Dobias v. Oak Park , 2016 IL App (1st) 152205 ( 2016 )


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  •                                     
    2016 IL App (1st) 152205
    FOURTH DIVISION
    June 23, 2016
    No. 1-15-2205
    DANIELLE DOBIAS,                                             )              Appeal from the
    )              Circuit Court of
    Plaintiff-Appellant,                                  )              Cook County.
    )
    v.                                                           )
    )              No. 13 L 11744
    OAK PARK AND RIVER FOREST HIGH SCHOOL                        )
    DISTRICT 200, THOMAS TARRANT, and                            )
    JOHN STELZER,                                                )              Honorable
    )              John P. Callahan
    Defendants-Appellees.                                 )              Judge Presiding.
    JUSTICE ELLIS delivered the judgment of the court, with opinion.
    Presiding Justice McBride and Justice Howse concurred in the judgment and opinion.
    OPINION
    ¶1     In this appeal, we are asked to determine whether any or all of the following statements
    made in writing by a high school coach about the plaintiff—one of his assistant coaches and also
    a teacher at the school—constitute defamation per se:
    i. That the plaintiff “[w]as rolling around on a bed in a hotel room alone with an athlete”;
    ii. That the plaintiff visited athletes late one night while they were drinking alcohol and
    using drugs and “hung out” with them, later taking them home without informing the
    school or their parents about their behavior;
    iii. That the plaintiff “[c]elebrated an athlete’s accomplishment by drinking alcohol”;
    iv. That the plaintiff was “verbally and physically aggressive toward” him; and
    v. That the plaintiff “[p]hysically assaulted [him] by grabbing [his] arm and trying to
    force [him] into a room at the end of the school day.”
    No. 1-15-2205
    ¶2     We hold that the first two statements constituted defamation per se, and we thus reverse
    the dismissal of the defamation claims to this extent. We hold that all other statements did not
    constitute defamation per se, and the claims relating to those statements were properly
    dismissed.
    ¶3     Plaintiff, Danielle Dobias, a schoolteacher and assistant coach at Oak Park and River
    Forest High School, sued her employer and her two supervisors, defendants Thomas Tarrant and
    John Stelzer, alleging defamation per se and false-light invasion of privacy based on a number of
    statements made by Tarrant about plaintiff concerning her interactions with athletes and with
    Tarrant himself. The circuit court dismissed the third amended complaint, ruling that the
    statements at issue were capable of innocent constructions, were nonactionable opinion, or were
    not highly offensive to a reasonable person.
    ¶4                                     I. BACKGROUND
    ¶5     Plaintiff filed her original complaint on October 23, 2013, followed by several amended
    complaints. She filed her third amended complaint on November 7, 2014. Count I alleged
    defamation per se; count II alleged false-light invasion of privacy; count III alleged willful and
    wanton misconduct against Tarrant; and count IV alleged willful and wanton improper
    supervision against the high school. Only counts I and II are before us; plaintiff has waived her
    claims in counts III and IV.
    ¶6     As the complaint was dismissed pursuant to section 2-615 of the Code of Civil Procedure
    (735 ILCS 5/2-615 (West 2012)), we must accept all well-pleaded facts in the complaint as true.
    Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 
    227 Ill. 2d 381
    , 384 (2008). Our review
    is limited to whether the third amended complaint stated a cause of action for defamation per se
    or false-light invasion of privacy. Because the context in which an allegedly defamatory
    -2-
    No. 1-15-2205
    statement is made must be considered as part of a court’s analysis (see, e.g., Anderson v. Vanden
    Dorpel, 
    172 Ill. 2d 399
    , 415 (1996)), we include most of plaintiff’s allegations. We also include
    the entire statements contained in the exhibits on which plaintiff bases her complaint.
    ¶7      According to the allegations in the third amended complaint, both plaintiff and Tarrant
    are schoolteachers for defendant Oak Park and River Forest High School District 200 (OPRF).
    Plaintiff is a special education teacher; Tarrant was a special education behavioral interventionist
    with OPRF’s behavioral intervention program whose duties included assisting students and staff,
    including plaintiff, in maintaining discipline with disruptive and/or disorderly students. Tarrant’s
    office was a short distance from plaintiff’s classroom on the fourth-floor.
    ¶8      Plaintiff is the assistant coach of the boys’ track and field team and was also a former
    assistant coach for the girls’ cross-country team. Tarrant, as head coach for the girls’ cross-
    country team, was plaintiff’s supervisor. Defendant, John Stelzer, OPRF’s athletic director, was
    also plaintiff’s supervisor.
    ¶9      The complaint alleges that in March 2012, when plaintiff and Tarrant were both married
    to other individuals, Tarrant told plaintiff that he was in love with her. Plaintiff rejected his
    advances. In April 2012, Tarrant asked plaintiff about her marriage and told her he would be “the
    perfect match” for her. Tarrant also gave plaintiff a blanket, telling her it was “good for fertility.”
    Plaintiff again rejected his advances. She reported the incidents to OPRF officials but received
    no response.
    ¶ 10    In July 2012, Tarrant began a pattern of retaliation against plaintiff. This alleged
    retaliation involved Tarrant’s role as a behavioral interventionist, as well as his role as plaintiff’s
    supervisor for the girls’ cross-country team.
    ¶ 11               A. Tarrant’s Alleged Retaliation as Behavioral Interventionist
    -3-
    No. 1-15-2205
    ¶ 12   Tarrant began ignoring plaintiff’s requests for special education behavioral intervention.
    These included her request that Tarrant meet with recently suspended students, who were being
    returned to her classroom, to counsel them about avoiding fights in her classroom. Tarrant also
    ignored plaintiff’s request for help after one of her students sent her a “crude paper” and made a
    “sexual gesture” to her.
    ¶ 13   In September, plaintiff’s seventh-grade students stopped doing their work and said to
    plaintiff: “You won’t be here for much longer.” Plaintiff sent the students to Tarrant’s office for
    discipline. They returned laughing and said, “Everyone says you are getting fired.” A few days
    later, Tarrant refused another request for help from plaintiff with students in her classroom.
    Tarrant also ignored plaintiff’s e-mail request for help after a student walked out of her
    classroom after she reprimanded the student for discussing drugs.
    ¶ 14   Tarrant continued to ignore plaintiff’s requests for behavioral intervention from October
    through December 2012. Plaintiff continued to complain to superiors and continued to request
    that Tarrant perform his duty. There was no investigation, corrective action, or response. In
    November 2012, plaintiff requested peer mediation through human resources regarding Tarrant’s
    continued refusals to assist her in her job. Tarrant refused to participate.
    ¶ 15                       B. Tarrant’s Alleged Retaliation as Head Coach
    ¶ 16   Plaintiff also alleged that Tarrant retaliated against her in his role as her supervisor for the
    girls’ cross-country team. Starting in July 2012, Tarrant, who had previously rated plaintiff as
    “excellent” in all of her coaching performance evaluations, began rating her as only “good” to
    “satisfactory.” Tarrant asked plaintiff if he needed to get another assistant coach for the girls’
    cross-country team. He also began refusing her requests for coaching schedule changes that he
    had previously allowed. He ignored plaintiff during girls’ cross-country team matches and
    -4-
    No. 1-15-2205
    refused to meet with her for coach meetings, stating he would talk only with the other female
    assistant coach. He refused to provide plaintiff with a copy of his girls’ cross-country team
    schedule. Plaintiff therefore had to, for the first time, create her own schedule.
    ¶ 17   In September 2012, plaintiff told Tarrant to stop asking other school personnel questions
    about her. Tarrant asked others where plaintiff was moving her residence. When plaintiff and the
    other female assistant coach took a weekend trip, Tarrant asked the other coach where plaintiff
    would be sleeping. He also told plaintiff she should not coach the cross-country team with him.
    ¶ 18          C. Alleged Retaliation Against Plaintiff by OPRF, Tarrant, and Stelzer
    ¶ 19   In October 2012, plaintiff complained to OPRF supervisors that Tarrant had made
    inappropriate romantic and sexually harassing overtures to her. Ten days later, in retaliation for
    her complaint about Tarrant, OPRF’s human resource director ordered plaintiff not to attend the
    State cross-country match that plaintiff was supposed to coach.
