                                    2016 IL App (1st) 152205

                                                                             FOURTH DIVISION
                                                                                  June 23, 2016


No. 1-15-2205

DANIELLE DOBIAS,                                             )              Appeal from the
                                                             )              Circuit Court of
       Plaintiff-Appellant,                                  )              Cook County.
                                                             )
v.                                                           )
                                                             )              No. 13 L 11744
OAK PARK AND RIVER FOREST HIGH SCHOOL                        )
DISTRICT 200, THOMAS TARRANT, and                            )
JOHN STELZER,                                                )              Honorable
                                                             )              John P. Callahan
       Defendants-Appellees.                                 )              Judge Presiding.


       JUSTICE ELLIS delivered the judgment of the court, with opinion.
       Presiding Justice McBride and Justice Howse concurred in the judgment and opinion.

                                         OPINION

¶1     In this appeal, we are asked to determine whether any or all of the following statements

made in writing by a high school coach about the plaintiff—one of his assistant coaches and also

a teacher at the school—constitute defamation per se:

       i. That the plaintiff “[w]as rolling around on a bed in a hotel room alone with an athlete”;

       ii. That the plaintiff visited athletes late one night while they were drinking alcohol and

       using drugs and “hung out” with them, later taking them home without informing the

       school or their parents about their behavior;

       iii. That the plaintiff “[c]elebrated an athlete’s accomplishment by drinking alcohol”;

       iv. That the plaintiff was “verbally and physically aggressive toward” him; and

       v. That the plaintiff “[p]hysically assaulted [him] by grabbing [his] arm and trying to

       force [him] into a room at the end of the school day.”
No. 1-15-2205

¶2     We hold that the first two statements constituted defamation per se, and we thus reverse

the dismissal of the defamation claims to this extent. We hold that all other statements did not

constitute defamation per se, and the claims relating to those statements were properly

dismissed.

¶3     Plaintiff, Danielle Dobias, a schoolteacher and assistant coach at Oak Park and River

Forest High School, sued her employer and her two supervisors, defendants Thomas Tarrant and

John Stelzer, alleging defamation per se and false-light invasion of privacy based on a number of

statements made by Tarrant about plaintiff concerning her interactions with athletes and with

Tarrant himself. The circuit court dismissed the third amended complaint, ruling that the

statements at issue were capable of innocent constructions, were nonactionable opinion, or were

not highly offensive to a reasonable person.

¶4                                     I. BACKGROUND

¶5     Plaintiff filed her original complaint on October 23, 2013, followed by several amended

complaints. She filed her third amended complaint on November 7, 2014. Count I alleged

defamation per se; count II alleged false-light invasion of privacy; count III alleged willful and

wanton misconduct against Tarrant; and count IV alleged willful and wanton improper

supervision against the high school. Only counts I and II are before us; plaintiff has waived her

claims in counts III and IV.

¶6     As the complaint was dismissed pursuant to section 2-615 of the Code of Civil Procedure

(735 ILCS 5/2-615 (West 2012)), we must accept all well-pleaded facts in the complaint as true.

Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 384 (2008). Our review

is limited to whether the third amended complaint stated a cause of action for defamation per se

or false-light invasion of privacy. Because the context in which an allegedly defamatory


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statement is made must be considered as part of a court’s analysis (see, e.g., Anderson v. Vanden

Dorpel, 172 Ill. 2d 399, 415 (1996)), we include most of plaintiff’s allegations. We also include

the entire statements contained in the exhibits on which plaintiff bases her complaint.

¶7      According to the allegations in the third amended complaint, both plaintiff and Tarrant

are schoolteachers for defendant Oak Park and River Forest High School District 200 (OPRF).

Plaintiff is a special education teacher; Tarrant was a special education behavioral interventionist

with OPRF’s behavioral intervention program whose duties included assisting students and staff,

including plaintiff, in maintaining discipline with disruptive and/or disorderly students. Tarrant’s

office was a short distance from plaintiff’s classroom on the fourth-floor.

¶8      Plaintiff is the assistant coach of the boys’ track and field team and was also a former

assistant coach for the girls’ cross-country team. Tarrant, as head coach for the girls’ cross-

country team, was plaintiff’s supervisor. Defendant, John Stelzer, OPRF’s athletic director, was

also plaintiff’s supervisor.

¶9      The complaint alleges that in March 2012, when plaintiff and Tarrant were both married

to other individuals, Tarrant told plaintiff that he was in love with her. Plaintiff rejected his

advances. In April 2012, Tarrant asked plaintiff about her marriage and told her he would be “the

perfect match” for her. Tarrant also gave plaintiff a blanket, telling her it was “good for fertility.”

Plaintiff again rejected his advances. She reported the incidents to OPRF officials but received

no response.

¶ 10    In July 2012, Tarrant began a pattern of retaliation against plaintiff. This alleged

retaliation involved Tarrant’s role as a behavioral interventionist, as well as his role as plaintiff’s

supervisor for the girls’ cross-country team.

¶ 11               A. Tarrant’s Alleged Retaliation as Behavioral Interventionist


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¶ 12   Tarrant began ignoring plaintiff’s requests for special education behavioral intervention.

These included her request that Tarrant meet with recently suspended students, who were being

returned to her classroom, to counsel them about avoiding fights in her classroom. Tarrant also

ignored plaintiff’s request for help after one of her students sent her a “crude paper” and made a

“sexual gesture” to her.

¶ 13   In September, plaintiff’s seventh-grade students stopped doing their work and said to

plaintiff: “You won’t be here for much longer.” Plaintiff sent the students to Tarrant’s office for

discipline. They returned laughing and said, “Everyone says you are getting fired.” A few days

later, Tarrant refused another request for help from plaintiff with students in her classroom.

Tarrant also ignored plaintiff’s e-mail request for help after a student walked out of her

classroom after she reprimanded the student for discussing drugs.

¶ 14   Tarrant continued to ignore plaintiff’s requests for behavioral intervention from October

through December 2012. Plaintiff continued to complain to superiors and continued to request

that Tarrant perform his duty. There was no investigation, corrective action, or response. In

November 2012, plaintiff requested peer mediation through human resources regarding Tarrant’s

continued refusals to assist her in her job. Tarrant refused to participate.

¶ 15                       B. Tarrant’s Alleged Retaliation as Head Coach

¶ 16   Plaintiff also alleged that Tarrant retaliated against her in his role as her supervisor for the

girls’ cross-country team. Starting in July 2012, Tarrant, who had previously rated plaintiff as

“excellent” in all of her coaching performance evaluations, began rating her as only “good” to

“satisfactory.” Tarrant asked plaintiff if he needed to get another assistant coach for the girls’

cross-country team. He also began refusing her requests for coaching schedule changes that he

had previously allowed. He ignored plaintiff during girls’ cross-country team matches and


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refused to meet with her for coach meetings, stating he would talk only with the other female

assistant coach. He refused to provide plaintiff with a copy of his girls’ cross-country team

schedule. Plaintiff therefore had to, for the first time, create her own schedule.

¶ 17   In September 2012, plaintiff told Tarrant to stop asking other school personnel questions

about her. Tarrant asked others where plaintiff was moving her residence. When plaintiff and the

other female assistant coach took a weekend trip, Tarrant asked the other coach where plaintiff

would be sleeping. He also told plaintiff she should not coach the cross-country team with him.

¶ 18          C. Alleged Retaliation Against Plaintiff by OPRF, Tarrant, and Stelzer

¶ 19   In October 2012, plaintiff complained to OPRF supervisors that Tarrant had made

inappropriate romantic and sexually harassing overtures to her. Ten days later, in retaliation for

her complaint about Tarrant, OPRF’s human resource director ordered plaintiff not to attend the

State cross-country match that plaintiff was supposed to coach.

