Carmody v. Thompson

ILLINOIS OFFICIAL REPORTS

Appellate Court

Carmody v. Thompson, 2012 IL App (4th) 120202

Appellate Court KEVIN CARMODY, Plaintiff-Appellant, v. CHARLES THOMPSON,

Caption Defendant-Appellee.

District & No. Fourth District

Docket No. 4-12-0202

Rule 23 Order filed October 3, 2012

Rule 23 Order

withdrawn November 6, 2012

Opinion filed October 3, 2012

Held Plaintiff’s complaint for defamation per se, false light, and tortious

(Note: This syllabus interference with contractual relations arising from his termination from

constitutes no part of a state university was properly dismissed on the ground that the trial court

the opinion of the court had no jurisdiction due to sovereign immunity and the action should have

but has been prepared been brought in the Court of Claims, since defendant named the person

by the Reporter of who signed his termination letter as defendant, but his claim was really

Decisions for the against the State.

convenience of the

reader.)

Decision Under Appeal from the Circuit Court of Champaign County, No. 11-L-172; the

Review Hon. Michael Q. Jones, Judge, presiding.

Judgment Affirmed.

Counsel on Charles Lee Mudd, Jr., Stephanie M. Snyder, and Mark A. Petrolis

Appeal (argued), all of Mudd Law Offices, of Chicago, for appellant.

William J. Brinkmann (argued), of Thomas, Mamer & Haughey, LLP,

of Champaign, for appellee.

Panel JUSTICE POPE delivered the judgment of the court, with opinion.

Justices Appleton and McCullough concurred in the judgment and

opinion.

OPINION

¶1 In September 2011, plaintiff, Kevin Carmody, filed a complaint against defendant,

Charles Thompson, for defamation per se, false light, and tortious interference with

contractual relations following plaintiff’s termination from the University of Illinois

(University).

¶2 In November 2011, defendant filed a motion to dismiss pursuant to section 2-619(a)(1)

of the of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-619(a)(1) (West

2010)), arguing the cause should instead be heard in the Court of Claims because defendant’s

actions were taken pursuant to his University employment.

¶3 In February 2012, the trial court granted defendant’s motion to dismiss.

¶4 Plaintiff appeals, arguing the trial court erred (1) in granting defendant’s motion to

dismiss and, in the alternative, (2) denying his request for leave to amend his complaint. We

affirm.

¶5 I. BACKGROUND

¶6 Prior to his termination, plaintiff worked for the University as the manager of systems

services in the college of engineering. During the time plaintiff worked for the University,

defendant worked as the assistant dean and director of the engineering information and

technology (IT) shared services department in the college of engineering.

¶7 In 2009, plaintiff filed an unrelated civil lawsuit against David Goldberg involving an

alleged assault. Plaintiff maintains during the pendency of the Goldberg litigation, he

“found” a stack of papers in the Champaign News Gazette box at his home. Those papers

included copies of emails relevant to his lawsuit against Goldberg. The emails were sent to

and received from Deborah Thurston, a University employee. Plaintiff delivered the emails

to the attorney representing him in his litigation against Goldberg. Plaintiff’s attorney later

used those emails as an exhibit (Exhibit A) in the Goldberg litigation.

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¶8 Thereafter, the University charged plaintiff with improper use of and/or access to

electronic communications of a University employee. The University investigated plaintiff’s

actions with regard to the emails. On September 7, 2010, the University issued a report

containing a summary of the investigation and its findings. As a result of the report, plaintiff

was sent a termination letter signed by defendant and dated September 23, 2010. The letter

indicated plaintiff was given the opportunity to discuss the allegations, but he declined to

answer questions related to the charges. That letter also stated the following:

“The University finds that you did in fact engage in the alleged misconduct, violating

the University Code of Conduct and the Policy on Appropriate Use of Computers and

Network Systems at the University of Illinois at Urbana-Champaign. In particular, we

find that you attempted to use the substance of the email messages in ‘Group Exhibit A’

for non-University related purposes and without permission. It is more probable than not

that the documents contained in ‘Group Exhibit A’ were obtained from Deborah

Thurston’s computer. Furthermore, it is more probable than not that you obtained the

documents in ‘Group Exhibit A’ through improper access. As an [IT] professional, you

did not immediately report the breach of security to your supervisor when you came into

possession of the documents constituting ‘Group Exhibit A’.

