Prakash v. Parulekar

2020 IL App (1st) 191819

Opinion

2020 IL App (1st) 191819 No. 1-19-1819 Opinion filed September 30, 2020 Fourth Division ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ JAI PRAKASH, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 18 L 8559 ) SATISH PARULEKAR, ) Honorable ) Moira S. Johnson, Defendant-Appellee. ) Judge, presiding.

JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion.

OPINION

¶1 Plaintiff Jai Prakash appeals from an order of the circuit court of Cook County that

dismissed with prejudice his two-count amended complaint, which alleged claims of intentional

infliction of emotional distress (IIED) and defamation per se against defendant Satish Parulekar.

¶2 On appeal, plaintiff argues that he sufficiently pled his IIED and defamation claims, he did

not release those claims in a settlement agreement with the university, and he produced clear and

convincing evidence that defendant’s acts were not immunized from liability. No. 1-19-1819

¶3 For the reasons that follow, we reverse the judgment of the circuit court. 1

¶4 I. BACKGROUND

¶5 Plaintiff and defendant were both professors of chemical engineering at Illinois Institute of

Technology (IIT). When defendant served as chair of the chemical and biological engineering

department, plaintiff reported to defendant. In 2011, plaintiff appointed a research professor who

worked on plaintiff’s off-site research project.

¶6 On November 6, 2013, plaintiff entered into a settlement agreement with IIT to resolve

several claims, including the unauthorized reduction of plaintiff’s salary and his proper actions

concerning the appointment of the research professor. Under this agreement, plaintiff received

$37,990.55 and other benefits and released IIT and its current and former employees from every

waivable claim, damage and liability that he had as a result of any matter from the start of his

employment with IIT through November 6, 2013, arising out of or based upon any act, omission

or event which occurred or should have occurred prior to November 6, 2013, including, without

limitation, any allegation of defamation, IIED, workplace harassment, retaliation, whistleblowing,

invasion of privacy, and negligence or any other tort.

¶7 On August 8, 2018, plaintiff filed a complaint against defendant, alleging claims of IIED

and defamation per se and “seek[ing] redress for a prolonged pattern of misconduct *** spanning

over seven (7) years.”

¶8 Defendant moved to dismiss the complaint under section 2-619.1 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-619.1 (West 2016)), arguing that (1) plaintiff’s pleading could

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.

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not rely on any events before November 6, 2013, because his settlement agreement with IIT limited

the time and scope of his claims, (2) any defamation claims before August 8, 2017 were barred as

outside the one-year statute of limitations, and (3) plaintiff’s alleged embarrassment was not

sufficient to plead an IIED claim.

¶9 On March 7, 2019, the trial court granted the 2-615 portion of the motion to dismiss,

reserved ruling on the 2-619 portion of the motion, and granted plaintiff leave to file an amended

complaint.

¶ 10 Plaintiff’s amended complaint alleged against defendant (count I) a claim of IIED based

on defendant’s pattern of egregious misconduct each year from 2011 to 2018, which was extreme

and outrageous and intended to inflict severe emotional distress, and caused plaintiff to suffer

extreme emotional, mental, physical and financial distress.

¶ 11 Specifically, plaintiff alleged that defendant’s conduct before November 6, 2013 (the

effective date of the settlement agreement) included providing false information to change

plaintiff’s employment contracts without notice and reduce his salary; harassing plaintiff by

questioning his 2011 appointment of a research professor to work on plaintiff’s off-site research

project; falsely stating to current and past IIT officials and faculty that plaintiff engaged in

fraudulent conduct and misused federal funds when he appointed the research professor; making

false and defamatory statements about plaintiff to cause IIT to initiate in 2012 a six-month-long

investigation of plaintiff’s research projects; and sending malevolent emails to the home institution

of the appointed research professor, which disclosed personal and confidential issues about that

professor’s family, to eliminate him from plaintiff’s research group and destroy plaintiff’s projects,

research and career.

