2024 IL App (1st) 231413-U SIXTH DIVISION
September 13, 2024
No. 1-23-1413
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ REV. SARAH ELIZABETH GARCIA, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) v. ) No. 22 L 425 ) REV. MATTHEW FITZGERALD, BENJAMIN ) EMMRICH, and ST. PAULS UNITED CHURCH FOR ) CHRIST, ) Honorable ) Patrick J. Sherlock, Defendants-Appellees. ) Judge, presiding.
JUSTICE C.A. WALKER delivered the judgment of the court. Justice Hyman and Justice Oden Johnson concurred in the judgment.
ORDER
¶1 Held: We reverse the circuit court’s dismissal of plaintiff’s claims for breach of contract, defamation, and false light, because she sufficiently pled that (1) defendant St. Pauls United Church for Christ violated the notice provision of its bylaws and (2) defendants Reverend Matthew Fitzgerald and Benjamin Emmrich published statements that could constitute defamation per quod. No. 1-23-1413
¶2 Plaintiff Reverend Sarah Garcia appeals from the circuit court’s dismissal of her second
amended complaint (SAC), in which she brought claims for breach of contract, defamation, and
false light against defendants St. Pauls United Church for Christ (Church), its Senior Pastor,
Reverend Matthew Fitzgerald, and Church council president Benjamin Emmrich (collectively,
“Defendants”), following termination of her employment with the Church. On appeal, Garcia
contends she sufficiently alleged facts to sustain each claim against a motion to dismiss pursuant
to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2020)) (Code).
For the reasons below, we find Garcia sufficiently pled facts to avoid dismissal of a portion of her
allegations, and accordingly, we reverse the court’s dismissal and remand for further proceedings
consistent with this order.
¶3 BACKGROUND
¶4 On January 14, 2022, Garcia filed her complaint against Fitzgerald, Emmrich, and the
Church. Therein, she alleged she began working for the Church as Associate Pastor for Children
and Youth in August 2013 pursuant to a document referred to as the “Call Letter” by the parties.
Garcia attached the Call Letter as Exhibit A to the complaint. In September 2021, Fitzgerald
desired to re-open the Church to in-person programs following the shutdowns caused by the
COVID-19 pandemic. In response, Garcia “developed several programs to start in person church
school in September 2021 with due regard to safety protocols.” On September 9, 2021, Garcia met
with Fitzgerald and Emmrich, at which time they “summarily fired” her. They provided a “list of
alleged deficiencies” and “advised that the reasons for terminating her were that [Garcia] failed to
satisfactorily perform her job obligations during the pandemic.” They offered her three months of
salary as a severance payment, along with $5000 for “vocational consulting,” in exchange for her
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agreement to characterize the firing as a resignation and “to not disparage the Church or anyone
employed by it.”
¶5 Despite this offer, Fitzgerald and Emmrich “called church members” and informed them
Garcia was fired “for poor performance” following an event that constituted “the final straw.”
Fitzgerald also told “the parishioners and others” that Garcia “failed to plan for Sunday school,”
which was false. Additionally, on October 2, 2021, Emmrich held a Zoom video meeting that was
open to the “general public,” during which someone questioned Emmrich about Garcia’s firing.
He replied that the action was taken due to a history of poor performance and following an
appropriate process. On October 3, 2021, Fitzgerald announced Garcia’s termination during a
Church service, repeating that an appropriate process occurred. Garcia alleged that the references
to a firing process were “intended to falsely imply that [Garcia] had regular performance reviews,
was advised of the conduct that constituted the alleged poor performance and failed to address or
remediate the alleged poor performance.” She further alleged these actions violated the Church’s
Bylaws, which stated that someone in her position would be given “three months’ notice of any
intended separation.” Garcia did not attach the Bylaws to the complaint.
¶6 The Call Letter acknowledges the Church hired Garcia on June 5, 2013, and describes her
job responsibilities, compensation, and schedule. It does not contain any reference to the Church
Bylaws, terms regarding a fixed period of employment, or any discussion of severance.
¶7 Defendants moved to dismiss the complaint under sections 2-615 and 2-619 of the Code
(see 735 ILCS 5/2-619.1 (West 2020)). Regarding the breach of contract claim, they argued Garcia
was an employee at-will per the Call Letter and the employee handbook, and could be terminated
at any time, with or without cause. In so arguing, Defendants acknowledged the Church Bylaws,
which required three months’ notice before either the Church or youth pastor could sever the
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employment relationship, and stated, “Defendants do not dispute that Plaintiff was not provided
three months’ notice prior to her termination. However, shortly after Plaintiff’s termination she
was paid an amount equivalent to her compensation for a three-month period.” Defendants also
attached an affidavit to this effect. They continued in the motion, “even assuming arguendo that
the Bylaws comprise part of the purported Contract,” Garcia still did not plead a breach of contract
claim because she did not properly plead damages. Regarding defamation, Defendants maintained
that the complained-of statements were capable of an innocent construction, and thus not
defamation per se. Additionally, they argued Garcia failed to allege the special damages necessary
to state a claim for defamation per quod or false light.
¶8 Defendants attached the employee handbook and Church Bylaws to the motion.
¶9 In her response, Garcia contended that while the employee handbook did not apply because
it was never incorporated into her “agreement” with the Church, the same was not true of the
Bylaws because the Church admitted the Bylaws applied when it offered her the severance
payment. Garcia stated, “Defendants admit through conduct and do not contend that the Bylaws
are not part of [Garcia’s] Contract.”
¶ 10 The circuit court granted Defendants’ motion without prejudice and with leave to replead.
In so ordering, the court found Garcia’s breach of contract claim failed because she did not
satisfactorily plead damages. The court further found that the defamation claim (and false light
claim by extension) failed because the allegations lacked “the requisite specificity,” and cautioned
that the innocent construction rule would likely apply to the complained-of statements if Garcia
did not “allege significantly more facts.”