    ¶ 20                     1. Stelzer Fires Plaintiff as Assistant Head Coach
    ¶ 21   On January 15, 2013, two days after returning from Christmas break, Stelzer, the athletic
    director, told plaintiff she would be fired as assistant cross-country coach for the following year.
    This decision was based on a poor evaluation by Tarrant and caused plaintiff to lose her coach’s
    stipend of approximately $6000 per year. Stelzer told plaintiff that she could reapply for the
    position if her relationship with Tarrant improved. Tarrant refused to go over the latest
    performance evaluation with plaintiff.
    ¶ 22                                2. OPRF Reassigns Tarrant
    ¶ 23   In January 2013, plaintiff complained to school officials about having no behavioral
    interventionist support from Tarrant. A day later, she also complained that Tarrant stalked her
    while she coached the boys’ track and field team.
    -5-
    No. 1-15-2205
    ¶ 24    In February 2013, Tarrant was removed as plaintiff’s behavioral interventionist. Tarrant’s
    office remained on the fourth floor near plaintiff’s classroom, and plaintiff was told to call
    someone on the first floor if she needed assistance.
    ¶ 25                   3. Plaintiff and Tarrant Sign No-Contact Agreements
    ¶ 26    In March 2013, plaintiff was told that, due to an investigation regarding her complaints
    against Tarrant, she was to stay away from the school until told to return. Five days later, both
    plaintiff and Tarrant signed documents that they would not talk to, or about, the other or park
    next to the other (signed written no-contact agreement).
    ¶ 27          4. Tarrant Refuses Plaintiff’s Request for Assistance in Her Classroom
    ¶ 28    On March 15, 2013, one of plaintiff’s special education students became out of control,
    threw a computer and shouted that he was going to “kill” plaintiff and the students in her
    classroom. Plaintiff called Tarrant’s assistant for help because she believed she was in immediate
    danger. The assistant told Tarrant there was an “out-of-control” student, but Tarrant refused to go
    to plaintiff’s aid. A teacher in a nearby classroom heard the commotion, went to plaintiff’s
    classroom and escorted out all of the students, except for the threatening student who then
    charged at plaintiff. Plaintiff talked the threatening student down, but she later complained to
    officials that Tarrant had refused to assist her.
    ¶ 29                                 5. OPRF Reassigns Plaintiff
    ¶ 30    Four days later, plaintiff was told that her classroom would be moved the following year
    and she would not be teaching four special education classes. Plaintiff was instead assigned to
    four study halls, even though no other teacher had more than two study halls. When plaintiff
    complained to school officials, they told her she was part of a “messed up situation” with a
    -6-
    No. 1-15-2205
    “messed up guy” and that everyone wanted “it to go away.” When plaintiff asked why she was
    being punished with a different schedule, she was told “it’s just how it worked out.”
    ¶ 31   When plaintiff returned to school the following August, she had no desk, telephone, or
    computer. On August 26, 2013, plaintiff’s e-mail to another teacher suddenly appeared on
    students’ computer screens. A school information technology (IT) employee told her that he was
    looking at her e-mails.
    ¶ 32                           D. Alleged Defamatory Statements
    ¶ 33   We first clarify which statements are relevant to our analysis. In her third amended
    complaint, plaintiff stated that the statements at issue were: (1) the written statements contained
    in Exhibit A (the September 2013 e-mails); (2) the written statements contained in Exhibit B
    (Tarrant’s grievance); (3) the oral statement, “You won’t be here for much longer”; and (4) the
    oral statement, “Everyone says you are getting fired.” Plaintiff alleged that these last two
    statements were made by her seventh-grade students. Plaintiff does not attribute these statements
    to defendants. And even if an inference could be made that Tarrant made the statement that
    plaintiff was getting fired (because it was made by the students after they returned from his
    office), plaintiff has not argued that an inference can be made that Tarrant made these
    statements. In fact, plaintiff does not address these statements at all and, in her opening brief,
    argues only that “Tarrant and/or Stelzer made and/or republished false statements regarding
    plaintiff in two written complaints, dated September 14 and November 12, 2013, to school
    administrators and other third parties, including Hardin, a Union Representative.” Points not
    argued in the appellant’s brief are forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013); BAC
    Home Loans Servicing, LP v. Mitchell, 
    2014 IL 116311
    , ¶ 23 (The Illinois Supreme Court has
    -7-
    No. 1-15-2205
    “repeatedly held an appellant’s failure to argue a point in the opening brief results in forfeiture
    under Supreme Court Rule 341(h)(7).”).
    ¶ 34   And even after defendants addressed those two oral statements in their response brief,
    presumably out of an abundance of caution, plaintiff did not address them in her reply, either. So
    there is no doubt that she has forfeited these claims. We will not consider these oral statements
    further. We will focus on the written statements contained in the referenced exhibits.
    ¶ 35   We also do not address any of the allegedly defamatory statements contained in the first
    three complaints, e.g., statements in plaintiff’s performance appraisal, which were not in the third
    amended complaint and have been abandoned. See, e.g., Skarin Custom Homes, Inc. v. Ross, 
    388 Ill. App. 3d 739
    , 745-46 (2009) (allegations in former complaints, not repleaded or incorporated
    in final amended complaint, are deemed waived). We further note that, although defendants
    addressed these additional statements in their response brief, plaintiff failed to do so in either her
    opening brief or reply brief.
    ¶ 36   So we will only consider (1) the written statements contained in Exhibit A to the third
    amended complaint (the September 2013 e-mails) and (2) the written statements contained in
    Exhibit B (Tarrant’s grievance).
    ¶ 37                                1. September 2013 E-mails
    ¶ 38   On September 14, 2013, Tarrant sent an e-mail to the athletic director, Stelzer, and the
    assistant athletic director, Courtney Sakellaris, with the subject heading of “Big Problem,”
    complaining about plaintiff’s recent actions that Tarrant claimed were in violation of the signed
    written no-contact agreement. Tarrant also sent a copy of this e-mail to plaintiff’s union
    representative, Sheila Hardin. Tarrant requested that the problem be taken care of or he would
    need to file a formal complaint with human resources.
    -8-
    No. 1-15-2205
    ¶ 39   Tarrant’s September 14, 2013, e-mail, in its entirety, states as follows:
    “Hey John and Courtney. I hate to report this, but it has to be done.
    Every morning when I get up I open my closet and get my gear. On the
    door is the paper I was advised to sign by my union rep outlining what I was
    accused of last year regarding Danielle Dobias. I look at it every day so I am
    reminded to be smarter than last year. I signed even though I knew it was all B.S.
    Today at my meet at Marmion Daniel [sic] Dobias showed up. Not only
    did she show up, she also walked into my camp, and was at the finish line where
    the racers and I meet. She was grabbing my runners, giving them advice, talking
    to my parents at the awards ceremony and generally was a huge distraction for
    myself and my athletes. This is totally unfair. This fired up more questions from
    Parents and athletes. On a day I should have been celebrating my first win and my
    seniors[’] first win in their careers the moment was ruined. I have documented
    other items as well, but these were not as egregious. She exits the building daily
    thru the athletic doors, as you know we meet in the 1 east classroom. She almost
    knocked my [sic] over last Monday. Also Friday September 6th I parked in the
    garage for the 7[ ] am coaches[’] meeting. When I came out her car was right
    across from mine. A clear violation of the agreement I signed.
    I asked for a change last year because the coach was verbally and
    physically aggressive towards me, made inappropriate contacts with athletes, and
    met with athletes without my knowledge, and was not supportive of our program
    even as our team improved.
    -9-
    No. 1-15-2205
    I need to have this taken care of ASAP or I will need to go to HR and file
    a formal complaint. I have done everything I can to avoid this person including
    leaving a job I loved and move out of the building into unfamiliar territory that
    will most likely lead to a lower evaluation next year.
    So when I look at that letter I hated to sign I sound like a stalker. My
    question is. Who is stalking who?
    I am prepared to bring forth solid evidence that as a coach this person did
    the following:
    1) Celebrated an athlete[’]s accomplishment by drinking alcohol.
    2) Was rolling around on a bed in a hotel alone with an athlete as
    witnessed by another coach who walked in.
    3) Was called after 2 am by athletes who were drunk and high.
    Went to where the athletes were. Hung out with them then took them
    home without notifying parents or the athletic office.