As you know, the protection and security of our information technology equipment

and data are of utmost concern for the University. Given your position’s responsibilities

to ensure that security and because of your actions, we can no longer trust you to carry

out the responsibilities of your position. As such, you cannot perform the essential

functions of your position. Therefore, your employment is hereby terminated, effective

today, September 23, 2010.”

¶9 On September 22, 2011, plaintiff filed a complaint against defendant for defamation per

se, false light, and tortious interference with contractual relations based upon the false

statements he argues defendant made in the termination letter. Plaintiff’s complaint alleged,

inter alia, defendant “intentionally and/or recklessly made false statements accusing

[p]laintiff of obtaining documents, electronic mail, from Deborah Thurston’s computer

through improper access.” Plaintiff alleged the report claimed “[a]ccording to senior IT

professionals, the [emails] were obtained only from Thurston’s computer.” However,

plaintiff alleged that, as a participant in the investigation, defendant knew no senior IT

professional stated the emails came only from Thurston’s computer. The report also claimed

the recommendation for plaintiff’s termination was based upon an “analysis of the [emails]

by senior [IT] professionals at the University.” However, plaintiff alleged defendant

participated in the investigation and knew that no forensic analysis by IT professionals had

taken place.

¶ 10 According to plaintiff’s complaint, on September 23, 2010, defendant “published” the

termination letter containing statements from the report, which defendant knew to be false,

to plaintiff’s personnel file and Elyne Cole, the associate provost for the human resources

department. Plaintiff alleged defendant did this because Goldberg was a friend and colleague

of defendant, and “upon information and belief” “[d]efendant enjoyed a financial relationship

with Mr. Goldberg,” and “had a connection to a grant administered by Mr. Goldberg.”

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¶ 11 On November 23, 2011, defendant filed a motion to dismiss pursuant to section 2-

619(a)(1) of the Procedure Code (735 ILCS 5/2-619(a)(1) (West 2010)). The motion urged

dismissal of plaintiff’s complaint for lack of subject-matter jurisdiction. According to

defendant, plaintiff’s complaint should have been filed in the Court of Claims because in

alleging defendant’s actions were taken pursuant to his job as assistant dean and director of

the college of engineering, he was really alleging a cause of action against the University.

¶ 12 Following a February 6, 2012, hearing, the trial court granted defendant’s motion to

dismiss with prejudice. The court found, inter alia, plaintiff’s complaint

“clearly does not contain sufficient facts to remove this [cause] from what it really is,

which is an action against a state body that [plaintiff] believes wrongfully fired him. I

don’t think you can task this in a personal vein with the–what I agree are–conclusory

allegations that [plaintiff] has, had [sic] made here. This is something that will bind the

State of Illinois because I believe it’s alleging that the [S]tate, through its agent,

[defendant], wrongfully terminated [plaintiff] and the allegations of a relationship

between–on information and belief between–[defendant] and Mr. Goldberg and then the

lawsuit involving Mr. Goldberg, I believe, are factually inadequate to remove this from

what it really is.

I believe that clearly what we have here, however it is couched, is an action against

the [S]tate and that there are inadequate facts alleged that transform this from anything

other than [defendant] doing what he thought was best for his employer. Whether that’s

right or wrong, [p]laintiff has every right to have, have his grievances heard ultimately,

but he must do so in the Court of Claims. *** Cause dismissed with prejudice.”

¶ 13 After the trial court made its ruling, plaintiff’s attorney asked the court if he could have

leave to amend the complaint to “cure” the factual defects the court referred to in its ruling.

The court denied plaintiff’s request.

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, plaintiff argues the trial court erred in granting defendant’s motion to dismiss

his complaint. In the alternative, plaintiff contends the court erred when it denied him leave

to amend his complaint. We note defendant’s section 2-619(a)(1) motion to dismiss

plaintiff’s complaint does not attack the sufficiency of the underlying defamation claim nor

the allegedly defamatory nature of the termination letter as a section 2-615 motion to dismiss

might do. Accordingly, we will not address the merits of plaintiff’s claims as alleged.