¶ 20                     1. Stelzer Fires Plaintiff as Assistant Head Coach

¶ 21   On January 15, 2013, two days after returning from Christmas break, Stelzer, the athletic

director, told plaintiff she would be fired as assistant cross-country coach for the following year.

This decision was based on a poor evaluation by Tarrant and caused plaintiff to lose her coach’s

stipend of approximately $6000 per year. Stelzer told plaintiff that she could reapply for the

position if her relationship with Tarrant improved. Tarrant refused to go over the latest

performance evaluation with plaintiff.

¶ 22                                2. OPRF Reassigns Tarrant

¶ 23   In January 2013, plaintiff complained to school officials about having no behavioral

interventionist support from Tarrant. A day later, she also complained that Tarrant stalked her

while she coached the boys’ track and field team.


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¶ 24    In February 2013, Tarrant was removed as plaintiff’s behavioral interventionist. Tarrant’s

office remained on the fourth floor near plaintiff’s classroom, and plaintiff was told to call

someone on the first floor if she needed assistance.

¶ 25                   3. Plaintiff and Tarrant Sign No-Contact Agreements

¶ 26    In March 2013, plaintiff was told that, due to an investigation regarding her complaints

against Tarrant, she was to stay away from the school until told to return. Five days later, both

plaintiff and Tarrant signed documents that they would not talk to, or about, the other or park

next to the other (signed written no-contact agreement).

¶ 27          4. Tarrant Refuses Plaintiff’s Request for Assistance in Her Classroom

¶ 28    On March 15, 2013, one of plaintiff’s special education students became out of control,

threw a computer and shouted that he was going to “kill” plaintiff and the students in her

classroom. Plaintiff called Tarrant’s assistant for help because she believed she was in immediate

danger. The assistant told Tarrant there was an “out-of-control” student, but Tarrant refused to go

to plaintiff’s aid. A teacher in a nearby classroom heard the commotion, went to plaintiff’s

classroom and escorted out all of the students, except for the threatening student who then

charged at plaintiff. Plaintiff talked the threatening student down, but she later complained to

officials that Tarrant had refused to assist her.

¶ 29                                 5. OPRF Reassigns Plaintiff

¶ 30    Four days later, plaintiff was told that her classroom would be moved the following year

and she would not be teaching four special education classes. Plaintiff was instead assigned to

four study halls, even though no other teacher had more than two study halls. When plaintiff

complained to school officials, they told her she was part of a “messed up situation” with a




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“messed up guy” and that everyone wanted “it to go away.” When plaintiff asked why she was

being punished with a different schedule, she was told “it’s just how it worked out.”

¶ 31   When plaintiff returned to school the following August, she had no desk, telephone, or

computer. On August 26, 2013, plaintiff’s e-mail to another teacher suddenly appeared on

students’ computer screens. A school information technology (IT) employee told her that he was

looking at her e-mails.

¶ 32                           D. Alleged Defamatory Statements

¶ 33   We first clarify which statements are relevant to our analysis. In her third amended

complaint, plaintiff stated that the statements at issue were: (1) the written statements contained

in Exhibit A (the September 2013 e-mails); (2) the written statements contained in Exhibit B

(Tarrant’s grievance); (3) the oral statement, “You won’t be here for much longer”; and (4) the

oral statement, “Everyone says you are getting fired.” Plaintiff alleged that these last two

statements were made by her seventh-grade students. Plaintiff does not attribute these statements

to defendants. And even if an inference could be made that Tarrant made the statement that

plaintiff was getting fired (because it was made by the students after they returned from his

office), plaintiff has not argued that an inference can be made that Tarrant made these

statements. In fact, plaintiff does not address these statements at all and, in her opening brief,

argues only that “Tarrant and/or Stelzer made and/or republished false statements regarding

plaintiff in two written complaints, dated September 14 and November 12, 2013, to school

administrators and other third parties, including Hardin, a Union Representative.” Points not

argued in the appellant’s brief are forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013); BAC

Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 23 (The Illinois Supreme Court has




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“repeatedly held an appellant’s failure to argue a point in the opening brief results in forfeiture

under Supreme Court Rule 341(h)(7).”).

¶ 34   And even after defendants addressed those two oral statements in their response brief,

presumably out of an abundance of caution, plaintiff did not address them in her reply, either. So

there is no doubt that she has forfeited these claims. We will not consider these oral statements

further. We will focus on the written statements contained in the referenced exhibits.

¶ 35   We also do not address any of the allegedly defamatory statements contained in the first

three complaints, e.g., statements in plaintiff’s performance appraisal, which were not in the third

amended complaint and have been abandoned. See, e.g., Skarin Custom Homes, Inc. v. Ross, 388

Ill. App. 3d 739, 745-46 (2009) (allegations in former complaints, not repleaded or incorporated

in final amended complaint, are deemed waived). We further note that, although defendants

addressed these additional statements in their response brief, plaintiff failed to do so in either her

opening brief or reply brief.

¶ 36   So we will only consider (1) the written statements contained in Exhibit A to the third

amended complaint (the September 2013 e-mails) and (2) the written statements contained in

Exhibit B (Tarrant’s grievance).

¶ 37                                1. September 2013 E-mails

¶ 38   On September 14, 2013, Tarrant sent an e-mail to the athletic director, Stelzer, and the

assistant athletic director, Courtney Sakellaris, with the subject heading of “Big Problem,”

complaining about plaintiff’s recent actions that Tarrant claimed were in violation of the signed

written no-contact agreement. Tarrant also sent a copy of this e-mail to plaintiff’s union

representative, Sheila Hardin. Tarrant requested that the problem be taken care of or he would

need to file a formal complaint with human resources.


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¶ 39   Tarrant’s September 14, 2013, e-mail, in its entirety, states as follows:

                “Hey John and Courtney. I hate to report this, but it has to be done.

                Every morning when I get up I open my closet and get my gear. On the

       door is the paper I was advised to sign by my union rep outlining what I was

       accused of last year regarding Danielle Dobias. I look at it every day so I am

       reminded to be smarter than last year. I signed even though I knew it was all B.S.

                Today at my meet at Marmion Daniel [sic] Dobias showed up. Not only

       did she show up, she also walked into my camp, and was at the finish line where

       the racers and I meet. She was grabbing my runners, giving them advice, talking

       to my parents at the awards ceremony and generally was a huge distraction for

       myself and my athletes. This is totally unfair. This fired up more questions from

       Parents and athletes. On a day I should have been celebrating my first win and my

       seniors[’] first win in their careers the moment was ruined. I have documented

       other items as well, but these were not as egregious. She exits the building daily

       thru the athletic doors, as you know we meet in the 1 east classroom. She almost

       knocked my [sic] over last Monday. Also Friday September 6th I parked in the

       garage for the 7[ ] am coaches[’] meeting. When I came out her car was right

       across from mine. A clear violation of the agreement I signed.

                I asked for a change last year because the coach was verbally and

       physically aggressive towards me, made inappropriate contacts with athletes, and

       met with athletes without my knowledge, and was not supportive of our program

       even as our team improved.




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No. 1-15-2205

                I need to have this taken care of ASAP or I will need to go to HR and file

       a formal complaint. I have done everything I can to avoid this person including

       leaving a job I loved and move out of the building into unfamiliar territory that

       will most likely lead to a lower evaluation next year.

                So when I look at that letter I hated to sign I sound like a stalker. My

       question is. Who is stalking who?

                I am prepared to bring forth solid evidence that as a coach this person did

       the following:

                        1) Celebrated an athlete[’]s accomplishment by drinking alcohol.

                        2) Was rolling around on a bed in a hotel alone with an athlete as

                witnessed by another coach who walked in.

                        3) Was called after 2 am by athletes who were drunk and high.

                Went to where the athletes were. Hung out with them then took them

                home without notifying parents or the athletic office.

