United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER.
JOHNSON COLEMAN United States District Judge.
Joan Nebel filed a three-count First Amended Complaint,
alleging retaliation in violation of Title VII and defamation
per se. Defendant Oakton Community College moves for
summary judgment on Count II, which alleges defamation
per se . For the reasons stated herein, the
Court grants the motion.
following facts are undisputed. Plaintiff Joan Nebel worked
for defendant Oakton Community College (“OCC”)
from 2002 until her termination in June 2015. Nebel was an
“employee” and OCC was an “employer”
within the meaning of Title VII and Illinois common law. OCC
still employs individual defendant Gerald Modory.
Nebel's termination, OCC had notice that Modory posted a
printed flyer purporting to advertise a seminar entitled,
“Problem Employees and the Games They Play.” A
photograph of Nebel appears next to the title on the flyer.
The flyer also depicted a photograph of a male former OCC
employee. OCC terminated the male employee approximately a
year before Nebel. He had also sued OCC. According to the
flyer, seminar attendees would learn “what games are
actually being played and why problem employees are motivated
to play these games.” The seminar also touted
techniques for addressing gossip and rumors.
II and III of the First Amended Complaint both allege
defamation per se. Count II is against OCC and Count
III is against Modory individually. On November 7, 2016, this
Court dismissed Count III against Modory, finding that the
flyer was not actionable as defamation per se.
Nebel v. Oakton Community College and Gerald Modory,
No. 1:16-cv-04613 (N.D. Ill. Nov. 7, 2016) (order granting
partial motion to dismiss). Now, OCC moves for judgment as a
matter of law, claiming that it is entitled to summary
judgment in its favor on Count II for the same reasons this
Court dismissed Count III.
judgment is proper when “the admissible evidence shows
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.” McGreal v. Vill. of Orland Park, 850
F.3d 308, 312 (7th Cir. 2017), reh'g denied
(Mar. 27, 2017) (quoting Hanover Ins. Co. v. N. Bldg.
Co., 751 F.3d 788, 791 (7th Cir. 2014)); Fed.R.Civ.P.
56(a). In deciding whether summary judgment is appropriate,
this Court accepts the nonmoving party's evidence as true
and draw all reasonable inferences in that party's favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 244,
106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
moves for summary judgment on Count II, arguing that there is
no genuine issue of material fact on Nebel's claim of
defamation per se because this Court has already
found that the flyer does not constitute actionable
statement is defamatory per se if the harm is
“obvious and apparent on its face.” Green v.
Rogers, 234 Ill.2d 478, 491, 917 N.E.2d 450, 334
Ill.Dec. 624 (2009). Under Illinois law, statements are not
actionable as per se defamation where the statement
is capable of an innocent construction. Chapski v. Copley
Press, 92 Ill.2d 344, 352, 442 N.E.2d 195 (Ill. 1982).
“[A] statement ‘reasonably' capable of a
nondefamatory interpretation, given its verbal or literary
context, should be so interpreted. There is no balancing of
reasonable constructions….” Antonacci v.
Seyfarth Shaw, LLP, 2015 IL App (1st) 142372, ¶ 24,
39 N.E.3d 225, 235, appeal denied sub nom. Antonacci v.
Seyfarth Shaw, LLC, 42 N.E.3d 369 (Ill. 2015) (quoting
Mittelman v. Witous, 135 Ill.2d 220, 232, 142
Ill.Dec. 232, 552 N.E.2d 973 (1989), abrogated on other
grounds by Kuwik v. Starmark Star Marketing &
Administration, Inc., 156 Ill.2d 16, 188 Ill.Dec. 765,
619 N.E.2d 129 (1993)). “Whether a statement is capable
of an innocent construction is a question of law.”
Anderson v. Vanden Dorpel, 172 Ill.2d 399, 413, 667
N.E.2d 1296 (Ill. 1996).
OCC argues that it is entitled to judgment as a matter of law
because this Court already found that the statements that
Nebel claim are defamatory are not actionable. Nebel responds
that this Court should deny the motion because OCC neither
joined Modory's Motion to Dismiss nor has discovery been
completed. Yet, Nebel points to no dispute of fact or any
possible evidence that might be gleaned from discovery to
create such an issue for a jury. Nebel further relies on the
arguments she made in opposition to Modory's motion to
dismiss, which this Court found unpersuasive on a lower
standard of review. Once the moving party meets its burden to
demonstrate the absence of a genuine issue of material fact,
the nonmoving party “must go beyond the
pleadings” and identify portions of the record
demonstrating that a material fact is genuinely disputed.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (internal quotations
omitted); Fed.R.Civ.P. 56(c). This Court has already found
that the statements in the flyer are not actionable as
defamation per se because without the use of extrinsic facts,
the lack of connection between the unnamed photograph and the
seminar topic leaves the possibility of innocent
this Court finds that the statements in context are
reasonably capable of an innocent construction and there is
no dispute of fact, this Court finds that OCC is entitled to
judgment as a matter of law. Accordingly, based on the
foregoing, OCC's motion ...