alleging facts which show that he has no claim . . . he is not required to allege those facts." Jackson, 66 F.3d at 152.
Furthermore, the Court rejects Defendant's argument regarding the order of events on May 30, 1996. Defendant argues that reading Plaintiff's allegations "in a logical manner reveals" that Cohen first accused Plaintiff of drunk driving on the job and only then did Plaintiff fess up to his alcoholism. While Defendants' version of the May 30, 1996 events may be reasonably inferred from Plaintiff's complaint, at this stage the Court must draw all reasonable inferences in favor of the Plaintiff. Hence, the Court draws a different reasonable inferences, that the events happened in the order presented in the Complaint. Besides, even if the drunkenness accusation was made first, Plaintiff could still establish his case, particularly if he could establish that the accusation was false. Therefore, while Defendants' argument may be fodder for summary judgment, it is not appropriate at this early stage of the litigation.
Therefore, the Court denies Defendant's motion with respect to dismissing Count II of Plaintiff's Complaint.
C. Dismissal of Count III (Intentional Infliction of Emotional Distress)
Defendant argues that Plaintiff's state law claim for intentional infliction of emotional distress ("IIED") (1) is barred by the Illinois Workers Compensation Act ("IWCA"), 820 ILCS 305/1 et seq., and (2) fails to state a claim. The Court considers each argument in turn.
1. IWCA Does Not Bar Plaintiff's Common Law Claims
Under the IWCA, "an employee has no right to recover damages from the employer or its agents or employees for accidental injuries incurred in the course of employment." Hunt-Golliday v. Metropolitan Water Reclamation District of Greater Chicago, 104 F.3d 1004, 1016 (7th Cir. 1997). Thus, Plaintiff must demonstrate one of the following four propositions: (1) the injury was not accidental, (2) the injury did not arise from his employment, (3) the injury was not received during his employment, or (4) the injury is not compensable under the Act. Id.; Meerbrey v. Marshall Field and Co., 139 Ill. 2d 455, 463, 151 Ill. Dec. 560, 564 N.E.2d 1222 (1990).
As Plaintiff alleges his injury was not accidental, for the purposes of this motion the Court finds that the IWCA does not bar Plaintiff's action. Cohen allegedly inflicted Plaintiff's injuries intentionally. The IWCA does not shield from liability an employee who intentionally injures a fellow employee. Meerbrey, 139 Ill. 2d at 463. Accordingly, the IWCA does not bar Plaintiff's action with respect to Cohen. Furthermore, the IWCA does not bar Plaintiff's action against Town & Country. An injury intentionally inflicted on an employee by another employee is considered "accidental on behalf of the employer if it was unexpected and unforeseen by the injured party, unless the employer expressly authorized the co-employee to commit the tort." Hunt-Golliday, 104 F.3d at 1016. However, an action will not be barred with respect to injuries that the employer or its "alter ego" intentionally inflicted. Id. at 1017. Plaintiff alleges Cohen, the owner and president of Town & Country, is the alter ego of the company. (Comp. P 6.) Although Defendants claim "plaintiff is unable to prove that the defendant acted as the alter ego of the company," Def. Resp. at 7, whether Plaintiff can prove the point is irrelevant at this stage of the litigation. For now, Plaintiff need only allege facts, not prove them. Plaintiff has alleged that when Cohen intentionally injured Plaintiff, Cohen was acting as the alter ego of Town & Country; accordingly, for the purposes of this motion, the Court finds the IWCA does not bar Plaintiff's claims against Town & Country.
2. Plaintiff Alleges Elements of IIED Claim
In order to state an IIED claim under Illinois law, Plaintiff must allege: (1) Defendants acted in an extreme and outrageous manner; (2) Plaintiff suffered severe emotional distress; (3) Defendants intended to cause, or had a reckless disregard of the probability of causing, emotional distress; and (4) Defendants actually or proximately caused the emotional distress by the outrageous conduct. Hunt-Golliday, 104 F.3d at 1016; Doe v. Calumet City, 161 Ill. 2d 374, 204 Ill. Dec. 274, 641 N.E.2d 498 (1994). Defendants claim Plaintiff has failed to sufficiently allege any of these elements.
The Court first considers whether Plaintiff sufficiently alleges extreme and outrageous acts on the part of Defendant. Illinois courts have found liability "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency. . . ." Harriston v. Chicago Tribune Co., 992 F.2d 697, 702-703 (7th Cir. 1993); Public Fin. Corp. v. Davis, 66 Ill. 2d 85, 360 N.E.2d 765, 767, 4 Ill. Dec. 652 (1976). The Court applies an objective standard in determining whether the alleged conduct is sufficiently extreme and outrageous, Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 623 (7th Cir. 1989), inquiring whether "the distress inflicted is so severe that no reasonable man could be expected to endure it. Id. In the workplace setting, courts have found that terminating an employee in violation of an anti- discriminatory statute, or harshly criticizing or insulting an employee, is not enough to constitute extreme and outrageous conduct. Harriston v. Chicago Tribune Co., 992 F.2d 697, 702-703 (7th Cir. 1993); Public Fin. Corp. v. Davis, 66 Ill. 2d 85, 360 N.E.2d 765, 767, 4 Ill. Dec. 652 (1976).
