NOTICE 2016 IL App (5th) 150472 Decision filed 08/02/16. The text of this decision may be NO. 5-15-0472 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
BELINDA CARSTENS-WICKHAM, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Madison County. ) v. ) No. 14-L-545 ) JOAO SEDYCIAS and ALDEMARO ) ROMERO, ) Honorable ) A. A. Matoesian, Defendants-Appellees. ) Judge, presiding. ________________________________________________________________________
JUSTICE STEWART delivered the judgment of the court, with opinion. Presiding Justice Schwarm and Justice Goldenhersh concurred in the judgment and opinion.
OPINION
¶1 The plaintiff, Belinda Carstens-Wickham, a tenured professor at Southern Illinois
University Edwardsville (SIUE or University), brought this action in the circuit court of
Madison County, seeking damages for alleged libel, slander, and intentional infliction of
emotional distress. The defendants, Joao Sedycias, a former department chair at SIUE,
and Aldemaro Romero, a former dean at SIUE, moved to dismiss the plaintiff's complaint
pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West
2014)). The defendants claimed that they were State employees immune from suit in
1 court pursuant to the State Lawsuit Immunity Act (745 ILCS 5/1 (West 2014)) and
argued that the Illinois Court of Claims had exclusive jurisdiction over the plaintiff's tort
claims. The circuit court agreed and dismissed the plaintiff's complaint for lack of
subject matter jurisdiction. The plaintiff appeals. For the reasons that follow, we reverse
and remand for further proceedings.
¶2 BACKGROUND
¶3 In her second amended complaint, the plaintiff alleged the following. She is a
tenured professor in the foreign languages and literature department at SIUE, which is
within the college of arts and sciences. At the time of the alleged incidents, Sedycias was
chair of the foreign languages and literature department, and Romero was dean of the
college of arts and sciences. The department chair is elected by a faculty vote. In early
2014, the plaintiff and Sedycias were on the ballot for the department chair position.
Romero, as dean, removed the plaintiff from the ballot and supported Sedycias.
¶4 The plaintiff alleged that the defendants conspired to libel and slander her and to
intentionally inflict emotional distress on her by communicating/publishing false
allegations of sexual misconduct in a manner that was outside their employment duties to
ruin her reputation and mentally harm her. She alleged that, knowing she would be
elected chair, they conspired to remove her from the ballot based on false allegations.
¶5 The plaintiff protested her removal from the ballot to the provost, who found in
her favor. The defendants appealed the provost's decision, preparing and sending a letter
dated February 21, 2014, and signed by Sedycias to the president of the Southern Illinois
University System. The plaintiff alleged that the letter was libelous and contained false 2 allegations, including false allegations of sexual misconduct. The letter, which was
incorporated by reference into the complaint, provides, in pertinent part, as follows:
"In his memo of 10 January 2014, Dean Romero provides the following reasons
for removing Dr. Carstens-Wickham from the list of possible candidates
(emphasis [Sedycias's]):
***
[']*** [I]t has been reported to me by multiple sources that Dr. Carstens-
Wickham has *** shown a number of character flaws unbecoming of a
member of the SIUE community. I have received multiple reports from
multiple sources that she had a child from one of her undergraduate
students and has had sexual relationships in her office on the SIUE campus
with a former SIUE faculty member. I have witnesses who can testify about
these and many other incidents that include, but are not limited to,
harassment, intimidation, and providing misleading information to the
faculty.' " (Emphasis in original.)
¶6 The plaintiff alleged that SIUE policy mandates that material filed in the appeal
process, including the letter, be kept confidential. In early 2014, she learned that
Sedycias had been contacting all of the department chairs and other officials within the
college of arts and sciences and giving them a copy of the letter. She alleged that, acting
outside the scope of their employment, outside the appeal process, and outside SIUE
rules and guidelines, the defendants distributed the letter and false information contained
therein to all department chairs and other officials within the college of arts and sciences 3 and orally distributed the false information to persons throughout SIUE. She alleged that,
by distributing the letter and false information, they acted intentionally and maliciously to
try to ruin her reputation and damage her mentally.
¶7 In counts I and III, the plaintiff alleged libel and slander claims. She alleged that
the statements contained in the letter (1) were false, (2) were libel per se if written and
slander per se if spoken, and (3) on their face provided a basis to cause her extreme
emotional distress. She alleged that, by knowingly making false allegations of sexual
misconduct to SIUE officials, the defendants acted in violation of state law and with
malice.