¶ 11 Garcia then filed her first amended complaint (FAC). She newly alleged that two weeks
before Sunday School was scheduled to begin in September 2021, Fitzgerald told two named
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teachers employed by the Church that Garcia “was being fired for poor job performance.” This
information was then disseminated to other teachers and staff. Garcia further alleged four named
individuals, and other unnamed individuals, were told she was fired for poor performance
following the final straw event. Defendants allegedly “spread the lies” via phone calls to a named
individual no longer affiliated with the church, and other named individuals who were “former
church leaders.” She alleged, “Each of the calls was an unprivileged publication to the public of
defamatory statements.”
¶ 12 Garcia also included new allegations about the Zoom meeting. Specifically, she now
alleged that 23 people participated (providing the names of seven), and during the meeting,
Emmrich “falsely assured the people on the call the action was taken because [Garcia] had a
documented history of poor performance” and falsely stated she “had been warned in accordance
with proper church process, failed to [heed] the warning, and persisted in the unacceptable
behavior.”
¶ 13 Garcia updated her breach of contract claim to now allege that her employment contract
included both the Call Letter “and several sections of the Bylaws of the Church which the Church
admits are incorporated into the Contract.” Due to the alleged breaches of her contract, including
violations of notice and privacy provisions in the Bylaws, Garcia alleged she suffered damages
including the “[l]oss of the financial and emotional benefit of looking for a new position while
actually employed and without the ‘story’ of her termination in circulation in the general church
population”; four months of severance per the “recommendation” of the Illinois Council of the
United Church of Christ Congregational (UCCC); three months of salary and benefits she was
owed per the Bylaws’ notice requirements; “Counseling and other related expenses for her and her
young children, which has cost[s] in excess of $20,000”; and “Moving and relocation costs of more
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than $20,000 for moving expenses and finding a home in some suburb of Chicago, hopefully
escaping the effects of the campaign by [Fitzgerald] to disparage [Garcia’s] reputation.”
¶ 14 Regarding false light, Garcia alleged “[t]he result of the statements made by [Fitzgerald]
and [Emmrich] would be to impute to [Garcia] the inability to perform her duties as a minister and
indicate a want of integrity necessary for one to hold such a position.” As a result, she “suffered
damages in the form of lost wages, expense to move to a new community to seek employment,
psychological trauma which required counseling and loss of self-esteem.”
¶ 15 Regarding defamation, she alleged that the “information conveyed *** injured [Garcia]
and adversely impacts her ability to practice her profession and get another position,” and she
“suffered damages in the form of lost wages, expense to move to a new community to seek
employment, counseling to treat psychological trauma *** and loss of self-esteem for both her and
her family.”
¶ 16 Defendants again moved to dismiss, arguing the breach of contract claim failed because
Garcia was “an at-will employee who could be terminated with our without cause at any time,”
and the “types of damages claimed” were improper. They further contended the Bylaws were not
part of the Call Letter, and nothing in the Call Letter indicated an intent to incorporate the Bylaws.
Defendants denied admitting the Bylaws were part of Garcia’s employment contract. Regarding
defamation and false light, Defendants argued Garcia again failed to plead the defamatory
statements “with sufficient particularity,” and the complained-of statements were still capable of
innocent construction.
¶ 17 The circuit court granted Defendants’ motion and dismissed the FAC without prejudice.
Regarding breach of contract, the court explained that Garcia did not identify a term in the Call
Letter that Defendants breached, and the Bylaws were “not incorporated by reference in the
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employment contract and still [were] not attached” to the FAC. Moreover, the court continued,
Garcia’s damages allegations were also insufficient because she sought “damages that are not
recoverable under a claim for breach of contract.” On the defamation and false light claims, the
court found Garcia again failed to allege defamatory statements with sufficient particularity and,
even assuming they were properly pled, the statements were capable of an innocent construction.
Finally, the court noted Garcia failed to allege special damages. The court provided Garcia “one
final opportunity to allege a proper cause of action.”
¶ 18 Garcia filed a motion for leave to file the SAC. In the motion, Garcia explained the SAC
“incorporated” the Bylaws, clarified the terms of employment Defendants allegedly breached, and
“refined its claim for damages.” Garcia also claimed to include “additional information” to support
her false light and defamation claims. The circuit court granted the motion.
¶ 19 In the SAC, Garcia now alleged that the Call Letter was only an “invitation to fill a position
in the Church defined by the Bylaws,” and that the “employment relationship [was] governed by
the Bylaws.” Garcia attached the Bylaws, but not the Call Letter, to the SAC. She clarified that
after Fitzgerald stated to the two teachers that Garcia “repeatedly failed to perform her job or
address criticisms of her work performance,” he then “continued his campaign to discredit” Garcia
by “disseminating false information to Church members and volunteers” between September 5
and September 8. Regarding the Zoom meeting of October 2, 2021, Garcia now included a footnote
promising to produce a list of attendees in discovery. She alleged the Zoom invitation was
“provided not only to parishioners, but also the general public, i.e., people who attended St Pauls
but may not have been members of the Church.”
¶ 20 Garcia’s theories for breach of contract consisted of violations of (1) the Bylaws’ notice
provision per section 9.5, (2) an implied right to her computer and email, (3) an implied right of
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privacy deriving from section [4.8] of the Bylaws, and (4) the implied right of good faith and fair
dealing.
¶ 21 Regarding damages for breach of contract, Garcia listed, “Three months of her salary and
housing allowance due based on the Bylaw provisions, which was not paid.” Garcia added she lost
income “because while she was attempting to mitigate damages, she was refused employment by
a local hospital and a crisis intervention service because of the wrongful discharge and statements
made by” Fitzgerald. She also could not perform “one specific wedding and several baptisms,” but
again withheld additional details pending discovery. In the false light portion of the SAC, she
newly alleged her damages included three “months of lost wages and housing allowance” and “lost
honoraria arising from performing weddings, funerals and baptisms,” explaining she, “specifically
was not hired because of the statements by a local hospital as a Chaplin and a crisis intervention
service as a counselor.”