                The above were not done under my guidance as head coach. I did not want

       any more trouble after last year however I am prepared to protect myself and my

       athletes from this person.

                I have a 13 year old daughter, and if any coach did the unsafe things this

       coach has done I would be an extremely irritated parent.

                Tom.”

¶ 40   Stelzer forwarded Tarrant’s e-mail, on September 16, 2013, to two (interim) human

resource directors, Frank Bogner and John Carlson after discussing it with Nate Rouse, the

OPRF principal. In his e-mail, Stelzer stated:


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                “John and Frank,

                Per Nate’s recommendation, I am forwarding you this email, please read

       and feel free to contact me with questions/concerns. There is too much to tell

       regarding this issue in an email. Suffice it to say, these two employees have a

       history, and the most recent events were dealt with last spring by Dr. Isoye. I am

       not sure how to handle this new situation. Please let me know when you are

       available to meet on this matter.

                Thank you.

                John Stelzer.”

¶ 41   Plaintiff attached a copy of these e-mail messages to her complaint as “Exhibit A.”

Plaintiff alleged that Tarrant’s written complaint charging her with verbal and physical

aggression and violating the signed written no-contract agreement was “false.” She also alleged

she became the subject of a human resources investigation of Tarrant’s complaint that required

her to answer questions and make a statement about the charges. Plaintiff received a written

reprimand even though, according to the complaint, Tarrant’s allegations “were determined to be

unfounded, and therefore false.”

¶ 42                               2. November 2013 “Grievance”

¶ 43   On November 12, 2013, Tarrant filed a “grievance” against plaintiff, a copy of which

plaintiff attached to her complaint as “Exhibit B.” The document states:

                “Confidential State Meet,

                I am filing a grievance against Danielle Dobias for intimidation and

       harassment based on the following event.




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No. 1-15-2205

                On Saturday November 9, 2013 Danielle Dobias knowingly and purposely

      disrupted my team preparation for the State Cross country Championships held at

      Detwieller Park. At approximately 12:00 pm Danielle Dobias entered our team

      camp area just as we were preparing our warm up. During this time I address my

      team and begin the mental process of preparing for the biggest race of the season

      and for all my athletes the biggest race of their careers. During this time Ms.

      Dobias engaged athletes and parents. It created such an awkward moment that I

      and parents left the area. Ms. Dobias then disrupted the post race gathering by

      again coming into our meeting area and engaging with the athletes before I

      released them to do the cool down. For the next several hours Ms. Dobias hung

      around our team camp area engaging athletes, placing her just a few feet away

      from me. This is clearly intimidation and harassment.

                Ms. Dobias is well aware of cross country protocol and knows what she

      did was a violation of that protocol. It is the equivalent of walking into the

      football coaches’ pregame speech/half time talk, or standing on the sidelines as

      opposed to being in the stands. I felt threatened and intimidated. This event

      follows several other intimidation attempts that I have documented with the HR

      department. I would have had no issues or right to file a complaint if Ms. Dobias

      had been a spectator in the race. I probably would not have even seen her there if

      that was her intent. It is clear that her intent was to harass and intimidate me.

      These events have affected my ability to teach and coach at OPRF to my full

      capabilities.




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                The following is a series of the major documented events leading to this

      complaint:

                       1) Left her classroom assignment and verbally assaulted me for

                over 15 minutes last year over my cross-country program.

                       2) Physically assaulted me by grabbing my arm and trying to force

                me into a room at the end of the school day.

                       3) Entered my work space again demanding changes to the XC

                program

                       4) After it was clear I would not likely have her back as a coach

                filed false reports about me in March 2013, over 4 full months after the

                season ended.

                       5) Entered the Team camp area and finish area at the Marmion

                invite this season

                       6) Sat next to me at the Climate survey assembly forcing me to

                move per agreement I signed

                       7) Knowingly entered the technology repair area I was required to

                be in for no reason 2 weeks ago

                I believe the series of events paints a very clear picture of intentionally

      intimidating and harassing. In short I feel unsafe and threatened. Ms. Dobias

      drove over 300 miles to disrupt my team. This is scary to me and my family and

      has made it very difficult to perform my job at 100 percent.

                I have the utmost respect for the leadership in the building and have done

      everything asked of me to rectify this situation. I am hoping my superiors will


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       realize it is now nearly impossible for me to follow the directive I signed on

       March 6, 2013 due to the above incidents. I am also hoping a pattern is emerging

       that is clear. I am asking building leadership to respond to this immediately. I

       respectfully request the following:

                       1) I respectfully request the letter in my file be removed or revised.

                It should be clear that I cannot abide by it’s [sic] terms if Danielle Dobias

                continues to put herself in my path on a near weekly basis

                       2) I respectfully request *** a full review of the actions taken

                against me in light of the patterns of behaviors

                       3) I respectfully request a clear follow up to the actions taken due

                to these events

                       4) I respectfully request that clear parameters are put in place for

                the track season. I cannot see how her coaching in my area will be

                possible given the past behaviors.

                Finally, I just want to do my job and be a professional at OPRF. I have

       always felt my bosses have been supportive and professional. I am counting on

       that in this case again.

                Respectfully Submitted,

                Tom Tarrant.”

¶ 44   Plaintiff alleged that she again became the subject of a human resources investigation of

these “false” accusations, which required her to make a statement about the charges. According

to plaintiff, Tarrant’s allegations “were determined to be unfounded, and therefore false.”

¶ 45                                E. Publication of Statements


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¶ 46   Plaintiff alleged that her union contract, styled “Agreement between The Oak Park and

River Forest High School District 200 and The Oak Park and River Forest High School Faculty

Senate, IEA/NEA” (union contract), required that Tarrant first bring his complaint to the

attention of his immediate supervisor, Stelzer. Plaintiff attached a copy of the union contract to

her complaint as “Exhibit C.” Plaintiff alleged that Tarrant violated the union contract by

sending his e-mail complaint and grievance to other individuals who were not his immediate

supervisor. Plaintiff further claimed that Tarrant and/or Stelzer inappropriately sent the

documents to Hardin, Rouse, Sakellaris, Bogner, and Carlson.

¶ 47                                F. Circuit Court’s Ruling

¶ 48   On February 26, 2015, the circuit court dismissed all counts of the third amended

complaint with prejudice pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS

5/2-615 (West 2012)) for failing to state a cause of action. On July 7, 2015, the court denied

plaintiff’s motion for reconsideration and clarification. The trial court agreed with defendants

that the statements at issue were capable of innocent construction. The trial court also found that

the statements were opinion and were not highly offensive to a reasonable person. This appeal

followed.

¶ 49                                     II. ANALYSIS

¶ 50   A motion to dismiss under section 2-615 challenges the legal sufficiency of a complaint.

Bonhomme v. St. James, 2012 IL 112393, ¶ 34. Our review is de novo. Id. As noted earlier, we

must accept as true all well-pleaded facts in the complaint, as well as all reasonable inferences

that can be drawn from those facts. Imperial Apparel, Ltd., 227 Ill. 2d at 384. A motion to

dismiss, however, does not admit allegations in the complaint that are in conflict with the facts




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disclosed in the exhibits. Farmers Automobile Insurance Ass’n v. Danner, 394 Ill. App. 3d 403,

412 (2009).

¶ 51                             A. Count I: Defamation Per Se

¶ 52   Plaintiff first argues that the circuit court erred in granting defendants’ section 2-615

motion to dismiss count I of the third amended complaint for defamation per se. The preliminary

construction of an allegedly defamatory statement is a question of law, and our review therefore

is de novo. Green v. Rogers, 234 Ill. 2d 478, 492 (2009).