¶8 In counts II and IV, the plaintiff alleged intentional infliction of emotional distress
claims. She alleged that the defendants' actions were intentional and were taken to
damage her emotional and mental health to the extent that she could not perform her
duties as a faculty member and that she would be held in such low regard that she could
not be elected as department chair and her connection to SIUE would be terminated. She
alleged that the false allegations of sexual misconduct and the attempt to spread the same
throughout the college of arts and sciences was outrageous conduct, beyond the bounds
of decency, and intended to destroy her mentally and professionally.
¶9 In count V, the plaintiff alleged a slander claim against Romero only. She alleged
that on March 4, 2015, while interviewing for a position at Columbus State University in
Georgia, Romero was questioned in a public forum by members of that community.
When asked about the litigation involving the plaintiff, he stated that he had to remove
her as department chair "because she was having sex with a student." She alleged that, 4 when he made the statement, he knew it was false and that he made it with malice and in
an attempt to damage her. She alleged that a former colleague, who was present at the
public forum, heard Romero's statement, as did everyone else in attendance.
¶ 10 The defendants filed motions to dismiss the plaintiff's complaint pursuant to
section 2-619, arguing that they were State employees immune from suit in court
pursuant to the State Lawsuit Immunity Act (745 ILCS 5/1 (West 2014)). They argued
that the Illinois Court of Claims had exclusive jurisdiction over the plaintiff's tort claims
and that the circuit court, therefore, lacked subject matter jurisdiction.
¶ 11 Romero filed an affidavit in support of his motion to dismiss, stating the
following. He had been employed by SIUE since 2009 and was dean of the college of
arts and sciences from 2009 until 2014. Attached to his affidavit was a copy of the
operating paper of the college of arts and sciences. The dean is the chief academic and
administrative officer of the college, is the fiscal officer of the college, and has general
responsibility for supervision and operation of the college. The dean's responsibilities
include making personnel decisions, including hiring faculty members. The dean is also
involved in selecting department chairs and has the power to remove department chairs.
¶ 12 The plaintiff was under Romero's oversight when he was dean. In Romero's
affidavit, he stated that, in his role as dean and as an SIUE employee, he had written and
verbal communications with other SIUE personnel about the plaintiff; that all such
communications were related to her status, conduct, and/or performance as an SIUE
employee; that he did not have any communications with any SIUE employee about her
that were unrelated to carrying out his responsibilities as dean; that his communications 5 about her actions were conducted within the course and scope of his employment; and
that his communications about her involved matters within his normal and official
functions, including determining candidates for department chairs.
¶ 13 Romero's affidavit stated that, pursuant to SIUE policy, he had a responsibility as
dean and as an SIUE employee to help "maintain a work environment free from all forms
of sexual harassment." A copy of SIUE's sexual harassment complaint procedures was
attached to his memorandum of law in support of his motion to dismiss. His affidavit
stated that SIUE policy provides that "Members of the University community who have
knowledge of [sexual harassment] incidents should encourage victims of sexual
harassment to consult with sexual harassment information advisors, if needed."
¶ 14 In his memorandum of law in support of his motion to dismiss, Romero addressed
the plaintiff's allegation that, at a public forum at Columbus State University in Georgia,
he stated that he had to remove her as department chair "because she was having sex with
a student." In his memorandum of law, he stated that the plaintiff alleged that he "made
statements during a job interview about matters that were solely within his knowledge
because of his employment with a State University" and that she made "no allegation that
[he] volunteered this information during his job interview–merely that he responded to a
question about his knowledge of a University-related matter."
¶ 15 Sedycias also filed an affidavit in support of his motion to dismiss, stating as
follows. He had been employed by SIUE since July 1, 2011, and was chair of the foreign
languages and literature department from that date until June 30, 2014. The chair reports
to the dean of the college of arts and sciences; is the chief academic and administrative 6 officer of the department; and has broad duties and responsibilities, including evaluating
faculty and making salary, promotion, and tenure recommendations.
¶ 16 The plaintiff was under Sedycias's oversight when he was chair. In his affidavit,
Sedycias stated that, as chair and as an SIUE employee, he had written and verbal
communications with other SIUE personnel about the plaintiff; that any and all such
communications were related to her status, conduct, and/or performance as an SIUE
employee; that he did not have any communications with any SIUE employee about her
that were unrelated to carrying out his responsibilities and role as chair; and that his
communications about her actions were conducted within the course and scope of his
employment and involved matters within his normal and official functions as chair.