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¶ 12 Plaintiff alleged that defendant’s conduct after the November 2013 effective date included

knowingly making false complaints in February 2014 to federal agencies that plaintiff had engaged

in fraud by misusing federal funds when he appointed the research professor in 2011, despite

defendant’s knowledge that IIT’s investigation had found no wrongdoing by plaintiff; in 2015

making false and defamatory statements about plaintiff to IIT faculty members who were not aware

of IIT’s prior investigation of plaintiff; in February 2016 sending to 23 individuals a letter alleging

that defendant had received an anonymous threat letter and alluding to the federal investigation of

plaintiff; in August 2016 sending to 28 people a letter falsely accusing “individual C,” whom the

letter recipients would understand to be plaintiff, of sending the anonymous threat letter to

defendant, invading defendant’s home and accessing his computers; in 2017 falsely blaming

plaintiff for sending defendant a letter; and sending 26 people an email on March 4, 2018, which

stated that a federal agency was investigating federal grants awarded to an individual, and

including attachments to ensure the recipients would identify plaintiff as the subject of the

investigation. Plaintiff asserted that defendant’s false 2014 complaints to federal agencies resulted

in federal agents interviewing plaintiff at his home for over one hour in front of his family, which

was the most embarrassing, humiliating and traumatic event plaintiff or his family ever endured,

destroyed plaintiff’s mental and physical health, and caused him to have recurring nightmares and

seek medical help.

¶ 13 Plaintiff also alleged against defendant (count II) a claim of defamation per se, based on

false statements defendant made about plaintiff in defendant’s March 4, 2018 email and attached

March 2, 2018 letter. Plaintiff alleged that this email imputed to him the commission of an

indictable criminal offense, prejudiced him in his profession, and suggested that he lacked integrity

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in the performance or discharge of his employment duties. Furthermore, defendant published this

correspondence to numerous third parties and caused plaintiff to suffer emotionally and

financially.

¶ 14 Defendant moved to dismiss the amended complaint under section 2-619.1 of the Code,

arguing plaintiff’s amended complaint should be dismissed under (1) section 2-619(a)(6) of the

Code because his claims based on conduct before November 6, 2013 were released under the terms

of his settlement agreement, (2) section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West

2016)), because plaintiff’s attempt to sue defendant for reporting him to the federal government

constituted retaliation against defendant for engaging in his right to petition the government, which

was protected conduct under the Citizen Participation Act (Act) (735 ILCS 110/1, et seq. (West

2016)), and (3) section 2-615 of the Code because plaintiff failed to sufficiently plead a cause of

action for IIED.

¶ 15 In his response, plaintiff argued that (1) he did not release any claims against defendant,

who was neither a party to nor a third-party beneficiary of plaintiff’s settlement agreement with

IIT; (2) the Act did not bar plaintiff’s claims because defendant’s defamatory statements to many

people with no connection to the government were not protected, defendant did not intend to secure

favorable government action but rather acted to harass plaintiff, and plaintiff’s complaint was filed

years after defendant’s complained-of conduct and thus was not retaliatory; and (3) plaintiff

sufficiently pled his IIED claim against defendant, who was the department chair, based on his

position of power over plaintiff and pattern of misconduct every year from 2011 to 2018.

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¶ 16 On August 14, 2019, the trial court granted defendant’s motion to dismiss the amended

complaint with prejudice pursuant to section 2-619(a)(9) of the Code and the immunities afforded

by the Act. Plaintiff appealed.

¶ 17 II. ANALYSIS

¶ 18 Section 2-619.1 of the Code “permits a party to combine a section 2-615 motion to dismiss

based upon plaintiff’s substantially insufficient pleadings with a section 2-619 motion to dismiss

based on certain defects or defenses.” Edelman, Combs & Latturner v. Hinshaw & Culbertson,

338 Ill. App. 3d 156, 164 (2013). A section 2-615 motion to dismiss attacks the legal sufficiency

of a complaint. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484 (1994). Illinois is a fact

pleading state, and a court cannot rely upon conclusions of law or conclusory factual allegations

unsupported by specific facts in ruling on a 2-615 motion to dismiss. Alpha School Bus Co. v.

Wagner, 391 Ill. App. 3d 722, 741 (2009). A section 2-619 motion “allows for involuntary

dismissal of a claim based on certain defects or defenses.” Illinois Graphics Co., 159 Ill. 2d at 485.

A motion to dismiss pursuant to a release is brought under section 2-619(a)(6) (People ex rel.

Devine v. Time Consumer Marketing, Inc., 336 Ill. App. 3d 74, 78 (2002)), and a motion to dismiss

based upon the Act is made pursuant to section 2-619(a)(9) (Sandholm v. Kueker, 2012 IL 111433,

¶ 54). When ruling on section 2-615 and 2–619 motions, the court should view the pleadings and

supporting documents in the light most favorable to the nonmoving party, while accepting as true

all well-pleaded facts in the complaint and drawing all reasonable inferences in the nonmoving

party’s favor. Stein v. Krislov, 2013 IL App (1st) 113806, ¶ 12; Reynolds v. Jimmy John’s

Enterprise, LLC, 2013 IL App (4th) 120139, ¶ 25.

