the appropriate allegations, which I must here accept as true.
To prove that there was an intentional and unjustifiable
inducement of a breach requires that the defendants' conduct be
contrary or unrelated to any outweighing interest, see Turner v.
Fletcher, 302 Ill. App.3d 1051, 235 Ill.Dec. 959, 706 N.E.2d 514,
519 (1999), and Mr. Bogosian alleges that the teachers were
motivated by jealousy and intolerance, which would certainly
qualify as unjustifiable. The defendants object that Mr. Bogosian
fails to set forth factual allegations from which it can
reasonably be inferred that their conduct was unlawful. However,
while pleading with that degree of factual specificity may be a
requirement in Illinois state court, it is not a requirement in
federal court, the forum to which defendants removed this case.
Under the liberal notice pleading requirements of the federal
rules, "[a]ll that's required to state a claim in a complaint
filed in federal court is a short statement, in plain (that is,
ordinary, nonlegalistic) English, of the legal claim." Kirksey
v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir.
1999). Mr. Bogosian has met that requirement and then some. He
probably satisfied Illinois pleading requirements as well.
The defendants do not expressly argue that Mr. Bogosian cannot
show damages, but their claim that his "reinstatement" moots the
intentional interference cause of action implies that he has no
damages, so I treat the arguments together. Even if Mr. Bogosian
had been restored to his original first grade teaching position
or one fully equivalent, he would have damages for the fall of
1998 and early winter of 1999, when he had been treated as having
resigned his position. In any case, whether he was restored to a
substantially equivalent position is an open question, and if he
was not, then he has whatever damages are involved in that
disparity, including the possibility of punitive damages for the
intentional tort. Since I must treat well pleaded allegations as
true for the purpose of a motion to dismiss, I hold for these
purposes the positions of a gym teacher and a first grade teacher
are not substantially equivalent. For these reasons I also reject
the defendants' argument that Mr. Bogosian's civil conspiracy
claim is moot.
The elements of civil conspiracy are: (1) an agreement for some
unlawful purpose or to use unlawful means and (2) a tortious act
in furtherance of the conspiracy. Adcock v. Brakegate, Ltd.,
164 Ill.2d 54, 206 Ill.Dec. 636, 645 N.E.2d 888, 894 (1994). Here
the torts would be intentional interference and defamation and
the conspiracy would be the agreement among the teachers to
report Mr. Bogosian. The defendants argue that the teachers'
statements were not tortious because they were protected by some
(1) absolute or (2) qualified privilege or (3) the state Tort
Immunity Act, and were in any event (4) admittedly true or (5)
expressions of opinion. The arguments do double duty, also
supporting the defendants' contention that Mr. Bogosian has
failed to state a defamation claim. None of these arguments will
hold water for either purpose.
According to the defendants, first, the teachers' statements
were protected by the absolute privilege Illinois law accords to
statements made to quasi-judicial bodies because the Board is a
quasi-judicial body. But defendants cite no Illinois case law
holding that the Board is such a body,*fn1 and their argument
that the Board qualifies is tortured. In any case, the teacher's
statements were made to the school principal, who is not a body,
much less a quasi-judicial
one. Nor do I accept the defendants' implausible idea that the
statements made to the principal are protected as "necessarily
preliminary" to a quasi-judicial process. See Parrillo, Weiss &
Moss v. Cashion, 181 Ill. App.3d 920, 130 Ill.Dec. 522,
537 N.E.2d 851, 854 (1989). That would result in an unjustified
expansion of absolute privilege, which ought to be narrowly
construed. See Baravati v. Josephthal, Lyon & Ross, Inc.,
28 F.3d 704, 708 (7th Cir. 1994) ("An absolute privilege is strong
medicine. . . .").
Second, the teachers may indeed have a qualified privilege, but
I cannot so find as a matter of law from the face of the
pleadings. A qualified privilege is an affirmative defense to a
defamation claim. Babb v. Minder, 806 F.2d 749, 753 (7th Cir.
1986) (citing Fascian v. Bratz, 96 Ill. App.3d 367, 51 Ill.Dec.
901, 421 N.E.2d 409, 412 (1981)). While the existence of such a
privilege is a question of law for the court to decide, id., I
need not do so here, since "[o]nce the court decides that a
qualified privilege exists, the plaintiff has the burden of
showing that the defendant abused and lost the privilege by
acting with actual or express malice." Id. (citing Roemer v.
Zurich Ins. Co., 25 Ill. App.3d 606, 323 N.E.2d 582, 587 (1975)),
and the question of whether the defendant abused the privilege is
a factual issue for the jury. Id. Even if I were to hold that
the teachers' statements were protected by a qualified privilege,
Mr. Bogosian has pled the elements of malice which, if proven in
court, would defeat the qualified privilege. Dismissal is not
appropriate because there is a set of facts he might prove which
would entitle him to relief.