¶ 53   To state a claim for defamation, a plaintiff must allege facts that show: (1) the defendant

made a false statement about the plaintiff; (2) the defendant made an unprivileged publication of

that statement to a third party; and (3) the publication caused her damages. Green, 234 Ill. 2d at

491. A defamatory statement is one that harms a person’s reputation to the extent that it lowers

the person in the eyes of the community or deters the community from associating with her or

him. Id. There are two types of defamation: defamation per se and defamation per quod. Stone v.

Paddock Publications, Inc., 2011 IL App (1st) 093386, ¶ 24. Here, plaintiff has only alleged

defamation per se, and we will confine our analysis accordingly.

¶ 54   A statement is defamatory per se where the harm to a person’s reputation is obvious and

apparent on its face. Green, 234 Ill. 2d at 491. If a plaintiff claims that a statement constitutes

defamation per se, the plaintiff need not plead or prove actual damages, because the statement is

considered so obviously and materially harmful that injury to the plaintiff’s reputation may be

presumed. Green, 234 Ill. 2d at 495; Tuite v. Corbitt, 224 Ill. 2d 490, 501 (2006); Bryson v. News

America Publications, Inc., 174 Ill. 2d 77, 87 (1996).

¶ 55   “In Illinois, there are five categories of statements that are considered defamatory per se:

(1) words that impute a person has committed a crime; (2) words that impute a person is infected


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with a loathsome communicable disease; (3) words that impute a person is unable to perform or

lacks integrity in performing her or his employment duties; (4) words that impute a person lacks

ability or otherwise prejudices that person in her or his profession; and (5) words that impute a

person has engaged in adultery or fornication.” Green, 234 Ill. 2d at 491-92. The first four

categories were recognized under our common law; the fifth category was added by statute. See

Bryson, 174 Ill. 2d at 88-89; 740 ILCS 145/1 et seq. (West 1992). Plaintiff raises only the first,

third, and fourth categories.

¶ 56   Even if an alleged statement falls into one of these categories, the statement may not be

actionable. A defendant may avoid liability if he can demonstrate: (1) that the statement is

reasonably capable of an innocent construction (Hadley v. Doe, 2015 IL 118000, ¶ 31; Green,

234 Ill. 2d at 499); (2) that the statement is an expression of opinion (Hadley, 2015 IL 118000,

¶ 33); or (3) that the statement is subject to a privilege. Solaia Technology, LLC v. Specialty

Publishing Co., 221 Ill. 2d 558, 585 (2006); Pompa v. Swanson, 2013 IL App (2d) 120911, ¶ 26.

¶ 57   First, a statement that may appear to be defamatory will not be actionable if it is capable

of a reasonable, innocent construction. Green, 234 Ill. 2d at 500. Although a court must accept as

true the facts alleged in the complaint, we are not required to accept plaintiff’s interpretation of

the statements as defamatory per se, because the meaning of a statement “is not a fact that can be

alleged and accepted as true.” Tuite, 224 Ill. 2d at 510. Accordingly, the preliminary

determination of whether a statement is capable of a reasonable, innocent construction is

properly a question of law for the court to decide de novo. Id.; Bryson, Inc., 174 Ill. 2d at 90.

¶ 58   The court must give the allegedly defamatory words, and any implications arising from

them, their natural and obvious meaning. Green, 234 Ill. 2d at 499. The innocent-construction

rule does not apply simply because the allegedly defamatory words are “capable” of an innocent


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construction. Bryson, 174 Ill. 2d at 93. “Only reasonable innocent constructions will remove an

allegedly defamatory statement from the per se category.” (Emphasis in original.) Id. at 90.

¶ 59   The context of the statement is critical, “as a given statement may convey entirely

different meanings when presented in different contexts.” Green, 234 Ill. 2d at 499; see also

Tuite, 224 Ill. 2d at 512 (innocent-construction rule requires writing to be read as whole). Courts

must “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 reader.” Bryson, 174 Ill. 2d

at 93; Hadley, 2015 IL 118000, ¶ 31.

¶ 60   If, when taken in context, a statement is reasonably capable of a nondefamatory

interpretation, that innocent construction should be adopted. Green, 234 Ill. 2d at 500; Anderson,

172 Ill. 2d at 412-13. “There is no balancing of reasonable constructions ***.” Green, 234 Ill. 2d

at 500. On the other hand, if the defendant “clearly intended and unmistakably conveyed a

defamatory meaning, a court should not strain to see an inoffensive gloss on the statement.” Id.

¶ 61   Second, the law distinguishes between a defamatory statement of fact and an opinion; an

expression of opinion is not defamation. See Hadley, 2015 IL 118000, ¶ 33; Solaia Technology,

221 Ill. 2d at 581. A false assertion of fact can be defamatory even when couched within

apparent opinion or rhetorical hyperbole. Hadley, 2015 IL 118000, ¶ 33. “The test is restrictive: a

defamatory statement is constitutionally protected only if it cannot be reasonably interpreted as

stating actual fact.” (Internal quotation marks omitted.) Id. In analyzing whether a statement is a

nonactionable expression of opinion or a defamatory statement of fact, the court considers

“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.” (Internal quotation marks omitted.) Id.; see also Kumaran v. Brotman, 247 Ill. App. 3d


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216, 228 (1993) (“In determining whether a statement is one of fact or opinion, a court should

consider the totality of the circumstances and whether the statement can be objectively verified

as true or false.”). A statement will receive first amendment protection from a defamation suit

only if it cannot be reasonably interpreted as stating actual facts about the plaintiff. Kolegas v.

Heftel Broadcasting Corp., 154 Ill. 2d 1, 14-15 (1992).

¶ 62   The questions of whether a particular statement is subject to a reasonable, innocent

construction, and whether it constitutes an opinion as opposed to fact, obviously must be

determined on a statement-by-statement basis. Thus, we will take up those questions first, and

then turn to the question of whether defendants were protected by a qualified privilege, a

question that applies equally to all the statements communicated in a particular written

document.

¶ 63         1. Statements Concerning Plaintiff’s Interaction With Student-Athletes

¶ 64   We first consider defendant Tarrant’s e-mail to defendant Stelzer on September 14, 2013,

which Stelzer then republished two days later, which concerned three specific statements Tarrant

made concerning plaintiff’s interactions with student-athletes. We previously quoted the entire e-

mail verbatim (supra ¶ 39) and will highlight only the relevant portion here. According to the

exhibit attached to the complaint, defendant Tarrant wrote to defendant Stelzer (the athletic

director), Courtney Sakellaris (the assistant athletic director), and Sheila Hardin (plaintiff’s union

representative) the following:

                “I am prepared to bring forth solid evidence that as a coach this person did

       the following:

                        1) Celebrated an athlete[’]s accomplishment by drinking alcohol.




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No. 1-15-2205

                       2) Was rolling around on a bed in a hotel alone with an athlete as

                witnessed by another coach who walked in.

                       3) Was called after 2 am by athletes who were drunk and high.

                Went to where the athletes were. Hung out with them then took them

                home without notifying parents or the athletic office.

                The above were not done under my guidance as head coach. I did not want

       any more trouble after last year however I am prepared to protect myself and my

       athletes from this person.

                I have a 13 year old daughter, and if any coach did the unsafe things this

       coach has done I would be an extremely irritated parent.”

¶ 65   Plaintiff argues that each of these three statements above (conveniently numbered for us)

constituted defamation per se under two different but related categories−words that impute a

person is “unable to perform or lacks integrity in performing her or his employment duties” and

words imputing that a person “lacks ability or otherwise prejudices that person in her or his

profession.” Green, 234 Ill. 2d at 492. As one court has observed, the difference between these

two defamatory per se categories is “subtle.” Pippen v. NBCUniversal Media, LLC, 734 F.3d

610, 613 (7th Cir. 2013). “The former seems to imply some sort of on-the-job malfeasance; the

latter covers suitability for a trade or profession.” Id.; see also Haynes v. Alfred A. Knopf, Inc., 8

F.3d 1222, 1226 (7th Cir. 1993) (describing former category as “malfeasance or misfeasance in

the performance of an office or a job” and latter as “unfitness for one’s profession or trade”).

