No. 1-05-3584


                                                                            SIXTH DIVISION
                                                                            November 30, 2007


                                 No. 1-05-3584
_____________________________________________________________________________


                                    IN THE
                        APPELLATE COURT OF ILLINOIS
                           FIRST JUDICIAL DISTRICT
_____________________________________________________________________________

ELLEN K. EMERY,                                 )     Appeal from the
                                                )     Circuit Court of
                         Plaintiff-Appellee,    )     Cook County, Illinois,
                                                )     County Department,
v.                                              )     Law Division.
                                                )
NORTHEAST ILLINOIS REGIONAL                     )     No. 04 L 009371
COMMUTER RAILROAD CORPORATION                   )
d/b/a METRA/Metropolitan Rail, and              )     Honorable
MICHAEL NOLAND, THERESA BARNETT,                )     Stuart A. Nudelman,
SUE-ANN ROSEN, RICHARD CAPRA, and               )     Judge Presiding.
CONSTANCE VALKAN, individually named            )
and in their official capacities,               )
                                                )
                         Defendants-Appellants. )
____________________________________________________________________________

       JUSTICE JOSEPH GORDON delivered the opinion of the court:

       Plaintiff, Ellen K. Emery, filed a six-count complaint against six defendants, (1) her former

employer, Northeast Illinois Regional Commuter Railroad Corporation, d/b/a/ Metra, and (2) five

attorneys employed by Metra: General Counsel Michael Noland, Associate General Counsel

Theresa Barnett, and senior attorneys Sue-Ann Rosen, Richard Capra, and Constance Valkan.

Plaintiff sought relief under the common-law torts of retaliatory discharge and demotion (count

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No. 1-05-3584

I), defamation (count II) and compelled self-defamation (count III) as against Metra. Plaintiff

further sought relief for defamation (count II), compelled self-defamation (count III), tortious

interference with contract (count IV), tortious interference with business relationship and

prospective economic advantage (count V), and civil conspiracy (count VI) as against Noland,

Barnett, Rosen, Capra and Valkan, individually. The circuit court dismissed count I (retaliatory

discharge and retaliatory demotion) and count III (compelled self-defamation) with prejudice

pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615,

2-619 (West 2002)). The circuit court also dismissed count II (defamation), count IV (tortious

interference with contract) and count VI (civil conspiracy) without prejudice and granted plaintiff

leave to replead these causes of action. Plaintiff was allowed to proceed only with count V of her

complaint (tortious interference with business relationship and prospective economic advantage).

On appeal, plaintiff challenges the trial court’s dismissal of her retaliatory discharge (count I),

retaliatory demotion (count I), and compelled self-defamation (count III) claims. For the reasons

that follow, we affirm.

                                           I. BACKGROUND

        The record below reveals the following relevant facts and procedural history. On August

19, 2004, plaintiff field a complaint in the circuit court of Cook County, alleging, among other

things, retaliatory discharge (count I), retaliatory demotion (count I) and compelled self-

defamation (count III).1


       1
           We note that plaintiff originally filed these state-law claims in federal district court, on

December 20, 2002, under docket number 02 C 9303. On September 18, 2003, the federal court

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No. 1-05-3584

         The complaint alleges the following pertinent facts, which are common to all of plaintiffs

claims. Defendant, Metra, is a public corporation (70 ILCS 3615/1.01 et seq. (West 2002)).

Plaintiff is a former assistant general counsel to Metra and was considered part of the professional

corporate staff and a member of the management. As in-house counsel, plaintiff answered to the

General Counsel, who in turn answered to the Metra executive director. Plaintiff was not a

member of any labor union or subject to the collective bargaining agreement of any labor union,

and did not have a remedy under the Railway Labor Act (RLA) (45 U.S.C. §151 et seq. (West

2000)). As a result of her position with Metra, plaintiff had the ability to effectively recommend

employees to be hired and fired, to authorize overtime, and to transfer and establish assignments.

        According to the complaint, plaintiff was initially hired by Metra on June 23, 1997, as a

senior attorney designated to work on cases arising out of the Federal Employers’ Liability Act

(FELA) (45 U.S.C. § 51 et seq. (2000)). Defendant Noland hired Emery based upon her


dismissed plaintiff’s complaint, and gave plaintiff 21 days to amend her federal court complaint,

holding that if she failed to state a federal claim the court would decline to exercise jurisdiction

over her remaining state-law claims. Subsequently, on June 17, 2004, the federal district court

dismissed plaintiff’s amended complaint. On June 30, 2004, the federal district court vacated, on

jurisdictional grounds, the portion of its September 18, 2003, order dismissing plaintiff’s state law

claims and held that, pursuant to section 1367 of the United States Code of Judiciary and Judicial

Procedure (28 U.S.C. §1367 (2000)), it should have declined to exercise supplemental jurisdiction

over those claims once it had determined that plaintiff had failed to state a federal-law claim.

Thereafter, plaintiff sought relief in the circuit court.

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No. 1-05-3584

outstanding reputation as a litigator. In December 1997, six months after she was hired, plaintiff

was promoted to associate general counsel and director of litigation.

        During her employment with Metra, and prior to January 2002, plaintiff received raises

and bonuses from Metra, as well as compliments on her outstanding work.

        According to the complaint, in July 1999, plaintiff seriously injured her knee at work when

she tripped over a set of raised electrical sockets at Metra’s offices. As a result of this injury,

plaintiff had several surgeries on her knee and took disability leave for a limited time.

