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Kronenberg v. Baker & McKenzie LLP

March 10, 2010


The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge


Plaintiff David Kronenberg, an attorney, brought suit against his former employer Baker & McKenzie LLP ("Baker"), a law firm, and James O'Brien ("O'Brien"), a partner at Baker and plaintiff's supervisor at all relevant times. The complaint alleges violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12201, et seq. (Counts I and II), state law claims of retaliatory discharge (Count III), defamation (Counts IV and V), negligence(Count VI), breach of contract (Count VII), tortious interference with contract (Count VIII), promissory estoppel (Count IX), tortious interference with prospective economic advantage (Count X), and interference with the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. (Count XI). Defendants move to dismiss the last nine counts (Counts III-XI).

Plaintiff concedes that his retaliatory discharge claim (Count III) should be dismissed, but defends the remaining counts. For the following reasons, defendants' motion is granted.


A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of the complaint, not its merits. See, e.g., Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In resolving a Rule 12(b)(6) motion, I must accept all well-pleaded allegations in the complaint as true, and must draw all reasonable inferences in favor of the non-moving party. See, e.g., McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006). Accordingly, for purposes of the pending motion I accept the truth of following alleged facts, which are found in the amended complaint.


Plaintiff has a chronic degenerative spinal disk disease, for which he had surgery in 1998. The surgery was successful in that between 1999 and 2006 plaintiff suffered only relatively minor symptoms. Baker hired plaintiff as an associate attorney in September of 2004. When plaintiff's symptoms worsened in the spring of 2006, he asked O'Brien several times to meet with him to discuss medical leave or disability accommodation. O'Brien failed to respond to these requests.

Plaintiff gave Baker a formal written request for medical leave under the FMLA and a request for a reduced workload as an accommodation for his disability. The FMLA request was granted, effective August 23, 2006, and Baker promised in writing to restore plaintiff to his position at the end of his leave, to find him an equivalent position, or to reconsider plaintiff's request for accommodation if the circumstances required.

At the end of plaintiff's FMLA leave, Baker converted his status from FMLA leave to indefinite general administrative leave. Thereafter, between December 2006 and March 2007, plaintiff continued to request a reasonable accommodation in the form of a part-time position and reinstatement, but was eventually informed that no part-time positions were available. The parties held a teleconference in April of 2007 to discuss plaintiff's situation, at the conclusion of which plaintiff was invited to submit a written proposal. In his proposal, plaintiff requested a modified work structure including half-time employment at one-half his prior salary, a telecommuting arrangement similar to that of other Baker employees, and some ergonomic furniture for plaintiff's office when he was required to be there. Baker did not respond to this proposal, and instead informed plaintiff on June 15, 2007, that he would be terminated. Plaintiff made one last request for accommodation on July 19, 2007, to which Baker did not respond. Plaintiff was terminated on July 31, 2007.

While employed at Baker, plaintiff received two performance reviews. In his first year performance review, compiled with input from several senior attorneys sometime between July 2005 and September 2005, plaintiff received no less than "consistently meets expectations" in each category reviewed. Plaintiff's second performance review was less favorable and issued while plaintiff was on leave, without his participation or knowledge. The review stated that plaintiff "lacked core legal expertise" and otherwise impugned his professional abilities. The review was published internally at Baker and externally to the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC") during the course of investigations into claims filed with those agencies by plaintiff against Baker.


The first disputed counts are those alleging defamation against O'Brien and Baker as a result of a 2006 performance evaluation, for which O'Brien was the lead evaluator (Counts IV and V). A statement is defamatory if it tends to harm a person's reputation to the extent that it lowers that person in the eyes of the community or deters others from associating with that person. Solaia Tech., LLC v. Specialty Publ'g Co., 852 N.E.2d 825, 839 (Ill. 2006). A statement is defamatory per se if its harm is obvious and apparent on its face. Owen v. Carr, 497 N.E.2d 1145, 1147 (1986). Illinois recognizes five categories of statements which are considered per se actionable because they are "so obviously and materially harmful" to a plaintiff that his injury may be presumed. Tuite v. Corbitt, 866 N.E.2d 114, 121 (Ill. 2006). Plaintiff alleges that two such categories are pertinent to his per se defamation claims,*fn1 namely: 1) statements imputing an inability to discharge one's duties of office or employment; and 2) statements that prejudice a party, or impute lack of ability, in his or her trade, profession or business. See id.

The complaint states that O'Brien made false and defamatory statements about plaintiff's professional competence in his 2006 review, including a statement that he "lacked core legal expertise." Defendants then published the review internally at Baker.*fn2 Anderson v. Beach, 897 N.E.2d 361, 365-8 (Ill. App. Ct. 2008)(an internal publication in abuse of privilege can be actionable). Although not filed with the complaint, the 2006 review is attached to defendants' motion and both parties use it as support for their respective positions. See Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)(documents outside pleadings may be considered if referenced in complaint, central to plaintiff's claim, and attached to defendant's motion to dismiss).

The evaluation covers various broad categories for review, including "Legal Knowledge and Expertise," "Business Development," "Client Service," "Matter Management," and "People Management." Each category consists of several subcategories (e.g., for "Legal Knowledge and Expertise" the subcategories are "Core Legal Expertise", "Specialist Legal Expertise", "Knowledge Management") for which O'Brien marked one of the following five canned responses: 1) consistently exceeds all expectations, 2) fully meets and exceeds some expectations, 3) meets some expectations but needs further development in some areas, 4) does not meet expectations, or 5) not applicable. Unlike his first review, plaintiff received only "does not meet expectations" or "meets some expectations" ratings the second time. O'Brien was provided with an opportunity to include personal comments at the end of each broad category, and final remarks in the "Evaluation Summary" section along with an overall ...

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