Prakash v. Parulekar

2020 IL App (1st) 191819

Opinion

2020 IL App (1st) 191819 No. 1-19-1819 Opinion filed September 30, 2020 Modified upon denial of rehearing December 3, 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 tenured professors of chemical engineering at Illinois

Institute of Technology (IIT). In 2008, plaintiff eliminated the position of associate chair of the

chemical and biological engineering department, which at the time was occupied by defendant.

Later, in 2011, defendant became the department’s acting chair, and plaintiff reported to him. Also

in 2011, plaintiff appointed a research professor who worked on plaintiff’s off-site research

project.

¶6 According to plaintiff, defendant retaliated against him for eliminating the associate chair

position by severely harassing plaintiff in 2011 and 2012. This alleged harassment included

defendant, as the department chair, initiating in 2012 an investigation of plaintiff’s research

projects.

¶7 In August 2013, IIT’s dean and a past provost removed defendant from the acting

department chair position. On November 6, 2013, that past provost and IIT’s general counsel sent

defendant emails that stated IIT, after a six-months-long investigation, found no misconduct by

plaintiff.

¶8 Also on November 6, 2013, plaintiff entered into a settlement agreement with IIT to resolve

several claims, including the unauthorized reduction of his 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

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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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.

¶9 In February 2014, defendant made complaints to federal agencies and Argonne National

Laboratory, plaintiff’s key research funding agency, raising the same allegations against plaintiff

of fraud and criminal misuse of federal funds that defendant had raised in IIT’s 2012 investigation.

Thereafter, Argonne National Laboratory discontinued plaintiff’s research project and federal

agents conducted a comprehensive investigation, which included inspecting documents,

interviewing administrators of IIT and Argonne National Laboratory, and interviewing plaintiff at

his home. On February 21, 2014, IIT’s general counsel sent a litigation hold letter to IIT

individuals, informing them that a federal agency was investigating plaintiff regarding his research

projects. When the federal agency concluded its investigation, it found no wrongdoing by plaintiff.

¶ 10 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.”

¶ 11 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

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

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

sufficient to plead an IIED claim.

¶ 12 On March 7, 2019, the trial court granted the 2-615 portion of defendant’s motion to

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

amended complaint.

¶ 13 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 intended

to destroy plaintiff’s research, projects and career, was extreme and outrageous and intended to

inflict severe emotional distress, and caused plaintiff to suffer extreme emotional, mental, physical

and financial distress.

¶ 14 Specifically, plaintiff alleged that defendant’s conduct before November 6, 2013

(the effective date of the settlement agreement) included making false statements and maliciously

providing false information about plaintiff’s employment contracts and changing the contract

language without justification or notice to reduce plaintiff’s $130,000 nine-month base salary to

$118,755; harassing plaintiff by questioning his 2011 appointment of the research professor and

falsely stating to IIT’s dean, officials, past provosts, counsel, faculty and others that plaintiff had

engaged in fraudulent conduct and criminal activity by misusing federal funds when he appointed

the research professor; initiating in 2012, pursuant to defendant’s authority as the department chair,

a false, selective and retaliatory investigation by IIT of plaintiff’s research projects; sending to the

home dean and colleagues of the appointed research professor malevolent emails that disclosed

his private and confidential family information and caused him to resign from his position as a key

member of plaintiff’s research group; and in May 2013 sharing with two IIT professors, who had

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no role in and were unaware of IIT’s investigation of plaintiff, a confidential letter from a past

provost to plaintiff that contained defamatory information about plaintiff regarding the

investigation.

¶ 15 Furthermore, plaintiff alleged that defendant’s conduct after the November 2013 effective

date of the settlement included knowingly making false complaints in February 2014 to federal

agencies and Argonne National Laboratory that accused plaintiff of fraud and 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.

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¶ 16 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

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.

¶ 17 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.

¶ 18 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

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

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

¶ 19 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.

¶ 20 II. ANALYSIS

¶ 21 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

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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.

¶ 22 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.

¶ 23 A. The Effect of the 2013 Settlement Agreement

¶ 24 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.

¶ 25 “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).

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¶ 26 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

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).

¶ 27 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.

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

made false complaints to federal agencies and Argonne National Laboratory in February 2014 that

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accused plaintiff of fraud and misusing federal funds when he appointed a research professor in

2011 to work on plaintiff’s off-site research project; based on defendant’s knowingly false

complaints, a 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.

¶ 29 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

extreme emotional, mental, physical and financial distress.

¶ 30 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

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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 exonerated plaintiff of 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.

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

¶ 32 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.

¶ 33 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

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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

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

¶ 55.

¶ 34 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).

¶ 35 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

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

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

IL 111443, ¶ 45.

¶ 36 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

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

misconduct 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.

¶ 37 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.

¶ 38 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).

¶ 39 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.

¶ 40 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.

¶ 41 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.

¶ 42 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 the 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.

¶ 43 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.

¶ 44 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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¶ 45 C. Failure to State a Cause of Action

¶ 46 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. Specifically, defendant

argues that (1) he did not have a position of power or authority over plaintiff because he was not

the department chair at the time of the alleged conduct from 2014 to 2018, (2) the alleged conduct

did not constitute extreme and outrageous behavior, and (3) the six alleged incidents that occurred

from 2014 to 2018 fall far short of the type of conduct Illinois courts have found actionable for

claims of IIED.