In accordance with Illinois case law regarding IIED claims, the Court finds Plaintiff fails to allege that Defendant committed an "extreme and outrageous" act. To be sure, Plaintiff alleges that "Defendants' conduct was outrageous and so extreme in degree as to go beyond the bounds of decency and to be regarded as atrocious and intolerable in a civilized society." (Comp. P 57.) But this allegation is a mere legal conclusion, characterizing conduct factually described in the Complaint, and the Court disregards that allegation and looks only to the Complaint's factual allegations. See Baxter, 26 F.3d at 730. The Complaint alleges Defendants' "extreme and outrageous" acts were: verbally abusing and insulting Plaintiff on May 30, 1996; repeating those (allegedly false) statements to others; taking away Plaintiff's demonstration vehicle; effectively reducing Plaintiff's pay; searching Plaintiff's telephone records for personal phone calls; docking Plaintiff for personal leave days taken prior to May 30, 1996; ordering Plaintiff to reimburse Town & Country for draws he previously made against his commission; and, on June 26, 1996, terminating Plaintiff's employment. Except for the termination, Defendant's alleged acts, individually and cumulatively, amount to little more than annoyances and insults, and, given the high standard established by the case law, are a far cry from being sufficiently outrageous to support an IIED claim. As demonstrated above, courts have rejected IIED claims based on acts far worse than those alleged here. Furthermore, as demonstrated above the courts consistently have held that the most extreme of the alleged acts, terminating Plaintiff's employment in violation of federal anti-discrimination laws, is insufficient to support an IIED claim.
Accordingly, the Court finds that Plaintiff fails to state a claim for intentional infliction of emotional distress and, as a result, dismisses Count III of Plaintiff's complaint.
D. Dismissal of Count IV (Defamation)
Lastly, Plaintiff seeks to state a claim for defamation per se. In order to state a claim for defamation under Illinois law, Plaintiff must allege: (1) defamatory assertion of fact about Plaintiff; (2) publication of that assertion; and (3) injury to Plaintiff's reputation. Cozzi v. Pepsi-Cola General Bottlers, Inc., 1997 U.S. Dist. LEXIS 7755, 1997 WL 308841 (N.D. Ill. June 2, 1997). However, if the defamatory statement is actionable per se, injury to reputation is presumed, excusing Plaintiff from pleading (or proving) that element. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 672 N.E.2d 1207, 1214, 220 Ill. Dec. 195 (Ill. 1996). Under common law,
four categories of statements are considered actionable per se : (1) statements imputing commission of a criminal offense, (2) statements imputing infection with a loathsome communicable disease, (3) statements imputing inability to perform or want of integrity in the discharge of duties of office or employment, or (4) words that prejudice a party, or impute lack of ability, in his or her trade. 672 N.E.2d at 1214-15. But a statement falling in one of the per se categories will not be actionable per se if it is "reasonably capable of innocent construction." Id. at 1215. In applying the "innocent construction rule," the Court considers the statement in its full context and gives the words and implications their natural and obvious meanings. Id.
Defendant claims that none of Plaintiff's allegations support a claim of defamation per se ; however, the Court rejects this claim. Plaintiff specifically alleges that Defendant Cohen accused Plaintiff of driving his demonstration vehicle under the influence of alcohol, Comp. P 20, and repeated that statement to others. Comp. PP 22, 24. Of course, driving an automobile under the influence of alcohol is a crime in Illinois. 625 ILCS 5/11-501 (West 1997). Thus, Cohen's alleged statement squarely fits into the first category of per se defamatory statements, those which impute commission of a crime. While some or all of the other alleged statements at least arguably are capable of reasonable innocent constructions, there simply is no innocent construction of the Cohen's alleged drunk-driving accusation -- it clearly and unavoidably imputes that Plaintiff committed the crime of driving under the influence of alcohol. Accordingly, the alleged statement is defamatory per se.
Therefore, the Court finds that Plaintiff states a claim for defamation per se and denies Defendants' motion to dismiss Count IV of Plaintiff's Complaint.
For the foregoing reasons, the Court grants in part and denies in part Defendant's motion to dismiss. Specifically, the Court dismisses Defendant Cohen from Counts I and II of Plaintiff's Complaint and dismisses Count III of Plaintiff's Complaint in its entirety, but denies the remainder of Defendant's motion.
JOHN A. NORDBERG
United States District Judge
DATED: November 24, 1997