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Schendell v. Best Buy Stores

March 8, 2007


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendants' motion to dismiss Count II of the amended complaint. For the reasons stated below, we grant the motion to dismiss.


Plaintiff Alex Schendell ("Schendell") alleges that he began working for Defendant Best Buy Stores, L.P. ("Best Buy") in April 1998 and that in April 2004 he was promoted from a Retail Strategy Director position to Vice President of Regional Sales. When Schendell was promoted he allegedly signed a document entitled "Offer Confirmation," which included information regarding his salary and the date of his performance review. Schendell also claims that in September 2005 he was promoted to the position of Territory General Manager. According to Schendell, on February 1, 2006, Best Buy terminated his employment and refused to pay him severance pay or bonus payments for the end of 2005.

Schendell also claims that after Best Buy terminated his employment, Defendant Timothy McGeehan ("McGeehan"), an Executive Vice President of Best Buy, hosted a conference call ("Conference Call") with several Best Buy directors and managers. McGeehan allegedly stated the following during the Conference Call:

I cannot tell you the specific reasons I terminated Alex's employment, but at Best Buy we have a value system and polices related to that value system and there is a zero tolerance. If your value system isn't intact you can't work here. If my values were bad, I would expect Brian Dunn to fire me.

(A. Compl. Par. 22). Schendell brought the instant action in Illinois state court and the action was subsequently removed to federal court. Schendell then filed an amended complaint which includes an Illinois Wage Payment and Collection Act ("IWPCA"), 820 ILCS 115 et seq., claim against Best Buy (Count I), and defamation per se claims against Best Buy and McGeehan (Count II). Defendants now move to dismiss the defamation per se claims in Count II of the amended complaint.


In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Illinois Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The allegations of a complaint should not be dismissed for a failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Baker v. Kingsley, 387 F.3d 649, 664 (7th Cir. 2004)(stating that although the "plaintiffs' allegations provide[d] little detail . . . [the court could not] say at [that] early stage in the litigation that plaintiffs [could] prove no set of facts in support of their claim that would entitle them to relief"). Nonetheless, in order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High School, 144 F.3d 448, 454-55 (7th Cir. 1998) ; Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). Under the current notice pleading standard in federal courts, a plaintiff need not "plead facts that, if true, establish each element of a "cause of action. . . ."' See Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)(stating that "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later"). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However, any conclusions pled must "provide the defendant with at least minimal notice of the claim," Kyle, 144 F.3d at 455, and the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claims." Perkins, 939 F.2d at 466-67. The Seventh Circuit has explained that "[o]ne pleads a 'claim for relief' by briefly describing the events." Sanjuan, 40 F.3d at 251; Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998)(stating that "[p]laintiffs need not plead facts or legal theories; it is enough to set out a claim for relief").


Defendants argue that the facts alleged in the amended complaint are not sufficient to establish a defamation per se claim. Under Illinois law, a defamatory statement is defined as "a statement that harms a person's reputation to the extent it lowers the person in the eyes of the community or deters the community from associating with her or him." Solaia Tech., LLC v. Specialty Publ'g. Co., 852 N.E.2d 825, 839 (Ill. 2006). Under Illinois law, a statement can be defamation per se if the statement includes: "(1) words that impute a person has committed a crime; (2) words that impute a person is infected with a loathsome communicable disease; (3) words that impute a person is unable to perform or lacks integrity in performing her or his employment duties; (4) words that impute a person lacks ability or otherwise prejudices that person in her or his profession; and (5) words that impute a person has engaged in adultery or fornication." Id.

Schendell alleges in the amended complaint that during the Conference Call, McGeehan spoke as a representative of Best Buy. Schendell contends that McGeehan intended to convey through his alleged statements that Schendell did not have proper "values" in performing his job. (A. Compl. Par. 22). Schendell thus contends that the statements made by McGeehan involved "words that impute [that Schendell] is unable to perform or lacks integrity in performing . . . his employment duties." Solaia, 852 N.E.2d at 839. Schendell also contends that the statements contained "words that impute [Schendell] lacks ability or otherwise prejudices [him] in . . . his profession." Id. Defendants argue that the allegations in the amended complaint are not sufficient under the innocent construction rule to support a defamation per se claim. Defendants also contend that the alleged statements made by McGeehan are protectable, non-actionable expressions of opinion.

I. Innocent Construction Rule

Defendants argue that the statements allegedly made by McGeehan are not actionable in light of the innocent construction rule. Under the innocent construction rule, "'[a] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se.'" Muzikowski v. Paramount Pictures Corp., 2007 WL 416983, at *5 (7th Cir. 2007)(quoting Tuite v. Corbitt, 2006 WL 3742112 (Ill. 2006)). In assessing the meaning of statements alleged to be defamatory, "'statements reasonably capable of an innocent construction should be interpreted as nondefamatory,'" but "'the ...

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