¶ 17 A. Standard of Review

¶ 18 Section 2-619(a)(1) of the Procedure Code (735 ILCS 5/2-619(a)(1) (West 2010))

provides for dismissal of a cause of action due to the trial court’s lack of subject-matter

jurisdiction. Siakpere v. City of Chicago, 374 Ill. App. 3d 1079, 1081, 872 N.E.2d 495, 497

(2007). With a section 2-619 motion to dismiss, the movant admits the legal sufficiency of

the plaintiff’s complaint but raises an affirmative defense or other matter that avoids or

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defeats the plaintiff’s claim. DeLuna v. Burciaga, 223 Ill. 2d 49, 59, 857 N.E.2d 229, 236

(2006). “In ruling on such a motion, the court must interpret all pleadings and supporting

documents in the light most favorable to the nonmoving party.” Melena v. Anheuser-Busch,

Inc., 219 Ill. 2d 135, 141, 847 N.E.2d 99, 103 (2006). A section 2-619 motion presents a

question of law, and thus our review of the trial court’s ruling on the motion is de novo.

Czarobski v. Lata, 227 Ill. 2d 364, 369, 882 N.E.2d 536, 539 (2008).

¶ 19 B. Sovereign Immunity

¶ 20 “The Illinois Constitution of 1970 abolished the doctrine of sovereign immunity ‘[e]xcept

as the General Assembly may provide by law.’ ” PHL, Inc. v. Pullman Bank & Trust Co.,

216 Ill. 2d 250, 259-60, 836 N.E.2d 351, 356 (2005) (quoting Ill. Const. 1970, art. XIII, § 4).

Under this authority, the legislature created the State Lawsuit Immunity Act (Immunity Act)

(745 ILCS 5/0.01 to 1.5 (West 2010)). PHL, 216 Ill. 2d at 260, 836 N.E.2d at 356. Section

1 of the Immunity Act (745 ILCS 5/1 (West 2010)) prohibits the State of Illinois from being

a party to a lawsuit except for the enumerated exceptions, one of which is the Court of

Claims Act (705 ILCS 505/1 to 29 (West 2010)). The Court of Claims Act establishes the

Court of Claims as the forum for claims against the State and provides, inter alia, the “ ‘court

shall have exclusive jurisdiction to hear and determine *** [a]ll claims against the State for

damages in cases sounding in tort, if a like cause of action would lie against a private person

or corporation in a civil suit.’ ” Loman v. Freeman, 229 Ill. 2d 104, 112, 890 N.E.2d 446,

453 (2008) (quoting 705 ILCS 505/8(d) (West 2004)). We note our public universities are

considered “the State” for the purposes of the Immunity Act and Court of Claims Act. See

Joseph Construction Co. v. Board of Trustees of Governors State University, 2012 IL App

(3d) 110379, ¶ 32.

¶ 21 The determination of whether an action is one against the State does not depend “on the

formal identification of the parties but rather on the issues involved and the relief sought.”

Healy v. Vaupel, 133 Ill. 2d 295, 308, 549 N.E.2d 1240, 1247 (1990). Thus, sovereign

immunity cannot be avoided “ ‘by making an action nominally one against the servants or

agents of the State when the real claim is against the State of Illinois itself and when the State

of Illinois is the party vitally interested.’ ” Healy, 133 Ill. 2d at 308, 549 N.E.2d at 1247

(quoting Sass v. Kramer, 72 Ill. 2d 485, 491, 381 N.E.2d 975, 977 (1978)). However, when

the suit sufficiently alleges the State’s agent acted in violation of statutory or constitutional

law or in excess of his or her authority, the action is not against the State and may be brought

in the trial court. Healy, 133 Ill. 2d at 308, 549 N.E.2d at 1247. However, “[a]n action

brought nominally against a State employee in his individual capacity will be found to be a

claim against the State where a judgment for the plaintiff could operate to control the actions

of the State or subject it to liability.” Currie v. Lao, 148 Ill. 2d 151, 158, 592 N.E.2d 977,

980 (1992).

¶ 22 Our supreme court has adopted a three-factor test to determine whether an action against

a state employee is actually an action against the State. Healy, 133 Ill. 2d at 309, 549 N.E.2d

at 1247. An action is in reality a suit against the State when the following factors are present:

“ ‘(1) no allegations that an agent or employee of the State acted beyond the scope of his

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authority through wrongful acts [(scope of authority)]; (2) the duty alleged to have been

breached was not owed to the public generally independent of the fact of State

employment [(source of duty)]; and (3) where the complained-of actions involve matters

ordinarily within that employee’s normal and official functions of the State [(normal and

official functions)].’ ” Healy, 133 Ill. 2d at 309, 549 N.E.2d at 1247 (quoting Robb v.

Sutton, 147 Ill. App. 3d 710, 716, 498 N.E.2d 267, 272 (1986)).

