United States District Court, Northern District of Illinois, E.D
December 15, 1982
KENNETH ZUREK, PLAINTIFF,
MICHAEL HASTEN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Kenneth Zurek ("Zurek") has filed this action against
officials and employees of the Illinois Commerce Commission
("ICC"),*fn1 charging an array of torts and civil rights
violations in connection with Zurek's discharge as an ICC
accountant. Defendants have moved to dismiss all five counts
of Zurek's current amended complaint filed July 22, 1982 (the
"Complaint"). This opinion deals only with Counts II, III and
1. Count II, brought under 42 U.S.C. § 1983
("Section 1983"), charges that defendants'
stigmatization of Zurek in connection with his
discharge infringed Zurek's constitutionally
protected liberty interests by foreclosing him from
other employment opportunities.
2. Count III is a pendent state law defamation
3. Count IV asserts the pendent tort claim of
For the reasons stated in this memorandum opinion and order,
defendants' motion is denied as to each of those counts.
Count II asserts Zurek was deprived of his constitutionally
protected "liberty" because a derogatory letter placed in
Zurek's personnel file*fn3 allegedly foreclosed, as the Court
put it in Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct.
2701, 2707, 33 L.Ed.2d 548 (1972),
"his freedom to take advantage of other employment
opportunities." Specifically, Count 11 ¶¶ 11-12 allege the
letter and the circumstances of his termination bar Zurek from
Internal Revenue Service ("IRS") employment, and Count II ¶ 16
asserts Zurek's actual inability to obtain other professional
employment since his termination.
Though Opinion I found comparable allegations sufficient to
state a Section 1983 claim, defendants nevertheless advance
several reasons for dismissing Count II:*fn4
1. Zurek did not adequately allege the
stigmatizing information was publicized.
2. Zurek did not allege defendants' actions
actually precluded him from securing employment.
3. Zurek failed to request, and thus was never
denied, a "name clearing" hearing.
4. Zurek failed to attach a copy of Dimmick's
letter as an exhibit to the Complaint.
None of those arguments warrants departure from Opinion I's
As to the public disclosure issue, the Complaint does seem
to look in two directions. Count II ¶ 6 refers to the offending
letter as having been put "in general circulation," but there
is no specific allegation of delivery (either of the document
or its contents) to any prospective employer. In much the same
way, it is unclear whether Zurek's inability to obtain IRS
employment is the product of actual unsuccessful applications
consequent on the stigmatizing disclosure, or rather simply a
prediction of that possibility (see Count II ¶ 12, which reads
like the latter, and Count II ¶ 14, which states clearly
premature claims of expected effects on Zurek's career as a
What saves Zurek is the necessary drawing of inferences most
favorable to him (appropriate on a motion to dismiss). So
taken, Count II suggests defendants actually divulged the
stigmatizing information to the IRS and are also willing to
disclose it to any other prospective government employer. As
Larry v. Lawler, 605 F.2d 954, 958 (7th Cir. 1978) makes clear,
such potential government-wide disclosure would satisfy any
requirement of public dissemination.*fn5
Those same allegations, coupled with the same favorable
inferences, meet the pleading requirement of "tangible" loss,
Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1161, 47
L.Ed.2d 405 (1976), that must accompany the stigma: foreclosure
of (as distinct from mere interference with) employment
opportunities. Zurek's claimed inability to obtain any
government employment would be a deprivation of
constitutionally protected liberty interests under Larry, 605
F.2d at 958.*fn6
Nor does Zurek's failure specifically to request a "name
clearing" hearing jeopardize his liberty deprivation claim. As
soon as they were aware of this action (it was filed one day
before Zurek's actual termination), defendants were aware of
his desire for an opportunity to rebut the charges underlying
his discharge. Despite that knowledge, defendants have never
offered Zurek such an opportunity. Absent some showing that a
particular form of
request is necessary, defendants' inaction must be viewed as
tantamount to a refusal to afford a "name clearing" hearing.
And as defendants concede, denial of such a hearing infringes
the Due Process Clause (assuming a protected liberty interest
has been impaired). See Codd v. Velger, 429 U.S. 624, 627, 97
S.Ct. 882, 884, 51 L.Ed.2d 92 (1977) (per curiam).
Finally, Zurek's failure to annex Dimmick's allegedly
stigmatizing letter to the Complaint is not fatal. Federal
(unlike Illinois state) pleading does not impose such a
requirement. Indeed, if Zurek's allegations as to the nature
of the letter are accurate, it would be most unfair to force
its public disclosure by making it part of the pleadings (an
absolutely privileged vehicle for possible defamation and
Count II thus survives defendants' renewed attack. Their
motion for its dismissal is denied.
Counts III and IV
Counts III and IV are pendent state tort claims,
respectively asserting defamation and retaliatory discharge.