        On July 29, 1999, plaintiff filed a claim for her injury with Metra’s risk management

department, but Metra refused to pay most of plaintiff’s medical bills. For over two years,

plaintiff repeatedly attempted to resolve her claim with Metra, but Metra refused to discuss her

claim and continued to refuse to pay most of her medical bills.

        On several occasions, plaintiff spoke to defendant Capra, senior litigation attorney for

Metra, and told him that she would be forced to hire counsel, to which Capra responded, “You

have to do what you have to do.”

        The complaint further alleges that in December 2001, plaintiff retained counsel, James

Farina, of Hoey, Farina and Downes, and filed a lawsuit under FELA (45 U.S.C. §51. et seq.

(2000)) against Metra, claiming that Metra was negligent in allowing the electrical sockets to

protrude from the floor and that its actions violated the regulations promulgated under the

Occupational Safety and Health Act of 1970 (OSHA) (29 U.S.C. §651 et seq. (2000)).

        The complaint states that on January 14, 2002, plaintiff received her annual performance

review from defendant Noland. Although plaintiff had always received annual bonuses for her


                                                   4
No. 1-05-3584

performance, and had continued to perform in an exemplary fashion, at that time, defendant

Noland told her that he did not believe she deserved a bonus. As a result, in 2001, plaintiff was

the only attorney at Metra who did not receive an annual bonus.

       The complaint further avers that on January 23, 2002, plaintiff was told that because she

filed the lawsuit, she had committed ethical violations and could therefore no longer represent

Metra in FELA cases. Plaintiff was demoted to senior attorney, her caseload was subjected to

“extraordinary scrutiny,” and she was criticized for her performance and lack of professionalism.

Specifically, plaintiff was denied access to FELA case files and was told that claims personnel,

law personnel, and outside counsel would be told that she would no longer be representing Metra

in FELA cases, and that they should therefore not communicate with her.

       Subsequently, in public court filings and public hearings, Metra repeatedly attempted to

disqualify plaintiff’s attorneys, Hoey, Farina, and Downes, from cases involving Metra, ostensibly

accusing plaintiff of having revealed attorney-client confidences to this law firm.

       According to the complaint, on March 4, 2002, defendant Noland informed plaintiff that

she had breached her ethical obligations to Metra and offered her an opportunity to resign with

her associate general counsel title and two months severance pay on the condition that she release

all of her claims against Metra. Noland told plaintiff that if she did not accept this offer, she

would be terminated as senior attorney with only two weeks’ severance pay. Plaintiff was given

24 hours to consider the offer. When plaintiff informed defendant Noland that she would not

resign, she was immediately terminated without any severance pay.

       The complaint also alleges that beginning in January 2002, and continuing after plaintiff’s


                                                   5
No. 1-05-3584

discharge from Metra, defendants Noland, Barnett, Rosen, Capra and Valkan engaged in a fierce

smear campaign against plaintiff, accusing her of being disloyal, unethical, untruthful, incompetent

and of sharing client confidences with opposing counsel. Defendants made these comments to

plaintiff’s coworkers, outside attorneys who have represented Metra, other attorneys practicing in

Chicago and elsewhere, and federal and state court judges. Among other things, defendants have

told people that: (1) plaintiff was “terminated from Metra for cause” and for “various instances of

misconduct”; (2) that in her own FELA lawsuit, plaintiff will use Metra’s confidential information

for her own benefit and to Metra’s detriment; and (3) that Metra was required under the Rules of

Professional Responsibility both to fire plaintiff and report her to the Attorney Registration and

Disciplinary Commission (ARDC).2

        As a result, in her complaint, plaintiff sought relief for, among other things, retaliatory

discharge and demotion, and compelled self-defamation.

        As a response to plaintiff’ complaint, on November 1, 2004, defendant Metra filed a

section 2-615 and section 2-619 motion to dismiss the complaint. On November 18, 2004, the

individual defendants followed suit and similarly filed a section 2-615 and section 2-619 motion to

dismiss. Because both motions raised identical or similar contentions, they were argued together

to the trial court.

        With respect to plaintiff’s claim for retaliatory demotion (count I), defendant Metra

argued that this claim should be dismissed pursuant to section 2-615 of the Code because the


        2
            In that respect, we note that the complaint alleges that the ARDC dismissed all charges

against plaintiff.

                                                    6
No. 1-05-3584

cause of action is not recognized under Illinois law. Similarly, with respect to plaintiff’s claim for

compelled self-defamation (count II), both the individual defendants, and defendant Metra argued

that the claim was properly dismissed under section 2-615 of the Code, as Illinois did not

recognize such a cause of action.

       With respect to plaintiff’s retaliatory discharge action (count I), defendant Metra argued

that the complaint should be dismissed pursuant to section 2-615 because discharging an

employee who files a lawsuit under FELA does not give rise to a state-law action for retaliatory

discharge. Specifically, defendant Metra asserted that filing an FELA claim does not violate a

clearly mandated public policy under the narrow construction of the tort of retaliatory discharge

in Illinois. In addition, defendant Metra argued that under the holding in Balla v. Gambro, Inc.,

145 Ill. 2d 492, 499, 584 N.E.2d 104, 107-08 (1991), plaintiff could not claim retaliatory

discharge because, as matter of law, an in-house counsel in Illinois does not have an action for

retaliatory discharge even if the discharge violates a clear mandate of public policy.