¶ 17 Sedycias's affidavit stated that, pursuant to SIUE policy, he had a responsibility as
chair and as an SIUE employee to help "maintain a work environment free from all forms
of sexual harassment." Sedycias's affidavit stated that SIUE policy provides that
"Members of the University community who have knowledge of [sexual harassment]
incidents should encourage victims of sexual harassment to consult with sexual
harassment information advisors, if needed."
¶ 18 The plaintiff filed responses to the defendant's motions to dismiss. She denied that
her claims were barred by the doctrine of sovereign immunity and argued that the circuit
court had subject matter jurisdiction.
¶ 19 The plaintiff also filed an affidavit in support of her responses to the defendants'
motions to dismiss, stating the following. She is employed in the foreign languages and
literature department at SIUE and was department chair from 2002 to 2011. She has also 7 served on administrative committees at SIUE and has direct knowledge of the interaction
between the faculty, department chair, and dean. She was on the committee to evaluate
Romero's performance and voted with the majority (7 to 3) to terminate him as dean.
¶ 20 The plaintiff's affidavit stated that she was on the ballot for department chair, that
the defendants conspired to and did remove her from the ballot, and that they told the
faculty that they could either vote for Sedycias or not vote at all. She stated that she led
the opposition to Sedycias's election as chair, and he got only 3 out of 11 possible votes.
¶ 21 In her affidavit, the plaintiff stated that she appealed her removal from the ballot to
the provost, who determined that the allegations contained in the letter were unfounded,
voided the election, and reinstated her to the ballot. The defendants appealed the
provost's decision to the president of the Southern Illinois University System and sent the
letter as part of the appeal process. The president affirmed the provost's decision.
¶ 22 The plaintiff's affidavit stated that the allegations contained in the letter were to be
kept confidential as part of the appeal process and that the defendants violated SIUE
policy by failing to do so. She stated that, at the conclusion of the appeal, the defendants
published (communicated) the letter to other department chairs within the college of arts
and sciences, to other faculty, and to various unknown persons–all of whom had nothing
to do with the appeal of the provost's decision, the ballot for department chair, or the day-
to-day operations of the department and had no supervisory authority over her.
¶ 23 In her affidavit, the plaintiff expressed opinions based on her background and
experience and her review of SIUE policies and procedures and the operating paper of the
college of arts and sciences. She opined that distributing the letter to persons outside the 8 appeal process, outside the department, and with no supervisory authority over her was
not related to the defendants' jobs as dean or chair. She asserted that, upon losing the
appeal of the provost's decision, they decided to slander and libel her and to inflict
emotional distress on her to try to destroy her reputation and make her leave her job.
¶ 24 The plaintiff's affidavit opined that the defendants' actions in distributing the letter
outside the appeal process were not part of their duties or responsibilities under the
operating paper of the college of arts and sciences or SIUE policies and procedures. She
stated that the operating paper did not include the commission of intentional torts within
the realm of the administrative duties of dean or department chair.
¶ 25 In her affidavit, the plaintiff disputed the defendants' claims that distribution of the
letter outside the department was related to her status, conduct, and/or performance as an
SIUE employee. She stated that distribution of the letter outside the department was not
related to the defendants' jobs as dean or chair because the recipients of the letter had
nothing to do with her.
¶ 26 The plaintiff's affidavit stated that, as a faculty member and former department
chair, she was aware of the administrative requirements and responsibilities of handling
sexual harassment or assault reports or claims. She stated that the defendants did not use
SIUE procedures to investigate a claim of any sexual misconduct by her. She stated that
SIUE's sexual harassment complaint procedures provide for informal and formal notice
of sexual harassment allegations and that she was never given such notice as to the
allegations contained in the letter. She stated that SIUE procedures also include
complaint procedures that provide for confidential resolution of unfounded claims. 9 ¶ 27 In her affidavit, the plaintiff stated that, under SIUE procedures, claims of sexual
misconduct, harassment, and/or assault are not to be handled by the chair of the foreign
languages and literature department or the dean of the college of arts and sciences.
Rather, such complaints are to be addressed by independent SIUE personnel under
procedures that give the person complained of an opportunity to refute the charges.
¶ 28 On October 16, 2015, the circuit court dismissed the plaintiff's complaint with
prejudice for lack of subject matter jurisdiction. The plaintiff filed a timely appeal.
¶ 29 ANALYSIS
¶ 30 The standards governing this appeal are familiar. A motion to dismiss pursuant to
section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2014)) admits the
legal sufficiency of the complaint, but asserts affirmative matter that defeats the claim.
