United States District Court, Northern District of Illinois
July 24, 1985
JENNIFER A. JONES, PLAINTIFF,
BRITT AIRWAYS, INC., DEFENDANT.
The opinion of the court was delivered by: Rovner, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Jennifer Jones ("Jones") filed a complaint against
defendant Britt Airways, Inc. ("Britt"), her former employer,
for libel and slander as a result of certain statements that
were made concerning her dismissal. Jones asserts that several
Britt employees made defamatory statements accusing her of
embezzling company funds. Jones alleges that, as a direct and
proximate result of the defamatory statements made by Britt
employees, she has suffered humiliation and embarrassment and
has been unable to secure further employment. She seeks
special damages for lost wages and an impaired credit rating,
as well as general damages for humiliation suffered.
Britt has moved for summary judgment on three grounds.
First, it contends that no defamatory statements were
published, asserting that a communication by one corporate
agent to another does not constitute publication, and any
defamatory remarks were made only amongst Britt employees.
Second, even if publication occurred, Britt argues that any
remarks made were subject to a qualified privilege which can
be overcome only by a showing of actual malice. Finally, Britt
contends that the remarks allegedly made can be innocently
construed and are not actionable.
Jones has also moved for leave to file a first amended
complaint which would add a count of negligence against Britt
for failure to investigate thoroughly the reasons for her
dismissal. Jones contends that Britt assumed a duty to
investigate when, in the course of a meeting with Jones
concerning the voided ticket that was the subject of her
dismissal, Britt employees told her that such an investigation
would be undertaken. As a result of its failure to complete
the promised investigation, Jones asserts that Britt is liable
to her in negligence.
For the reasons stated below, both Britt's motion for
summary judgment and Jones' motion for leave to amend her
complaint are denied.
When considering a motion for summary judgment, this Court
must construe the pleadings, depositions and affidavits most
strictly against the moving party and most liberally in favor
of the opponent. Trulson v. Trane Co., 738 F.2d 770 (7th Cir.
1984). The facts are therefore stated in a light most favorable
to the plaintiff.
Pursuant to a routine audit, Robert Mur-rell ("Murrell"),
Comptroller for Britt, initiated an investigation of several
suspect tickets issued on March 13, 1983 at the Britt station
at O'Hare Airport. The tickets had been marked "void,"
indicating that they had not been used and that no money had
been received. Other information revealed that the tickets had
been issued and actually used by passengers. The investigation
began on March 22, 1983, and was conducted by Murrell, by the
Director of Stations, Robert Pfrommer ("Pfrommer"), by the
Station Director, James Arble ("Arble"), and by the Assistant
Station Director, Brian Leahy ("Leahy"). Several Britt
employees were questioned concerning the tickets.
On March 24, 1983, Murrell, Pfrommer, Arble, and Leahy met
with Jones and questioned her about three tickets issued that
morning, all of which were subsequently determined to have
been properly voided. During that meeting, Jones initially
acknowledged that she might have written the word "void" on
another suspect ticket issued on March 13, but later denied
the writing. Murrell then placed Jones on suspension pending
an investigation, which he allegedly claimed might include
polygraph examinations and handwriting analysis. Jones told
Murrell she was willing to submit to a polygraph test and
expressed her wish to assist Britt in the investigation.
Jones contends that no such investigation was ever conducted
and she was never given a polygraph examination. The extent of
Britt's investigation consisted of a phone call made to Sherry
Confere, the passenger to whom the March 13 ticket had been
issued. Ms. Confere verified that she had used the ticket on
March 13, and she executed a statement to Britt to that
effect. On April 13, 1983, Arble sent Jones a letter stating
that she was terminated because the "discrepancies" that had
been brought to her attention had been "confirmed." Arble sent
copies of the letter to Murrell and Pfrommer.
Before and after she was terminated, Jones' attorney
requested information concerning both the investigation and
Jones' ultimate termination. He also reasserted Jones'
willingness to assist in the investigation. He received a
letter from Marilyn Britt, Assistant to the President,
confirming the reasons for Jones' suspension and termination.
The letter stated that her dismissal was based on her conduct
at the March 24 meeting, specifically her denial that she had
voided the suspect ticket, and on Britt's determination that
the ticket had actually been used by a Britt passenger.
