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April 22, 2003


The opinion of the court was delivered by: James F. Holderman, United States District Judge


On December 19, 2002, plaintiff Douglas P. Walker ("Walker") brought suit against defendants Braes Feed Ingredients, Inc. ("Braes Feed"), Rodolo Maglente ("Maglente"), and Keith Klanderman ("Klanderman") alleging discrimination on the basis of religion, age discrimination, hostile working environment, retaliation, false light invasion of privacy, defamation, tortious interference with business relations, and public disclosure of private facts invasion of privacy. Defendants, on February 26, 2003, moved this court, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss counts V—VIII of plaintiff's complaint. Maglente and Klanderman also moved to dismiss counts I—IV against them in their individual capacities. Having considered this matter fully, for the reasons stated herein, defendants' motion to dismiss counts V—VIII is granted. Individual defendants Maglente and Klanderman's motion to dismiss counts I—IV is moot.


The facts relevant to counts V—VIII, the counts all defendants have moved to dismiss, that plaintiff Walker has alleged are that he worked for defendant Braes Feed, most recently as a regional sales manager, from July 1996 until he was terminated effective August 4, 2001. On or after plaintiff's termination on August 4, 2001, through the filing by plaintiff on December 19, 2002, of his complaint in this case, when contacted regarding confirmation of plaintiff's prior employment, Maglente, Braes Feed's chief financial officer and human resources officer, and Klanderman, Braes Feed's president, or one of them, advised numerous potential employers, including but not limited to BalChem Corp., JP Enterprises, Sales Success, Inc., and AgraPlacements, Ltd., that there was pending litigation between plaintiff Walker and defendant Braes Feed when there was no such litigation pending. Plaintiff did, however, file a charge with the Illinois Department of Human Rights, which concurrently files the charge with the EEOC, on February 11, 2002.*fn2


Federal Rule of Civil Procedure 12(b)(6) allows this court to dismiss a complaint that fails to state a claim upon which relief can be granted. In considering the merits of a motion made pursuant to Rule 12(b)(6), the well-pled allegations of the complaint must be accepted as true. Thompson v. Illinois Dep't of Prof's Regulation, 300 F.3d 750, 753 (7th Cir. 2002). In addition, all ambiguities will be construed in favor of the non-moving party. Id. A court generally should dismiss a complaint only where it is clear that no relief could be granted consistent with the allegations. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). Rule 8(a) of the Federal Rules of Civil Procedure states that a complaint must identify the basis of jurisdiction and contain "a short and plain statement of the claim showing that the pleader is entitled to relief" Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1077-78 (7th Cir. 1992). Complaints can be "short and simple, giving the adversary notice while leaving the rest to further documents." Id. It follows that in deciding a Rule 12(b)(6) motion to dismiss, this court must ask whether relief is possible under any set of facts that could be established consistent with the allegations in the complaint. See id.


I. Employment Discrimination (Counts I—IV)

Defendants maintain that plaintiff brings claims against Maglente and Klanderman in their individual capacities in counts I—IV. Both parties agree that neither individual defendant is an "employer" under Title VII or the ADEA and thus cannot be held liable under these Acts. Plaintiff, in his amended response, makes clear that "[t]he allegations in Counts I through IV are against the `Employer,' not Maglente or Klanderman in their individual capacities." (Pl.'s Resp. at 4.) Because plaintiff's complaint is far from a model of clarity and does not indicate clearly which counts are brought against which defendants, this court understands how Maglente and Klanderman could believe these counts are brought against them in their individual capacities. Although plaintiff never explicitly identifies Braes Feed as "Employer," he does define "Employer" as a corporation and agribusiness manufacturer. Therefore, as plaintiff admits in his response, this court finds that plaintiff does not allege claims against Maglente nor Klanderman in counts I—IV. Accordingly, Maglente and Klanderman's motion to dismiss these counts is moot.

II. Defamation (Count VI)

Under Illinois law, "[a] statement is defamatory if it tends to cause such harm to the reputation of another in that it lowers that person in the eyes of the community or deters third persons from associating with him or her." Dunlap v. Alcuin Montessori Sch., 298 Ill. App.3d 329, 338, 698 N.E.2d 574, 580 (1st Dist. 1998). Illinois law recognizes two types of defamation: defamation per se and defamation per quod.

A. Defamation Per Se

A statement is considered defamatory per se when the statement is one in which "the defamatory character is apparent on its face and when the words used are so obviously and materially harmful that injury to the plaintiff's reputation may be presumed." Id. With defamation per se, a plaintiff need not plead nor prove actual damages to his or her reputation, as they are presumed. Id. In Illinois, five types of defamatory statements give rise to a defamation per se cause of action: (1) those imputing the commission of a criminal offense; (2) those imputing infection with a communicable disease; (3) those imputing an inability or want of integrity in performing the duties of office or employment; (4) those prejudicing a person in his or her profession or trade; and (5) those stating false accusations of fornication or adultery. Id.

Plaintiff argues that defendants' comments to the prospective employers regarding pending litigation prejudice plaintiff in his profession as a sales manager. Defendants contend that such statements do not prejudice plaintiff in his business. This court agrees with plaintiff and finds that one possible construction of the statements leads to the conclusion that they do prejudice plaintiff in his profession. As a practical matter, employers do not want to hire employees who will turn around and file suit against them. It can be readily inferred from defendants' comments that plaintiff is litigious and may bring suit against the prospective employer. As prospective employers would in all likelihood shy away from hiring ...

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