Leetaru v. Board of Trustees of the University of Illinois, 2015 IL 117485, ¶ 40. Among
those affirmative matters is that the court lacks subject matter jurisdiction. 735 ILCS 5/2-
619(a)(1) (West 2014). That is the basis for the motion filed in this case.
¶ 31 When reviewing an order granting a motion to dismiss pursuant to section 2-619,
we may consider all facts presented in the pleadings, affidavits, and depositions in the
record. See Doe A. v. Diocese of Dallas, 234 Ill. 2d 393, 396 (2009). Accordingly,
despite the defendants' argument to the contrary, we may consider the plaintiff's response
to their motions to dismiss and her affidavit in support even though they were filed in
response to the defendants' motions to dismiss her amended complaint rather than her
second amended complaint. The plaintiff's amended complaint and second amended
complaint were almost identical, the defendants' motions to dismiss both complaints were 10 almost identical, and the defendants used the same affidavits in support of their motions
to dismiss both complaints.
¶ 32 Consistent with their decision to invoke section 2-619, the defendants do not and
cannot challenge the legal sufficiency of the plaintiff's complaint. For present purposes,
the defendants accept that the plaintiff has stated legally cognizable claims against them.
Their contention is simply that she has brought her claims before the wrong tribunal. In
their view, the only tribunal authorized by law to consider her complaint is the Illinois
Court of Claims.
¶ 33 The circuit court agreed and dismissed the plaintiff's complaint for lack of subject
matter jurisdiction. We review de novo a circuit court's dismissal for lack of subject
matter jurisdiction. Leetaru, 2015 IL 117485, ¶ 41.
¶ 34 The defendants' jurisdictional challenge is premised on principles of sovereign
immunity. "The doctrine of sovereign immunity was abolished in Illinois by the 1970
Constitution '[e]xcept as the General Assembly may provide by law.' " Id. ¶ 42 (quoting
Ill. Const. 1970, art. XIII, § 4). As it was authorized to do under this provision, the
General Assembly subsequently reinstated the doctrine of sovereign immunity through
enactment of the State Lawsuit Immunity Act (745 ILCS 5/0.01 et seq. (West 2014)).
Leetaru, 2015 IL 117485, ¶ 42. Section 1 of the State Lawsuit Immunity Act provides
that except as provided in the Court of Claims Act (705 ILCS 505/1 et seq. (West 2014))
and several other specified statutes, "the State of Illinois shall not be made a defendant or
party in any court." 745 ILCS 5/1 (West 2014). Section 8 of the Court of Claims Act, in
turn, provides that the Court of Claims shall have exclusive jurisdiction over nine 11 enumerated matters, including "[a]ll claims against the State for damages in cases
sounding in tort, if a like cause of action would lie against a private person or corporation
in a civil suit." 705 ILCS 505/8(d) (West 2014).
¶ 35 This language is clear and unambiguous; all claims against the State for damages
sounding in tort must be brought in the Court of Claims, and no other tribunal, including
our circuit courts, has jurisdiction of any such claim. Fritz v. Johnston, 209 Ill. 2d 302,
310 (2004). The question is, thus, whether this case involves "claims against the State."
¶ 36 The plaintiff does not purport to assert a claim against the State. Rather, she
names as defendants two individual employees of the State. The defendants contend,
however, that the exclusive jurisdiction provision of the Court of Claims Act should
nevertheless apply because, notwithstanding the formal designation of the parties, the
lawsuit actually seeks to control the actions of the State or subject it to liability and that it
is, therefore, tantamount to an action against the State itself.
¶ 37 The defendants are correct that the formal designation of the parties is not
dispositive for purposes of the Court of Claims Act. Leetaru, 2015 IL 117485, ¶ 44. In
determining whether sovereign immunity is applicable in a given case, substance takes
precedence over form. Id. That an action is nominally one against individual State
employees does not mean that it will not be considered as one against the State itself. Id.
¶ 38 The determination of whether an action is, in fact, one against the State and,
therefore, one that must be brought in the Court of Claims depends on the issues involved
and the relief sought. Id. ¶ 45. Sovereign immunity cannot be avoided by making an
action nominally one against State employees when the real claim is against the State 12 itself and when the State is the party vitally interested. Id. Sovereign immunity affords
no protection, however, when it is sufficiently alleged that State employees acted in
violation of statutory or constitutional law or in excess of their authority. Id. In those
instances, the action is not against the State and may be brought in circuit court. Id.
¶ 39 However, an action brought nominally against State employees in their individual
capacities will be found to be claims against the State where a judgment for the plaintiff
could operate to control the State's actions or subject it to liability. Currie v. Lao, 148 Ill.