¶ 22 The Bylaws are attached to the SAC and included in the record on appeal. Section 4.8
states, in relevant part, that “deliberations of the Council or Executive Committee regarding
specific personnel or their performance reviews shall not be included in the published minutes.”
Section 9.5 requires, in relevant part, that the Associate Pastor for Youth and Children and “Senior
Pastor shall give each other three months’ notice of any intended severance.”
¶ 23 The SAC included the below-listed statements as the basis for the defamation and false
light claims:
1. Fitzgerald’s statements to the two teachers prior to Garcia’s firing;
2. Fitzgerald’s dissemination of the information relayed in those statements to Church
members and volunteers between September 5 and 8, including two named individuals;
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3. On unknown dates before and after September 9, Fitzgerald and Emmrich called and
informed certain Church members, some of whom are named, that Garcia “had failed to
plan for and organize in-person Sunday School according to the health and safety
concerns attendant to COVID-19 protocols”;
4. The “false information was spread far and wide across Chicago land”;
5. Emmrich’s statements during the October 2, 2021 Zoom meeting;
6. Fitzgerald’s statements at the October 3, 2021 Church service; and
7. Per paragraph 64 of the SAC, that Fitzgerlad and Emmrich,
“[U]sed very similar consistent language to convey a message that [Garcia] was
incompetent and unreliable to the people specifically identified above and the general
public. They said consistently (all of which constituted unprivileged public publication
of the statements) to the attendees of the Church Zoom meeting on October 2, 2021, to
the general church population in the sanctuary on October 3, 2021, to the Sunday School
teachers before Sunday School began, before and after they fired [her], and to individual
members of the church identified above:
a. She failed to properly plan for in-person Sunday School taking into
account COVID-19 restrictions and the critical need to have in person
Sunday School;
b. She consistently, over the course of her time at St. Pauls, failed to conduct
herself within proper pastoral boundaries, overshared personal
experiences during sermons, in reports and as part of her ministry
generally, and acted unprofessionally in meetings;
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c. She scheduled her Church obligations during the Pandemic around her
personal issues driven by homeschooling her children and refused to
return to Church full time in April, 2021;
d. She was warned about the alleged inadequacies on several occasions
formally;
e. She ignored the warnings and refused to make changes to her programs
or address the other issues; and
f. She failed to properly perform the other obligations of her position
consistently after being warned.”
¶ 24 Defendants moved to dismiss the SAC, generally arguing that Garcia failed to correct the
deficiencies in her earlier pleadings. Additionally, they contended Garcia’s breach of contract
claim failed because she did not attach the Call Letter to the SAC. They emphasized the Bylaws
attached to the SAC were dated November 10, 2019, well after the Church hired her. Regarding
false light and defamation, Defendants maintained their arguments regarding lack of specificity,
innocent construction, and special damages, and further contended that Garcia “improperly
attempt[ed] to bootstrap her defamation claim by asserting in footnotes *** that through a
discovery fishing expedition she will be able to supplement facts which [she] can only hope will
establish a viable claim for defamation.”
¶ 25 The circuit court dismissed the SAC with prejudice. In so ordering, the court explained
Garcia’s third attempt fared “no better than the previous attempts” because she failed to “be more
specific in her allegations.” Regarding breach of contract, the court highlighted that Garcia failed
to attach the Call Letter to the SAC, but still addressed its contents, reiterating it did not incorporate
the Bylaws. The court also stated the Bylaws were only “an internal governance document rather
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than a contract” and Garcia “failed to allege she was provided a copy of the relevant [Bylaws]
when negotiating her contract and that she relied on the representations made therein.” The court
further found Garcia did not plead compensable damages because the hiring failures from the
hospital and crisis center did not stem from the contract, the salary and housing allowance was
related to the Bylaws, not the Call Letter, and the UCCC recommendations had “no foundation
whatsoever to this case,” while the counseling and moving expenses were “unrecoverable.”
¶ 26 Regarding false light and defamation, the circuit court reiterated that absent defamatory
per se statements, Garcia had to plead special damages, and she again failed to do so. Additionally,
each complained-of statement, despite her additions, were still of the category the court previously
found capable of an innocent construction.
¶ 27 This appeal followed.
¶ 28 JURISDICTION
¶ 29 The circuit court dismissed the SAC on July 17, 2023, and Garcia filed her notice of appeal
on August 8, 2023. This court has jurisdiction pursuant to Illinois Supreme Court Rule 303 (eff.
July 1, 2017).
¶ 30 ANALYSIS
¶ 31 On appeal, Garcia argues that the circuit court erred in dismissing her three claims as
presented in the SAC, specifically (1) breach of contract, (2) defamation, and (3) false light.
¶ 32 The circuit court dismissed the SAC pursuant to section 2-615 of the Code. 735 ILCS 5/2-
615 (West 2020). On a section 2-615 motion, the court must construe all well-pleaded facts in the
light most favorable to the plaintiff and determine whether the pleading states a claim on which
relief can be granted. Tuite v. Corbitt, 224 Ill. 2d 490, 509-10 (2006). All reasonable inferences
will be drawn in favor of the plaintiff. Id. at 510. The court will also consider the information
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contained in any exhibits or attachments to the pleading. Fillmore v. Taylor, 2019 IL 122626, ¶ 66.