The circumstances surrounding Jones' suspension and
subsequent dismissal were discussed with several low-level
Britt employees, including a ticket agent, Denise Farace, and
a counter agent, Donna Witten, both of whom were outside the
scope of the investigation.
Publication is an essential element of a cause of action for
libel or slander. The only requirement for publication is that
the defamatory statements be communicated to a third person.
"There may be publication to any third person. It may be made
to . . . the defendant's own agent, employee or officer, even
when the defendant is a corporation." W. Prosser & W. Keeton,
Torts § 113 at 798 (5th ed. 1984). Some courts have found no
publication to have occurred when a defamatory statement is
communicated only within the corporation, see e.g., Prins v.
Holland North American Mortgage Co., 107 Wn. 206,
181 P.2d 680 (1919), but these courts apparently confused the issues of
publication and privilege. Prosser, id. at 799.
Illinois slander and libel cases rarely concern the issue of
publication because communication to any third party satisfies
the Illinois publication requirement. Only a qualified
privilege can render such statements protected. For example,
in Kamberos v. Schuster, 132 Ill. App.2d 392, 270 N.E.2d 182
(1st Dist. 1971), an attorney sued her supervisors for
defamatory statements made in memoranda and job evaluation
reports concerning her conduct on the job. The court found the
statements were published but protected by a qualified
Britt cites only one Illinois case to support its theory
that communication between members of a corporation does not
constitute publication for the purposes of libel. Britt
contends that the court in Welch v. Chicago Tribune Co.,
34 Ill. App.3d 1046, 340 N.E.2d 539 (1st Dist. 1975), implicitly
recognized this theory. In Welch, a memorandum containing
defamatory statements about an employee was placed on a
bulletin board in a newsroom. The court stated that publication
occurred when the bulletin was read by an individual who may or
may not have been an employee. "Publication to third persons
having no interest in the reasons for which plaintiff was
terminated was actionable. . . ." Id. at 1052-53,
340 N.E.2d 539. The court reversed the granting of summary judgment to the
defendant, however, because the defendants had not established
their qualified privilege defense as a matter of law. Thus,
Welch does not support Britt's argument.
Britt also contends that no publication can occur between
agents of the parties to the action. Therefore, when Arble's
secretary transcribed Jones' termination letter, and when
Jones' attorney received Marilyn Britt's letter, they were
acting as agents to the parties involved and publication could
not have taken place. Although publication of Arble's letter
may not have occurred upon dictation to his secretary,
Mims v. Metropolitan Life Insurance Co., 200 F.2d 800 (5th Cir.
1952), cert. denied, 345 U.S. 940, 73 S.Ct. 831, 97 L.Ed.2d
1366 (1953), it did occur when copies of it were directed to
Arble and Pfrommer. When a letter is written in response to an
attorney's inquiry, however, "that letter is the equivalent to
a publication to plaintiff himself, and therefore is privileged
and is not actionable." Millsaps v. Bankers Life Co., 35 Ill. App.3d 735,
742, 342 N.E.2d 329 (2nd Dist. 1976).
This Court holds that, with the exception of Marilyn Britt's
letter to Jones' attorney, all of the statements in this case
were published for the purposes of establishing that element
of libel and slander.
Defendant contends that even if the alleged statements were
published, they were protected by a qualified privilege. A
party seeking to assert a qualified privilege must satisfy
1) good faith by the writer, 2) an interest or
duty to uphold, 3) a statement limited in scope
to that purpose, 4) a proper occasion, and 5)
publication in a proper manner and to proper
Bond v. Pecaut, 561 F. Supp. 1037, 1039 (N.D.Ill. 1983). Whether
the qualified privilege is established is an issue of fact.
