party vitally interested. Id. Sovereign immunity affords no protection, however, when it is
       sufficiently alleged that State employees acted in violation of statutory or constitutional law or
       in excess of their authority. Id. In those instances, the action is not against the State and may be
       brought in circuit court. Id.
¶ 39       However, an action brought nominally against State employees in their individual
       capacities will be found to be claims against the State where a judgment for the plaintiff could
       operate to control the State’s actions or subject it to liability. Currie v. Lao, 148 Ill. 2d 151, 158
       (1992).
¶ 40       Our supreme court has adopted a three-part test to determine whether an action against
       State employees is, in fact, an action against the State itself. Healy v. Vaupel, 133 Ill. 2d 295,
       309 (1990). An action is against the State when the following factors are present: (1) there are
       no allegations that State employees acted beyond the scope of their authority through wrongful
       acts, (2) the duty allegedly breached was not owed to the public generally independent of the

                                                     -7-
       State employment, and (3) the actions complained of involve matters ordinarily within the
       employees’ normal and official State functions. Id.
¶ 41       Under the foregoing authorities, the plaintiff’s causes of action may proceed in circuit
       court without offending principles of sovereign immunity. The plaintiff does not question the
       defendants’ right to send the letter to the president of the Southern Illinois University System
       as part of the appeal process. That is something that they clearly had the authority to do in
       furtherance of SIUE’s educational mission. Rather, her claims are based on the defendants’
       conduct after the appeal process was completed. Her argument is that by distributing the letter
       and the false statements contained therein outside of the appeal process and to others outside of
       the department, the defendants exceeded their authority, acted outside the scope of their
       employment, and violated SIUE’s policies and procedures. The defendants’ alleged acts are
       not simply the result of some inadvertent oversight or de minimis technical violation. Rather,
       according to the plaintiff, the defendants maliciously and intentionally retaliated against her by
       making the false statements in order to ruin her reputation, remove her from the chair election,
       make her quit her job, and harm her mentally and emotionally.
¶ 42       Because sovereign immunity affords no protection when State employees have acted in
       violation of law or in excess of their authority, which is precisely what the plaintiff has alleged
       in her verified complaint and affidavit, Illinois precedent compels the conclusion that she was
       entitled to proceed in circuit court. The circuit court, therefore, erred in dismissing her
       complaint for lack of subject-matter jurisdiction.
¶ 43       In so holding, we recognize that, in their affidavits in support of their motions to dismiss,
       the defendants stated that all of their communications with other SIUE personnel about the
       plaintiff were related to her status, conduct, and/or performance as an SIUE employee; that
       they did not have any communications with any SIUE employee about her that were unrelated
       to carrying out their responsibilities as dean or department chair; that their communications
       about her actions were conducted within the course and scope of their employment; and that
       their communications about her involved matters within their normal and official functions as
       dean or department chair. However, when ruling on a motion to dismiss pursuant to section
       2-619, the pleadings and supporting documents, including the affidavits, must be interpreted in
       the light most favorable to the plaintiff, as the nonmoving party. Henderson Square
       Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL 118139, ¶ 34. In her verified complaint
       and affidavit in response to the defendants’ motions to dismiss, the plaintiff clearly disputed
       these statements. These disputed facts must be construed in the plaintiff’s favor for purposes of
       a motion to dismiss pursuant to section 2-619.
¶ 44       As we noted at the outset of our analysis, by moving to dismiss pursuant to section 2-619,
       the defendants have admitted the legal sufficiency of the plaintiff’s causes of action. Whether
       the defendants’ conduct is, in fact, actionable is a question that they may pursue further on
       remand. For purposes of this appeal, however, it is not at issue.

¶ 45                                        CONCLUSION
¶ 46      For the foregoing reasons, the judgment of the circuit court of Madison County is reversed,
       and the cause is remanded for further proceedings.

¶ 47      Reversed and remanded.


                                                    -8-