    The above were not done under my guidance as head coach. I did not want
    any more trouble after last year however I am prepared to protect myself and my
    athletes from this person.
    I have a 13 year old daughter, and if any coach did the unsafe things this
    coach has done I would be an extremely irritated parent.
    Tom.”
    ¶ 40   Stelzer forwarded Tarrant’s e-mail, on September 16, 2013, to two (interim) human
    resource directors, Frank Bogner and John Carlson after discussing it with Nate Rouse, the
    OPRF principal. In his e-mail, Stelzer stated:
    - 10 -
    No. 1-15-2205
    “John and Frank,
    Per Nate’s recommendation, I am forwarding you this email, please read
    and feel free to contact me with questions/concerns. There is too much to tell
    regarding this issue in an email. Suffice it to say, these two employees have a
    history, and the most recent events were dealt with last spring by Dr. Isoye. I am
    not sure how to handle this new situation. Please let me know when you are
    available to meet on this matter.
    Thank you.
    John Stelzer.”
    ¶ 41   Plaintiff attached a copy of these e-mail messages to her complaint as “Exhibit A.”
    Plaintiff alleged that Tarrant’s written complaint charging her with verbal and physical
    aggression and violating the signed written no-contract agreement was “false.” She also alleged
    she became the subject of a human resources investigation of Tarrant’s complaint that required
    her to answer questions and make a statement about the charges. Plaintiff received a written
    reprimand even though, according to the complaint, Tarrant’s allegations “were determined to be
    unfounded, and therefore false.”
    ¶ 42                               2. November 2013 “Grievance”
    ¶ 43   On November 12, 2013, Tarrant filed a “grievance” against plaintiff, a copy of which
    plaintiff attached to her complaint as “Exhibit B.” The document states:
    “Confidential State Meet,
    I am filing a grievance against Danielle Dobias for intimidation and
    harassment based on the following event.
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    No. 1-15-2205
    On Saturday November 9, 2013 Danielle Dobias knowingly and purposely
    disrupted my team preparation for the State Cross country Championships held at
    Detwieller Park. At approximately 12:00 pm Danielle Dobias entered our team
    camp area just as we were preparing our warm up. During this time I address my
    team and begin the mental process of preparing for the biggest race of the season
    and for all my athletes the biggest race of their careers. During this time Ms.
    Dobias engaged athletes and parents. It created such an awkward moment that I
    and parents left the area. Ms. Dobias then disrupted the post race gathering by
    again coming into our meeting area and engaging with the athletes before I
    released them to do the cool down. For the next several hours Ms. Dobias hung
    around our team camp area engaging athletes, placing her just a few feet away
    from me. This is clearly intimidation and harassment.
    Ms. Dobias is well aware of cross country protocol and knows what she
    did was a violation of that protocol. It is the equivalent of walking into the
    football coaches’ pregame speech/half time talk, or standing on the sidelines as
    opposed to being in the stands. I felt threatened and intimidated. This event
    follows several other intimidation attempts that I have documented with the HR
    department. I would have had no issues or right to file a complaint if Ms. Dobias
    had been a spectator in the race. I probably would not have even seen her there if
    that was her intent. It is clear that her intent was to harass and intimidate me.
    These events have affected my ability to teach and coach at OPRF to my full
    capabilities.
    - 12 -
    No. 1-15-2205
    The following is a series of the major documented events leading to this
    complaint:
    1) Left her classroom assignment and verbally assaulted me for
    over 15 minutes last year over my cross-country program.
    2) Physically assaulted me by grabbing my arm and trying to force
    me into a room at the end of the school day.
    3) Entered my work space again demanding changes to the XC
    program
    4) After it was clear I would not likely have her back as a coach
    filed false reports about me in March 2013, over 4 full months after the
    season ended.
    5) Entered the Team camp area and finish area at the Marmion
    invite this season
    6) Sat next to me at the Climate survey assembly forcing me to
    move per agreement I signed
    7) Knowingly entered the technology repair area I was required to
    be in for no reason 2 weeks ago
    I believe the series of events paints a very clear picture of intentionally
    intimidating and harassing. In short I feel unsafe and threatened. Ms. Dobias
    drove over 300 miles to disrupt my team. This is scary to me and my family and
    has made it very difficult to perform my job at 100 percent.
    I have the utmost respect for the leadership in the building and have done
    everything asked of me to rectify this situation. I am hoping my superiors will
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    No. 1-15-2205
    realize it is now nearly impossible for me to follow the directive I signed on
    March 6, 2013 due to the above incidents. I am also hoping a pattern is emerging
    that is clear. I am asking building leadership to respond to this immediately. I
    respectfully request the following:
    1) I respectfully request the letter in my file be removed or revised.
    It should be clear that I cannot abide by it’s [sic] terms if Danielle Dobias
    continues to put herself in my path on a near weekly basis
    2) I respectfully request *** a full review of the actions taken
    against me in light of the patterns of behaviors
    3) I respectfully request a clear follow up to the actions taken due
    to these events
    4) I respectfully request that clear parameters are put in place for
    the track season. I cannot see how her coaching in my area will be
    possible given the past behaviors.
    Finally, I just want to do my job and be a professional at OPRF. I have
    always felt my bosses have been supportive and professional. I am counting on
    that in this case again.
    Respectfully Submitted,
    Tom Tarrant.”
    ¶ 44   Plaintiff alleged that she again became the subject of a human resources investigation of
    these “false” accusations, which required her to make a statement about the charges. According
    to plaintiff, Tarrant’s allegations “were determined to be unfounded, and therefore false.”
    ¶ 45                                E. Publication of Statements
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    No. 1-15-2205
    ¶ 46   Plaintiff alleged that her union contract, styled “Agreement between The Oak Park and
    River Forest High School District 200 and The Oak Park and River Forest High School Faculty
    Senate, IEA/NEA” (union contract), required that Tarrant first bring his complaint to the
    attention of his immediate supervisor, Stelzer. Plaintiff attached a copy of the union contract to
    her complaint as “Exhibit C.” Plaintiff alleged that Tarrant violated the union contract by
    sending his e-mail complaint and grievance to other individuals who were not his immediate
    supervisor. Plaintiff further claimed that Tarrant and/or Stelzer inappropriately sent the
    documents to Hardin, Rouse, Sakellaris, Bogner, and Carlson.
    ¶ 47                                F. Circuit Court’s Ruling
    ¶ 48   On February 26, 2015, the circuit court dismissed all counts of the third amended
    complaint with prejudice pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS
    5/2-615 (West 2012)) for failing to state a cause of action. On July 7, 2015, the court denied
    plaintiff’s motion for reconsideration and clarification. The trial court agreed with defendants
    that the statements at issue were capable of innocent construction. The trial court also found that
    the statements were opinion and were not highly offensive to a reasonable person. This appeal
    followed.
    ¶ 49                                     II. ANALYSIS
    ¶ 50   A motion to dismiss under section 2-615 challenges the legal sufficiency of a complaint.
    Bonhomme v. St. James, 
    2012 IL 112393
    , ¶ 34. Our review is de novo. 
    Id.
     As noted earlier, we
    must accept as true all well-pleaded facts in the complaint, as well as all reasonable inferences
    that can be drawn from those facts. Imperial Apparel, Ltd., 
    227 Ill. 2d at 384
    . A motion to
    dismiss, however, does not admit allegations in the complaint that are in conflict with the facts
    - 15 -
    No. 1-15-2205
    disclosed in the exhibits. Farmers Automobile Insurance Ass’n v. Danner, 
    394 Ill. App. 3d 403
    ,
    412 (2009).
    ¶ 51                             A. Count I: Defamation Per Se
    ¶ 52   Plaintiff first argues that the circuit court erred in granting defendants’ section 2-615
    motion to dismiss count I of the third amended complaint for defamation per se. The preliminary
    construction of an allegedly defamatory statement is a question of law, and our review therefore
    is de novo. Green v. Rogers, 
    234 Ill. 2d 478
    , 492 (2009).
    ¶ 53   To state a claim for defamation, a plaintiff must allege facts that show: (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 her damages. Green, 
    234 Ill. 2d at 491
    . A defamatory statement is one that harms a person’s reputation to the extent that it lowers
    the person in the eyes of the community or deters the community from associating with her or
    him. 
    Id.