¶ 23 1. Scope of Defendant’s Authority

¶ 24 Plaintiff argues the fact he alleged defendant acted with malice was sufficient to

demonstrate defendant’s acts exceeded the scope of his authority. Defendant, on the other

hand, argues nothing in the termination letter shows defendant was acting outside of the

scope of his employment. We agree with defendant.

¶ 25 In Wozniak v. Conry, 288 Ill. App. 3d 129, 135, 679 N.E.2d 1255, 1260 (1997), a case

not cited by either party, we found an action brought by an associate professor against a

department head for tortious interference with an employment contract was barred by

sovereign immunity. There, the plaintiff alleged the defendant had interfered with his

employment relationship by knowingly making false allegations about the plaintiff. Wozniak,

288 Ill. App. 3d at 130-31, 679 N.E.2d at 1256-57. The court held the plaintiff’s claim was

actually against the State because the defendant’s comments were in regard to personnel

decisions and involved work-related conduct within the scope of his authority. Wozniak, 288

Ill. App. 3d at 135, 679 N.E.2d at 1260. The Wozniak court found the relevant inquiry to

determine scope of authority is “whether the supervisor would be acting within the scope of

his duties by making truthful statements of the general type alleged.” Wozniak, 288 Ill. App.

3d at 133-34, 679 N.E.2d at 1258.

¶ 26 In this case, our review of the termination letter reveals nothing suggesting any malicious

intent. Instead, the statements made in the letter are of the work-related type made by a

person who, as part of his job responsibilities, deals with personnel matters. In fact, during

the hearing before the trial court, plaintiff did not dispute writing a termination letter was

within the scope of defendant’s employment. Further, if the type of statements contained in

the letter were true, it is clear defendant would be acting within the scope of his authority to

carry out his personnel-related duties. See Welch v. Illinois Supreme Court, 322 Ill. App. 3d

345, 354, 751 N.E.2d 1187, 1195 (2001) (an employee’s actions are considered within the

scope of employment where the alleged facts are consistent with an intent to further the

State’s business); Wozniak, 288 Ill. App. 3d at 133-34, 679 N.E.2d at 1258. Here, the

statements in the letter can be reasonably viewed as being within the scope of defendant’s

job responsibilities as an assistant dean and departmental director. As a result, we find

defendant’s alleged conduct did not exceed the scope of his authority. Accordingly, the first

factor of the three-factor test has been satisfied.

¶ 27 2. Source of Duty

¶ 28 Plaintiff argues defendant owed plaintiff a duty independent of his state employment

because defamation, false light, and tortious interference with contractual relations are

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common law duties applicable to all citizens, i.e., not just state employees.

¶ 29 “[W]here the employee is charged with breaching a duty imposed on him independently

of his State employment, sovereign immunity will not attach and a negligence claim may be

maintained against him in circuit court.” (Emphasis in original.) Currie, 148 Ill. 2d at 159,

592 N.E.2d at 980. However, sovereign immunity exists where the duty is unique to state

employment and the lawsuit challenging the conduct could affect the actions and policies of

the State. See Currie, 148 Ill. 2d at 158, 592 N.E.2d at 980 (“[a]n action brought nominally

against a State employee in his individual capacity will be found to be a claim against the

State where a judgment for the plaintiff could operate to control the actions of the State or

subject it to liability”). Further, the Wozniak court rejected a similar argument by the plaintiff

who argued the defendant had a general duty not to interfere with the contractual

relationships of others. Wozniak, 288 Ill. App. 3d at 133, 679 N.E.2d at 1258. Instead, the

court held allowing the suit against the defendant in his individual capacity would limit his

ability to engage in lawful activity on behalf of the University, such as communicating,

allocating tasks, and making personnel or employment decisions. Wozniak, 288 Ill. App. 3d

at 134, 679 N.E.2d at 1259.

¶ 30 In this case, drafting the letter was related to defendant’s duties as an assistant dean and

director of the college of engineering. Moreover, plaintiff’s suit challenging defendant’s

conduct could potentially affect state policies and control state actions regardless of the

remedy sought by plaintiff. A judgment for plaintiff could also directly influence how

persons in positions similar to defendant’s position handle personnel matters in the future.

As a result, we find the duty plaintiff alleged defendant breached was not owed to plaintiff

independent of his state employment. We note plaintiff relies heavily on O’Connor v. Smith,

49 Ill. Ct. Cl. 153 (1996), in arguing defendant had a duty independent of his state

employment not to defame plaintiff. However, O’Connor is a Court of Claims case, which

this court is not bound to follow. We conclude the second factor of the three-factor test has

been satisfied.