Plaintiff claims that each of these three statements imputed her lack of integrity as a school

professional and otherwise prejudiced her in that profession.




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No. 1-15-2205

¶ 66   Defendants argue that each of these three statements is capable of an innocent

construction and, in any event, the statements were expressions of opinion and not fact.

¶ 67   We begin with the statement that plaintiff “[w]as rolling around on a bed in a hotel alone

with an athlete as witnessed by another coach who walked in.” Plaintiff claims that this statement

is defamatory because, as a teacher and a coach, she is expected to be a role model for the

students. She argues that Tarrant’s statement imputed that she lacked integrity in her

employment and/or prejudiced her in her trade as a teacher, because a teacher is expected to set a

good example and to function as a role model for young, impressionable students.

¶ 68   Defendants, on the other hand, claim that this statement may be reasonably construed as

mere “roughhousing.” And defendants downplay the negative connotation attached to this

statement by pointing to the conclusion of the e-mail, where Tarrant wrote that, if they knew of

the complained-of conduct listed in the e-mail, parents would be “extremely irritated.”

Defendants claim that, if Tarrant were conveying the notion of sexual contact or even grossly

inappropriate student-teacher contact, he would have predicted a far more aggressive reaction

from parents than extreme irritation; he would have predicted that parents would demand

criminal charges, remove their child from the cross-country team, storm a school board meeting

in protest, or something of that nature. The circuit court agreed with defendants, finding this

statement to be subject to an innocent construction and noting in its oral ruling that Tarrant

“never said that the plaintiff was having sex with students.”

¶ 69   We hold that this statement was not subject to a reasonable, innocent construction. A

teacher rolling around on a bed with a student, when the two of them are alone in a hotel room, is

inappropriate no matter how it could reasonably be viewed. While this statement may have fallen

short of implying sexual intercourse, sexual behavior is not limited to intercourse. And even if


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No. 1-15-2205

we could interpret this statement as describing purely nonsexual behavior, it is undeniably

contact between a teacher and student-athlete that is far more intimate than would be appropriate.

If the defendant “clearly intended and unmistakably conveyed a defamatory meaning, a court

should not strain to see an inoffensive gloss on the statement.” Green, 234 Ill. 2d at 500; see

Kumaran, 247 Ill. App. 3d at 227 (statement that substitute teacher was “working a scam” by

filing frivolous lawsuits to extract monetary settlements was defamation per se because “a

teacher would be expected to set a good example and function as a role model for his young,

impressionable students” and statement “prejudice[d] his teaching ability and integrity because it

presented him as someone who would not be an acceptable role model for young students”).

¶ 70   Defendants rely heavily on Green in support of their claim that Tarrant’s statements are

reasonably capable of an innocent construction. In Green, plaintiff alleged that defendant made

statements that plaintiff had “ ‘exhibited a long pattern of misconduct with children which was

not acceptable for [Little League] coaches’ ”; and had “ ‘abused players, coaches, and umpires in

[Little League].’ ” Green, 234 Ill. 2d at 500. The court concluded that the alleged statements

were reasonably capable of an innocent construction. Id. at 501. As the court explained: “These

statements were made in the context of selecting coaches for the [Little League] season, and both

statements were specifically confined to the context of Little League coaching.” Id.

¶ 71   Green is factually distinguishable. While the statements in Green were confined to the

context of Little League coaching, the accusation here that plaintiff was rolling around on a bed

with a student-athlete, while they were alone in a hotel room, was not confined to the context of

what plaintiff did on the track as a coach. And the court in Green noted that the alleged

defamatory statements were immediately followed by multiple assurances from the defendants

that, although the plaintiff would not be selected as a coach, he would be free to assist his son’s


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No. 1-15-2205

team with practices and pregame activities, and the plaintiff was “repeatedly and

contemporaneously invited to participate in any way he could work out with his son’s coach,”

which further clarified that the references to “abuse” or “misconduct” did not suggest anything of

a sexual or immoral nature but rather misbehavior in the context of coaching. Here, in contrast,

Tarrant referred to plaintiff’s conduct as that from which he needed to “protect” himself and his

athletes, and further noted that the “unsafe things” would extremely irritate him as a parent of a

13-year-old daughter.

¶ 72   The statement that plaintiff was rolling around on a bed in the privacy of a hotel room

with a student-athlete clearly imputed a lack of integrity in her profession and prejudiced her in

that profession. We can adopt no reasonable, innocent construction of this statement.

¶ 73   We turn next to Tarrant’s statement attributing the following conduct to plaintiff:

        “Was called after 2 am by athletes who were drunk and high. Went to where the athletes

        were. Hung out with them then took them home without notifying parents or the athletic

        office.”

¶ 74   In their effort to construct a reasonable, innocent construction of this statement,

defendants argue that Tarrant merely stated that plaintiff “safely resolved a situation in which

athletes were drunk and high.” And the circuit court reasoned that Tarrant “never said that the

plaintiff *** was drinking or doing drugs with” the students.

¶ 75   Both of those points have merit. But this passage must be read as a whole and in the

context of the entire e-mail. Green, 234 Ill. 2d at 499; Tuite, 224 Ill. 2d at 512; Bryson, 174 Ill.

2d at 93; Hadley, 2015 IL 118000, ¶ 31. This passage, in full, also says that plaintiff “hung out

with” the student-athletes that were drunk and high, and that she failed to notify either the

parents or the athletic office of the underage drinking and drug use.


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No. 1-15-2205

¶ 76   We fail to see how those statements can be innocently construed. While anyone would

credit an adult who helped intoxicated students get home safely, the passage imputes that

plaintiff, at a minimum, condoned the alcohol and drug use that took place in her presence.

“Hanging out with” students cannot be reasonably construed as simply picking them up and

taking them home; it means socializing with them while they were using these substances. Even

if a teacher-coach did not herself use alcohol or drugs, it would reflect unfavorably on any

teacher’s reputation if she socialized with underage students while they were engaged in drug

and alcohol abuse.

¶ 77   The presence of a favorable fact—getting the intoxicated students home safely—does not

insulate the unfavorable statements from a claim of defamation. And again, the fact that Tarrant

summed up his e-mail by referring to this conduct as “unsafe” behavior for which children

required protection gives the lie to any claim by defendants that Tarrant was merely

complimenting her on “safely resolv[ing]” a situation. We find no reasonable, innocent

construction of this statement. These claims imputed a lack of integrity in plaintiff’s profession

and prejudiced her in that profession.

¶ 78   Nor can either of these two statements above be characterized as nonactionable opinion.

The circuit court ruled that Tarrant’s statement, at the end of the e-mail, that “if any coach did

the unsafe things this coach has done I would be an extremely irritated parent”—was an

expression of opinion, an argument defendants likewise raise before us. That particular, isolated

statement may have been an opinion, but it does not change the fact that the two statements we

have discussed above set forth specific facts—that plaintiff rolled around on a bed in a private

hotel room with a student-athlete and “hung out” with student-athletes while they drank alcohol

and used drugs. A defendant cannot avoid the defamatory statements he has made merely by


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No. 1-15-2205

inserting his opinion of those facts alongside them. Hadley, 2015 IL 118000, ¶ 33; Solaia

Technology, 221 Ill. 2d at 581. Whatever opinion Tarrant may have expressed about this

complained-of conduct, the statements of fact themselves could be readily verifiable as true or

false. See Solaia Technology, 221 Ill. 2d at 581; Kumaran, 247 Ill. App. 3d at 228

(distinguishing between fact and opinion based on whether, under totality of circumstances,

statement can be “objectively verified as true or false”).