     There are two types of defamation: defamation per se and defamation per quod. Stone v.
    Paddock Publications, Inc., 
    2011 IL App (1st) 093386
    , ¶ 24. Here, plaintiff has only alleged
    defamation per se, and we will confine our analysis accordingly.
    ¶ 54   A statement is defamatory per se where the harm to a person’s reputation is obvious and
    apparent on its face. Green, 
    234 Ill. 2d at 491
    . If a plaintiff claims that a statement constitutes
    defamation per se, the plaintiff need not plead or prove actual damages, because the statement is
    considered so obviously and materially harmful that injury to the plaintiff’s reputation may be
    presumed. Green, 
    234 Ill. 2d at 495
    ; Tuite v. Corbitt, 
    224 Ill. 2d 490
    , 501 (2006); Bryson v. News
    America Publications, Inc., 
    174 Ill. 2d 77
    , 87 (1996).
    ¶ 55   “In Illinois, there are five categories of statements that are considered defamatory per se:
    (1) words that impute a person has committed a crime; (2) words that impute a person is infected
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    No. 1-15-2205
    with a loathsome communicable disease; (3) words that impute a person is unable to perform or
    lacks integrity in performing her or his employment duties; (4) words that impute a person lacks
    ability or otherwise prejudices that person in her or his profession; and (5) words that impute a
    person has engaged in adultery or fornication.” Green, 
    234 Ill. 2d at 491-92
    . The first four
    categories were recognized under our common law; the fifth category was added by statute. See
    Bryson, 
    174 Ill. 2d at 88-89
    ; 740 ILCS 145/1 et seq. (West 1992). Plaintiff raises only the first,
    third, and fourth categories.
    ¶ 56   Even if an alleged statement falls into one of these categories, the statement may not be
    actionable. A defendant may avoid liability if he can demonstrate: (1) that the statement is
    reasonably capable of an innocent construction (Hadley v. Doe, 
    2015 IL 118000
    , ¶ 31; Green,
    
    234 Ill. 2d at 499
    ); (2) that the statement is an expression of opinion (Hadley, 
    2015 IL 118000
    ,
    ¶ 33); or (3) that the statement is subject to a privilege. Solaia Technology, LLC v. Specialty
    Publishing Co., 
    221 Ill. 2d 558
    , 585 (2006); Pompa v. Swanson, 
    2013 IL App (2d) 120911
    , ¶ 26.
    ¶ 57   First, a statement that may appear to be defamatory will not be actionable if it is capable
    of a reasonable, innocent construction. Green, 
    234 Ill. 2d at 500
    . Although a court must accept as
    true the facts alleged in the complaint, we are not required to accept plaintiff’s interpretation of
    the statements as defamatory per se, because the meaning of a statement “is not a fact that can be
    alleged and accepted as true.” Tuite, 
    224 Ill. 2d at 510
    . Accordingly, the preliminary
    determination of whether a statement is capable of a reasonable, innocent construction is
    properly a question of law for the court to decide de novo. Id.; Bryson, Inc., 
    174 Ill. 2d at 90
    .
    ¶ 58   The court must give the allegedly defamatory words, and any implications arising from
    them, their natural and obvious meaning. Green, 
    234 Ill. 2d at 499
    . The innocent-construction
    rule does not apply simply because the allegedly defamatory words are “capable” of an innocent
    - 17 -
    No. 1-15-2205
    construction. Bryson, 
    174 Ill. 2d at 93
    . “Only reasonable innocent constructions will remove an
    allegedly defamatory statement from the per se category.” (Emphasis in original.) 
    Id. at 90
    .
    ¶ 59   The context of the statement is critical, “as a given statement may convey entirely
    different meanings when presented in different contexts.” Green, 
    234 Ill. 2d at 499
    ; see also
    Tuite, 
    224 Ill. 2d at 512
     (innocent-construction rule requires writing to be read as whole). Courts
    must “interpret the allegedly defamatory words as they appeared to have been used and
    according to the idea they were intended to convey to the reasonable reader.” Bryson, 
    174 Ill. 2d at 93
    ; Hadley, 
    2015 IL 118000
    , ¶ 31.
    ¶ 60   If, when taken in context, a statement is reasonably capable of a nondefamatory
    interpretation, that innocent construction should be adopted. Green, 
    234 Ill. 2d at 500
    ; Anderson,
    
    172 Ill. 2d at 412-13
    . “There is no balancing of reasonable constructions ***.” Green, 
    234 Ill. 2d at 500
    . On the other hand, if the defendant “clearly intended and unmistakably conveyed a
    defamatory meaning, a court should not strain to see an inoffensive gloss on the statement.” 
    Id.
    ¶ 61   Second, the law distinguishes between a defamatory statement of fact and an opinion; an
    expression of opinion is not defamation. See Hadley, 
    2015 IL 118000
    , ¶ 33; Solaia Technology,
    
    221 Ill. 2d at 581
    . A false assertion of fact can be defamatory even when couched within
    apparent opinion or rhetorical hyperbole. Hadley, 
    2015 IL 118000
    , ¶ 33. “The test is restrictive: a
    defamatory statement is constitutionally protected only if it cannot be reasonably interpreted as
    stating actual fact.” (Internal quotation marks omitted.) 
    Id.
     In analyzing whether a statement is a
    nonactionable expression of opinion or a defamatory statement of fact, the court considers
    “whether the statement has a precise and readily understood meaning; whether the statement is
    verifiable; and whether the statement’s literary or social context signals that it has factual
    content.” (Internal quotation marks omitted.) Id.; see also Kumaran v. Brotman, 247 Ill. App. 3d
    - 18 -
    No. 1-15-2205
    216, 228 (1993) (“In determining whether a statement is one of fact or opinion, a court should
    consider the totality of the circumstances and whether the statement can be objectively verified
    as true or false.”). A statement will receive first amendment protection from a defamation suit
    only if it cannot be reasonably interpreted as stating actual facts about the plaintiff. Kolegas v.
    Heftel Broadcasting Corp., 
    154 Ill. 2d 1
    , 14-15 (1992).
    ¶ 62   The questions of whether a particular statement is subject to a reasonable, innocent
    construction, and whether it constitutes an opinion as opposed to fact, obviously must be
    determined on a statement-by-statement basis. Thus, we will take up those questions first, and
    then turn to the question of whether defendants were protected by a qualified privilege, a
    question that applies equally to all the statements communicated in a particular written
    document.
    ¶ 63         1. Statements Concerning Plaintiff’s Interaction With Student-Athletes
    ¶ 64   We first consider defendant Tarrant’s e-mail to defendant Stelzer on September 14, 2013,
    which Stelzer then republished two days later, which concerned three specific statements Tarrant
    made concerning plaintiff’s interactions with student-athletes. We previously quoted the entire e-
    mail verbatim (supra ¶ 39) and will highlight only the relevant portion here. According to the
    exhibit attached to the complaint, defendant Tarrant wrote to defendant Stelzer (the athletic
    director), Courtney Sakellaris (the assistant athletic director), and Sheila Hardin (plaintiff’s union
    representative) the following:
    “I am prepared to bring forth solid evidence that as a coach this person did
    the following:
    1) Celebrated an athlete[’]s accomplishment by drinking alcohol.
    - 19 -
    No. 1-15-2205
    2) Was rolling around on a bed in a hotel alone with an athlete as
    witnessed by another coach who walked in.
    3) Was called after 2 am by athletes who were drunk and high.
    Went to where the athletes were. Hung out with them then took them
    home without notifying parents or the athletic office.
    The above were not done under my guidance as head coach. I did not want
    any more trouble after last year however I am prepared to protect myself and my
    athletes from this person.
    I have a 13 year old daughter, and if any coach did the unsafe things this
    coach has done I would be an extremely irritated parent.”
    ¶ 65   Plaintiff argues that each of these three statements above (conveniently numbered for us)
    constituted defamation per se under two different but related categories−words that impute a
    person is “unable to perform or lacks integrity in performing her or his employment duties” and
    words imputing that a person “lacks ability or otherwise prejudices that person in her or his
    profession.” Green, 
    234 Ill. 2d at 492
    . As one court has observed, the difference between these
    two defamatory per se categories is “subtle.” Pippen v. NBCUniversal Media, LLC, 
    734 F.3d 610
    , 613 (7th Cir. 2013). “The former seems to imply some sort of on-the-job malfeasance; the
    latter covers suitability for a trade or profession.” Id.; see also Haynes v. Alfred A. Knopf, Inc., 
    8 F.3d 1222
    , 1226 (7th Cir. 1993) (describing former category as “malfeasance or misfeasance in
    the performance of an office or a job” and latter as “unfitness for one’s profession or trade”).