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¶ 19 This court reviews the dismissal of a complaint under sections 2-615 and 2-619 de novo.

Dawson v. City of Genesco, 2018 IL App (3d) 170625, ¶¶ 11,17; see also Thomas v. Weatherguard

Construction Co., Inc., 2015 IL App (1st) 142785, ¶ 63 (de novo consideration means the appellate

court performs the same analysis that a trial judge would perform). This court may affirm the

circuit court’s dismissal of a complaint “on any basis supported by the record.” Dawson, 2018 IL

App (3d) 170625, ¶ 11.

¶ 20 A. The Effect of the 2013 Settlement Agreement

¶ 21 Defendant argues that plaintiff’s amended complaint was subject to dismissal under section

2-619(a)(6) of the Code because the settlement agreement between plaintiff and IIT prevented

plaintiff from relying on any allegations of defendant’s conduct before the November 6, 2013

effective date of that agreement to support plaintiff’s claims of IIED and defamation.

¶ 22 “A release ‘is the abandonment of a claim to the person against whom the claim exists.’ ”

Borsellino v. Putnam, 2011 IL App (1st) 102242, ¶ 103. A release is governed by contract law and

the language of the release should be given its plain meaning. Farmers Auto Insurance Association

v. Wroblewski, 382 Ill. App. 3d 688, 696-97 (2008). “Where the terms of a contractual release are

clear and explicit, a reviewing court must enforce them as written.” Id. at 697. “The interpretation

of a contract is subject to de novo review.” In re Liquidation of Lumbermens Mutual Casualty Co.,

2018 IL App (1st) 171613, ¶ 62. “[W]hen a motion to dismiss is based upon a release, the burden

*** shifts to the plaintiff to sufficiently allege and prove that a material issue of fact exists that

would invalidate the release.” Janowiak v. Tiesi, 402 Ill. App. 3d 997, 1005 (2010).

¶ 23 We described in detail above the relevant provisions of the 2013 settlement agreement

between plaintiff and IIT, and our review of the plain terms of that agreement establishes that

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plaintiff released and fully discharged IIT and its current and past employees from all claims

arising before November 6, 2013, including any claims for defamation and IIED. Defendant was

an employee of IIT during the relevant time period, and defendant submitted an affidavit from an

appropriate custodian of IIT’s records, who verified the authenticity of the copy of the 2013

settlement agreement contained in the record. Furthermore, even though the settlement agreement

did not specifically name defendant as a third-party beneficiary, the agreement adequately defined

a class of individual beneficiaries, i.e., current and past employees of IIT, of which defendant was

clearly a member. See Crawford v. Belhaven Realty, LLC, 2018 IL App (1st) 170731, ¶ 55 (a third

party has rights under a contract if he is an intended beneficiary, i.e., someone whom the parties

intended to directly benefit by the performance of the contract, and courts determine whether a

third-party beneficiary is intended by considering the language of the contract and the

circumstances surrounding its execution). Finally, because the settlement agreement is not

ambiguous, we do not consider the emails from members of IIT, which plaintiff offered to support

his claim that IIT indicated he could properly file these IIED and defamation claims against

defendant. See Owens v. McDermott, Will & Emery, 316 Ill. App. 3d 340, 344 (2000).

¶ 24 We conclude that plaintiff released all claims against defendant arising out of pre-

November 6, 2013 conduct. Accordingly, we review the dismissal of plaintiff’s IIED and

defamation claims absent any allegations of defendant’s conduct before that date.

¶ 25 Consequently, plaintiff’s IIED claim is limited to his allegations that defendant knowingly

made false complaints to federal agencies in February 2014 that accused plaintiff of misusing

federal funds when he appointed a research professor in 2011 to work on plaintiff’s Argonne

National Laboratory off-site research project; based on defendant’s knowingly false complaints, a

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federal agency conducted a comprehensive investigation, which included two federal agents

interviewing plaintiff for over one hour at his home in front of his family; that interview was the

most embarrassing, humiliating and traumatic event plaintiff or his family ever endured; and that

investigation and interview destroyed plaintiff’s mental and physical health and caused him to

have recurring nightmares and seek medical help.