¶ 47 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 man could be expected to endure it.’ ” McGrath v. Fahey, 126 Ill. 2d 78, 86 (1988)

(quoting Restatement (Second) of Torts § 46, comment j, at 77-78 (1965)). “[T]he tort does not

extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ”

Id. (quoting Restatement (Second) of Torts § 46, comment d, at 73 (1965)). Factors courts may

consider to determine whether a defendant’s conduct is extreme and outrageous include the

intensity and duration of the distress, defendant’s degree of power or authority over the plaintiff,

defendant’s abuse of a position that gives him actual or apparent power to damage the plaintiff’s

interests, whether defendant reasonably believed that his objective was legitimate, and defendant’s

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awareness that the plaintiff is susceptible to emotional distress by reason of some physical or

mental condition or peculiarity. McGrath, 126 Ill. 2d at 86-90.

¶ 48 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 five years defendant intentionally and knowingly made

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

statements to federal agencies and Argonne National Laboratory in 2014 that 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.

¶ 49 Regarding the question of the outrageousness of defendant’s conduct, defendant argues

that plaintiff’s six alleged incidents that occurred from 2014 to 2018 fall far short of the type of

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conduct Illinois courts have found actionable for IIED claims. Defendant cites, for example, Miller

v. Linden, 172 Ill. App. 3d 594, 597 (1988), where the plaintiff’s complaint stated an IIED cause

of action based on allegations that the defendant went to the plaintiff’s residence on 13 separate

occasions over a 10-month period and engaged in a variety of harassing conduct that ranged from

beating on the door and shouting obscenities to honking her car horn for several minutes—

sometimes in the presence of the plaintiff’s family and neighbors—and continuing to do so even

after being warned by the plaintiff’s attorney about the plaintiff’s physical and emotional distress.

¶ 50 We conclude that the amended complaint alleged sufficient facts, well beyond mere insults

and trivialities, to allege the outrageous conduct element of the tort. The alleged misconduct

intensely attacked plaintiff’s professional integrity and career for a lengthy duration of five years.

Although defendant was not the department chair at the time of the alleged misconduct, he abused

his position as a tenured professor to damage plaintiff’s reputation and career by using the same

false accusations defendant made in 2012 during his tenure as the department chair and broadly

publishing those accusations to IIT administration and faculty members and numerous other

people in the larger academic and business communities who did not know that IIT’s investigation

had exonerated plaintiff. Furthermore, based on IIT’s exoneration of plaintiff, defendant did not

reasonably believe his objective was legitimate. 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.

¶ 51 Additionally, plaintiff pled sufficient facts to demonstrate that he suffered severe

emotional, mental, physical and financial distress as a result of defendant’s conduct. According to

the amended complaint, in every year from 2014 to 2018, defendant knowingly used false

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allegations to attack plaintiff’s integrity, reputation, research projects, and career and caused him

to lose financial support for his research. Plaintiff alleged that defendant’s prolonged and pervasive

attacks caused plaintiff financial distress, destroyed his mental and physical health, and caused

him to have recurring nightmares and seek medical help. These allegations, if proved, establish the

severe emotional distress necessary to the tort.

¶ 52 Regarding whether defendant acted intentionally or with the knowledge that severe

emotional distress was certain or substantially certain to result, the allegations support this element

of the tort. Defendant knew that IIT’s six-months-long investigation in 2012 had exonerated

plaintiff of any wrongdoing regarding defendant’s claims that plaintiff had engaged in fraud and

the criminal misuse of federal funds. Nevertheless, defendant, in addition to filing complaints with

federal agencies in 2014 regarding these same claims, continued making these false claims to IIT

faculty, Argonne National Laboratory and numerous other people for several years. Furthermore,

defendant knew that his false claims had adversely affected plaintiff’s work and resulted in federal

agents conducting a comprehensive review of plaintiff’s projects, which included interviews with

plaintiff and faculty and administration at IIT and Argonne National Laboratory. Moreover,

defendant continued publishing his false allegations to numerous people inside and outside of IIT.

Such allegations sufficiently demonstrate that defendant intended or at least knew with reasonable

certainty that his conduct would damage plaintiff’s reputation, research, and career and cause him

to suffer severe emotional distress.

¶ 53 Defendant argues that plaintiff’s IIED claim does not rise to the level of intensity or

duration that no reasonable person could be expected to endure because Illinois courts have found

conduct far more egregious than that alleged by plaintiff here to be non-actionable. To support this

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claim, 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), and

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

¶ 54 Plaintiff’s specific pleading of defendant’s many acts toward him, as detailed above,

indicates, at this pleading stage of the proceedings, extreme and outrageous conduct going beyond

mere indignities, annoyances or trivialities, as well as severe emotional distress suffered by

plaintiff and an intentional or reckless state of mind on the part of defendant. Accepting the

allegations in count I as true, we conclude that plaintiff’s amended complaint adequately states a

cause of action for IIED.

¶ 55 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

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

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

¶ 56 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

¶ 57 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

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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.

¶ 58 III. CONCLUSION

¶ 59 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.

¶ 60 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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