    Plaintiff claims that each of these three statements imputed her lack of integrity as a school
    professional and otherwise prejudiced her in that profession.
    - 20 -
    No. 1-15-2205
    ¶ 66   Defendants argue that each of these three statements is capable of an innocent
    construction and, in any event, the statements were expressions of opinion and not fact.
    ¶ 67   We begin with the statement that plaintiff “[w]as rolling around on a bed in a hotel alone
    with an athlete as witnessed by another coach who walked in.” Plaintiff claims that this statement
    is defamatory because, as a teacher and a coach, she is expected to be a role model for the
    students. She argues that Tarrant’s statement imputed that she lacked integrity in her
    employment and/or prejudiced her in her trade as a teacher, because a teacher is expected to set a
    good example and to function as a role model for young, impressionable students.
    ¶ 68   Defendants, on the other hand, claim that this statement may be reasonably construed as
    mere “roughhousing.” And defendants downplay the negative connotation attached to this
    statement by pointing to the conclusion of the e-mail, where Tarrant wrote that, if they knew of
    the complained-of conduct listed in the e-mail, parents would be “extremely irritated.”
    Defendants claim that, if Tarrant were conveying the notion of sexual contact or even grossly
    inappropriate student-teacher contact, he would have predicted a far more aggressive reaction
    from parents than extreme irritation; he would have predicted that parents would demand
    criminal charges, remove their child from the cross-country team, storm a school board meeting
    in protest, or something of that nature. The circuit court agreed with defendants, finding this
    statement to be subject to an innocent construction and noting in its oral ruling that Tarrant
    “never said that the plaintiff was having sex with students.”
    ¶ 69   We hold that this statement was not subject to a reasonable, innocent construction. A
    teacher rolling around on a bed with a student, when the two of them are alone in a hotel room, is
    inappropriate no matter how it could reasonably be viewed. While this statement may have fallen
    short of implying sexual intercourse, sexual behavior is not limited to intercourse. And even if
    - 21 -
    No. 1-15-2205
    we could interpret this statement as describing purely nonsexual behavior, it is undeniably
    contact between a teacher and student-athlete that is far more intimate than would be appropriate.
    If the defendant “clearly intended and unmistakably conveyed a defamatory meaning, a court
    should not strain to see an inoffensive gloss on the statement.” Green, 
    234 Ill. 2d at 500
    ; see
    Kumaran, 247 Ill. App. 3d at 227 (statement that substitute teacher was “working a scam” by
    filing frivolous lawsuits to extract monetary settlements was defamation per se because “a
    teacher would be expected to set a good example and function as a role model for his young,
    impressionable students” and statement “prejudice[d] his teaching ability and integrity because it
    presented him as someone who would not be an acceptable role model for young students”).
    ¶ 70   Defendants rely heavily on Green in support of their claim that Tarrant’s statements are
    reasonably capable of an innocent construction. In Green, plaintiff alleged that defendant made
    statements that plaintiff had “ ‘exhibited a long pattern of misconduct with children which was
    not acceptable for [Little League] coaches’ ”; and had “ ‘abused players, coaches, and umpires in
    [Little League].’ ” Green, 
    234 Ill. 2d at 500
    . The court concluded that the alleged statements
    were reasonably capable of an innocent construction. 
    Id. at 501
    . As the court explained: “These
    statements were made in the context of selecting coaches for the [Little League] season, and both
    statements were specifically confined to the context of Little League coaching.” 
    Id.
    ¶ 71   Green is factually distinguishable. While the statements in Green were confined to the
    context of Little League coaching, the accusation here that plaintiff was rolling around on a bed
    with a student-athlete, while they were alone in a hotel room, was not confined to the context of
    what plaintiff did on the track as a coach. And the court in Green noted that the alleged
    defamatory statements were immediately followed by multiple assurances from the defendants
    that, although the plaintiff would not be selected as a coach, he would be free to assist his son’s
    - 22 -
    No. 1-15-2205
    team with practices and pregame activities, and the plaintiff was “repeatedly and
    contemporaneously invited to participate in any way he could work out with his son’s coach,”
    which further clarified that the references to “abuse” or “misconduct” did not suggest anything of
    a sexual or immoral nature but rather misbehavior in the context of coaching. Here, in contrast,
    Tarrant referred to plaintiff’s conduct as that from which he needed to “protect” himself and his
    athletes, and further noted that the “unsafe things” would extremely irritate him as a parent of a
    13-year-old daughter.
    ¶ 72   The statement that plaintiff was rolling around on a bed in the privacy of a hotel room
    with a student-athlete clearly imputed a lack of integrity in her profession and prejudiced her in
    that profession. We can adopt no reasonable, innocent construction of this statement.
    ¶ 73   We turn next to Tarrant’s statement attributing the following conduct to plaintiff:
    “Was called after 2 am by athletes who were drunk and high. Went to where the athletes
    were. Hung out with them then took them home without notifying parents or the athletic
    office.”
    ¶ 74   In their effort to construct a reasonable, innocent construction of this statement,
    defendants argue that Tarrant merely stated that plaintiff “safely resolved a situation in which
    athletes were drunk and high.” And the circuit court reasoned that Tarrant “never said that the
    plaintiff *** was drinking or doing drugs with” the students.
    ¶ 75   Both of those points have merit. But this passage must be read as a whole and in the
    context of the entire e-mail. Green, 
    234 Ill. 2d at 499
    ; Tuite, 
    224 Ill. 2d at 512
    ; Bryson, 
    174 Ill. 2d at 93
    ; Hadley, 
    2015 IL 118000
    , ¶ 31. This passage, in full, also says that plaintiff “hung out
    with” the student-athletes that were drunk and high, and that she failed to notify either the
    parents or the athletic office of the underage drinking and drug use.
    - 23 -
    No. 1-15-2205
    ¶ 76   We fail to see how those statements can be innocently construed. While anyone would
    credit an adult who helped intoxicated students get home safely, the passage imputes that
    plaintiff, at a minimum, condoned the alcohol and drug use that took place in her presence.
    “Hanging out with” students cannot be reasonably construed as simply picking them up and
    taking them home; it means socializing with them while they were using these substances. Even
    if a teacher-coach did not herself use alcohol or drugs, it would reflect unfavorably on any
    teacher’s reputation if she socialized with underage students while they were engaged in drug
    and alcohol abuse.
    ¶ 77   The presence of a favorable fact—getting the intoxicated students home safely—does not
    insulate the unfavorable statements from a claim of defamation. And again, the fact that Tarrant
    summed up his e-mail by referring to this conduct as “unsafe” behavior for which children
    required protection gives the lie to any claim by defendants that Tarrant was merely
    complimenting her on “safely resolv[ing]” a situation. We find no reasonable, innocent
    construction of this statement. These claims imputed a lack of integrity in plaintiff’s profession
    and prejudiced her in that profession.
    ¶ 78   Nor can either of these two statements above be characterized as nonactionable opinion.
    The circuit court ruled that Tarrant’s statement, at the end of the e-mail, that “if any coach did
    the unsafe things this coach has done I would be an extremely irritated parent”—was an
    expression of opinion, an argument defendants likewise raise before us. That particular, isolated
    statement may have been an opinion, but it does not change the fact that the two statements we
    have discussed above set forth specific facts—that plaintiff rolled around on a bed in a private
    hotel room with a student-athlete and “hung out” with student-athletes while they drank alcohol
    and used drugs. A defendant cannot avoid the defamatory statements he has made merely by
    - 24 -
    No. 1-15-2205
    inserting his opinion of those facts alongside them. Hadley, 
    2015 IL 118000
    , ¶ 33; Solaia
    Technology, 
    221 Ill. 2d at 581
    . Whatever opinion Tarrant may have expressed about this
    complained-of conduct, the statements of fact themselves could be readily verifiable as true or
    false. See Solaia Technology, 
    221 Ill. 2d at 581
    ; Kumaran, 247 Ill. App. 3d at 228
    (distinguishing between fact and opinion based on whether, under totality of circumstances,
    statement can be “objectively verified as true or false”).