¶ 26 Also as part of his IIED claim, plaintiff alleged defendant engaged in a prolonged pattern

of misconduct that included making false and defamatory statements about plaintiff in 2015 to IIT

faculty who were not aware of IIT’s prior investigation of plaintiff; sending to 23 individuals in

February 2016 a letter alleging that defendant had received an anonymous threat letter and alluding

to the federal investigation of plaintiff; sending to 28 people in August 2016 a letter falsely

accusing “individual C,” whom the letter recipients would understand to be plaintiff, of sending

the anonymous threat letter to defendant, invading defendant’s home and accessing his computers;

falsely blaming plaintiff in 2017 for sending defendant a letter; and sending 26 people an email on

March 4, 2018, which stated that a federal agency was investigating federal grants awarded to an

individual, and including attachments to ensure the recipients would identify plaintiff as the subject

of the investigation. As a result of defendant’s prolonged pattern of misconduct, plaintiff suffered

¶ 27 Furthermore, plaintiff’s defamation per se claim is limited to his allegations that defendant

sent an email on March 4, 2018, to numerous third parties both inside and outside of IIT; this email

included a March 2, 2018 letter; defendant stated in these materials that the federal government

was investigating federal grants awarded to plaintiff; defendant implied in these materials,

knowingly and falsely, that plaintiff was involved in embezzlement and a financial conspiracy to

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defraud the government; many of the third-party recipients of defendant’s March 2018 materials

were not aware of IIT’s prior investigation of this matter, which had concluded that plaintiff had

not engaged in any wrong doing; the publication of defendant’s March 2018 materials prejudiced

plaintiff in his profession and suggested he lacked integrity in the performance or discharge of his

employment duties; and this publication caused plaintiff to suffer emotionally and financially.

¶ 28 B. Immunity Based on the Right to Petition the Government

¶ 29 Plaintiff argues the trial court erred when it dismissed with prejudice his IIED and

defamation per se claims based on immunities afforded under the Act for the protected activity of

petitioning the government to obtain favorable government action.

¶ 30 The Act was created as anti-SLAPP legislation. Sandholm, 2012 IL 111443, ¶ 33. SLAPPs

are lawsuits “ ‘aimed at preventing citizens from exercising their political rights or punishing those

who have done so.’ ” Id. (quoting Wright Development Group, LLC v. Walsh, 238 Ill. 2d 620, 630

(2010)). “Plaintiffs in SLAPP suits do not intend to win but rather to chill a defendant’s speech or

protest activity and discourage opposition by others through delay, expense, and distraction.”

Sandholm, 2012 IL 111443, ¶ 34. “SLAPPs use the threat of money damages or the prospect of

the cost of defending against the suits to silence citizen participation.” Wright Development Group,

LLC, 238 Ill. 2d at 630. “The purpose of the Act is to give relief, including monetary relief, to

citizens who have been victimized by meritless, retaliatory SLAPP lawsuits because of their ‘act

or acts’ made ‘in furtherance of the constitutional rights to petition, speech, association, and

participation in government.’ ” Id. at 633 (quoting 735 ILCS 110/15 (West 2008)). A motion to

dismiss based on immunity under the Act is properly raised under section 2-619(a)(9) of the Code

wherein the legal sufficiency of the plaintiff’s complaint is admitted, but the motion asserts that

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certain defects or defenses outside of the pleadings defeat the claim. Sandholm, 2012 IL 111443,

¶ 55.

¶ 31 Plaintiff’s lawsuit may only be dismissed due to immunity under the Act if (1) the movant’s

acts were in furtherance of his rights to petition, speak, associate, or otherwise participate in

government to obtain favorable government action; (2) plaintiff’s claims were solely based on,

related to, or in response to the movant’s acts in furtherance of his rights of petition, speech,

association, or other participation in government (this prong is satisfied if the movant demonstrates

that the lawsuit is meritless and was filed in retaliation of the movant’s protected activities to deter

him from further engaging in those activities); and (3) plaintiff failed to produce clear and

convincing evidence that the movant’s acts were not genuinely aimed at procuring favorable

government action. 735 ILCS 110/15 (West 2016); Sandholm, 2012 IL 111443, ¶¶ 45, 52, 56;

Ryan v. Fox Television Stations, Inc., 2012 IL App (1st) 120005, ¶ 21. If the movant meets his

burden under the first two prongs of the analysis, the court must decide whether the plaintiff has

met his burden under the third prong of the analysis. Stein v. Krislov, 2013 IL App (1st) 113806,

¶ 25; 735 ILCS 110/ 10, 15 (West 2016).

¶ 32 If plaintiff’s claims genuinely sought relief for damages for the alleged IIED and

defamation per se by defendant, the claims are not solely based on defendant’s rights of petition,

speech, association, or participation in government (see Sandholm, 2012 IL 111443, ¶ 45), and

accordingly, “it is irrelevant whether the defendant[’s] actions were ‘genuinely aimed at procuring

favorable government action, result or outcome.’ ” (id. ¶ 53 (quoting 735 ILCS 110/15 (West

2008))). The clear language of the Act establishes that it was not intended to protect those who

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commit tortious acts and then seek refuge in the immunity conferred by the Act. Sandholm, 2012

IL 111443, ¶ 45.