The defendants argue, third, that the teachers' statements are
protected by Section 2-201 of the Illinois Tort Immunity Act,
which states that: "a public employee serving in a position
involving the determination of policy or the exercise of
discretion is not liable for an injury resulting from his act or
omission in determining policy when acting in the exercise of
such discretion even though abused." 745 ILCS 10/2-201. This
provision is inapplicable on its face. See Harinek v. 161 N.
Clark St. Limited Partnership, 181 Ill.2d 335, 230 Ill.Dec. 11,
692 N.E.2d 1177, 1181 (1998) (immunity requires act be one
involving policy making and exercise of discretion). The
teachers are public employees, but, as the plaintiff argues, the
teachers did not act in any policy-making capacity when they
reported Mr. Bogosian to the principal, since they did not
thereby establish any rule about appropriate teacher-child
physical contact, and moreover, even if their own story were to
be credited, that they were reporting something like child abuse,
their act was not discretionary. They have no discretion not to
report child abuse. See 325 ILCS 5/4 ("mandated reporters" of
child abuse include teachers); 89 IL ADC 300.30 (same).
Finally, a claim of defamation or false light privacy requires
that the contested statements be untrue. See Suhadolnik v. City
of Springfield, 184 Ill. App.3d 155, 133 Ill.Dec. 29,
540 N.E.2d 895, 913 (1989) (defamation); Kolegas v. Heftel Broadcasting
Corp., 154 Ill.2d 1, 180 Ill.Dec. 307, 607 N.E.2d 201, 209
(1992) (false light privacy). Defendants argue that the teachers'
statements were not tortious because they were admittedly true or
mere expressions of opinion and so neither true nor false.*fn2
The claim that the teacher's description of Mr. Bogosian's
physical movements — that he hugged and kissed students and so
forth — is an "expression of opinion," and so neither true nor
false, is, of course, ridiculous. A description of observable
physical behavior is the epitome of an empirical statement
capable of valuation as
true or false. See generally Ernest Nagel, The Structure of
Science (1960). The claim that Mr. Bogosian admits the truth of
the teacher's reports is incorrect because plaintiff denies the
truth of many of the important statements made by each of the
teachers (see Memorandum in Opposition to Defendant's Motion to
Dismiss, at 7-9). The defendants' assertion that Mr. Bogosian
admits the "gist" of the teachers' reports is not enough in a
motion to dismiss, and it is not true, in any event, that Mr.
Bogosian admits even so much here.
The defendants contend that Mr. Bogosian's request for
declaratory and injunctive relief is moot because he was
"reinstated," although not to his previous position. This claim
was decided in state court before the removal of the case and Mr.
Bogosian correctly argues that it is the law of the case. Rekhi
v. Wildwood Indus., Inc., 61 F.3d 1313, 1317-1318 (7th. Cir.
1995) (citing Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)) (Where
"state court suit [is] removed or otherwise transferred to
federal court, the doctrine of law of the case appl[ies, rather
than collateral estoppel], for it would be the same suit, albeit
in different courts."). Defendants assert that this doctrine does
not apply because they here respond to an amended complaint.
Unsurprisingly, they cite no case law to support this novel
proposition. Even if the law of the case had not determined the
matter, I have stated above in the different context of damages
that the issue remains live because Mr. Bogosian may not have
been assigned to a substantially equivalent position.
Finally, the defendants argue that Mr. Bogosian's claim for
declaratory and injunctive relief should be dismissed because he
failed to exhaust his administrative remedies by exhausting the
grievance procedures specified in the governing collective
bargaining agreement (the "CBA"). Mr. Bogosian asserts that he is
not alleging any violations of the CBA, but one may not evade
administrative exhaustion requirements by switching the labels on
one's causes of action. Here, however, the Board does not
persuade me that Mr. Bogosian has done this. It argues that two
sections of the CBA are applicable: Section 10.6 (relating to
reassignment of a teacher upon return from a leave of absence) or
Section 5.3 (explaining when teachers may refuse reassignment to
an involuntary transfer). Section 5.3 is clearly inapplicable, as
Mr. Bogosian had resigned and was not on a leave of absence.
Section 10.6 is not applicable because Mr. Bogosian was not
reassigned but rehired and simply assigned. That, no doubt, is
why Mr. Bogosian plausibly thinks he has no complaint to grieve
under the CBA.
The Board's motion to dismiss Mr. Bogosian's Counts III-IX for
failure to state a claim, as moot, or as barred by failure to
exhaust his administrative remedies is DENIED.