¶ 79   We thus hold that the two statements made by Tarrant in the September 14, 2013 e-mail,

accusing plaintiff of rolling around on a bed in a hotel room with a student-athlete, and accusing

plaintiff of “hanging out” with student-athletes while they drank alcohol and used drugs, were

defamatory per se.

¶ 80   Next, we consider Tarrant’s statement in this same e-mail that plaintiff “[c]elebrated an

athlete[’]s accomplishment by drinking alcohol.” This one is admittedly a close call. On the one

hand, as defendants note, the statement does not literally accuse plaintiff of drinking alcohol with

a student-athlete, or even in the presence of one. On the other hand, one might question why this

incident would even be worth reporting if all that Tarrant meant was that plaintiff was drinking

alcohol with other adults, or even by herself; there is nothing illegal or improper in doing so. If

that was all that Tarrant intended to convey by this statement, why would he characterize it as

“unsafe,” feel compelled to protect children from such conduct, and find it necessary to distance

himself from this behavior by emphasizing that her alcohol consumption “was not done under

[his] guidance as head coach?” For that matter, if all that Tarrant meant was that plaintiff

consumed alcohol outside the presence of student-athletes, why even mention that the reason she

was drinking alcohol was to celebrate an athlete’s success?




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No. 1-15-2205

¶ 81   While plaintiff validly raised all of these questions, our duty is to adopt an innocent

construction of the statement if it is reasonable to do so. Green, 234 Ill. 2d at 500; Anderson, 172

Ill. 2d at 412-13. We think it would be reasonable to innocently construe this statement. We do

agree with plaintiff on one point: this statement can only be reasonably interpreted as implying

that plaintiff drank the alcohol in the presence of athletes, because if it did not, there would be no

point in including this statement in the e-mail at all.

¶ 82   But that does not necessarily mean that what plaintiff was accused of doing was illegal,

immoral, or even objectively inappropriate. There is no law prohibiting adults from consuming

alcohol in the presence of minors. It happens every day in restaurants, at professional sporting

events, in backyard barbeques, in private homes, and the like. We have no context in this e-mail

regarding the circumstances under which plaintiff consumed the alcohol−maybe, for example,

the team went to a restaurant for a celebratory dinner after a successful outing−and while it may

be possible to imagine situations where plaintiff’s consumption of alcohol in the presence of her

athletes would have been clearly inappropriate, we have already listed several examples where it

would be perfectly legal and not inherently inappropriate.

¶ 83   We recognize that the statement here did not concern just any adult drinking in front of

just any minor; the adult accused of drinking the alcohol was a high school teacher and coach,

and the minors were her student-athletes. It could well have been Tarrant’s subjective opinion

that it is never appropriate for a coach to drink alcohol in front of his or her athletes. Others

might subscribe to that view, too. But we think it would go too far to hold, as a matter of law,

that the claim that a teacher-coach drank alcohol in the presence of her student-athletes, even in a

perfectly legal and responsible context, would impugn a teacher-coach’s professional integrity or




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No. 1-15-2205

otherwise prejudice her in that profession. We hold that this statement was not defamatory per se

and was properly dismissed as a claim of defamation in this case. 1

¶ 84                    2. Statements Concerning Plaintiff’s Interaction With Tarrant

¶ 85     We next consider allegedly defamatory statements made by Tarrant regarding plaintiff’s

interactions not with athletes, but with Tarrant himself. In Tarrant’s September 14 e-mail, he

stated: “I asked for a change last year because [plaintiff] was verbally and physically aggressive

toward me.” In the November 12 written complaint, Tarrant wrote that plaintiff “[p]hysically

assaulted me by grabbing my arm and trying to force me into a room at the end of the school

day.”

¶ 86     Plaintiff first argues that these statements impute the commission of a crime, a recognized

category of defamation per se. Specifically, plaintiff contends that Tarrant imputed that she

committed a battery. A person commits the crime of battery if she “knowingly without legal

justification by any means (1) causes bodily harm to an individual or (2) makes physical contact

of an insulting or provoking nature with an individual.” 720 ILCS 5/12-3 (West 2012).

¶ 87     Many decisions have held that, to constitute defamation per se based on imputing the

commission of a crime, “the crime must be an indictable one, involving moral turpitude and

punishable by death or by imprisonment in [lieu of a] fine.” Doe v. Catholic Diocese of

Rockford, 2015 IL App (2d) 140618, ¶ 46; Kirchner v. Greene, 294 Ill. App. 3d 672, 680 (1998);

accord Jacobson v. Gimbel, 2013 IL App (2d) 120478, ¶ 27. One would not ordinarily think of

verbal and physical aggression, or the grabbing of a coworker’s arm to force him or her in a

different direction, to be crimes of “moral turpitude.” In other contexts, that phrase has been


         1
             At oral argument, plaintiff’s counsel conceded that this statement did not constitute defamation per se. We
have chosen to consider the question in full regardless.


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No. 1-15-2205

defined as “ ‘conduct which is inherently base, vile, or depraved, and contrary to the accepted

rules of morality and the duties owed between persons or to society in general.’ ” People v.

Valdez, 2015 IL App (3d) 120892, ¶ 21, appeal allowed, No. 119860 (Ill. Nov. 25, 2015)

(quoting In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999) (per curiam)). Thus, for example, this

court has held that an accusation that the plaintiff committed the crime of “criminal housing

management”—allowing residential real estate to fall into such deterioration that the lives of the

inhabitants become endangered—was not libelous per se, and was properly dismissed, because

the crime alleged was not one of moral turpitude. Rasky v. Columbia Broadcasting System, Inc.,

103 Ill. App. 3d 577, 583 (1981).

¶ 88   On the other hand, our supreme court has appeared not to limit crimes to those involving

moral turpitude, or at least has not limited it explicitly. See Van Horne v. Muller, 185 Ill. 2d 299,

308 (1998) (accusation that plaintiff committed assault by accosting defendant in elevator and

verbally threatening his life was defamatory per se under imputation-of-crime category); Tuite,

224 Ill. 2d at 501 (discussing imputation-of-crime category of defamation per se without

requiring that crime be one of moral turpitude, though crime in that case was bribery of judicial

officers); Stewart v. Howe, 17 Ill. 71, 72-73 (1855) (suggesting that accusation of crime of moral

turpitude might be one basis for defamation but not explicitly limiting it to such crimes). We

would further note, as an aside, that the Restatement provides that accusations of a criminal act

are actionable if the criminal act is either punishable by prison or one involving moral turpitude.

Restatement (Second) of Torts § 571 (1977).

¶ 89   We need not decide whether the crime must be one of moral turpitude under Illinois law,

because we hold, in any event, that each of the two statements at issue is amenable to a




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No. 1-15-2205

reasonable, innocent construction. See Guinn v. Hoskins Chevrolet, 361 Ill. App. 3d 575, 586

(2005) (reviewing court may affirm dismissal of complaint on any basis in record).

¶ 90   First, the September 14 e-mail, which concerned past conduct that had been part of a

previous dispute resolution between Tarrant and plaintiff, merely references “verbally and

physically aggressive” behavior and does not even arguably suggest the commission of a battery.

There is no specific claim of bodily harm or physical contact of any kind. That claim was

properly dismissed.

¶ 91   The November 12 written complaint, where Tarrant claimed that plaintiff “[p]hysically

assaulted [him] by grabbing [his] arm and trying to force [him] into a room at the end of the

school day,” is a closer question. We agree that the conduct described in this statement covered

all of the elements for the misdemeanor crime of battery, as it constituted physical contact of an

insulting or provoking nature. See 720 ILCS 5/12-3 (West 2012). In fact, though plaintiff failed

to call as much to our attention, battery of a school teacher on school grounds, as alleged here,

constitutes the Class 3 felony of aggravated battery. 720 ILCS 5/12-3.05(d)(3) (West 2012)

(person commits aggravated battery if she commits battery on an individual she knows to be “[a]

teacher or school employee upon school grounds”).