       Alternatively, defendant Metra argued that plaintiff’s retaliatory discharge claims should

be dismissed under section 2-619(9) of the Code because under sections 2-201 and 2-109 of the

Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745

ILCS 10/1-101 et seq. (West 2002)), Metra is immune from liability.

       On October 21, 2005, the circuit court dismissed plaintiff’s retaliatory discharge,

retaliatory demotion and compelled self-defamation claims. Plaintiff now appeals.




                                                  7
No. 1-05-3584

                                           II. ANALYSIS

                                      1. Retaliatory Discharge

       On appeal, plaintiff first contends that the circuit court erred in granting defendant Metra’s

section 2-615 motion to dismiss her retaliatory discharge claim based on our holding in

Sutherland v. Norfolk Southern Ry. Corp., 356 Ill. App. 3d 620, 628, 826 N.E.2d 1021,1028

(2005). We disagree.

       A motion to dismiss pursuant to section 2-615 tests the legal sufficiency of a pleading.

Doe v. Calumet City, 161 Ill. 2d 374, 384-85, 641 N.E.2d 498, 503 (1994). In determining the

legal sufficiency of a complaint, all well-pleaded facts are taken as true and all reasonable

inferences from those facts are drawn in favor of plaintiff. Connick v. Suzuki Motor Co., 174 Ill.

2d 482, 490, 675 N.E.2d 584, 588 (1996). The question on appeal from the granting of a section

2-615 motion to dismiss is whether the allegations in the complaint, when viewed in a light most

favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted.

Connick, 174 Ill. 2d at 490, 675 N.E.2d at 588. The sufficiency of a complaint is an issue of law

which we review de novo. People ex rel. Devine v. $30,700.00 United States Currency, 316 Ill.

App. 3d 464, 474, 736 N.E.2d 137, 145 (2000).

       Plaintiff’s primary assertion on appeal with respect to her retaliatory discharge cause of

action is that we should reconsider our holding in Sutherland and permit her to proceed with a

retaliatory discharge cause of action premised on her alleged termination for pursuing her rights

under FELA. Plaintiff specifically contends that we erred in deciding Sutherland because we

based our decision on the presumption that plaintiff had a remedy for retaliatory discharge under


                                                   8
No. 1-05-3584

the Railway Labor Act (RLA) (45 U.S.C. §151 et seq. (2000)), when, as a result of the United

States Supreme Court’s decision in Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 129 L.Ed.2d

203, 114 S.Ct. 2239 (1994), no such remedy actually exists. In that respect, plaintiff contends

that in Koehler v. Illinois Central Gulf R.R. Co., 109 Ill. 2d 473, 488 N.E.2d 542 (1985), our

supreme court would have extended the tort of retaliatory discharge to include a retaliatory

discharge of a railroad employee terminated for filing a personal injury report under FELA, had it

not mistakenly believed that such a tort was preempted by the RLA. Plaintiff here finally

contends that by denying her the right to assert a retaliatory discharge claim in Sutherland, we

violated her constitutional right to equal protection. We disagree.

        In that respect, we note that we have addressed and responded to each of the arguments

raised by plaintiff here in the separate case of Irizarry v. Illinois Central Railroad Co., d/b/a

Canadian National Railway, No. 1-06-1453 (November 21, 2007), where we expressly refused to

reverse our holding in Sutherland to extend the tort of retaliatory discharge to employees

discharged for filing FELA claims. As such, we find no need to repeat our findings in that case,

but simply incorporate by reference the holding and rationale of Irizarry as part of our opinion

here.

        Defendant Metra also asserts that the trial court properly dismissed plaintiff’s claim of

retaliatory discharge because plaintiff was an in-house counsel. We recognize that it is arguable

under Balla, 145 Ill. 2d at 503-04, 584 N.E.2d at 109-10, as interpreted by Ausman v. Arthur

Andersen, LLP, 348 Ill. App. 3d 781, 787-88, 810 N.E.2d 566, 572 (2004), that our supreme

court refused to recognize a tort of retaliatory discharge for any in-house attorney, because


                                                   9
No. 1-05-3584

recognition of such an action would have had a “ ‘chilling effect on the communications between

the employer/client and the in-house counsel.’ ” Ausman, 348 Ill. App. 3d at 787, 810 N.E.2d at

572, quoting Balla, 145 Ill. 2d at 504, 584 N.E.2d at 109-10. However, strong argument can also

be made that Balla’s limitation of the retaliatory discharge cause of action to in-house counsel

applies only in whistleblowing situations, where disclosures by in-house counsel of illegal or

unethical activities by the client/employer have the potential to destroy client/attorney

confidentiality, and not to situations, such as the present one, where in-house counsel was

discharged for filing an FELA claim after sustaining a personal injury at work. See Balla, 145 Ill.

2d at 501-02, 584 N.E.2d at 108.

       We, however, need not resolve this issue for purposes of appeal, as we have already found

that the trial court properly dismissed plaintiff’s retaliatory discharge claim on grounds of our

holding in Sutherland. See Paul H. Schwendener, Inc. v. Jupiter Electric Co., 358 Ill. App. 3d 65,

71, 829 N.E.2d 818, 825 (2005) ( we may affirm the dismissal of a complaint on any grounds on

the record).