¶ 33 Addressing plaintiff’s IIED claim first, we determine whether defendant’s complained-of

actions after the November 6, 2013 release were protected under the Act by considering whether

his actions were in furtherance of his constitutional rights of petition, speech, association, or

participation in government to obtain favorable government action. Defendant’s complaints to

federal agencies in February 2014 were made to government officials in an effort to obtain

favorable government action by way of preventing plaintiff from allegedly misusing federal funds

in the appointment of a research professor. See 735 ILCS 110/10 (West 2016); see also Hytel

Group, Inc., v. Butler, 405 Ill. App. 3d 113, 120 (2010). However, defendant’s alleged prolonged

pattern of misconduct from 2015 to 2018—i.e., making false and defamatory statements about

plaintiff to IIT faculty members who were unaware of IIT’s prior investigation of plaintiff and

sending numerous people in 2016 and 2018 letters alluding to the federal investigation of plaintiff

and falsely accusing him of sending defendant an anonymous threat letter, invading defendant’s

home and accessing defendant’s computers—were not actions in furtherance of defendant’s right

to petition or participate in government to obtain favorable government action. Defendant’s

assertion to the contrary is not supported by citation to any relevant authority. U.S. Bank v. Lindsey,

397 Ill. App. 3d 437, 459 (2009) (A reviewing court is not a repository into which a party may

dump the burden of argument or research, and the failure to support an argument with pertinent

authority results in forfeiture of the argument.). Defendant cannot credibly argue that his alleged

conduct from 2015 to 2018 of sending correspondence to various non-government people both

inside and outside of IIT was an effort to obtain an investigation of plaintiff’s alleged misconduct

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because IIT in 2012 had already conducted its six-months-long investigation and exonerated

plaintiff of any wrongdoing and defendant had already filed his complaints with the federal

agencies in 2014.

¶ 34 Although defendant met his burden under the first prong of the analysis to obtain immunity

under the Act for his complaints to federal agencies in 2014, he did not meet this burden for his

alleged prolonged pattern of misconduct from 2015 to 2018 based on his false statements about

plaintiff to people who were not members of a government agency. Furthermore, even if a

movant’s activities were the kind that the Act is designed to protect, a plaintiff’s lawsuit is not

necessarily deemed a SLAPP and therefore subject to dismissal under the Act. Stein, 2013 IL App

(1st) 113806, ¶ 16.

¶ 35 Under the second prong of the analysis, defendant has the burden to show that plaintiff’s

IIED claim was solely based on, related to, or in response to defendant’s acts in furtherance of his

right to petition the government. See Chicago Regional Council of Carpenters v. Jursich, 2013 IL

App (1st) 113279, ¶ 20. To satisfy this burden, defendant must affirmatively demonstrate that

plaintiff’s suit was retaliatory and meritless. Garrido v. Arena, 2013 IL App (1st) 120466, ¶ 18.

To determine whether plaintiff’s IIED claim was retaliatory within the meaning of the Act, we

consider (1) the proximity in time between the protected activity and the filing of the complaint,

and (2) whether the damages requested are reasonably related to the facts alleged in the complaint

and present a good-faith estimate of the injury sustained. See Ryan, 2012 IL App (1st) 120005,

¶ 23. Furthermore, a movant “for dismissal under the Act can show that a claim is ‘meritless’ only

‘if a movant disproves some essential element of the nonmovant’s claim.’ ” Chadha v. North Park

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Elementary School Association, 2018 IL App (1st) 171958, ¶ 95 (quoting Garrido, 2013 IL App

(1st) 120446, ¶ 19).

¶ 36 Plaintiff filed his lawsuit on August 8, 2018, which was over four years after defendant

made his February 2014 complaints to the federal agencies. In addition, plaintiff’s IIED claim was

not intended to chill the protected activities to petition or participate in government because

defendant had already participated in the protected activity of petitioning the government in

February 2014, plaintiff had already been allegedly injured by defendant’s petitioning, and there

was no basis for defendant to further petition the government and cause plaintiff further injury.

See Chadha, 2018 IL App (1st) 171958, ¶ 98. Furthermore, plaintiff, who seeks compensatory

damages for his destroyed mental and physical health and extreme emotional and financial distress,

does not seek millions of dollars in punitive damages like the classic SLAPP situation (see id.