¶ 92   We know these things because we are lawyers and judges, trained to research criminal

statutes and case law. We know, for example, that the standard for a criminal battery is an

extremely low one−that “[a]ny offensive touching of the person or clothing of the victim

constitutes a battery.” (Emphasis added.) People v. Tiller, 61 Ill. App. 3d 785, 795 (1978).

Taking a box of matches away from the hand of another in anger has been held to constitute

battery. People v. Beifeld, 171 Ill. App. 614, 615 (1912). Spitting on someone’s arm is a battery.




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No. 1-15-2205

People v. Wrencher, 2011 IL App (4th) 080619, ¶ 55 (“For hundreds of years, the common law

has regarded deliberate spitting on someone as a battery.”).

¶ 93   But we are not to read this statement through the eyes of a judge or attorney; we are to

view this statement through the eyes of the “reasonable reader.” (Internal quotation marks

omitted.) Hadley, 2015 IL 118000, ¶ 31; Tuite, 224 Ill. 2d at 504; Bryson, 174 Ill. 2d at 93. The

question is whether the statement “fairly impute[s] the commission of a crime” in the eyes of the

reasonable reader. Kirchner, 294 Ill. App. 3d at 680; Doe, 2015 IL App (2d) 140618, ¶ 46.

¶ 94   Would a reasonable reader of this statement know that the complained-of acts constituted

not only misdemeanor battery but, in fact, the Class 3 felony of aggravated battery? Tarrant

himself did not; he called what happened an “assault.” See Tiller, 61 Ill. App. 3d at 795

(offensive touching is a battery, not an assault). It is a fairly common misapprehension for the

public (and sometimes even lawyers) to confuse the offenses of assault and battery, which only

reinforces our concern.

¶ 95   While there is no doubt that Tarrant’s statement checked all the boxes for the elements of

a battery and even aggravated battery, it does not automatically follow that this would be fairly

imputed from the standpoint of the reasonable reader. To use the examples of battery we have

noted above, if Tarrant accused plaintiff of angrily yanking a book of matches from his hand, or

spitting on his arm, we would not expect the community at large to brand her a criminal. We

would not expect a reasonable reader to even think of those acts as crimes. Inappropriate, no

doubt, but not crimes.

¶ 96   We believe the same could be said of the act for which Tarrant accused plaintiff. We

would expect that a reasonable reader of this statement would not know that a teacher’s act of

grabbing a fellow teacher by the arm, during school hours on school property, in order to redirect


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No. 1-15-2205

them to a room, in and of itself, is a criminal act, much less an aggravated form of a criminal act

that elevated it from a misdemeanor to a Class 3 felony.

¶ 97   A reasonable person would clearly infer criminal conduct from a statement that a person

is a murderer, a rapist, a child molester, even an embezzler or a thief, or from acts that fairly

implied those criminal acts. We simply cannot accept that an employee’s act of grabbing a

coworker’s arm to steer him into a room, in a workplace setting, without more, falls into that

category.

¶ 98   We must emphasize that our analysis here is limited to these specific facts and

surrounding context. See Green, 234 Ill. 2d at 499 (“context of the statement is critical”). There

is no accusation that plaintiff tried to force Tarrant into a room for the purpose of committing a

further act of aggression. Certainly, we could conceive of many situations where grabbing

someone and redirecting their movement toward a private location would be suggestive of an

intent to commit some further criminal act like robbery or sexual assault or even a more obvious

form of battery—even murder—but in the context of this complaint, we see nothing remotely

suggesting such a possibility. Rather, this statement concerns two coworkers arguing on school

grounds during the school day, where one was trying to get the attention of the other in an

admittedly inappropriate way, but nothing that makes this anything more than a heated moment

between coworkers, among many such heated moments over the previous year.

¶ 99   We have long held that, to state a claim for defamation per se on this basis, the defendant

need state the particularities of the elements of a crime, as would an indictment, so long as the

statement fairly imputes the commission of a crime. Kirchner, 294 Ill. App. 3d at 680; Doe, 2015

IL App (2d) 140618, ¶ 46; Adams v. Sussman & Hertzberg, Ltd., 292 Ill. App. 3d 30, 47 (1997).

We think the converse must be true as well; just because the challenged statement might


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No. 1-15-2205

technically state the elements of a crime, it does not necessarily follow that, to the reasonable

reader, the commission of a crime has been fairly imputed. Most of all, we do not think that this

accusation of plaintiff’s conduct, inappropriate though it may have been, would so harm

plaintiff’s reputation that it lowered her in the eyes of the community or deterred the community

from associating with her−which in the end is the standard for defamation. See Green, 234 Ill. 2d

at 491.

¶ 100 We hold that Tarrant’s statement that plaintiff “[p]hysically assaulted [him] by grabbing

[his] arm and trying to force [him] into a room at the end of the school day” could be reasonably

construed as not imputing the commission of a criminal offense. We affirm the dismissal of this

claim as well.

¶ 101 Plaintiff also alleges, as she did with the previous allegations, that these statements

constituted defamation per se because they challenged her integrity in her profession and

otherwise prejudiced her standing in the profession. A generic description of verbal and physical

aggression, and an isolated example of grabbing someone’s arm to get his attention, may not be

flattering statements, but they are not so harmful that they would lower plaintiff’s reputation in

the eyes of the community and deter the community from associating with her. See Green, 234

Ill. 2d at 491. Unlike two of the statements in Tarrant’s e-mail regarding plaintiff’s “unsafe”

activities with students, the statements made by Tarrant in his grievance do not constitute

statements impugning plaintiff’s integrity as a schoolteacher and are not defamatory per se. See,

e.g., Heying v. Simonaitis, 126 Ill. App. 3d 157, 164-65 (1984) (when read in context, doctors’

statements criticizing nurse for her personality conflicts with other hospital staff did not impugn

her professional abilities as nurse or prejudice her in her profession and, thus, were not

defamatory per se).


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No. 1-15-2205

¶ 102 We hold that these statements regarding physical and verbal confrontations between

plaintiff and Tarrant were not defamatory per se, and the claims of defamation based on these

statements were properly dismissed.

¶ 103                                 3. Qualified Privilege

¶ 104 Thus far, we have held that only two statements made by Tarrant in the September 14,

2013, e-mail—that plaintiff was “rolling around on a bed in a hotel room with an athlete” and

that plaintiff “hung out” with athletes who were drinking and using drugs—constituted

defamation per se. We have held that all other statements at issue were properly dismissed, as

they were not defamatory per se.

¶ 105 As to the two statements that have survived our analysis, we must next determine the

question of qualified privilege. Defendants raised this issue in their motion to dismiss and argue

the issue again before this court. The circuit court did not rule on the privilege issue. But we may

affirm the circuit court’s judgment on any basis contained in the record, regardless of whether it

was the basis on which the circuit court relied. Beacham v. Walker, 231 Ill. 2d 51, 61 (2008).

¶ 106 A defamatory statement is not actionable if it is privileged. Solaia Technology, 221 Ill. 2d

at 585. Privilege is an affirmative defense that may be raised as a basis for dismissal of a

defamation action (Anderson v. Beach, 386 Ill. App. 3d 246, 248 (2008)), even in a section 2-615

motion if the defense is apparent on the face of the complaint. O’Callaghan v. Satherlie, 2015 IL

App (1st) 142152, ¶ 18.