                                      2. Retaliatory Demotion

       Plaintiff next asserts that the trial court erred in granting defendant Metra’s section 2-615

motion to dismiss her claim for retaliatory demotion (count I). Plaintiff concedes that there is no

retaliatory demotion claim under the current state of law in Illinois, but urges us to reevaluate our

prior holdings and extend the tort of retaliatory discharge to demotions and thereby encourage the

Illinois Supreme Court to revisit this issue. We reject defendant’s invitation and in that respect

note that both this court and the Illinois Supreme Court have repeatedly held that the retaliatory


                                                 10
No. 1-05-3584

discharge cause of action does not extend to any employment action short of actual discharge.

See Bajalo v. Northwestern University, 369 Ill. App. 3d 576, 582-84, 860 N.E.2d 556, 561-563

(2006) (and cases cited therein).

                                    3. Compelled Self-Defamation

       Plaintiff finally asserts that the trial court erred in granting the individual defendants’3

2-615 motions to dismiss her claim for compelled self-defamation and urges this court to

recognize such a claim under Illinois law. Plaintiff specifically contends that after her termination,

she was compelled to explain to potential employers the reasons given by Metra for the

discharge,4 even though they were not truthful, because failure to do so could have led to serious

charges of misconduct before the ARDC by a new or potential employer.

       Defendant Metra and the individual defendants contend that Illinois law does not

recognize a claim for compelled self-defamation and that we should continue to reject such a

claim. The individual defendants also contend that if we recognize a claim for compelled self-

defamation, we should not recognize it in the context of individual persons who may be acting at

the employer’s direction but, rather, only in the context of an action against the employer itself.



       3
           The individual defendants include Noland, Barnett, Rosen, Capra, and Valkan.
       4
           In her complaint, plaintiff asserted that among the many reasons for her discharge,

defendants had accused her of mishandling her cases, violating the attorney code of ethics, and

disclosing attorney-client confidences. According plaintiff’s complaint, defendants also filed

unfounded ARDC charges against her, which were eventually dismissed.

                                                   11
No. 1-05-3584

Defendant Metra alternatively contends that even if we were to adopt the tort of compelled self-

defamation, it would be immune from liability under the Tort Immunity Act. For the reasons that

follow, we hold that Illinois law does not recognize a cause of action for compelled self-

defamation.

        We must begin our analysis with a brief review of the common-law tort of defamation.

According to our supreme court, a statement is defamatory if it “tends to cause such harm to the

reputation of another that it lowers that person in the eyes of the community or deters third

persons from associating with [him/her].” Bryson v. News America Publications, Inc., 174 Ill. 2d

77, 87, 672 N.E.2d 1207, 1213-14 (1996). “To state a defamation claim, a plaintiff must present

facts [establishing] that defendant made a false statement about the plaintiff, that defendant made

an unprivileged publication of that statement to a third party, and that this publication caused

damages.” See Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579, 852

N.E.2d 825, 838 (2006). Publication is “an essential element” of a cause of action for

defamation. Popko v. Continental Cas. Co., 355 Ill. App. 3d 257, 261 (2005); see also Ginsburg

v. Black, 237 F.2d 790, 793 (7th Cir. 1956). In order to prove publication, plaintiff must show

that allegedly slanderous remarks were communicated to someone other than plaintiff. Frank v.

Kaminsky, 109 Ill. 26, 29 (1884); see also Restatement (Second) Torts §577, Comment m, at 206

(1977) (“[o]ne who communicates defamatory matter directly to the defamed person, who himself

communicates it to a third person, has not published the matter to the third person”); W. Prosser,

Torts §113, at 771 (4th ed. 1971) (“Ordinarily the defendant is not liable for any publication made

to others by the plaintiff himself, even though it was to be expected that he might publish it”).


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No. 1-05-3584

       A minority of jurisdictions, however, have carved out an exception to this rule in the

context of employment. See McKinney v. County of Santa Clara, 110 Cal. App. 3d 787, 795-96,

168 Cal. Rptr. 89, 93-94 (1980); Theisen v. Covenant Medical Center, Inc., 636 N.W.2d 74, 83-

85 (Iowa 2001); Churchey v. Adolph Coors Co, 759 P.2d 1336, 1344-45 (Colo. 1988); Munsell

v. Ideal Food Stores, 208 Kan. 909, 919-20, 494 P.2d 1063, 1072-73 (1972); Grist v. Upjohn

Co., 16 Mich. App. 452, 483-84, 168 N.W.2d 389, 405-06 (1969); Lewis v. Equitable Life

Assurance Society of the United States, 389 N.W.2d 876, 886-88 (Minn. 1986). These courts

have concluded that publication to the third party by the defamed former employee may satisfy

the publication requirement because the plaintiff effectively is “compelled” to publish the

defamatory statement to prospective employers when she is asked why she left her former

employment. See e.g., Lewis, 389 N.W.2d at 886-87. These courts have reasoned that it is fair

to hold an employer liable for compelled self-publication because it is reasonably foreseeable that

the employee, in seeking new employment, will inevitably be asked why she left her former

employment. See Lewis, 389 N.W.2d at 886-87. As the Court of Appeals of California

explained in McKinney:

                “The rationale for making the originator of a defamatory statement liable for its

                foreseeable republication is the strong causal link between the actions of the

                originator and the damage caused by the republication. This causal link is no less

                strong where the foreseeable republication is made by the person defamed

                operating under a strong compulsion to republish the defamatory statement and

                the circumstances which create the strong compulsion are known to the originator


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No. 1-05-3584

                of the defamatory statement at the time he communicates it to the person

                defamed.” McKinney, 110 Cal. App. 3d at 797-98, 168 Cal. Rptr. at 94.