¶ 99), and defendant fails to show that plaintiff’s ad damnum was unreasonable.

¶ 37 It was defendant’s burden to “show that there are undisputed facts that demonstrate

plaintiff’s claim is meritless.” Ryan, 2012 IL App (1st) 120005, ¶ 26. Because this court reviews

a motion to dismiss under the Act pursuant to section 2-619 of the Code, we must presume the

legal sufficiency of plaintiff’s IIED claim. Ryan, 2012 IL App (1st) 120005, ¶ 22. A claim is

meritless if the moving party disproves some essential element of the nonmovant’s claim. Garrido,

2013 IL App (1st) 120466. Therefore, we may consider whether plaintiff has alleged sufficient

facts to show the claim was genuine and not factually baseless. Sandholm, 2012 IL 111443, ¶ 45;

Garrido, 2013 IL App (1st) 120466, ¶ 23.

¶ 38 Defendant argues that plaintiff’s IIED claim was meritless because his actions could never

rise to the level of extreme and outrageous conduct as a matter of law since much of defendant’s

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alleged misconduct was barred by the 2013 settlement agreement. As discussed above, we have

determined that the settlement agreement released the alleged misconduct of defendant that

occurred before November 6, 2013. Nevertheless, plaintiff has alleged that defendant, despite

knowing that IIT’s investigation had exonerated plaintiff of any wrongdoing and after defendant

had reported his complaints in 2014 to the federal agencies, engaged in a prolonged pattern of

extreme and outrageous conduct from 2015 to 2018 by making false statements to numerous non-

government people that accused plaintiff of, inter alia, fraud, misusing federal funds and

threatening defendant, all of which caused plaintiff to suffer severe emotional distress. We find

that defendant has failed to establish that plaintiff’s IIED claim was meritless and retaliatory. We

therefore conclude that plaintiff’s IIED claim did not qualify as a SLAPP and the trial court erred

in dismissing this claim with prejudice under the Act.

¶ 39 Regarding plaintiff’s defamation per se claim, defendant argues it also was based on his

protected right to petition the government. According to the amended complaint and disregarding

allegations about defendant’s activity before the November 6, 2013 effective date of settlement

agreement, plaintiff alleged defendant sent a March 4, 2018 email to numerous nongovernmental

third parties both inside and outside of IIT; this email included a March 2, 2018 letter; defendant

stated in these materials that the federal government was investigating federal grants awarded to

plaintiff; defendant implied in these materials, knowingly and falsely, that plaintiff was involved

in embezzlement and a financial conspiracy to defraud the government; many of the third-party

recipients of defendant’s March 2018 materials were not aware of IIT’s prior investigation of this

matter, which had concluded that plaintiff had not engaged in any wrongdoing; the publication of

defendant’s March 2018 materials prejudiced plaintiff in his profession and suggested he lacked

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integrity in the performance or discharge of his employment duties; and this publication caused

plaintiff to suffer emotionally and financially by impugning his integrity and affecting his career.

¶ 40 Taking all well-pled facts as true, drawing reasonable inferences in favor of plaintiff, and

viewing the pleading in a light most favorable to plaintiff, we conclude that plaintiff’s defamation

claim was not meritless where defendant failed to satisfy his burden under the first and second

prongs of the Act’s immunity analysis. Specifically, defendant was not acting to further his right

to petition or otherwise participate in government to obtain favorable government action because

he had already filed his complaints with the federal agencies in 2014 when he sent his email and

attached letter in March 2018 to numerous people who were not affiliated with any government

agency. Furthermore, plaintiff’s defamation claim was not solely based on defendant’s acts in

furtherance of his right of petition or other participation in government because the lawsuit was

filed over four years after defendant filed his complaints with the federal agencies and defendant

has not offered any evidence to show that plaintiff’s defamation claim lacked merit. The well-pled

allegations of the amended complaint show that IIT’s six-months-long investigation in 2012 of

plaintiff’s conduct, including his use of federal funds for his research projects, concluded that he

did not engage in any wrongdoing. Furthermore, there is no indication that defendant’s complaints

to federal agencies in 2014 about plaintiff’s alleged misuse of federal funds, embezzlement and

financial conspiracy to defraud the government resulted in any findings or actions against plaintiff.

¶ 41 We, therefore, conclude that plaintiff’s defamation claim does not qualify as a SLAPP and

the trial court erred in dismissing this claim with prejudice under the Act.