¶ 31 3. Normal and Official Functions of the State

¶ 32 Plaintiff argues his allegations of malicious conduct necessarily places defendant’s

actions outside a state employee’s authority as a matter of law. We disagree.

¶ 33 Under the third factor, the question is whether the complained-of actions involve matters

ordinarily within that employee’s normal and official functions. Jinkins v. Lee, 209 Ill. 2d

320, 330, 807 N.E.2d 411, 418 (2004) (quoting Healy, 133 Ill. 2d at 309, 549 N.E.2d at

1247). We note the first and third factors overlap to some extent in this regard. Jackson v.

Alverez, 358 Ill. App. 3d 555, 560, 831 N.E.2d 1159, 1164 (2005). In evaluating the third

factor, courts have considered whether the matter was “a uniquely governmental function.”

Cortright v. Doyle, 386 Ill. App. 3d 895, 905, 898 N.E.2d 1153, 1162 (2008). The issue of

whether a function is uniquely governmental is also relevant to the second factor in that it

relates to the source of defendant’s duty. See Currie, 148 Ill. 2d at 160, 592 N.E.2d at 981.

Accordingly, we need only determine whether the actions complained of involve matters

ordinarily within defendant’s normal and official functions. See Cortright, 386 Ill. App. 3d

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at 905, 898 N.E.2d at 1162. In this case, defendant’s position as an assistant dean and

departmental director involved carrying out personnel-type duties such as writing the

termination letter, which is precisely the conduct of which plaintiff complains.

¶ 34 We note plaintiff relies on Hoffman v. Yack, 57 Ill. App. 3d 744, 748, 373 N.E.2d 486,

490 (1978), for the proposition once “an employee of the State exceeds his authority by

wrongful acts, he ceases to be a representative of the State, and the injured party may seek

relief from the wrongdoer personally.” In Hoffman, the trial court held an action against a

department supervisor at Southern Illinois University, which alleged the defendant interfered

with the plaintiff’s prospective economic advantage in continuing to hold a tenured teaching

position, was not a suit against the State. Hoffman, 57 Ill. App. 3d at 746, 373 N.E.2d at 488.

¶ 35 However, in Hoffman, the plaintiff alleged, inter alia, the defendant (1) diverted and

intercepted the plaintiff’s mail, (2) urged plaintiff’s students to fill out poor teacher rating

forms, and (3) communicated to the plaintiff’s supervisors false accusations regarding the

plaintiff’s professional competency, racist views, sexual conduct, and lack of integrity.

Hoffman, 57 Ill. App. 3d at 746, 373 N.E.2d at 488. The Hoffman court found because of the

nature of the defendant’s acts, he ceased to be a representative of the State and thus could be

sued individually. Hoffman, 57 Ill. App. 3d at 748, 373 N.E.2d at 490. The court also found

the suit was not against the State because judgment for the plaintiff would not affect, control,

or subject the State to liability. Hoffman, 57 Ill. App. 3d at 748, 373 N.E.2d at 490.

¶ 36 The Wozniak court clarified the holding in Hoffman and found “a suit was not against the

[S]tate when the defendant supervisor made personal accusations that did not relate solely

to the employee’s job.” Wozniak, 288 Ill. App. 3d at 135, 679 N.E.2d at 1259; Nikelly v.

Stubing, 204 Ill. App. 3d 870, 877, 562 N.E.2d 360, 364 (1990) (noting the plaintiff’s

allegations in Hoffman “were so egregious that it could be inferred they were actuated by

personal animus toward the plaintiff, and could not have been motivated by concern for the

welfare of the university”). Here, defendant’s statements in the termination letter did not

involve any false personal accusations not relevant to plaintiff’s employment. Instead, the

statements contained in the letter bore directly on the requirements of plaintiff’s position and

his failings in that regard. Thus, we find the third factor has been satisfied.

¶ 37 Applying the three-factor analysis, we find plaintiff’s tort claims are in reality claims

against the State. As a result, those claims are barred from consideration by the trial court and

should instead be heard in the Court of Claims. Thus, the trial court did not err in granting

defendant’s motion to dismiss for lack of jurisdiction. Because we resolve the case on

sovereign immunity grounds, we need not address the additional issue of whether the court

erred in denying plaintiff’s request to amend his complaint.

¶ 38 III. CONCLUSION

¶ 39 For the reasons stated, we affirm the trial court’s judgment.

¶ 40 Affirmed.

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