Szmurlo v. TK Elevator Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PETE SZMURLO, )

)

Plaintiff, )

)

v. ) No. 24 C 09900

)

TK ELEVATOR CORP. et al., Judge John J. Tharp, Jr.

)

)

Defendants.

)

ORDER

For the reasons outlined below, the defendants’ motions to dismiss the complaint [10] [15]

[17] [41] [56] [59] are granted, and the plaintiff’s motion to amend the pleadings [87] is granted.

The complaint is dismissed without prejudice, and the plaintiff may file an amended complaint by

4/25/25. Failure to do so will result in dismissal of the case. In light of the dismissal of the

plaintiff’s complaint, the following pending motions are denied as moot: motions for a preliminary

injunction [75] [126], motion for interlocutory appeal [136], motion to stay [140], motions to

reconsider [144], [145], motion to unseal [150], motion for leave to file motion for summary

judgment [151], motion for summary judgment [148], motion for leave to file supplemental

authority [152], and motion to remand and vacate all orders [154].

STATEMENT

Plaintiff Pete Szmurlo brings this action for defamation and intentional infliction of

emotional distress (IIED) against his former employer, Thyssen Krupp Elevator (TKE), and union,

the International Union of Elevator Constructors Local 2 (IUEC).1 The plaintiff claims that the

defendants defamed him by falsely accusing him of unsatisfactory job performance in a written

warning, a notice of termination, a hearing before the union’s Joint Apprenticeship Committee,

1 An attached exhibit to the operative complaint lists as additional defendants Local 2’s

Joint Apprenticeship Committee, National Elevator Industry Educational Program, Otis Elevator

Co., Schindler Elevator Corp., and Kone, Inc. But the complaint does not allege any wrongdoing

on the part of those entities. See generally Compl. ECF No. 3-1. Indeed, the complaint mentions

them only twice, both times as non-culpable “third parties” who simply received defamatory

statements about the plaintiff. Id. at ¶¶ 18, 24. As such, the Court finds that the plaintiff has not

pleaded a claim against those defendants and grants their respective motions to be dismissed from

this action on that basis.

and a position statement provided to an investigator for the Occupational Safety and Health

Administration (OSHA). Compl. ¶¶ 8-13, ECF No. 3-1.2

The defendants moved to dismiss all claims under Federal Rule of Civil Procedure

12(b)(6). They press four principal arguments: (1) most of the allegedly defamatory statements

challenged in the complaint occurred outside the applicable statute of limitations; (2) the remaining

statements are not actionable because they are shielded by absolute privilege; (3) the complaint

does not allege “extreme and outrageous” conduct rising to the level of IIED; and (4) in any case,

§ 301 of the Labor Management Relations Act (LMRA) completely preempts the plaintiff’s

claims. The Court agrees across the board.

As a threshold matter, all but one of the statements at issue were published more than a

year before the plaintiff filed this lawsuit. See Compl. ¶¶ 8-13 (challenging several statements

published in July 2023 notwithstanding the fact that the plaintiff did not commence this action

until August 26, 2024).3 As such, the plaintiff is procedurally barred from challenging those

statements as defamatory under Illinois’s one-year statute of limitations. Muzikowski v. Paramount

Pictures Corp., 322 F.3d 918, 923 (7th Cir. 2003); see also Small v. Chao, 398 F.3d 894, 898 (7th

Cir. 2005) (noting that claims brought after a limitations period are subject to dismissal under Rule

12(b)(6)).

The only publication that occurred within the one-year limitations period—TKE’s position

statement to OSHA dated September 19, 2023—cannot support the plaintiff’s defamation claim

for a different reason: As a legally required statement before a quasi-judicial government body, it

is shielded by absolute privilege. See Mauvais-Jarvis v. Wong, 987 N.E.2d 864, 882 (Ill. App. Ct.

2013).

To claim defamation under Illinois law, a plaintiff must allege that a defendant made an

“unprivileged publication” of a false and damaging statement. Solaia Tech., LLC v. Specialty Pub.