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¶ 42 C. Failure to State a Cause of Action

¶ 43 Finally, defendant argues that even if dismissal of the amended complaint was improper

under subsections 2-619(a)(6) or (a)(9) of the Code, dismissal is proper under section 2-615 based

on plaintiff’s failure to state a cause of action for IIED and defamation.

¶ 44 To state a cause of action for IIED, a plaintiff must plead that (1) the defendant’s conduct

was extreme and outrageous, (2) the emotional distress suffered by the plaintiff was severe, and

(3) the defendant knew that severe emotional distress was certain or substantially certain to result

from such conduct. Miller v. The Equitable Life Assurance Society of the United States, 181 Ill.

App. 3d 954, 956 (1989). “The law intervenes only where the distress inflicted is so severe that no

reasonable [person] could be expected to endure it.” McGrath v. Fahey, 126 Ill. 2d 78, 86 (1988).

“The tort does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or

other trivialities.” Id. A defendant’s degree of power or control over a plaintiff can impact whether

that defendant’s conduct is outrageous; the more control “a defendant has over the plaintiff, the

more likely that defendant’s conduct will be deemed outrageous.” Id. at 86-87. The court’s

decision on whether a complaint states a cause of action “essentially involves drawing a line

‘between the slight hurts which are the price of a complex society and the severe mental

disturbances inflicted by intentional actions wholly lacking in social utility.’ ” Miller, 181 Ill. App.

3d at 957 (quoting Lochner v. New York, 198 U.S. 45, 75 (1905)).

¶ 45 Stripped of all allegations of conduct before November 6, 2013 concerning released claims,

and accepting all well-pleaded facts as true, the count I IIED claim of the amended complaint

essentially alleged that for approximately four years defendant intentionally and knowingly made

false statements about plaintiff engaging in fraudulent and criminal activity by (1) making false

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complaints with federal agencies in 2014 that falsely accused plaintiff of misusing federal funds

despite defendant’s knowledge that IIT had exonerated plaintiff after conducting a thorough

investigation of this same claim, (2) making false and defamatory statements about plaintiff in

2015 to IIT faculty who were not aware of IIT’s prior investigation and exoneration of plaintiff;

(3) sending to 23 individuals in February 2016 a letter alleging that defendant had received an

anonymous threat letter and alluding to the federal investigation of plaintiff; (4) sending to 28

people in August 2016 a letter falsely accusing “individual C,” whom the letter recipients would

understand to be plaintiff, of sending the anonymous threat letter to defendant, invading

defendant’s home and accessing his computers; (5) falsely blaming plaintiff in 2017 for sending

defendant a letter; and (6) sending 26 people an email on March 4, 2018, which stated that a federal

agency was investigating federal grants awarded to an individual, and including attachments to

ensure the recipients would identify plaintiff as the subject of the investigation. Plaintiff alleged

that as a result of defendant’s prolonged pattern of misconduct, plaintiff suffered extreme

emotional, mental, physical and financial distress.

¶ 46 To support his assertion that plaintiff’s IIED claim does not rise to the level of intensity or

duration that no reasonable person could be expected to endure, defendant argues that Illinois

courts have found conduct far more egregious than that alleged by plaintiff here to be non-

actionable. Specifically, defendant cites Ulm v. Memorial Medical Center, 2012 IL App (4th)

110421, ¶ 42, Vickers v. Abbot Labs, 308 Ill. App. 3d 393, 411 (1999), Lundy v. City of Calumet

City, 209 Ill. App. 3d 790, 794 (1991), Grey v. First National Bank of Chicago, 169 Ill. App. 3d

936, 945 (1988), Gibson v. Chemical Card Services Corp, 157 Ill. App. 3d 2211, 213 (1987), and

Miller v. Linden, 172 Ill. App. 3d 594 (1988).

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¶ 47 Defendant’s reliance on these cases is misplaced. Ulm, Vickers, Lundy, Grey and Gibson

are distinguishable because those IIED claims were dismissed under motions for summary

judgment, not 2-615 motions to dismiss. Furthermore, Miller’s 2-615 dismissal of an IIED claim

despite some truly horrific allegations of threats of bodily harm and sexual harassment in the

workplace for more than three years has been criticized and one court has suggested that this 1988

case would not likely be followed by the Illinois Supreme Court. Class v. New Jersey Life

Insurance Co., 746 F. Supp. 776, 779 (N.D. Ill. 1990). Moreover, Miller is distinguishable from

the instant case, which involves allegations of deliberate harassment from one person, the

department chair, who had substantial power over plaintiff.