Where a plaintiff has filed an amended pleading, any exhibits attached to previously dismissed
pleadings must also be attached to the current pleading to be considered part of the record. Duffy
v. Orlan Brook Condominium Owners’ Ass’n, 2012 IL App (1st) 113577, ¶ 30. We review de novo
the circuit court’s dismissal of a complaint pursuant to section 2-615 for failure to state a claim.
project44, Inc. v. FourKites, Inc., 2024 IL 129227, ¶ 18.
¶ 33 Before we address the substance of Garcia’s claims, we note because this matter involves
a dispute between a church and its former employee, it potentially invokes the doctrine of
ecclesiastical abstention. Under this doctrine, courts will not intervene in disputes involving a
religious institution if it requires the court to inquire into religious law, canonical text, or the
internal governance of the institution. Taylor v. Evangelical Covenant Church, 2022 IL App (1st)
210524, ¶¶ 14-16. The court may consider a claim, though, if “neutral, objective, and well-
established principles of law familiar to lawyers and judges can be applied.” Id. ¶ 15. Neither party
raised this issue, but the failure to raise it does not grant this court license to violate the doctrine.
The resolution of this matter does not require abstention, though, because “where a complaint
alleges that a church has violated its own bylaws, a civil court may exercise jurisdiction to decide
whether the church has violated its bylaws.” Jackson v. Mount Pisgah Missionary Baptist Church
Deacon Board, 2016 IL App (1st) 143045, ¶ 52. Garcia’s claims for defamation and false light are
similarly cognizable because they do not implicate Church doctrine or internal governance. See
Duncan v. Peterson, 408 Ill. App. 3d 911, 915-18 (2010). Accordingly, we will consider the
substance of Garcia’s claims.
¶ 34 Garcia’s first claim is for breach of contract. To plead a breach of contract claim, a plaintiff
must allege “(1) the existence of a valid and enforceable contract, (2) substantial performance by
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the plaintiff, (3) breach by the defendant, and (4) damages caused by that breach.” Ivey v.
Transunion Rental Screening Solutions, Inc., 2022 IL 127903, ¶ 28. Regarding damages, the
plaintiff must allege recoverable damages that “naturally and generally result” from a breach.
Midland Hotel Corp. v. Reuben H. Donnelley Corp., 118 Ill. 2d 306, 318 (1987); see also
Hanumadass v. Coffield, Ungaretti and Harris, 311 Ill. App. 3d 94, 100 (1999); Doe v. Roe, 289
Ill. App. 3d 116, 130 (1997). Emotional distress damages are generally unavailable on a breach of
contract claim unless the parties contemplated that a breach would be so severe that emotional
distress was likely to result. Doe, 289 Ill. App. 3d at 130. When a breach of contract claim is based
on a written document, that document must be attached to the pleading. 735 ILCS 5/2-606 (West
2020). Separate documents may be considered as part of a contract if the parties’ intent to
incorporate the separate document is clear from the face of the contract. Dixon v. GAA Classic
Cars, LLC, 2019 IL App (1st) 182416, ¶ 24. 1
¶ 35 The parties do not dispute that a valid and enforceable contract for employment existed, or
that Garcia substantially performed under the contract before her firing. The only contested issues
are whether Garcia sufficiently pled breach and damages.
¶ 36 Though Garcia filed three complaints, the SAC is the operative pleading, and the only one
we may consider. Duffy, 2012 IL App (1st) 113577, ¶ 30. The first two complaints alleged that
Garcia’s employment contract was the Call Letter, and a breach of the Bylaws constituted a breach
of that contract. Garcia attached the Call Letter, but not the Bylaws, to those complaints. In the
SAC, however, Garcia significantly altered this claim, now alleging the Call Letter was simply a
1 We note that Defendants argue in their brief that this court only has jurisdiction to review the breach of contract claim against the Church because Garcia failed to timely appeal the circuit court’s dismissal with prejudice of the claim as against Fitzgerald and Emmrich. The record supports this argument, and Garcia does not contest this point, and therefore Garcia’s breach of contract claim will proceed against the Church alone. 13 No. 1-23-1413
“call” to fill a position, but the Bylaws governed her employment, which the parties intended at
the time Garcia accepted the “call.” Also in the SAC, beyond the alleged breach of the Bylaws’
notice provision, Garcia alleged other theories for breach, predicated on violations of privacy
requirements per the Bylaws, her “implied right” to access her computer and email, and the implied
obligation of good faith and fair dealing. Garcia attached the Bylaws, but not the Call Letter, to
the SAC.
¶ 37 The Bylaws contain section 9.5, which specifically references the position Garcia alleges
she accepted with the Church. Section 9.5 requires both parties to provide three months’ notice
before any severance. Conversely, the Bylaws do not contain any reference to a Church employee’s
privacy rights. The cited section for this proposition, section 4.8, states only that “deliberations of
the Council or the Executive Committee regarding specific personnel or their performance reviews
shall not be included in the published minutes.”
¶ 38 On this record, we find that Garcia has sufficiently alleged that the Bylaws provided
relevant terms of Garcia’s employment, terms which the Church then breached by violating the
notice requirements of section 9.5. Another panel of this court has treated a breach of contract
claim as valid when it was based on the defendant church violating the employment termination
procedures contained in that church’s bylaws. See Jackson, 2016 IL App (1st) 143045, ¶¶ 5-6, 52
(parties made an oral agreement for employment, allegedly with promise to abide by bylaws); see
also Ervin v. Lilydale Progressive Missionary Baptist Church, 351 Ill. App. 3d 41, 42-43, 46
(2004) (The plaintiff, a reverend, sought an injunction to stop his employer, the defendant church,
from firing him without using the procedure established by the church’s bylaws). Additionally, in
both the general corporate context and the voluntary association context, Illinois courts have found
that the adoption of bylaws creates a valid and enforceable contract between the organization at
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issue and its officers, shareholders, or members. See Ginter v. Heco Envelope Co., 316 Ill. 183,
185-87 (1925); Fritzsche v. LaPlante, 399 Ill. App. 3d 507, 523 (2010) (“Corporate bylaws
constitute an enforceable contract between the corporation and its shareholders, and both officers
and shareholders are bound by the bylaws”); Lo v. Provena Covenant Medical Center, 356 Ill.