Co., 852 N.E.2d 825, 839 (Ill. 2006) (emphasis added); see also id. (“A defamatory statement is

not actionable if it is privileged.”). Statements made during “quasi-judicial proceedings, as well as

actions and statements that are necessarily preliminary to such proceedings” are shielded by

2 A more detailed factual overview is available in the Court’s order denying the plaintiff’s

motion to remand. See ECF No. 108, at 1-2.

3 For purposes of resolving this motion, the Court assumes without deciding that the

statements contained in TKE’s warning letter, termination notice, and union hearing were

“published”—an essential element of an Illinois defamation claim. See Wesly v. Nat’l Hemophilia

Found., 148 N.E.3d 221, 226 (Ill. App. Ct. 2020). That assumption might be questionable,

however, given that those statements were delivered only to the plaintiff and other named

defendants rather than a third party. See id. (“Publication is the act by which defamatory matter is

conveyed to a third party.”). If in fact the statements were never “published” within the meaning

of Illinois law, the plaintiff’s defamation claim would fail for that additional reason as well.

absolute privilege and are therefore not actionable as defamation. Mauvais-Jarvis, 987 N.E.2d at

888. Whether a publication is subject to absolute privilege is a question of law appropriately

answered on the pleadings. Mauvais-Jarvis, 987 N.E.2d at 882.

TKE’s position statement is entitled to absolute privilege. TKE provided the statement in

response to a federal regulatory agency conducting a live investigation squarely within its statutory

remit. See Compl., Ex. F at 1 (“OSHA Statement”), ECF No. 3-1; see also 29 U.S.C. § 660(c)

(authorizing OSHA to investigate charges of discrimination brought under § 11(c) of the

Occupational Safety and Health Act). That investigation was “semi-judicial” in nature, given that

the Act directs OSHA to assess respondents’ civil liability and prosecute any meritorious claims

against them in federal district court following the close of investigation. See id. Illinois courts

have routinely extended absolute immunity in equivalent contexts. See Richardson v. Dunbar, 419

N.E.2d 1205 (Ill. App. Ct. 1981) (observing that absolute privilege “encompasses testimony given

before administrative agencies or other governmental bodies when such agencies or bodies are

performing a judicial function”); see also, e.g., Thomas v. Petrulis, 465 N.E.2d 1059 (Ill. App. Ct.

1984) (extending absolute privilege to statements made during an investigation by the Equal

Employment Opportunity Commission); Starnes v. Int’l Harvester Co., 490 N.E.2d 1062 (Ill. App.

Ct. 1986) (same with respect to the Illinois Judicial Inquiry Board); Parrillo, Weiss & Moss v.

Cashion, 537 N.E.2d 851 (Ill. App. Ct. 1989) (same with respect to the Illinois Department of

Insurance). The Court thus finds that Illinois’ absolute privilege from defamation attaches to any

statements made by the defendants in response to and in the course of OSHA’s § 11(c)

investigation.4

Because TKE’s position statement to OSHA—the sole publication not barred under the

applicable statute of limitations—provides no grounds for relief, the Court finds that the plaintiff

has failed to plead a plausible defamation claim under Illinois law. The claim is therefore dismissed

pursuant to Rule 12(b)(6).

The plaintiff’s IIED claim fares no better. To assert a claim for IIED, a plaintiff must allege

that the defendant engaged in “extreme and outrageous conduct” toward them. Feltmeier v.

4 It is more than a little ironic that the very document the plaintiff decries as defamatory

was filed in response to a discrimination complaint that he himself lodged against the defendants

with OSHA. See OSHA Statement 1. In that regard, this case illustrates why absolute privilege for

advocacy in judicial and quasi-judicial proceedings is so important. A party is emphatically

permitted to mount a robust defense in an adversarial proceeding without subjecting themselves to

civil liability. See Mauvais-Jarvis, 987 N.E.2d at 882 (“Absolute immunity is extended to

communications ‘where there is an obvious policy in favor of permitting complete freedom of

expression, without any inquiry as to the defendant's motives.’” (quoting William L. Prosser, Torts

§ 114, at 777 (4th ed. 1971))).