    ¶ 79   We thus hold that the two statements made by Tarrant in the September 14, 2013 e-mail,
    accusing plaintiff of rolling around on a bed in a hotel room with a student-athlete, and accusing
    plaintiff of “hanging out” with student-athletes while they drank alcohol and used drugs, were
    defamatory per se.
    ¶ 80   Next, we consider Tarrant’s statement in this same e-mail that plaintiff “[c]elebrated an
    athlete[’]s accomplishment by drinking alcohol.” This one is admittedly a close call. On the one
    hand, as defendants note, the statement does not literally accuse plaintiff of drinking alcohol with
    a student-athlete, or even in the presence of one. On the other hand, one might question why this
    incident would even be worth reporting if all that Tarrant meant was that plaintiff was drinking
    alcohol with other adults, or even by herself; there is nothing illegal or improper in doing so. If
    that was all that Tarrant intended to convey by this statement, why would he characterize it as
    “unsafe,” feel compelled to protect children from such conduct, and find it necessary to distance
    himself from this behavior by emphasizing that her alcohol consumption “was not done under
    [his] guidance as head coach?” For that matter, if all that Tarrant meant was that plaintiff
    consumed alcohol outside the presence of student-athletes, why even mention that the reason she
    was drinking alcohol was to celebrate an athlete’s success?
    - 25 -
    No. 1-15-2205
    ¶ 81   While plaintiff validly raised all of these questions, our duty is to adopt an innocent
    construction of the statement if it is reasonable to do so. Green, 
    234 Ill. 2d at 500
    ; Anderson, 
    172 Ill. 2d at 412-13
    . We think it would be reasonable to innocently construe this statement. We do
    agree with plaintiff on one point: this statement can only be reasonably interpreted as implying
    that plaintiff drank the alcohol in the presence of athletes, because if it did not, there would be no
    point in including this statement in the e-mail at all.
    ¶ 82   But that does not necessarily mean that what plaintiff was accused of doing was illegal,
    immoral, or even objectively inappropriate. There is no law prohibiting adults from consuming
    alcohol in the presence of minors. It happens every day in restaurants, at professional sporting
    events, in backyard barbeques, in private homes, and the like. We have no context in this e-mail
    regarding the circumstances under which plaintiff consumed the alcohol−maybe, for example,
    the team went to a restaurant for a celebratory dinner after a successful outing−and while it may
    be possible to imagine situations where plaintiff’s consumption of alcohol in the presence of her
    athletes would have been clearly inappropriate, we have already listed several examples where it
    would be perfectly legal and not inherently inappropriate.
    ¶ 83   We recognize that the statement here did not concern just any adult drinking in front of
    just any minor; the adult accused of drinking the alcohol was a high school teacher and coach,
    and the minors were her student-athletes. It could well have been Tarrant’s subjective opinion
    that it is never appropriate for a coach to drink alcohol in front of his or her athletes. Others
    might subscribe to that view, too. But we think it would go too far to hold, as a matter of law,
    that the claim that a teacher-coach drank alcohol in the presence of her student-athletes, even in a
    perfectly legal and responsible context, would impugn a teacher-coach’s professional integrity or
    - 26 -
    No. 1-15-2205
    otherwise prejudice her in that profession. We hold that this statement was not defamatory per se
    and was properly dismissed as a claim of defamation in this case. 1
    ¶ 84                    2. Statements Concerning Plaintiff’s Interaction With Tarrant
    ¶ 85     We next consider allegedly defamatory statements made by Tarrant regarding plaintiff’s
    interactions not with athletes, but with Tarrant himself. In Tarrant’s September 14 e-mail, he
    stated: “I asked for a change last year because [plaintiff] was verbally and physically aggressive
    toward me.” In the November 12 written complaint, Tarrant wrote that plaintiff “[p]hysically
    assaulted me by grabbing my arm and trying to force me into a room at the end of the school
    day.”
    ¶ 86     Plaintiff first argues that these statements impute the commission of a crime, a recognized
    category of defamation per se. Specifically, plaintiff contends that Tarrant imputed that she
    committed a battery. A person commits the crime of battery if she “knowingly without legal
    justification by any means (1) causes bodily harm to an individual or (2) makes physical contact
    of an insulting or provoking nature with an individual.” 720 ILCS 5/12-3 (West 2012).
    ¶ 87     Many decisions have held that, to constitute defamation per se based on imputing the
    commission of a crime, “the crime must be an indictable one, involving moral turpitude and
    punishable by death or by imprisonment in [lieu of a] fine.” Doe v. Catholic Diocese of
    Rockford, 
    2015 IL App (2d) 140618
    , ¶ 46; Kirchner v. Greene, 
    294 Ill. App. 3d 672
    , 680 (1998);
    accord Jacobson v. Gimbel, 
    2013 IL App (2d) 120478
    , ¶ 27. One would not ordinarily think of
    verbal and physical aggression, or the grabbing of a coworker’s arm to force him or her in a
    different direction, to be crimes of “moral turpitude.” In other contexts, that phrase has been
    1
    At oral argument, plaintiff’s counsel conceded that this statement did not constitute defamation per se. We
    have chosen to consider the question in full regardless.
    - 27 -
    No. 1-15-2205
    defined as “ ‘conduct which is inherently base, vile, or depraved, and contrary to the accepted
    rules of morality and the duties owed between persons or to society in general.’ ” People v.
    Valdez, 
    2015 IL App (3d) 120892
    , ¶ 21, appeal allowed, No. 119860 (Ill. Nov. 25, 2015)
    (quoting In re Ajami, 
    22 I. & N. Dec. 949
    , 950 (BIA 1999) (per curiam)). Thus, for example, this
    court has held that an accusation that the plaintiff committed the crime of “criminal housing
    management”—allowing residential real estate to fall into such deterioration that the lives of the
    inhabitants become endangered—was not libelous per se, and was properly dismissed, because
    the crime alleged was not one of moral turpitude. Rasky v. Columbia Broadcasting System, Inc.,
    
    103 Ill. App. 3d 577
    , 583 (1981).
    ¶ 88   On the other hand, our supreme court has appeared not to limit crimes to those involving
    moral turpitude, or at least has not limited it explicitly. See Van Horne v. Muller, 
    185 Ill. 2d 299
    ,
    308 (1998) (accusation that plaintiff committed assault by accosting defendant in elevator and
    verbally threatening his life was defamatory per se under imputation-of-crime category); Tuite,
    
    224 Ill. 2d at 501
     (discussing imputation-of-crime category of defamation per se without
    requiring that crime be one of moral turpitude, though crime in that case was bribery of judicial
    officers); Stewart v. Howe, 
    17 Ill. 71
    , 72-73 (1855) (suggesting that accusation of crime of moral
    turpitude might be one basis for defamation but not explicitly limiting it to such crimes). We
    would further note, as an aside, that the Restatement provides that accusations of a criminal act
    are actionable if the criminal act is either punishable by prison or one involving moral turpitude.
    Restatement (Second) of Torts § 571 (1977).
    ¶ 89   We need not decide whether the crime must be one of moral turpitude under Illinois law,
    because we hold, in any event, that each of the two statements at issue is amenable to a
    - 28 -
    No. 1-15-2205
    reasonable, innocent construction. See Guinn v. Hoskins Chevrolet, 
    361 Ill. App. 3d 575
    , 586
    (2005) (reviewing court may affirm dismissal of complaint on any basis in record).
    ¶ 90   First, the September 14 e-mail, which concerned past conduct that had been part of a
    previous dispute resolution between Tarrant and plaintiff, merely references “verbally and
    physically aggressive” behavior and does not even arguably suggest the commission of a battery.
    There is no specific claim of bodily harm or physical contact of any kind. That claim was
    properly dismissed.
    ¶ 91   The November 12 written complaint, where Tarrant claimed that plaintiff “[p]hysically
    assaulted [him] by grabbing [his] arm and trying to force [him] into a room at the end of the
    school day,” is a closer question. We agree that the conduct described in this statement covered
    all of the elements for the misdemeanor crime of battery, as it constituted physical contact of an
    insulting or provoking nature. See 720 ILCS 5/12-3 (West 2012). In fact, though plaintiff failed
    to call as much to our attention, battery of a school teacher on school grounds, as alleged here,
    constitutes the Class 3 felony of aggravated battery. 720 ILCS 5/12-3.05(d)(3) (West 2012)
    (person commits aggravated battery if she commits battery on an individual she knows to be “[a]
    teacher or school employee upon school grounds”).