App. 3d 538, 542-43 (2005) (Bylaws for voluntary associations, like some churches, “create a
contract between the association and its members.”). The principle underlying these cases is
consistent—when an organization, like the Church here, endeavors to adopt bylaws, the officials
of that organization may be legally compelled to follow those bylaws, depending on the
circumstances.
¶ 39 Applying this general principle and construing the SAC in the light most favorable to
Garcia, we find she sufficiently alleged that she and the Church agreed to certain terms for her
employment that contemplated the Church Bylaws would apply, terms the Church then breached
by not providing her three months’ notice of the intended severance when Fitzgerald and Emmrich
fired her without prior warning. Based on the face of the SAC and the function of bylaws generally
in Illinois law, Garcia’s allegations that the Church had contractual obligations to her per the
Bylaws, and independent of the Call Letter, is enough to state a valid claim at this stage of
proceedings. See Jackson, 2016 IL App (1st) 143045, ¶¶ 5-6, 52. It is for this reason that Garcia’s
choice not to attach the Call Letter to the SAC is not fatal, as we need not interpret it to determine
whether she sufficiently pled a claim predicated entirely on the Bylaws. See 735 ILCS 5/2-606
(West 2020). To the extent the Church contends the Call Letter obviates its general duty to abide
by its Bylaws with respect to Garcia, or the notice provision of the Bylaws was not in effect during
15 No. 1-23-1413
a relevant portion of Garcia’s employment, such arguments would require consideration of the
underlying facts, which is inappropriate at this stage of the litigation. Tuite, 224 Ill. 2d at 509-10. 2
¶ 40 Garcia’s other theories for breach all fail. Most are predicated on a violation of alleged
privacy requirements per the Bylaws, but our review of the Bylaws reveals the document contains
no such requirements, and a claim in a complaint can be dismissed if positively rebutted by an
exhibit. Metrick v. Chatz, 266 Ill. App. 3d 649, 653 (1994). The Bylaws also contain nothing from
which an implied right of access to Garcia’s work computer or email could be intuited, nor does
Garcia allege what section contains this requirement. Finally, regarding any alleged breach of the
implied right of good faith and fair dealing, to maintain this theory a plaintiff must allege
contractual discretion on the part of the opposing party, which that party then exercised in an unfair
manner or in bad faith. McCleary v. Wells Fargo Securities, L.L.C., 2015 IL App (1st) 141287,
¶ 19. The SAC contains no such allegations.
¶ 41 This leads us to the damages element. Damages recoverable under a breach of contract
theory must be either those (1) naturally resulting from a party’s breach, or (2) which could have
been reasonably contemplated by the parties at the time of formation. Midland Hotel, 118 Ill. 2d
at 318; Doe, 289 Ill. App. 3d at 130. Under these requirements, the only element of damages Garcia
sufficiently alleges is the three-month severance payment. In so finding, we note that in previous
pleadings and motions, the parties conflict regarding this payment. Most noteworthy, the Church
attached to its motion to dismiss the original complaint an affidavit from a Church employee
2 We do not reach the parties’ dispute in the briefing over whether Defendants judicially admitted the Bylaws applied to Garcia’s employment, as this issue is irrelevant to our resolution of dismissal pursuant to a section 2-615 motion, where we only consider the allegations made in the SAC and the information contained in the exhibit thereto. See Fillmore, 2019 IL 122626, ¶ 66. 16 No. 1-23-1413
averring the payment was made. The SAC, however, specifically alleges it was not made, and on
a section 2-615 motion, we must take this allegation as true. Tuite, 224 Ill. 2d at 509-10.
¶ 42 Garcia’s other damages are not recoverable as pled. First, emotional distress damages are
generally not available for breach of contract. Hanumadass, 311 Ill. App. 3d at 100. Garcia does
not sufficiently allege that the parties contemplated such damages at the time of formation or
explain why in this context it was generally foreseeable that a breach of a three months’ notice
requirement would lead to psychological damage requiring counseling. See Doe, 289 Ill. App. 3d
at 130. Similarly, Garcia does not explain how her moving expenses could have been contemplated
by the parties as a consequence of her termination without notice. She also does not allege why
the UCCC recommendations for severance apply to her situation, or how a breach of the notice
provision related to her inability to secure employment or perform weddings and baptisms.
¶ 43 The Church argues the Call Letter controls and did not incorporate the Bylaws by reference,
and thus Garcia cannot refer to an alleged violation of a Bylaw requirement as a theory for breach
of contract. See Dixon, 2019 IL App (1st) 182416, ¶ 24. This argument fails because the Call Letter
is not part of the SAC, and thus we cannot consider its contents for purposes of analyzing a section
2-615 motion to dismiss the SAC. Duffy, 2012 IL App (1st) 113577, ¶ 30. Moreover, Garcia is not
bound by her allegations in the original complaint and FAC that the Call Letter was her
employment contract; those pleadings were unverified, and thus not binding judicial admissions.
Pettigrew v. Putterman, 331 Ill. App. 3d 633, 641-42 (2002). Given this procedural posture, Garcia
was free to allege in the SAC that the terms of the Bylaws applied to her employment, and it was
these terms, and not any in the Call Letter, which the Church breached.
¶ 44 Garcia’s remaining claims are for defamation and false light. To state a claim for
defamation, a plaintiff “must allege sufficient facts showing that (1) the defendant made a false
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statement about the plaintiff, (2) the defendant made an unprivileged publication of that statement
to a third party, and (3) the publication caused damages.” project 44, 2024 IL 129227, ¶ 20.