Thus, these courts have held that, “in an action for defamation, the publication requirement may

be satisfied where the plaintiff was compelled to publish a defamatory statement to a third person

if it was foreseeable to the defendant that the plaintiff would be so compelled.” Lewis, 389

N.W.2d at 888; see also McKinney, 110 Cal. App. 3d at 797-98, 168 Cal. Rptr. at 94; Churchey,

759 P.2d at 1345.

       The Illinois Supreme Court has not yet addressed the issue of compelled self-defamation.

However, two districts of our appellate court, the Second and Fifth Districts, have considered the

doctrine and rejected its applicability in Illinois. See Layne v. Builders Plumbing Supply Co., 210

Ill. App. 3d 966, 968, 569 N.E.2d 1104, 1106 (1991) (refusing to recognize a tort of compelled

self-defamation for a plaintiff contending that her employer had made knowingly false statements

to the police department that she had threatened, harassed and assaulted a coworker, and that it

was foreseeable that as part of any future job interview she would be forced to disclose this

information, and thereby defame herself); Harrel v. Dillards Department Stores, Inc., 268 Ill. App.

3d 537, 548, 644 N.E.2d 448, 455 (1994) (holding that the trial court erred in sending the case to

the jury on the count of compelled self-defamation in light of Layne, which explicitly refused to

recognize the tort of compelled self-defamation).

       In addition, the Seventh Circuit has similarly rejected the tort of compelled self-

defamation, predicting, under its obligation to ascertain what the Illinois Supreme Court would

do, that our supreme court would refuse to recognize such a tort in this state. See Rice v. Nova

                                                 14
No. 1-05-3584

Biomedical Corp., 38 F.3d 909, 910-12 (7th Cir. 1994) (predicting that the Illinois supreme court

would reject the tort of compelled self-defamation in a case where plaintiff filed suit against his

employer alleging that he was discharged in retaliation for filing a workers compensation claim

and that defamation occurred when “honesty required him to divulge” to prospective employers

the ostensible grounds for his discharge); Olivieri v. Rodriguez, 122 F.3d 406, 408 (7th Cir.

1997) (rejecting “the largely discredited doctrine of ‘compelled republication’ or *** ‘self-

defamation’” in the context of a federal constitutional claim of deprivation of liberty of

employment without due process of law of a Chicago police officer who contended that he was

defamed when he was forced to tell future employers that he was fired on grounds of sexually

harassing female probationers at the police training academy). As Judge Posner, writing for the

majority in Rice, stated:

                “Since [compelled self-defamation] is a minority view, and a very questionable

                one–it makes it impossible for an employer to communicate his grounds for

                discharging an employee to the employee even confidentially without incurring a

                grave risk of being sued for defamation–we believe it unlikely that the Supreme

                Court of Illinois would take a different view from the intermediate appellate court

                in Layne.” Rice, 38 F.3d at 912.

       We note that in this respect the decisions of the Second and Fifth Districts of the Illinois

Appellate Court and of the Seventh Circuit are in alignment with the majority of jurisdictions

addressing this issue. See Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 218-19, 837 A.2d

759, 764-65 (2004) (“most jurisdictions have yet to recognize compelled self-publication

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No. 1-05-3584

defamation or have expressly rejected it”) (and cases cited therein); see also Gonsalves v. Nissan

Motor Corp. in Hawaii, 100 Hawaii 149, 171-72, 58 P.3d 1196, 1218-19 (2002), citing Sullivan

v. Baptist Memorial Hospital, 995 S.W.2d 569, 573 (Tenn.1999) (“the ‘majority of states

addressing the issue do not recognize self-publication as constituting publication for defamation

purposes, even when the publication is compelled in the employment setting’”).

       Six state supreme courts that have faced this issue have declined to recognize a cause of

action for compelled self-defamation. See White v. Blue Cross & Blue Shield of Massachusetts,

Inc., 442 Mass. 64, 68, 809 N.E.2d 1034, 1037 (Mass. 2004); Cweklinsky, 267 Conn. at 229,

837 A.2d at 770; Gonsalves, 100 Hawaii at 173, 58 P.3d at 1220; Gore v. Health-Tex., Inc., 567

So. 2d 1307, 1308 (Ala. 1990); Sullivan, 995 S.W.2d at 574; Lunz v. Neuman, 48 Wash. 2d 26,

34, 290 P.2d 697, 702 (Wash. 1955).

       Numerous federal courts applying state law have also rejected a cause of action for

compelled self-defamation. See, e.g., De Leon v. St. Joseph Hospital, Inc., 871 F.2d 1229, 1237

(4th Cir. 1989) (applying Maryland law and refusing to recognize the tort of self-publication);

Spratt v. Northern Automotive Corp., 958 F. Supp. 456, 465 (D.Ariz. 1996) (stating that Arizona

courts do not recognize compelled self-publication); Hensley v. Armstrong World Industries, Inc.,

798 F. Supp. 653, 657 (W.D. Okla. 1992) (asserting that Oklahoma would follow the “vast

majority of states” rejecting the theory of compelled self-publication).