¶ 107 The qualified privilege in Illinois defamation law is based on “the policy of protecting

honest communications of misinformation in certain favored circumstances in order to facilitate

the availability of correct information.” Kuwik v. Starmark Star Marketing & Administration,

Inc., 156 Ill. 2d 16, 24 (1993); Pompa v. Swanson, 2013 IL App (2d) 120911, ¶ 27. A qualified


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No. 1-15-2205

privilege generally applies “where society’s interest in compensating a person for loss of

reputation is outweighed by a competing interest that demands protection.” (Internal quotation

marks omitted.) Solaia Technology, 221 Ill. 2d at 599 (Freeman, J., concurring in part and

dissenting in part) (quoting J.D. Lee & Barry A. Lindhal, Modern Tort Law § 36:32, at 36-47 (2d

ed. 2002)).

¶ 108 But even if a privilege exists in a given case, defendant may not rely on that privilege if

he abuses it. Kuwik, 156 Ill. 2d at 30. A plaintiff claiming a defendant abused a qualified

privilege must show a direct intention to injure another or a reckless disregard of the plaintiff’s

rights and of the consequences that may result to the plaintiff. Id.; accord Pompa, 2013 IL App

(2d) 120911, ¶ 26 (qualified privilege can be exceeded, and thereby defeated, in circumstances

where defendant makes false statements with intent to injure or with reckless disregard for

statements’ truth). Conduct constituting an abuse of the privilege thus includes not only an intent

to injure but also “any reckless act which shows a disregard for the defamed party’s rights,

including the failure to properly investigate the truth of the matter, limit the scope of the

material, or send the material to only the proper parties.” Kuwik, 156 Ill. 2d at 30; see also

Restatement (Second) of Torts § 599 cmt. a, at 286 (1977) (protection that qualified privilege

gives to publication of defamatory matter can be defeated by unreasonable exercise of privilege).

¶ 109 The complaint sufficiently alleges an abuse of any qualified privilege that may have

existed. As to both written documents containing the statements at issue, the complaint alleges

that the statements were “false” and determined to be unfounded after an internal investigation,

that they were “made and published in bad faith,” and that “if the statements were protected by a

qualified privilege, [d]efendants abused the privilege because the statements were false and

[d]efendants knew that they were false and/or were not investigated prior to the statements[’]


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publication.” (Emphasis added.) The complaint adds that the allegedly defamatory statements

“were made with the knowledge of their falsity and with actual malice.” We would further note

that the complaint alleges that at least one of the defendants, Tarrant, acted as he did toward

plaintiff as part of a “pattern of retaliation” after plaintiff rebuffed his romantic advances.

¶ 110 Because we accept these allegations as true at the pleading stage, we must find that the

complaint sufficiently pleads an abuse of any possible qualified privilege. See, e.g., Colson v.

Stieg, 89 Ill. 2d 205, 215-16 (1982) (allegations that defendant had made subject statement

“knowing it to be false” and that statement was made maliciously, willfully and intentionally was

sufficient to defeat claim of privilege on motion to dismiss); Id. at 216 (allegation that

defamatory statement was “false and that the statement was made knowing it to be false were

sufficient allegations” to avoid dismissal against claim of privilege (citing Weber v. Woods, 31

Ill. App. 3d 122 (1975), with approval)); Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070,

¶ 103 (complaint sufficiently alleged “ill-will” and “malice” to overcome privilege where

plaintiff alleged retaliation against him for reporting alleged wrongdoing by defendants).

¶ 111 Because the complaint has sufficiently alleged that any qualified privilege that may have

existed was abused, it is not necessary for us to decide whether such a privilege existed in the

first place. We express no opinion on that question one way or other. We would only point out

that, contrary to some of the argument from plaintiff on this issue, the question of qualified

privilege is governed by our supreme court’s decision in Kuwik, 156 Ill. 2d at 25-27, in which the

supreme court adopted the Restatement (Second) of Torts §§ 593-599 (1977) for determining

whether a qualified privilege exists and abandoned the five-element test previously applied in

Illinois. See also Barakat v. Matz, 271 Ill. App. 3d 662, 668 (1995).




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¶ 112 Plaintiff has raised two additional arguments as to why defendants abused their qualified

privilege, namely, that they published the statements (1) for an improper purpose and (2) to

improper parties. In view of our determination that plaintiff sufficiently pleaded abuse of the

qualified privilege, we need not address these arguments. Plaintiff will be free to argue these

points in the circuit court on remand, just as defendants may raise the issue of qualified privilege

below.

¶ 113 We reverse the trial court’s dismissal of count I of the third amended complaint insofar as

it dismissed the claims related to the two statements we have found were defamatory per se, the

statement concerning plaintiff rolling around on a hotel bed with a student, and the statement

concerning plaintiff “hanging out” with intoxicated students. As to any and all other statements

alleged as defamatory in count I, we affirm the dismissal of the third amended complaint.

¶ 114                       B. Count II: False-Light Invasion of Privacy

¶ 115 To state a cause of action for false-light invasion of privacy, a plaintiff must allege that:

(1) the plaintiff was placed in a false light before the public as a result of the defendants’ actions;

(2) the false light in which the plaintiff was placed would be highly offensive 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.

Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 17-18 (1992); Lovgren v. Citizens First

National Bank of Princeton, 126 Ill. 2d 411, 419-23 (1989).

¶ 116 In their motion to dismiss count II, defendants noted that plaintiff’s false-light claim was

based on the same alleged false statements on which her defamation claim was based.

Defendants argued that, as a result, the false-light claim suffered from the same fatal deficiencies

that defendants had raised regarding count I. Likewise, in dismissing count II for false-light


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invasion of privacy, the trial court stated: “As the defamation count falls, so does the false-[light]

count. These statements taken in context are not highly offensive to a reasonable person. These

statements are subjectively offensive to the plaintiff because she wants to settle a score with the

track coach.” We have now held that two of Tarrant’s statements in count I were defamatory

per se and that count I should not have been dismissed to that extent.

¶ 117 In Tuite, 224 Ill. 2d 490, as in the instant case, the plaintiff’s false-light invasion of

privacy claim was based on the defamatory per se nature of the statements. The appellate court

held that the failure of the plaintiff’s defamation per se claim required the dismissal of his false-

light claim. Id. The Illinois Supreme Court, however, reversed the dismissal of the plaintiff’s

defamation per se claim and explained that it therefore followed “that the dismissal of his false

light invasion of privacy claim must also be reversed.” Id. at 515.

¶ 118 We believe the same reasoning applies here. We reverse the dismissal of count II of the

third amended complaint insofar as it relates to the two statements we have found to constitute

defamation per se, and in all other respects we affirm its dismissal. 2

¶ 119                                           III. CONCLUSION

¶ 120 For the reasons stated, we reverse the judgment of the circuit court of Cook County and

remand for further proceedings consistent with this opinion.


         2
           In their response brief, defendants argue that plaintiff’s action is barred by section 2-210 of the Local
Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-210 (West
2012)), which states that “[a] public employee acting in the scope of his employment is not liable for an injury
caused by his negligent misrepresentation or the provision of information either orally, in writing, by computer or
any other electronic transmission, or in a book or other form of library material.” Defendants contend that Tarrant
was acting in the scope of his employment and his statements provided information.
          But defendants did not raise, brief, or argue the affirmative defense of immunity under the Tort Immunity
Act in the trial court. The trial court, therefore, did not enter any order on this issue or even address it. “It is well
settled that ‘issues not raised in the trial court are deemed forfeited and may not be raised for the first time on
appeal.’ [Citations.]” (Internal quotation marks omitted.) Mauvais-Jarvis, 2013 IL App (1st) 120070, ¶ 102.
Although we recognize that we may affirm the trial court’s judgment on any basis appearing in the record, the issue
has not been fully developed in the record before us. We believe that it would be premature for us to address the
merits of this issue until it has. See id. ¶ 103.

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¶ 121 Reversed and remanded.




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