    ¶ 92   We know these things because we are lawyers and judges, trained to research criminal
    statutes and case law. We know, for example, that the standard for a criminal battery is an
    extremely low one−that “[a]ny offensive touching of the person or clothing of the victim
    constitutes a battery.” (Emphasis added.) People v. Tiller, 
    61 Ill. App. 3d 785
    , 795 (1978).
    Taking a box of matches away from the hand of another in anger has been held to constitute
    battery. People v. Beifeld, 
    171 Ill. App. 614
    , 615 (1912). Spitting on someone’s arm is a battery.
    - 29 -
    No. 1-15-2205
    People v. Wrencher, 
    2011 IL App (4th) 080619
    , ¶ 55 (“For hundreds of years, the common law
    has regarded deliberate spitting on someone as a battery.”).
    ¶ 93   But we are not to read this statement through the eyes of a judge or attorney; we are to
    view this statement through the eyes of the “reasonable reader.” (Internal quotation marks
    omitted.) Hadley, 
    2015 IL 118000
    , ¶ 31; Tuite, 
    224 Ill. 2d at 504
    ; Bryson, 
    174 Ill. 2d at 93
    . The
    question is whether the statement “fairly impute[s] the commission of a crime” in the eyes of the
    reasonable reader. Kirchner, 294 Ill. App. 3d at 680; Doe, 
    2015 IL App (2d) 140618
    , ¶ 46.
    ¶ 94   Would a reasonable reader of this statement know that the complained-of acts constituted
    not only misdemeanor battery but, in fact, the Class 3 felony of aggravated battery? Tarrant
    himself did not; he called what happened an “assault.” See Tiller, 61 Ill. App. 3d at 795
    (offensive touching is a battery, not an assault). It is a fairly common misapprehension for the
    public (and sometimes even lawyers) to confuse the offenses of assault and battery, which only
    reinforces our concern.
    ¶ 95   While there is no doubt that Tarrant’s statement checked all the boxes for the elements of
    a battery and even aggravated battery, it does not automatically follow that this would be fairly
    imputed from the standpoint of the reasonable reader. To use the examples of battery we have
    noted above, if Tarrant accused plaintiff of angrily yanking a book of matches from his hand, or
    spitting on his arm, we would not expect the community at large to brand her a criminal. We
    would not expect a reasonable reader to even think of those acts as crimes. Inappropriate, no
    doubt, but not crimes.
    ¶ 96   We believe the same could be said of the act for which Tarrant accused plaintiff. We
    would expect that a reasonable reader of this statement would not know that a teacher’s act of
    grabbing a fellow teacher by the arm, during school hours on school property, in order to redirect
    - 30 -
    No. 1-15-2205
    them to a room, in and of itself, is a criminal act, much less an aggravated form of a criminal act
    that elevated it from a misdemeanor to a Class 3 felony.
    ¶ 97   A reasonable person would clearly infer criminal conduct from a statement that a person
    is a murderer, a rapist, a child molester, even an embezzler or a thief, or from acts that fairly
    implied those criminal acts. We simply cannot accept that an employee’s act of grabbing a
    coworker’s arm to steer him into a room, in a workplace setting, without more, falls into that
    category.
    ¶ 98   We must emphasize that our analysis here is limited to these specific facts and
    surrounding context. See Green, 
    234 Ill. 2d at 499
     (“context of the statement is critical”). There
    is no accusation that plaintiff tried to force Tarrant into a room for the purpose of committing a
    further act of aggression. Certainly, we could conceive of many situations where grabbing
    someone and redirecting their movement toward a private location would be suggestive of an
    intent to commit some further criminal act like robbery or sexual assault or even a more obvious
    form of battery—even murder—but in the context of this complaint, we see nothing remotely
    suggesting such a possibility. Rather, this statement concerns two coworkers arguing on school
    grounds during the school day, where one was trying to get the attention of the other in an
    admittedly inappropriate way, but nothing that makes this anything more than a heated moment
    between coworkers, among many such heated moments over the previous year.
    ¶ 99   We have long held that, to state a claim for defamation per se on this basis, the defendant
    need state the particularities of the elements of a crime, as would an indictment, so long as the
    statement fairly imputes the commission of a crime. Kirchner, 294 Ill. App. 3d at 680; Doe, 
    2015 IL App (2d) 140618
    , ¶ 46; Adams v. Sussman & Hertzberg, Ltd., 
    292 Ill. App. 3d 30
    , 47 (1997).
    We think the converse must be true as well; just because the challenged statement might
    - 31 -
    No. 1-15-2205
    technically state the elements of a crime, it does not necessarily follow that, to the reasonable
    reader, the commission of a crime has been fairly imputed. Most of all, we do not think that this
    accusation of plaintiff’s conduct, inappropriate though it may have been, would so harm
    plaintiff’s reputation that it lowered her in the eyes of the community or deterred the community
    from associating with her−which in the end is the standard for defamation. See Green, 
    234 Ill. 2d at 491
    .
    ¶ 100 We hold that Tarrant’s statement that plaintiff “[p]hysically assaulted [him] by grabbing
    [his] arm and trying to force [him] into a room at the end of the school day” could be reasonably
    construed as not imputing the commission of a criminal offense. We affirm the dismissal of this
    claim as well.
    ¶ 101 Plaintiff also alleges, as she did with the previous allegations, that these statements
    constituted defamation per se because they challenged her integrity in her profession and
    otherwise prejudiced her standing in the profession. A generic description of verbal and physical
    aggression, and an isolated example of grabbing someone’s arm to get his attention, may not be
    flattering statements, but they are not so harmful that they would lower plaintiff’s reputation in
    the eyes of the community and deter the community from associating with her. See Green, 
    234 Ill. 2d at 491
    . Unlike two of the statements in Tarrant’s e-mail regarding plaintiff’s “unsafe”
    activities with students, the statements made by Tarrant in his grievance do not constitute
    statements impugning plaintiff’s integrity as a schoolteacher and are not defamatory per se. See,
    e.g., Heying v. Simonaitis, 
    126 Ill. App. 3d 157
    , 164-65 (1984) (when read in context, doctors’
    statements criticizing nurse for her personality conflicts with other hospital staff did not impugn
    her professional abilities as nurse or prejudice her in her profession and, thus, were not
    defamatory per se).
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    No. 1-15-2205
    ¶ 102 We hold that these statements regarding physical and verbal confrontations between
    plaintiff and Tarrant were not defamatory per se, and the claims of defamation based on these
    statements were properly dismissed.
    ¶ 103                                 3. Qualified Privilege
    ¶ 104 Thus far, we have held that only two statements made by Tarrant in the September 14,
    2013, e-mail—that plaintiff was “rolling around on a bed in a hotel room with an athlete” and
    that plaintiff “hung out” with athletes who were drinking and using drugs—constituted
    defamation per se. We have held that all other statements at issue were properly dismissed, as
    they were not defamatory per se.
    ¶ 105 As to the two statements that have survived our analysis, we must next determine the
    question of qualified privilege. Defendants raised this issue in their motion to dismiss and argue
    the issue again before this court. The circuit court did not rule on the privilege issue. But we may
    affirm the circuit court’s judgment on any basis contained in the record, regardless of whether it
    was the basis on which the circuit court relied. Beacham v. Walker, 
    231 Ill. 2d 51
    , 61 (2008).
    ¶ 106 A defamatory statement is not actionable if it is privileged. Solaia Technology, 
    221 Ill. 2d at 585
    . Privilege is an affirmative defense that may be raised as a basis for dismissal of a
    defamation action (Anderson v. Beach, 
    386 Ill. App. 3d 246
    , 248 (2008)), even in a section 2-615
    motion if the defense is apparent on the face of the complaint. O’Callaghan v. Satherlie, 
    2015 IL App (1st) 142152
    , ¶ 18.