       Similarly, other states have abrogated the doctrine by statute. For example in Colorado,

although the doctrine was adopted by Churchey, 759 P.2d at 1343-45, it was subsequently

eliminated by legislative action. See Colo. Rev. Stat. Ann. §13-25-125.5 (West 1997). Similarly,

                                                 16
No. 1-05-3584

in Minnesota, although the doctrine was recognized in Lewis, 389 N.W.2d at 886-87, the

legislature responded by severely restricting the tort by statute (see Minn. Stat. § 181.933(d)

(1987) (no communication by employee of reasons given by employer in writing for termination

may give rise to an action for libel, slander or defamation); see also Minn. Stat. § 181.962(2)

(1989) (no communication by employee of information obtained from employee’s personnel file

may give rise to an action for libel, slander, or defamation unless employer has refused the

employee’s request to place in her file her written statement refuting the information)).

          The Restatement (Second) of Torts also rejects the doctrine of self-defamation, except

where the plaintiff repeats the statement but is unaware of the defamatory nature of such a

statement. See Restatement (Second) of Torts §577 Comment m, at 206 (1977); see also White,

442 Mass. at 67, 809 N.E.2d at 1036 (noting that the Restatement (Second) has rejected the

doctrine of compelled self-publication). Comment m of section 577 of the Restatement (Second)

states:

                         “One who communicates defamatory matter directly to the defamed

                 person, who himself communicates it to a third person, has not published the

                 matter to the third person if there are no other circumstances. If the defamed

                 person’s transmission of the communication to the third person was made,

                 however, without an awareness of the defamatory nature of the matter and if the

                 circumstances indicated that communication to a third party would be likely, a

                 publication may properly be held to have occurred.” Restatement (Second) of

                 Torts § 577 Comment m, at 206 (1977).

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Although the Restatement makes an exception to the general requirement of publication to a third

party, the illustrations to comment m confirm that ignorance of the defamatory nature of the

published statement by the victim is crucial to the exception permitting recovery. In other words,

the Restatement allows recovery for self-publication, only where the victim is a blind transmitter

with no control over the publication of the defamatory statements. See Restatement (Second) of

Torts §577 Comment m, Illustration (10), at 206 (1977) (“A writes a defamatory letter about B

and sends it to him through the mail in a sealed envelope. A knows that B is blind and that a

member of his family will probably read the letter to him. B receives the letter and his wife reads

it to him. A has published a libel”); but see Restatement (Second) of Torts § 577 Comment m,

Iillustration (9), at 206 (1977) (“A writes a defamatory letter about B and sends it to him through

the mail in a sealed envelope. B indignantly shows the letter to his son. *** A[] has [not]

published a libel”).

        Currently, of the four states that continue to recognize a cause of action for compelled

self-defamation, only two have done so in an employment context. See Theisen, 636 N.W.2d at

83 (holding that liability attaches if the employer can foresee that an employee will be required to

disclose reasons for termination when applying for a new job); Munsell, 208 Kan. at 920, 494

P.2d at 1072-73 (holding that an employer who forwarded a coerced “confession” of theft by

employee to the employee’s union was liable for compelled self-defamation); Hedgepeth v.

Coleman, 183 N.C. 309, 312-15, 111 S.E. 517, 519-20 (1922) (holding that it was foreseeable

that a teenage boy who received a letter from the defendant accusing him of a crime would show

that letter to an adult in seeking advice on what to do); Overcast v. Billings Mutual Insurance


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Co., 11 S.W.3d 62, 70 (Mo. 2000) (holding that it was foreseeable that insurance claims

adjuster’s letter to homeowner denying coverage for a fire based on suspected arson by the

homeowner would need to be disclosed when the homeowner applied for insurance from another

company, which routinely asks if the homeowner has ever been denied coverage, thus creating

liability for compelled self-defamation).5

         The rationale of the majority of jurisdictions for rejecting the tort of compelled self-

defamation has been threefold. First, a number of courts including, inter alia, Cweklinsky,

Gonsalves, Sullivan, White, Layne, and Harrel, have found that the tort would “encourage

employers to curtail communications with employees, and the employees’ prospective employers,

for fear of liability.” Cweklinsky, 267 Conn. at 220, 837 A.2d at 765; See White, 442 Mass. at

69, 809 N.E.2d at 1038 (“recognition of the doctrine of compelled self-publication defamation

brings with it the potential to stifle communication in the workplace”); Layne, 210 Ill. App. 3d at

976, 569 N.E.2d at 1111 (“the doctrine of compelled self-defamation unduly burdens the free

communication of views”); Harrel, 268 Ill. App. 3d at 548, 644 N.E.2d at 455 (noting that one of

the reasons for rejecting the tort of compelled self-defamation is that the tort “would unduly

burden the free communication of views”); see also Cweklinsky, 267 Conn. at 220, 837 A.2d at

765, citing J. Acevedo, The Emerging Cause of Action for Compelled Self-Publication

         5
             For an overview of cases considering the self-publication doctrine, see generally

Annotation., D. Chapus, Publication of Allegedly Defamatory Matter by Plaintiff ([“Self-

Publication”]) as Sufficient to Support Defamation Action, 62 A.L.R. 4th 616 (1988 & Supp.

2003).