Statements can be defamatory per se or per quod. “A statement is defamatory per se if its
defamatory character is obvious and apparent on its face and injury to the plaintiff’s reputation
may be presumed,” while in a defamation per quod situation, “damage to the plaintiff’s reputation
is not presumed” and “the plaintiff must plead and prove special damages to recover.” Tuite, 224
Ill. 2d at 501. While Garcia does not delineate which type of claim she pursues, the SAC, given a
broad construction, can be understood to raise both. Construction of allegedly defamatory
statements, including whether they are capable of an innocent construction, is an issue of law we
review de novo. Id. at 511.
¶ 45 “A complaint for defamation must set forth the words alleged to be defamatory ‘clearly
and with particularity,’ ” though the complained-of statements need not be pled verbatim or in
quotations. Krueger v. Lewis, 342 Ill. App. 3d 467, 470-71 (2003) (quoting Lykowski v. Bergman,
299 Ill. App. 3d 157, 163 (1998)); see also Green v. Rogers, 234 Ill. 2d 478, 491-92 (2009).
¶ 46 We will first consider defamation per se. In a defamation per se claim, the plaintiff need
only allege that the defendant made false statements that fit into a category the law deems facially
defamatory and need not plead or prove damages to recover. project 44, 2024 IL 129227, ¶ 20.
These categories are “(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 his or her profession; and (5)
words that impute a person has engaged in adultery or fornication.” Green, 234 Ill. 2d at 491-92.
A statement will not be found defamatory per se if it is reasonably capable of an innocent
18 No. 1-23-1413
construction. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 11 (1992). In determining
whether a statement is capable of an innocent construction, the court in Chapski explained “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 *** it cannot be actionable per se.” Chapski v. Copley Press,
92 Ill. 2d 344, 352 (1982).
¶ 47 To allege a defamation per quod claim, the plaintiff must plead “extrinsic circumstances
[that] demonstrate an injurious meaning behind the statement.” Rivera v. Allstate Insurance Co.,
2021 IL App (1st) 200735, ¶ 27 (citing Bryson v. News America Publications, Inc., 174 Ill. 2d 77,
87-88 (1996)). The plaintiff must also establish special damages of a pecuniary nature. Id.
¶ 48 Finally, to allege a false light claim:
“First, the allegations in the complaint must show that the plaintiff[] [was] placed in a false
light before the public as a result of the defendant’s actions. Second, the court must
determine whether a trier of fact could decide that the false light in which plaintiff[] [was]
placed would be highly offensive to a reasonable person. Finally, the plaintiff[] must allege
and prove that the defendants acted with actual malice, that is, with knowledge that the
statements were false or with reckless disregard for whether the statements were true or
false.” Kolegas, 154 Ill. 2d at 17-18.
Where a “false light *** claim is based on statements that are not defamatory per se, a plaintiff
must allege that he suffered special damages.” Chang Hyun Moon v. Kang Jun Liu, 2015 IL App
(1st) 143606, ¶ 17.
¶ 49 Before considering the merits of these claims, we note that Garcia argues her false light
claim can be analyzed separately from her defamation claim. Typically, suits that involve both
19 No. 1-23-1413
false light and defamation claims are analyzed together, with the statements at issue the basis for
both. Garcia contends her false light claim can be analyzed separately because false light claims
may involve a true statement a defendant uses in a context that places the plaintiff in a false light,
while defamation claims require a showing that the complained-of statements are false. Without
determining the accuracy of this proposition, we note that Garcia has failed to argue which alleged
statements by Fitzgerald or Emmrich would fit within the category of true statements that placed
her in a false light. Instead, she lists the same statements for both claims, all of which she alleges
are false. Accordingly, the false light claim is dependent on the resolution of the defamation claim,
which we turn to now.
¶ 50 Garcia alleges that Fitzgerald and Emmrich made certain statements which all constituted
defamation per se under the third and fourth categories relating to performance in, and fitness for,
one’s profession. See infra ¶ 23. The circuit court dismissed the defamation and false light claims
contained in the SAC on the basis that the allegations were too vague, and even if they were not,
the statements were capable of an innocent construction.
¶ 51 We find that while Garcia pled a subset of the alleged statements with sufficient specificity,
all such statements were capable of an innocent construction, and Garcia’s defamation per se claim
fails accordingly. First, the catchall allegations in paragraph 64 of the SAC are too vague because
they attribute every complained-of statement to all speakers at each alleged incident. This level of
abstraction is insufficient to properly place Fitzgerald and Emmrich on notice of what they
allegedly said, when, and to whom, and thus are insufficient to form the basis of a defamation
claim. Krueger, 342 Ill. App. 3d at 470. The same is true of the allegation that Fitzgerald and
Emmrich spread false information “across Chicago land.” Additionally, the allegation based on
the October 3, 2021 Church service is not actionable. The alleged statements only relay the fact of
20 No. 1-23-1413
Garcia’s termination and that a process occurred beforehand. Garcia does not explain how such
statements are “false.” Green, 234 Ill. 2d at 491-92.
¶ 52 The allegations that Fitzgerald and Emmrich stated Garcia’s work performance was poor
and she was fired because she refused to acknowledge and correct it, however, were pled with
sufficient particularity. 3 Garcia alleged these statements were made on at least two specific
occasions—on a date immediately preceding September 2021 to two specific recipients, and by
Emmrich on October 2, 2021, in the Zoom meeting. Garcia also alleged that in a defined time
frame of a matter of days, Fitzgerald and Emmrich repeated these statements to church members,
including certain named individuals. These allegations are specific enough to be proven at trial
and give notice to Fitzgerald and Emmrich of exactly what they are accused of, so they may
“properly formulate their answer and affirmative defenses.” See Krueger, 342 Ill. App. 3d at 470.