Welch v. Chicago Tribune Co., 34 Ill. App.3d 1046, 1051,
340 N.E.2d 539 (1st Dist. 1975).
An employer unquestionably has an interest in investigating
suspicious conduct by employees within his company. In
Fascian v. Bratz, 96 Ill. App.3d 367, 51 Ill.Dec. 901,
421 N.E.2d 409 (3rd Dist. 1981), management personnel of a Kroger
grocery store investigated the disappearance of money order
funds. They suspected the involvement of the defendant. Even
though a full police investigation later cleared the employee,
the court upheld the employer's actions. "Kroger had an
undeniable interest in determining the source of the theft and
who did it." Id. at 369, 51 Ill.Dec. 901, 421 N.E.2d 409. Under
similar circumstances here, Britt clearly had an interest in
determining the circumstances surrounding the improper issuance
of tickets and appropriation of company funds, and the March 24
meeting was a "proper occasion" to determine the facts.*fn1
An issue of fact regarding the qualified privilege is
raised, however, concerning the scope of the Britt
investigation. Jones contends that extensive publication of
the defamatory statement occurred among several levels of
Britt employees, ranging from the assistant to the President
to a ticket agent. She claims that such publication is not
made in an "appropriate manner and to the appropriate
parties." In Fascian v. Bratz, supra, the court upheld the
theft investigation because "all inquiries with respect thereto
were conducted by Kroger's management employees behind closed
doors." By confining the scope of the investigation, the
qualified privilege was protected. Similarly, in Ashe v.
Hatfield, 13 Ill. App.3d 214, 300 N.E.2d 545, (1st Dist. 1973),
a derogatory memorandum about the plaintiff's job performance
was conditionally privileged because publication was limited to
other management personnel. Because the depositions submitted
by both parties in this case are in conflict as to who
discussed Jones' dismissal and termination, a material issue of
fact exists which precludes summary judgment. When construed in
a light most favorable to Jones, it appears that defamatory
statements were not confined solely to discussion among
Even if Britt can establish her entitlement to a qualified
privilege, the privilege may be overcome by a showing of
actual malice on the part of the defendant. Colson v. Stieg,
89 Ill.2d 205, 60 Ill.Dec. 449, 433 N.Ed.2d 246 (1982). Actual
malice is defined as publication of a defamatory statement
"with knowledge that it was false or with reckless disregard of
whether it was false or not." Fopay v. Noveroske,
31 Ill. App.3d 182, 189, 334 N.E.2d 79 (5th Dist. 1975). The
plaintiff must prove the issue of malice by "clear and
convincing evidence." Id. at 190, 334 N.E.2d 79.
Jones asserts that Britt's bad faith, or its reckless
disregard for the truth, is demonstrated by Murrell's failure
to investigate the incident. Murrell's alleged investigation
was to include a polygraph test and a handwriting analysis,
neither took place. A failure to investigate is not in itself
evidence of bad faith. Troman v. Wood, 62 Ill.2d 184,
340 N.E.2d 292 (1975). Nonetheless, there must be some
justification for the failure to investigate. Fopay v.
Noveroske, 31 Ill. App.3d 182, 334 N.E.2d 79 (5th Dist. 1975).
To prove malice based on reckless disregard for the truth,
there must be "sufficient evidence to permit the conclusion
that the defendant in fact entertained serious doubts as to the
truth of his publication." St. Amant v. Thompson, 390 U.S. 727,
at 731, 88 S.Ct. 1323, at 1325, 20 L.Ed.2d 262 (1968).
There is sufficient evidence in the record to indicate that
Britt personnel may have entertained doubts about Jones'
guilt. Murrell himself admitted that he had doubts as to who
had written the "void" on the ticket at issue and admitted
that his only basis for accusing the plaintiff of having done
so was the purported similarity in writing. He conceded,
however, that the writing was also similar to that of another
suspected employee and conceded that he was no handwriting
expert. He did nothing to determine who in fact was guilty,
despite his promises to the contrary, and accused the
plaintiff despite the fact that another supervisor admitted to
having improperly voided six tickets and keeping the cash just
one hour before the plaintiff was questioned. Finally,
according to plaintiff, the defamatory accusations against her
were repeated and disseminated extensively amongst various
Britt employees, afterwards further evidencing Britt's bad
faith or reckless disregard of the truth. Because these
circumstances indicate that there is a factual issue as to the
existence of malice, Britt's motion for summary judgment
cannot be granted. Welch v. Chicago Tribune Co., 34 Ill. App.3d 1046,
1052, 340 N.E.2d 539 (1st Dist. 1975).