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No. 1-05-3584

Defamation in the Employment Context: Should Connecticut Follow Suit? 72 Conn. B.J. 297,

316 (1998) (“this ‘culture of silence’ may actually harm employees by depriving them of the

benefit of constructive criticism because of an employer’s fear that the comments may be used

against it in the future”); see also Gonsalves, 100 Hawaii at 172, 58 P.3d at 1219 (“[e]mployees

who may be able to improve substandard job performances may fail to do so because needed

feedback is withheld”); Sullivan, 995 S.W.2d at 573 (noting that a working environment fueled by

a “no comment” culture could result in the elimination of formal termination procedures, causing

employees to be discharged prematurely without the opportunity to rebut an employer’s

accusations).

       In that respect, we note that in rejecting the tort of self-compelled defamation, the

Connecticut Supreme Court indicated that the “fear of chilling communications is not simply

hypothetical.” Cweklinsky, 267 Conn. at 221-22, 837 A.2d at 766. Rather, in those states where

courts have recognized this cause of action, many employers, upon the advice of human resource

experts and attorneys, have adopted policies of releasing either none or only nominal information

when terminating employees so as to prevent any potential liability. See Cweklinsky, 267 Conn.

at 221-22, 837 A.2d at 766, citing M. Cooper, Between A Rock and Hard Case: Time for a New

Doctrine of Compelled Self-Publication, 72 Notre Dame L. Rev. 373, 432 (1997), A. Langvardt,

Defamation in the Business Setting: Basics and Practical Perspectives, 33 Bus. Horizons 66, 73

(September-October 1990); M. Middleton, Employers Face Upsurge in Suits Over Defamation,

National L.J. 1, 30-31 (May 4, 1987).

       Second, a number of these courts have reasoned that the recognition of compelled self-

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publication defamation can discourage plaintiffs from mitigating damages by providing them with

too much control over the cause of action. See, e.g., Layne, 210 Ill. App. 3d at 976, 569 N.E.2d

at 1111 (“[w]e believe that recognition of a cause of action for compelled self-defamation ***

might discourage plaintiffs from mitigating damages. Rather, the availability of increased

damages from such a claim might encourage publication of a defamatory statement by a plaintiff

who reasonably could have avoided such republication or could have tried to explain to a

prospective employer the true nature of the situation and to contradict the defamatory

statement”); Olivieri, 122 F.3d at 409 (“[t]he principle of self-defamation, applied in a case such

as this, would encourage [plaintiff] to apply for a job to every [employer] in the nation, in order to

magnify his damages; and to blurt out to each of them the ground of his discharge in the most

lurid terms, to the same end”); Cweklinsky, 267 Conn. at 223, 837 A.2d at 767 (“[t]he plaintiff as

the party repeating the publication *** essentially controls the cause of action, having the ability

to increase damages by continually repeating the defamatory statement to different prospective

employers”); White, 442 Mass. at 71, 809 N.E.2d at 1039 (“[r]ecognition of the doctrine ***

creates a perverse incentive for a plaintiff not to mitigate damages”).

       In this respect, some courts have added that a cause of action for compelled self-

publication defamation gives the plaintiff even greater control over the cause of action by

permitting her the ability to circumvent or manipulate the applicable statue of limitations. See,

e.g., Cweklinsky, 267 Conn. at 224, 837 A.2d at 767; Sullivan, 995 S.W.2d at 574; White, 442

Mass. at 71, 809 N.E.2d at 1039. As the Supreme Court of Connecticut aptly explained:

                “The statute of limitations for a defamation claim begins on the date of publication

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                *** and because a new cause of action arises with each publication [citations] an

                employee relying on the doctrine of compelled self-publication has the ability to

                circumvent the statue of limitations by continually repeating the publication of the

                defamatory statement. After the statute of limitations expires with regard to one

                publication, an employee need only fill out a new job application, or go to another

                interview, in order to give rise to a new cause of action with a new publication.

                This capability would obviate the public policy underlying the statute of limitations

                itself, i.e., ‘to promote finality in the litigation process;’ [citation]; and give a

                defendant the peace of mind that comes with knowing that its potential liability has

                been extinguished.” Cweklinsky, 267 Conn. at 224, 837 A.2d at 767-68.

       Third, in rejecting the doctrine, other courts in the majority have reasoned that the

doctrine of compelled self-defamation conflicts with the employment-at-will doctrine. See, e.g.,

Sullivan, 995 S.W.2d at 574; Gonsalves, 100 Hawaii at 173, 58 P.3d at 1219; White, 442 Mass.

at 68-69, 809 N.E.2d at 1037-38. In Illinois, under the long upheld at-will employment doctrine,

an employer may terminate an at-will employee at any time for good cause, bad cause or no cause

at all. See Buckner v. Atlantic Plant Maintenance Inc., 182 Ill. 2d 12, 19, 694 N.E.2d 565, 569

(1998). Although plaintiff contends that an employer would be liable under the compelled self-

defamation doctrine only for negligently investigating and then stating a defamatory reason for

termination when it is reasonably foreseeable that the former employee will be compelled to

repeat this defamatory reason to future employers, an employer in Illinois has no duty to

investigate before terminating an at-will employee. Cf. Buckner, 182 Ill. 2d at 19, 694 N.E.2d at


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569. “To adopt the doctrine of compelled self-publication and to impose a duty on employers to

conduct a thorough investigation leading to accurate conclusions would significantly compromise

these well-settled principles encompassed by the at-will employment doctrine.” Sullivan, 995

S.W.2d at 574; see also Rice, 38 F.3d at 912 (7th Cir. 1994) (noting that the Illinois Supreme

Court would likely reject the doctrine of compelled self-defamation because such a cause of

action combined with the rule of per se defamation would “give[] employees who regret not

having negotiated an employment contract a tort surrogate for it”); Rozier v. St. Mary’s

Hospital, 88 Ill. App. 3d 994, 999, 411 N.E.2d 50, 54-55 (1980) (noting that the at-will

employment doctrine also serves to protect employees by giving them the privilege to quit their

jobs any time and for any or no reason at all; “employees have a strong interest in maintaining that

privilege free from threat of suit, lest employers be supplied with a new weapon with which to

harass key employees wishing to change jobs”).