¶ 53 Despite this finding, Garcia’s defamation per se claim still fails because these statements
were all capable of an innocent construction. The subject matter of the statements is consistent—
Garcia was fired as youth pastor, for poor performance, either generally or in preparing the Sunday
School program according to COVID-19 protocols, and after failing to correct her conduct. These
statements can be understood as criticism of Garcia’s past performance in her role as the Church’s
youth pastor or in performing the task of preparing the Fall 2021 Sunday School programs per
COVID-19 requirements. Such statements are so specific to Garcia’s employment circumstances
at the Church that they reasonably could be interpreted as suggesting Garcia was not suited to her
3 These correspond to the statements in items 1, 2, 3, and 5, listed infra ¶ 23. We note that Defendants argue in passing in their brief that these statements were in the form of opinions, but do not then explain any basis for why or how such an argument, if accepted, should inform our ruling, and thus we will not substantively engage with that argument. See Wing v. Chicago Transit Authority, 2016 IL App (1st) 153517, ¶ 11 (“The appellate court is not a depository in which an appellant may dump the entire matter of argument and research.”). 21 No. 1-23-1413
role within the Church, and not as a broader commentary on her integrity as a pastor or general
ability to fulfill the job requirements of a pastor. Illinois courts have found similar comments on a
plaintiff’s past work performance capable of an innocent construction, and we find Garcia’s
statements analogous to these situations. See Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 413
(1996) (statements capable of innocent construction where they could be “understood to mean
simply that the plaintiff did not fit in with the organization *** and failed to perform well in that
particular job setting, and not as a comment on her ability to perform in other, future position”);
Antonacci v. Seyfarth Shaw LLP, 2015 IL App (1st) 142372, ¶¶ 28-30 (statements capable of
innocent construction where they addressed the declarant’s “working relationship” with the
plaintiff, and statements “were specifically confined to the context of [plaintiff’s] working
relationship with the [declarant] and his fit with [plaintiff’s employer]”; Taradash v. Adelet/Scott-
Fetzer Co., 260 Ill. App. 3d 313, 318 (1993) (statement capable of innocent construction where
declarant told the employer’s customers the plaintiff had a “lack of performance” at work).
Accordingly, the statements do not constitute defamation per se under the third and fourth
categories.
¶ 54 Garcia cites a series of cases for the broad proposition that statements about a plaintiff’s
past acts can constitute defamation per se, but none of the cited cases address whether statements
regarding past work performance were capable of an innocent construction and are thus all
distinguishable from the present situation and of much less consequence to our resolution than
Anderson and its progeny. See Tuite, 224 Ill. 2d at 512-13 (statements at issue were contained in
a book describing the plaintiff’s alleged ties to organized crime and corruption throughout his
career, and not descriptions of past job performance); Kolegas, 154 Ill. 2d at 11-12 (the supreme
court found statements that plaintiff was scamming the public by promoting a fake festival
22 No. 1-23-1413
impugned the plaintiff’s integrity and would prejudice future promotions); Van Horne v. Muller,
185 Ill. 2d 299, 307 (1998) (statements at issue were related to allegations of criminal conduct, not
job performance); Duncan, 408 Ill. App. 3d at 920-22 (no analysis of innocent construction).
¶ 55 Garcia further argues that the context of the statements demonstrates Fitzgerald and
Emmrich’s intent to destroy her reputation and prejudice her from gaining future employment, but
this argument fails because even conceding the relevant statements here could have been
interpreted as suggesting general unfitness for pastor roles going forward, this does not make the
statements defamatory per se. Innocent construction is determined on the basis of whether the
statement is capable of a reasonable innocent construction, not the intent of the speaker, and a
court must give the statement the innocent construction if it is capable thereof. Tuite, 224 Ill. 2d at
504. Our courts have found that statements specifically critical of an employee’s past performance,
even statements that the employee was incapable of performing the previous job in question, were
still capable of an innocent construction and did not constitute defamation per se. See Anderson,
172 Ill. 2d at 414-15 (collecting cases); see also Dunlap v. Alcuin Montessori School, 298 Ill. App.
3d 329, 339 (1998) (Statements by the defendant school that the plaintiff teacher was fired after a
“breakdown of trust and confidence” and because the plaintiff was “not satisfactorily performing
her duties or carrying out the policies” of the school were capable of an innocent construction
because they could be “construed as an assessment of plaintiff’s failure to perform well in the
School’s particular job setting, as opposed to her inability to perform well in other, future
positions.”). The well-pled, complained-of statements here are all capable of being understood as
criticism of Garcia’s fitness for her specific role and responsibilities at the Church, even if
Fitzgerald’s or Emmrich’s actual intent in making the statements was as Garcia maintain. In
Illinois, such statements are not defamatory per se.
23 No. 1-23-1413
¶ 56 Garcia also argues the statements cannot be innocently construed because the Defendants
disseminated the statements to the public or “Chicago land,” fundamentally placing the comments
in a damaging context, and distinguishing this situation with other cases where the statements were
made to a specific group of people such as one’s co-workers or a prospective employer. See
Anderson, 172 Ill. 2d at 403 (statements made to a prospective employer); Antonacci, 2015 IL App
(1st) 142372, ¶ 6 (statements made in email sent to “human resources staff” at plaintiff’s
employer). This argument is belied by the record, as the SAC only successfully alleges the
statements were made to Church members or at a Zoom meeting relating to the Church and
participated in by only 23 individuals who attended services at the Church. Garcia did not allege
that Fitzgerald or Emmrich made the statements to the press or to officials of other churches, or
that the Zoom call was attended by members of the public who had never attended Church services
and thus had no interest in who the Church employed. Moreover, Emmrich’s statements during
the Zoom meeting—that Garcia was fired due to poor performance and after not correcting certain
behaviors despite warnings—are sufficiently centered on general past performance that the
statements can be reasonably innocently construed, even if made to a wider population than those
at issue in Anderson or Antonacci. See Dunlap, 298 Ill. App. 3d at 333, 339 (In a dispute between
a fired teacher and a school, statements in a letter sent by the school to the students’ parents
discussing a “breakdown of trust and confidence” and claiming the teacher was “not satisfactorily
performing her duties” were capable of a reasonable innocent construction.).