2d 151, 158 (1992).
¶ 40 Our supreme court has adopted a three-part test to determine whether an action
against State employees is, in fact, an action against the State itself. Healy v. Vaupel, 133
Ill. 2d 295, 309 (1990). An action is against the State when the following factors are
present: (1) there are no allegations that State employees acted beyond the scope of their
authority through wrongful acts; (2) the duty allegedly breached was not owed to the
public generally independent of the State employment; and (3) the actions complained of
involve matters ordinarily within the employees' normal and official State functions. Id.
¶ 41 Under the foregoing authorities, the plaintiff's causes of action may proceed in
circuit court without offending principles of sovereign immunity. The plaintiff does not
question the defendants' right to send the letter to the president of the Southern Illinois
University System as part of the appeal process. That is something that they clearly had
the authority to do in furtherance of SIUE's educational mission. Rather, her claims are
based on the defendants' conduct after the appeal process was completed. Her argument
is that by distributing the letter and the false statements contained therein outside of the 13 appeal process and to others outside of the department, the defendants exceeded their
authority, acted outside the scope of their employment, and violated SIUE's policies and
procedures. The defendants' alleged acts are not simply the result of some inadvertent
oversight or de minimis technical violation. Rather, according to the plaintiff, the
defendants maliciously and intentionally retaliated against her by making the false
statements in order to ruin her reputation, remove her from the chair election, make her
quit her job, and harm her mentally and emotionally.
¶ 42 Because sovereign immunity affords no protection when State employees have
acted in violation of law or in excess of their authority, which is precisely what the
plaintiff has alleged in her verified complaint and affidavit, Illinois precedent compels the
conclusion that she was entitled to proceed in circuit court. The circuit court, therefore,
erred in dismissing her complaint for lack of subject matter jurisdiction.
¶ 43 In so holding, we recognize that, in their affidavits in support of their motions to
dismiss, the defendants stated that all of their communications with other SIUE personnel
about the plaintiff were related to her status, conduct, and/or performance as an SIUE
employee; that they did not have any communications with any SIUE employee about her
that were unrelated to carrying out their responsibilities as dean or department chair; that
their communications about her actions were conducted within the course and scope of
their employment; and that their communications about her involved matters within their
normal and official functions as dean or department chair. However, when ruling on a
motion to dismiss pursuant to section 2-619, the pleadings and supporting documents,
including the affidavits, must be interpreted in the light most favorable to the plaintiff, as 14 the nonmoving party. Henderson Square Condominium Ass'n v. LAB Townhomes, LLC,
2015 IL 118139, ¶ 34. In her verified complaint and affidavit in response to the
defendants' motions to dismiss, the plaintiff clearly disputed these statements. These
disputed facts must be construed in the plaintiff's favor for purposes of a motion to
dismiss pursuant to section 2-619.
¶ 44 As we noted at the outset of our analysis, by moving to dismiss pursuant to section
2-619, the defendants have admitted the legal sufficiency of the plaintiff's causes of
action. Whether the defendants' conduct is, in fact, actionable is a question that they may
pursue further on remand. For purposes of this appeal, however, it is not at issue.
¶ 45 CONCLUSION
¶ 46 For the foregoing reasons, the judgment of the circuit court of Madison County is
reversed and the cause is remanded for further proceedings.
¶ 47 Reversed and remanded.
15 2016 IL App (5th) 150472 NO. 5-15-0472 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
BELINDA CARSTENS-WICKHAM, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Madison County. ) v. ) No. 14-L-545 ) JOAO SEDYCIAS and ALDEMARO ) ROMERO, ) Honorable ) A. A. Matoesian, Defendants-Appellees. ) Judge, presiding. ________________________________________________________________________
Opinion Filed: August 2, 2016 ________________________________________________________________________
Justices: Honorable Bruce D. Stewart, J.
Honorable S. Gene Schwarm, P.J., and Honorable Richard P. Goldenhersh, J., Concur ________________________________________________________________________
Attorneys Leslie G. Offergeld, John D. Wendler, Walker and Williams, P.C., for 4343 West Main Street, Belleville, IL 62226 Appellant ________________________________________________________________________
Attorneys Greg Roosevelt, Roosevelt Law Office, 610 St. Louis Street, for Edwardsville, IL 62025 (attorney for Joao Sedycias); Ian P. Cooper, Appellee Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C., 34 North Meramec Avenue, Suite 600, St. Louis, MO 63105 (attorney for Aldemaro Romero) ________________________________________________________________________