At the threshold defendants assail both counts on sovereign
immunity grounds, contending this action is effectively
directed against the State of Illinois itself in violation of
Ill.Rev.Stat. ch. 127, § 801. That position is obviously
unsound, for (1) defendants' claimed wrongful acts allegedly
exceeded their authority and (2) the relief sought by Zurek
(individual damages against defendants) would not "control the
operations of the State or subject it to liability." See
Hoffman v. Yack, 57 Ill. App.3d 744, 748, 15 Ill.Dec. 140, 144,
373 N.E.2d 486, 490 (5th Dist. 1978).*fn8 This opinion turns,
then, to claimed defects in the individual Counts.
1. Count III
As to Zurek's defamation-based claim defendants assert:
1. Any defamatory statements are absolutely
privileged under McLaughlin v. Tilendis,
115 Ill. App.2d 148, 153, 253 N.E.2d 85, 86-88 (1st
Dist. 1969), absent any allegation they were made
to private individuals.
2. Zurek failed to plead "actual malice," a
vital element of any defamation claim against a
public official. New York Times Co. v. Sullivan,
376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11
L.Ed.2d 686 (1964).
Neither contention has merit.
First, McLaughlin itself recognizes, 115 Ill.App.2d at 152,
253 N.E.2d at 87 (quoting Cook v. East Shore Newspapers, Inc.,
327 Ill. App. 559, 577-78, 64 N.E.2d 751, 759-60 (4th Dist.
1945)) the absolute privilege extends only to a narrow category
of communications, including those "made in the discharge of a
duty under express authority of law, or to heads of the
executive departments of the State, and matters involving
military affairs." True enough, Dimmick's letter and other
derogatory statements by defendants in deciding whether to
terminate Zurek may have been expressly authorized by state
law. But any dissemination of such defamatory information to
outsiders (including IRS officials) is not similarly sanctioned
(or more accurately, defendants have not identified any state
law so doing). See Yack, 57 Ill.App.3d at 748-49, 15
Ill.Dec. at 144, 373 N.E.2d at 490 (defendant's false
accusation not privileged because not in furtherance or within
the scope of his duties as supervisor).
Defendants' second argument is equally fallacious, because
its premise — that Zurek is a "public official" for First
Amendment purposes — is mistaken. Rosenblatt
v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), the
most recent Supreme Court exposition of that nebulous term, put
the question in two ways:
1. whether the government employee has, or
appears to the public to have, "substantial
responsibility for or control over the conduct of
governmental affairs" (id. at 85, 86 S.Ct. at 676);
2. whether the employee's "position in
government has such apparent importance that the
public has an independent interest in the
qualifications and performance of the person who
holds it, beyond the general public interest in
the qualifications and performance of all
government employees" (id. at 86, 86 S.Ct. at 676).
Zurek simply does not fall within either contour of the public
Perhaps defendants could establish (as they urge) Zurek was
a significant evidentiary source as an expert witness in some
ICC rate proceedings. But lacking either prosecutorial or
adjudicatory responsibility, Zurek did not have "substantial
responsibility for or control over" the conduct or resolution
of those cases. By the same token, Zurek plainly did not have
"apparent importance" arousing public interest greater than
that regarding the typical government employee.
Our Court of Appeals' liberal construction of the "public
official" doctrine in Meiners v. Moriarity, 563 F.2d 343,
351-52 (7th Cir. 1977) is clearly distinguishable. Moriarity
bestowed "public official" status on federal narcotics agents
because their "decisions to search and to arrest directly and
personally affect individual freedoms," 563 F.2d at 352
(emphasis added). At most Zurek's involvement in the rate
proceedings had only an indirect economic impact on the general
public (even assuming his testimony influenced the disposition
of these cases).
Accordingly Count III withstands defendants' Fed.R.Civ.P.
12(b)(6) challenge. It too must be answered.
2. Count IV
Defendants urge a retaliatory discharge claim can be brought
only against an employer (here the ICC) and not against the
individuals responsible (the individual defendants). However
none of the handful of Illinois cases involving the
retaliatory discharge tort has foreclosed this possibility. In
fact, in the one reported lawsuit brought against both the
employer and the "retaliating" supervisor, Rozier v. St. Mary's
Hospital, 88 Ill. App.3d 994, 44 Ill.Dec. 144, 411 N.E.2d 50
(5th Dist. 1980), the Appellate Court, though dismissing the
case on a variety of grounds, passed up the opportunity to
confine this tort to employers.
Moreover, it would distort normal tort doctrine, once a
cause of action is recognized, to impose liability on a
wrongdoer's principal but not on the wrongdoer himself. And at
least two other policy reasons support the normal concept of
individual responsibility here:
1. Deterrence — always a goal of intentional
tort liability — would be better served if both
the active wrongdoer and the employer were assessed
with joint and several responsibility.
2. Even more important here, if and to the
extent sovereign immunity would insulate
government employers from liability, any government
employee who has been terminated on grounds
offensive to public policy would have no remedy for
that wrong unless the responsible co-employees
could be sued.
Count IV also withstands dismissal.
Defendants' motion to dismiss is denied as to each of Counts
II, III and IV. They are ordered to answer those Counts on or
before December 30, 1982.