       In rejecting the tort of compelled self-defamation, our appellate courts have also reasoned

that the tort of compelled self-defamation would broaden the scope of defamation liability. See

Layne, 210 Ill. App. 3d at 976, 569 N.E.2d at 1111 (the tort of compelled self-defamation would

“unreasonably broadens the scope of defamation liability”); Harrel, 268 Ill. App. 3d at 548, 644

N.E.2d at 455 (same). In addition, the Fifth District of the Appellate Court in Harrel noted that it

is not the province of appellate courts to create new causes of action, but rather the responsibility

of our supreme court and/or the Illinois legislature. See Harrel, 268 Ill. App. 3d at 548, 644

N.E.2d at 455, citing Ruth v. Benvenutti, 114 Ill. App. 3d 404, 499 N.E.2d 209 (1983).

       Against the weight of this authority, plaintiff nevertheless contends that we should reject


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the majority view and extend the tort of defamation to apply to situations, such as her own, where

an employee is effectively “compelled” to restate the false reasons for her termination to

prospective employers. After careful consideration of the applicable case law and public policies

underlying the issue, however, we conclude that on balance we are in agreement with the

rationale of the two Illinois appellate decisions as well as the decisions of the majority of

jurisdictions rejecting the tort of compelled self-defamation.

       Plaintiff nevertheless contends that employers are sufficiently protected from the foregoing

concerns by the traditional defamation defense of “truth,” (see American International Hospital v.

Chicago Tribune Co., 136 Ill. App. 3d 1019, 1022, 483 N.E.2d 965, 968 (1985) (“[t]ruth is a

defense to a defamation action”) and the doctrine of qualified privilege (see Krasinski v. United

Parcel Service, Inc., 124 Ill. 2d 483, 490, 530 N.E.2d 468, 471 (1988) (“[i]f defamation arises out

of an employer-employee relationship, the plaintiff may be confronted with a qualified privilege.

To overcome the privilege, the plaintiff has to plead and prove that the statements were made

with actual malice [i.e., with knowledge of its falsity or in reckless disregard for whether it was

true of false]”)). We disagree.

       Contrary to plaintiff’s assertion, we note that some courts in the majority have held that

the defense of truth and the requirement of unprivileged publication is in fact a reason for

rejecting the tort of compelled self-defamation. As the Supreme Court of Hawaii in Gonsalves

observed:

                “[A]nother argument against recognizing the compelled self-publication theory in

       this context is that ‘[t]ruth is an absolute defense’ to defamation. [Citation.] Thus, an


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No. 1-05-3584

       employer’s statement that the employee was terminated for a perceived reason would be

       truthful, regardless of whether the reason itself was accurate.” (Emphasis omitted.)

       Gonsalves, 100 Hawaii at 173, 58 P.2d at 1220.

Other courts have observed that even though truth is an absolute defense to defamation, it is no

protection against the incredibly high cost of litigation and the distraction from business that

accompanies that cost. See Cweklinsky, 267 Conn. at 229, 837 A.2d at 770 (“As a defense, truth

provides protection against liability, but not against the expense and inconvenience of being sued.

A successful defense is small comfort to an employer that must pay attorney’s fees to defend a

defamation claim and have the employer’s attention diverted from its business to the defense of

the suit. We are persuaded that most employers will likely choose a ‘culture of silence’ ”); see

also White, 442 Mass. at 70, 809 N.E.2d at 1038 (“Defamation litigation is costly. The

expenditure of time, resources and money required to defend a claim of compelled self-

defamation inevitably will induce self-censorship by employers”).

         Aside from the policy reasons already articulated above, we also note that arguably there

will always be a qualitative difference in the content of the allegedly defamatory statement when it

is made by the employer to a third party as opposed to when it is made by the employee to the

future employer. Presumably, even if “compelled” to tell her future employer about the

defamatory reasons of her termination, the employee will always qualify, or at least attempt to

qualify, the statements made against her to her own benefit, so that in fact there may not truly be

any defamation, but rather an opinion by the employee as to what the defamatory statements by

the employer may have been.


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       For the aforementioned reasons, and because we believe that it is the province of either

the legislature or the supreme court to create new causes of action (see Harrel, 268 Ill. App. 3d at

548, 644 N.E.2d at 455, citing Ruth, 114 Ill. App. 3d 404, 449 N.E.2d 209), we continue to

follow the rationale of the Second and Fifth Districts of the Appellate Court, and do not

recognize the tort of compelled-self defamation. As such, we find that the trial court did not err

in granting defendant’s section 2-615 motion to dismiss on this claim.

       For the foregoing reasons, we affirm the judgment of the circuit court.

       Affirmed.

       McBRIDE, P.J., and O’MALLEY, J., concur.




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