Britt also contends that any libelous or slanderous
statements made are not actionable because they are subject to
the Illinois innocent construction rule. The innocent
construction rule, as applied in Chapski v. Copley Press,
92 Ill.2d 344, 65 Ill.Dec. 884, 442 N.E.2d 195 (1982), is defined
. . a written or oral statement is to be
considered in context, with the words and the
implications therefrom given their natural and
obvious meaning; if, as so construed, the
statement may . . . reasonably be interpreted as
refering to someone other than the plaintiff, it
cannot be actionable per se. This preliminary
determination is properly a question of law to be
resolved . . . in the first instance; whether the
publication was in fact understood to be defamatory
or to refer to the plaintiff is a question for the
jury should the initial determination be resolved
in favor of the plaintiff.
Chapski v. Copley Press, 92 Ill.2d at 352, 65 Ill.Dec. 884,
442 N.E.2d 195
Illinois courts have been liberal in applying the innocent
construction rule. The writings or statements must be read as
a whole and given their obvious meaning. In Ashe v. Hatfield,
13 Ill. App.3d 214, 300 N.E.2d 545 (1st Dist. 1973), a
memorandum which bore on the plaintiff's capacity to do his job
was construed innocently. The language used by Arble in his
April 13 letter to Jones informing her of her dismissal is
similar in many respects and may therefore be subject to
innocent construction. Murrell, however, testified that he
interpreted the "discrepancies" that Arble claimed were
"confirmed" to mean that Jones had improperly voided the March
13 ticket and had taken the cash. Such a construction by a key
member of Britt's staff makes innocent construction of Britt's
letter impossible. As the letter can not be interpreted to
refer to anyone other than Jones,
the Chapski guidelines make this an issue of fact to be
determined by a jury.
When reviewing the occasions in which Britt employees
discussed the alleged improper voiding of tickets and Jones'
involvement, there are several instances where innocent
construction is not possible. For instance, Jones claims that
Murrell stated to several other members of Britt management
that she "stole money" from the cash drawer and that a fellow
ticket agent heard that she had been discharged for stealing
money. These statements infer criminal activity by Jones and
can not be construed to infer that she was merely drawing her
salary in advance, as Britt suggests by citing Conrad v. Logan,
4 Ill. App.3d 981, 283 N.E.2d 54 (1st Dist. 1972). Accordingly,
Britt's motion for summary judgment is denied.
Motion by Jones for Leave to Amend
Jones has moved for leave to amend her complaint to add a
count of negligence for Britt's failure to investigate the
circumstances surrounding her dismissal. Fed.R. Civ.P. 15(a)
provides that "leave to amend should be freely given" when the
interests of justice so dictate. Although this rule has always
been liberally applied, Britt asserts that leave should not be
granted to Jones to amend on two grounds: first, that the
motion is not timely; and second, that the motion is not
justified by the existing law. Although the Court agrees that
Jones' motion for leave to amend could have been brought
earlier, it denies the motion not for that reason but because
the added Count does not state a claim for relief under
Jones claims that Illinois law recognizes a tort action for
Murrell's negligence in failing to follow through on the
alleged investigation, even though that investigation was
gratuitously undertaken. Illinois recognizes no such action in
the area of employment.
Illinois has adhered strictly to the doctrine of employment
at will, which permits an employer to discharge an employee
for good reason, bad reason, or no reason at all. Sargent v.
Illinois Institute of Technology, 78 Ill. App.3d 117, 33
Ill.Dec. 937, 397 N.E.2d 443 (1st Dist. 1979). Illinois courts
have been loathe to erode this doctrine, and have done so only
where public policy so dictates, such as when the employer
discharges an employee in retaliation for exercising rights
under the Workmen's Compensation Act. Kelsay v. Motorola,
74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978). Illinois
has also permitted actions to lie in contract where an express
employment contract is involved. Sargent v. Illinois Institute
of Technology, 78 Ill. App.3d 117, 33 Ill.Dec. 937,
397 N.E.2d 443 (1st Dist. 1979). All of the cases cited by Jones are
inapposite, and Jones has cited no Illinois case on point.
Illinois law recognizes no duty of an employer to investigate
circumstances surrounding the dismissal of his employees, even
when that investigation is gratuitously undertaken for the
benefit of the employee. Accordingly, Jones' motion for leave
to amend is denied because amending the complaint to add a
count which would be dismissed for failure to state a claim
would be futile.
Britt's motion for summary judgment is denied, and Jones'
motion for leave to amend her complaint to add a count in
negligence is denied.