Feltmeier, 798 N.E.2d 75, 83 (Ill. 2003). To qualify as extreme and outrageous, “the nature of the

defendant's conduct must be so extreme as to go beyond all possible bounds of decency and be

regarded as intolerable in a civilized community.” Id. “[M]ere insults, indignities, threats,

annoyances, petty oppressions, or trivialities” are insufficient to establish IIED. Duffy v. Orlan

Brook Condo. Owners’ Ass’n, 981 N.E.2d 1069, 1079 (Ill. App. Ct. 2012).

The defendants’ alleged actions fall far short of extreme and outrageous conduct. “In the

employment context, Illinois courts have long recognized that personality conflicts and

questioning of job performance are unavoidable aspects of employment.” Parker v. Side by Side,

Inc., 50 F. Supp. 3d 988, 1023 (N.D. Ill. 2014). Although such conflicts “frequently [] produce

concern and distress,” they generally will not give rise to an IIED claim unless “the employer’s

conduct goes well beyond the parameters of the typical workplace dispute.” Id. (cleaned up)

(quotation marks omitted); see also id. (“If the distress from workplace discipline, job transfers,

and terminations could form the basis of an IIED claim, virtually every employee would have a

cause of action.” (quotation marks omitted)).

The defendants’ conduct falls squarely within the realm of an ordinary workplace dispute.

Indeed, describing the statements at issue—a written warning concerning unsatisfactory

performance, termination letter on the same grounds, and follow-up testimony explaining the basis

for the firing—as “extreme or outrageous” strains credulity. See DiPietro v. GATX Corp., 167

N.E.3d 247, 260 (Ill. App. Ct. 2020) (“[T]he termination of an employee by an employer is not

extreme and outrageous just because the employee disputes the merits of the termination and the

employer holds power over the employee, since an employee will almost always deny that the

termination was warranted and an employer always holds power over an employee.”).

Finding no allegations coming close to extreme or outrageous behavior on the part of the

defendants, the Court finds that the plaintiff has failed to state a viable IIED claim.

As an alternative basis for dismissal, the defendants also contend that the plaintiff’s state

tort claims are preempted by § 301 of the LMRA, which provides a cause of action for disputes

involving labor organizations. 29 U.S.C. § 185. The Court has already concluded that the LMRA

has preemptive force in a separate order, see ECF No. 108, and that reasoning need not be repeated

in full. Suffice it to say that, because the allegedly defamatory statements at the center of this

litigation were dictated by the terms of a collective-bargaining agreement with the plaintiff’s

employer, the plaintiff’s claims are “substantially dependent” on an interpretation of that

agreement and are therefore preempted by federal law. See Caterpillar Inc. v. Williams, 482 U.S.

386, 392 (1987).

It follows that the LMRA bars the plaintiff state-law tort challenges to statements made

during the grievance process dictated by the defendants’ collective-bargaining agreement. See Hull

v. Cent. Transp., Inc., 628 F. Supp. 784, 789 (N.D. Ind. 1986) (“State law causes of action which

adversely affect the grievance process only serve to undermine the entire collective bargaining

process.”). Indeed, “in the narrow context of defamation suits brought for statements made in the

grievance process, the detrimental effect of a defamation suit on the grievance process mandates

preemption of such a suit.” /d. Nor can the plaintiff construe his existing allegations as a cognizable

cause of action under the LMRA. Because the plaintiff has named his union as a defendant and

alleged wrongdoing on its part, his LMRA claim would be considered hybrid. See Prudden v. E.J.

Brach Corp., 946 F. Supp. 572, 576 (N.D. Ill. 1996). As such, the claim would trigger the statute’s

six-month statute of limitations and fail on that basis. See id.; DelCostello v. Int’l Broth. of

Teamsters, 462 U.S. 151, 172 (1983).

For the reasons set forth above, the motions to dismiss are granted, and the complaint is

dismissed in full.

te i: eye

Dated: April 4, 2025 John J. Tharp, Jr.

United States District Judge