The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is defendant Shane Jones's motion to dismiss counts III and IV, or alternatively, for summary judgment (Doc. 25), to which plaintiff has responded (Doc. 33), and defendant*fn1 has replied (Doc. 37).
Plaintiff, the former bookkeeper of Freeburg School District #70, filed a four count complaint against the school district, several of the district's former and current board members, the superintendent of schools, and the district's attorney. Count I alleges violations of the Family and Medical Leave Act. Count II alleges breach of contract. Count III alleges defamation by defendant Jones, the district's attorney. Count IV, alleges intentional infliction of emotional distress. Plaintiff claims that after taking FMLA leave, she was retaliated against in that she was reassigned to a different position in an attempt to cause her extreme emotional distress.
Defendant now moves this Court to dismiss Counts III and IV, or alternatively, for summary judgment. Count IV, intentional infliction of emotional distress, was dismissed by stipulation as to this defendant. (Docs. 35, 36). Accordingly, defendant's motion, as it relates to Count IV, is DENIED as moot.
Defendant argues that Count III should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. Defendant argues plaintiff cannot prove any of the requisite elements of a defamation claim: first, that the alleged defamatory statement was false; second, that it was not privileged; third, that the statement was published to a third party; and fourth, that plaintiff was damaged. (Doc. 25). In the alternative, defendant moves for summary judgment.
To sustain a dismissal of a complaint under Fed. R. Civ. P. 12(b)(6), the Court must take all well-pleaded allegations as true and construe the complaint in the light most favorable to the plaintiff. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997). Dismissal is appropriate only if it appears beyond a doubt that no relief may be granted under any set of facts that could be proved consistent with the allegations in the complaint. Conley, 355 U.S. at 45-46; Veazey v. Commc'ns & Cable of Chi., Inc., 194 F.3d 850, 854 (7th Cir. 1999).
When, as here, the parties have presented matters outside the pleadings for evaluation by the Court, a motion to dismiss should be treated as one for summary judgment and disposed of as provided in Rule 56. See Covington v. Ill. Sec. Serv., Inc., 269 F.3d 863, 864-65 (7th Cir. 2001) (quoting Fed. R. Civ. P. 12(b)). Accordingly, defendant's motion to dismiss is DENIED and the Court will consider it as it was alternatively plead-as a motion for summary judgment. Since the motion was originally plead in the alternative as a motion for summary judgment, it is not necessary for the Court to allow time for the parties to present any additional material as provided by Rule 12(b), as they have already done so.
A district court will grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c): see also, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). The moving party initially bears the burden of demonstrating an absence of genuine issues of material fact, indicating that judgment should be granted as a matter of law. Lindemann v. Mobil Oil Corp., 141 F.3d 290, 294 (7th Cir. 1999) (citing Celotex, 477 U.S. at 323). Once a motion for summary judgment has been made and properly supported, however, the non-movant has the burden of setting forth specific facts showing the existence of a genuine issue for trial. See id. In determining whether a genuine issue of material fact exists, the Court construes all facts in the light most favorable to the nonmoving party and draws all reasonable and justifiable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, the Court will not resolve factual disputes, weigh conflicting evidence, or make credibility determinations. See Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001); Miranda v. Wis. Power & Light Co., 91 F.3d 1011, 1014 (7th Cir. 1996).
Under Illinois law, to sustain her claim of defamation, plaintiff must show that defendant made a false statement about the plaintiff, there was an unprivileged publication to a third party by the defendant, and the publication damaged the plaintiff. Gibson v. Philip Morris, Inc., 292 Ill. App.3d 267, 272, 685 N.E.2d 638 (1997).
The statement at issue was made by defendant in a March 24, 2005, e-mail to plaintiff's attorney.*fn2 He stated that "[t]he District has determined that Ms. Lewis's performance in the bookkeeper job assignment is not satisfactory." (Compl., Doc. 2-1, ¶ 40; Doc. 26-2, Ex. B). Defendant asserts ...