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03/13/89 Leo N. Dubrovin, v. Marshall Field's & Company

March 13, 1989

LEO N. DUBROVIN, PLAINTIFF-APPELLANT

v.

MARSHALL FIELD'S & COMPANY EMPLOYEE'S CREDIT UNION ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

536 N.E.2d 800, 180 Ill. App. 3d 992, 129 Ill. Dec. 750 1989.IL.315

Appeal from the Circuit Court of Cook County; the Hon. Richard H. Jorzak, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MANNING delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING

Leo N. Dubrovin, plaintiff, filed this action to recover damages in the circuit court of Cook County, alleging slander per se against Marshall Field's & Company Employee's Credit Union, Marshall Field's & Company, and John Ahlers, chairman of the board of directors of the credit union.

Plaintiff has been employed by Marshall Field's & Company since 1946 in a variety of positions. From November 1977 through May 1985, the plaintiff was employed by Marshall Field's & Company (Marshall Field's) and the Marshall Field's & Company Employee's Credit Union, wherein he held the offices of president-treasurer and served in the salaried position of managing director of the Marshall Field's & Company Employee's Credit Union (Credit Union). Plaintiff was on Marshall Field's executive payroll. However, the credit union reimbursed Marshall Field's for plaintiff's salaried position.

Although plaintiff was reelected as a director of the credit union on March 15, 1985, John Ahlers, chairman of the board of directors of the credit union, informed the plaintiff on May 1, 1985, that his employment with the credit union was terminated based on the plaintiff's failure to meet certain performance objectives. Mr. Ahlers stated by affidavit that the plaintiff held the salaried position of manager of the credit union, and that he removed the plaintiff from that position, but never advised plaintiff that he could not continue to serve as a director and in the capacity of president and treasurer of the credit union. Moreover, plaintiff attended a board of directors meeting on June 12, 1985, where he voted as a director and provided a report in his capacity as president and treasurer of the credit union.

After notifying plaintiff of his employment termination, Mr. Ahlers, offered the plaintiff a position as a shoe salesman at the Marshall Field's Oak Brook store, which he initially declined but subsequently accepted. Mr. Ahlers also accompanied the plaintiff to the credit union office after notifying him of his employment termination, and in the presence of other Marshall Field's employees, asked the plaintiff to clean out his desk, return his credit union office keys, leave some personal belongings in the credit union office and leave the premises. Mr. Ahlers then proceeded to escort the plaintiff to the elevator and exit door. While in the elevator, and in the presence of another Marshall Field's employee, Mr. Ahlers asked the plaintiff for his building pass. At the exit door, in the presence of other Marshall Field's employees, plaintiff's personal belongings were inspected by a Marshall Field's security guard.

On May 31, 1985, plaintiff filed his original complaint in the chancery division of the circuit court of Cook County seeking an injunction to restrain the directors of the credit union from removing him as president-treasurer and managing director of the credit union. The Illinois Credit Union Act (Ill. Rev. Stat. 1985, ch. 17, par. 4436) and the credit union bylaws require a majority vote of the board of directors to remove officers or members of the board of directors. When the plaintiff filed his original complaint, Mr. Ahlers had personally notified him of his employment termination. However, the board of directors had not acted upon his removal as a member of the board of directors or as an officer. On June 21, 1985, the board of directors voted to terminate the plaintiff as president-treasurer of the credit union. They also resolved that the plaintiff would remain as a director of the credit union and serve as chairman of the membership committee. However, plaintiff asserts that he was not provided with notice of the May 23, 1985, and June 27, 1985, special meetings of the board of directors.

On July 22, 1985, plaintiff filed an amended complaint. In count I plaintiff sought an order to restrain the board of directors from preventing him from assuming his duties as a director of the credit union by not providing him with proper notice of the meetings of the board of directors. On August 8, 1985, the trial court entered an order that plaintiff be provided with the "usual and customary notice" of the board of director meetings and that a record be maintained of the notice of meetings provided to the plaintiff. The trial court further ordered the transfer of the remaining counts to the law division since no equitable matters remained before the court.

The defendants filed motions to strike or dismiss plaintiff's amended complaint on the ground that the complaint was insufficient as a matter of law, since it failed to state a cause of action. The motions to dismiss were granted by the trial court on June 20, 1986. Thereafter, plaintiff filed a second amended complaint. The defendants again filed motions to strike or dismiss plaintiff's second amended complaint upon the ground that it was insufficient at law, since it failed to state a cause of action. On November 14, 1986, the trial court granted the defendants' motions, dismissing the second amended complaint for failure to state a cause of action pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615).

Plaintiff argues on appeal that his second amended complaint does state a cause of action for slander per se since the defendants' acts and gestures communicated to third parties that he lacked integrity in his profession and he is a thief. Plaintiff further contends that Marshall Field's has a store policy that only employees terminated for security reasons are escorted from the premises. Defendants contend that to state a cause of action for slander per se the plaintiff must allege that a false statement was made, and when stripped of innuendo, is not reasonably capable of an innocent interpretation. Defendants further contend that conduct unaccompanied by words does not constitute slander per se.

When reviewing a complaint that was dismissed for failure to state a cause of action, we must accept as true all well-pleaded facts and reasonable inferences therefrom to determine whether the complaint states a cause of action as a matter of law. Szajna ...


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