¶ 57 Having found that the properly pled statements are not defamatory per se does not resolve
the matter, however, as these statements could also be found defamatory per quod. To state such
a claim, a plaintiff’s allegations must not only satisfy the defamation elements but must also show
that while “the defamatory character of the statement is not apparent on its face,” it can be shown
24 No. 1-23-1413
with “resort to extrinsic circumstances *** to demonstrate its injurious meaning.” Bryson, 174 Ill.
2d at 103. This requires a plaintiff to “plead and prove extrinsic facts to explain the defamatory
meaning of the statement.” Id. The plaintiff must also allege special damages of a pecuniary nature.
Rivera, 2021 IL App (1st) 200735, ¶ 49. Generalized allegations of lost income, damage to one’s
business, or emotional distress will not suffice to allege special damages, though allegations of a
specific lost dollar amount or specific lost business opportunity or customer may suffice. See
Kurczaba v. Pollock, 318 Ill. App. 3d 686, 694-95 (2000) (collecting cases, emphasizing Illinois
courts typically find allegations insufficient to plead special damages); but see Tunca v. Painter,
2012 IL App (1st) 093384, ¶¶ 60-62; Becker v. Zellner, 292 Ill. App. 3d 116, 127 (1997); Windsor
Lake, Inc. v. WROK, 94 Ill. App. 2d 403, 408-09 (1968).
¶ 58 We find that a subset of Garcia’s properly pled defamation allegations are sufficient to
sustain a defamation per quod claim. There is no dispute that Garcia sufficiently alleged the
complained-of statements were false and were published to third parties without a privilege to do
so, which brings us to the heightened pleading standards for per quod claims on the injury and
damages element. First, regarding extrinsic evidence of the injurious meaning of these statements,
Garcia included extensive detail on why the comments could be defamatory based on her unique
circumstances, including a description of the effects of the COVID-19 pandemic and how any
implication that she could not protect her young parishioners in this context would be damaging
to both her reputation generally and her work prospects moving forward. If she can prove that the
statements likely would be interpreted in this manner, as she alleged, she can demonstrate that the
statements were defamatory. Bryson, 174 Ill. 2d at 103. Similarly, the allegations regarding the
alleged failure of Defendants to conduct the performance reviews they claimed, if proven, could
25 No. 1-23-1413
support the proposition that Fitzgerald and Emmrich created a false impression that Garcia was an
unprofessional employee who was difficult to manage. Id.
¶ 59 Second, we find that Garcia successfully pled certain special damages such that her claim
can progress beyond the motion to dismiss stage, albeit limited to those damages. Specifically,
Garcia pled she lost two specific job opportunities due to the complained-of statements, and she
identified the prospective employers—a local hospital and a crisis intervention service. The loss
of a specific customer or business opportunity has been found to constitute a sufficiently specific
allegation for special damages, and we find Garcia’s allegation fits within that model as accepted
by prior courts. See Tunca, 2012 IL App (1st) 093384, ¶¶ 60-62; Becker, 292 Ill. App. 3d at 127.
These offers are subject to proof of a specific dollar amount, which would be an appropriate
element of damages if Garcia can prove she lost the job opportunity specifically due to the
complained-of statements. Similarly, Garcia alleged she could not perform a wedding service and
several baptisms, all of which are subject to specific pecuniary proof and may proceed. Tunca,
2012 IL App (1st) 093384, ¶¶ 60-62; Windsor Lake, 94 Ill. App. 2d at 408-09. We find, however,
that Garcia’s other damages allegations do not meet the special damages pleading threshold. The
broad allegation of general “lost honoria” is a quintessential example of the type of damage
allegation insufficient to plead special damages. See Kurczaba, 318 Ill. App. 3d at 694-95.
Similarly, Garcia does not provide details linking her moving expenses to the effects of the
defamatory statements, a problem that also defeats her pursuit of psychological counseling costs.
Also her lost wages are not recoverable for defamation, as she does not allege the statements
caused her firing.
¶ 60 Lastly, because we find Garcia sufficiently pled the elements for defamation per quod, her
false light claim also survives as limited to those specific statements and elements of damages.
26 No. 1-23-1413
The SAC contains allegations as to the remaining false light elements, and Defendants do not
contend otherwise. As discussed above, if Garcia can prove through extrinsic evidence the
allegation that the statements, taken in context, imputed her with the inability to protect her young
parishioners, the highly offensive potential for someone whose career involves just that is readily
apparent. And the SAC is full of allegations that Fitzgerald and Emmrich knew their comments
were false and specifically made them to damage Garcia’s reputation, which suffices to allege
actual malice. See Kirchner v. Greene, 294 Ill. App. 3d 672, 682-83 (1998).
¶ 61 CONCLUSION
¶ 62 Garcia’s breach of contract claim, as limited to (1) breach of the notice provision of the
Bylaws, (2) the pursuit of the severance payment as the only element of damages deriving
therefrom, and (3) against the Church as the lone defendant, was sufficiently pled and may proceed.
Regarding her claims for defamation and false light, certain complained-of statements were pled
with sufficient specificity, but none of these statements constitute defamation per se because they
are all reasonably capable of an innocent construction. Garcia, however, sufficiently pled that these
statements could constitute defamation per quod and sufficiently pled certain of her sought-after
damages, such that the claims for defamation per quod and false light may go forward on the
limited bases described above. Accordingly, we reverse the circuit court’s dismissal and remand
this matter for further proceedings consistent with this order.
¶ 63 Reversed and remanded with instructions.