¶ 48 The extreme and outrageous nature of defendant’s alleged misconduct arises from his

abuse of his position as the department chair and a faculty member with seniority, which gave him

authority over plaintiff or the power to affect his interests. See Kolegas v. Heftel Broadcasting

Corp., 154 Ill. 2d 1, 21 (1992). “Behavior that might otherwise be considered merely rude, abrasive

or inconsiderate, may be deemed outrageous if the defendant knows that the plaintiff is particularly

susceptible to emotional distress.” Id. Furthermore, plaintiff alleged that defendant continued

falsely stating for four years to numerous people, including other faculty members at IIT and

elsewhere in the larger academic and business communities, that plaintiff was engaged in

fraudulent activities and the misuse of federal funds to destroy plaintiff’s reputation, research

projects, and career. We find that a reasonable trier of fact could easily conclude that defendant’s

alleged conduct was so outrageous as to be regarded as intolerable in a civilized community.

Accepting the allegations in count I as true, we find that plaintiff’s amended complaint adequately

states a cause of action for IIED.

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¶ 49 To state a cause of action for defamation, the plaintiff must allege that (1) the defendant

made a false statement about the plaintiff, (2) the defendant made an unprivileged publication of

that statement to a third party, and (3) the publication caused damages. Kainrath v. Grider, 2018

IL App (1st) 172770, ¶ 32. Relevant to this case, words that impute a person has committed a crime

or lacks integrity in performing his employment duties and words that prejudice him in his

profession are considered defamation per se (Goral v. Kulys, 2014 IL App (1st) 133236, ¶ 41), i.e.,

so obviously and materially harmful to the plaintiff that injury to his reputation may be presumed

(Barry Harlem Corp. v. Kraff, 273 Ill. App. 3d 388, 390 (1995)). “A complaint for defamation

must set forth the words alleged to be defamatory ‘clearly and with particularity.’ ” Green v.

Rogers, 234 Ill. 2d 478, 495 (2009).

¶ 50 Stripped of all allegations of conduct before November 6, 2013 concerning released claims,

and accepting all well-pleaded facts as true, count II of the complaint essentially alleges that

defendant sent an email on March 4, 2018 to numerous third parties both inside and outside of IIT;

this email included a March 2, 2018 letter; defendant stated in these materials that the federal

government was investigating federal grants awarded to plaintiff; defendant implied in these

materials, knowingly and falsely, that plaintiff was involved in embezzlement and a financial

conspiracy to defraud the government; many of the third-party recipients of defendant’s March

2018 materials were not aware of IIT’s prior investigation of this matter, which had concluded that

plaintiff had not engaged in any wrong doing; the publication of defendant’s March 2018 materials

prejudiced plaintiff in his profession and suggested he lacked integrity in the performance or

discharge of his employment duties; and this publication caused plaintiff to suffer emotionally and

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¶ 51 Many of these allegations set forth only a summary of the types of statements that

defendant allegedly made instead of a precise and particular account of defendant’s alleged

statements. This lack of specificity prevents the court from determining as a question of law if the

alleged statement is defamatory and prevents defendant from properly formulating a response. See

Green, 234 Ill. 2d at 492. However, the record before us does not indicate that plaintiff would not

be able to allege these facts with the requisite specificity to state a cause of action sufficient to

survive a 2-615 motion to dismiss. RBS Citizens, N.A. v. RTG-Oak Lawn, 407 Ill. App. 3d 183,

192 (2011). Furthermore, allowing plaintiff leave to amend his defamation claim a second time

would not be futile or prejudicial to defendant where the trial court did not dismiss with prejudice

the amended complaint based on a failure to plead a claim under 2-615 of the Code, but rather

based on an erroneous application of the Act under section 2-619 of the Code.

¶ 52 III. CONCLUSION

¶ 53 For the foregoing reasons, we reverse the judgment of the circuit court that dismissed with

prejudice plaintiff’s IIED and defamation claims based on immunity afforded under the Act for

the protected activity of petitioning the government. We also reject defendant’s assertion that

section 2-615 of the Code provides another basis to dismiss plaintiff’s IIED and defamation claims

with prejudice. We remand this cause to the circuit court for further proceedings consistent with

this decision.

¶ 54 Reversed and remanded.

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No. 1-19-1819

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-L-8559; the Hon. Moira S. Johnson, Judge, presiding.

Attorneys Robert T. Kuehl, of Kuehl Law, P.C., of Chicago, for appellant. for Appellant:

Attorneys William T. Eveland and Elizabeth A. Thompson, of Saul Ewing for Arnstein & Lehr LLP, of Chicago, for appellee. Appellee:

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