    ¶ 107 The qualified privilege in Illinois defamation law is based on “the policy of protecting
    honest communications of misinformation in certain favored circumstances in order to facilitate
    the availability of correct information.” Kuwik v. Starmark Star Marketing & Administration,
    Inc., 
    156 Ill. 2d 16
    , 24 (1993); Pompa v. Swanson, 
    2013 IL App (2d) 120911
    , ¶ 27. A qualified
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    privilege generally applies “where society’s interest in compensating a person for loss of
    reputation is outweighed by a competing interest that demands protection.” (Internal quotation
    marks omitted.) Solaia Technology, 
    221 Ill. 2d at 599
     (Freeman, J., concurring in part and
    dissenting in part) (quoting J.D. Lee & Barry A. Lindhal, Modern Tort Law § 36:32, at 36-47 (2d
    ed. 2002)).
    ¶ 108 But even if a privilege exists in a given case, defendant may not rely on that privilege if
    he abuses it. Kuwik, 
    156 Ill. 2d at 30
    . A plaintiff claiming a defendant abused a qualified
    privilege must show a direct intention to injure another or a reckless disregard of the plaintiff’s
    rights and of the consequences that may result to the plaintiff. Id.; accord Pompa, 
    2013 IL App (2d) 120911
    , ¶ 26 (qualified privilege can be exceeded, and thereby defeated, in circumstances
    where defendant makes false statements with intent to injure or with reckless disregard for
    statements’ truth). Conduct constituting an abuse of the privilege thus includes not only an intent
    to injure but also “any reckless act which shows a disregard for the defamed party’s rights,
    including the failure to properly investigate the truth of the matter, limit the scope of the
    material, or send the material to only the proper parties.” Kuwik, 
    156 Ill. 2d at 30
    ; see also
    Restatement (Second) of Torts § 599 cmt. a, at 286 (1977) (protection that qualified privilege
    gives to publication of defamatory matter can be defeated by unreasonable exercise of privilege).
    ¶ 109 The complaint sufficiently alleges an abuse of any qualified privilege that may have
    existed. As to both written documents containing the statements at issue, the complaint alleges
    that the statements were “false” and determined to be unfounded after an internal investigation,
    that they were “made and published in bad faith,” and that “if the statements were protected by a
    qualified privilege, [d]efendants abused the privilege because the statements were false and
    [d]efendants knew that they were false and/or were not investigated prior to the statements[’]
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    No. 1-15-2205
    publication.” (Emphasis added.) The complaint adds that the allegedly defamatory statements
    “were made with the knowledge of their falsity and with actual malice.” We would further note
    that the complaint alleges that at least one of the defendants, Tarrant, acted as he did toward
    plaintiff as part of a “pattern of retaliation” after plaintiff rebuffed his romantic advances.
    ¶ 110 Because we accept these allegations as true at the pleading stage, we must find that the
    complaint sufficiently pleads an abuse of any possible qualified privilege. See, e.g., Colson v.
    Stieg, 
    89 Ill. 2d 205
    , 215-16 (1982) (allegations that defendant had made subject statement
    “knowing it to be false” and that statement was made maliciously, willfully and intentionally was
    sufficient to defeat claim of privilege on motion to dismiss); 
    Id. at 216
     (allegation that
    defamatory statement was “false and that the statement was made knowing it to be false were
    sufficient allegations” to avoid dismissal against claim of privilege (citing Weber v. Woods, 
    31 Ill. App. 3d 122
     (1975), with approval)); Mauvais-Jarvis v. Wong, 
    2013 IL App (1st) 120070
    ,
    ¶ 103 (complaint sufficiently alleged “ill-will” and “malice” to overcome privilege where
    plaintiff alleged retaliation against him for reporting alleged wrongdoing by defendants).
    ¶ 111 Because the complaint has sufficiently alleged that any qualified privilege that may have
    existed was abused, it is not necessary for us to decide whether such a privilege existed in the
    first place. We express no opinion on that question one way or other. We would only point out
    that, contrary to some of the argument from plaintiff on this issue, the question of qualified
    privilege is governed by our supreme court’s decision in Kuwik, 
    156 Ill. 2d at 25-27
    , in which the
    supreme court adopted the Restatement (Second) of Torts §§ 593-599 (1977) for determining
    whether a qualified privilege exists and abandoned the five-element test previously applied in
    Illinois. See also Barakat v. Matz, 
    271 Ill. App. 3d 662
    , 668 (1995).
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    No. 1-15-2205
    ¶ 112 Plaintiff has raised two additional arguments as to why defendants abused their qualified
    privilege, namely, that they published the statements (1) for an improper purpose and (2) to
    improper parties. In view of our determination that plaintiff sufficiently pleaded abuse of the
    qualified privilege, we need not address these arguments. Plaintiff will be free to argue these
    points in the circuit court on remand, just as defendants may raise the issue of qualified privilege
    below.
    ¶ 113 We reverse the trial court’s dismissal of count I of the third amended complaint insofar as
    it dismissed the claims related to the two statements we have found were defamatory per se, the
    statement concerning plaintiff rolling around on a hotel bed with a student, and the statement
    concerning plaintiff “hanging out” with intoxicated students. As to any and all other statements
    alleged as defamatory in count I, we affirm the dismissal of the third amended complaint.
    ¶ 114                       B. Count II: False-Light Invasion of Privacy
    ¶ 115 To state a cause of action for false-light invasion of privacy, a plaintiff must allege that:
    (1) the plaintiff was placed in a false light before the public as a result of the defendants’ actions;
    (2) the false light in which the plaintiff was placed would be highly offensive to a reasonable
    person; and (3) the defendant acted with actual malice, that is, with knowledge that the
    statements were false or with reckless disregard for whether the statements were true or false.
    Kolegas v. Heftel Broadcasting Corp., 
    154 Ill. 2d 1
    , 17-18 (1992); Lovgren v. Citizens First
    National Bank of Princeton, 
    126 Ill. 2d 411
    , 419-23 (1989).
    ¶ 116 In their motion to dismiss count II, defendants noted that plaintiff’s false-light claim was
    based on the same alleged false statements on which her defamation claim was based.
    Defendants argued that, as a result, the false-light claim suffered from the same fatal deficiencies
    that defendants had raised regarding count I. Likewise, in dismissing count II for false-light
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    No. 1-15-2205
    invasion of privacy, the trial court stated: “As the defamation count falls, so does the false-[light]
    count. These statements taken in context are not highly offensive to a reasonable person. These
    statements are subjectively offensive to the plaintiff because she wants to settle a score with the
    track coach.” We have now held that two of Tarrant’s statements in count I were defamatory
    per se and that count I should not have been dismissed to that extent.
    ¶ 117 In Tuite, 
    224 Ill. 2d 490
    , as in the instant case, the plaintiff’s false-light invasion of
    privacy claim was based on the defamatory per se nature of the statements. The appellate court
    held that the failure of the plaintiff’s defamation per se claim required the dismissal of his false-
    light claim. 
    Id.
     The Illinois Supreme Court, however, reversed the dismissal of the plaintiff’s
    defamation per se claim and explained that it therefore followed “that the dismissal of his false
    light invasion of privacy claim must also be reversed.” 
    Id. at 515
    .
    ¶ 118 We believe the same reasoning applies here. We reverse the dismissal of count II of the
    third amended complaint insofar as it relates to the two statements we have found to constitute
    defamation per se, and in all other respects we affirm its dismissal. 2
    ¶ 119                                           III. CONCLUSION
    ¶ 120 For the reasons stated, we reverse the judgment of the circuit court of Cook County and
    remand for further proceedings consistent with this opinion.
    2
    In their response brief, defendants argue that plaintiff’s action is barred by section 2-210 of the Local
    Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-210 (West
    2012)), which states that “[a] public employee acting in the scope of his employment is not liable for an injury
    caused by his negligent misrepresentation or the provision of information either orally, in writing, by computer or
    any other electronic transmission, or in a book or other form of library material.” Defendants contend that Tarrant
    was acting in the scope of his employment and his statements provided information.
    But defendants did not raise, brief, or argue the affirmative defense of immunity under the Tort Immunity
    Act in the trial court. The trial court, therefore, did not enter any order on this issue or even address it. “It is well
    settled that ‘issues not raised in the trial court are deemed forfeited and may not be raised for the first time on
    appeal.’ [Citations.]” (Internal quotation marks omitted.) Mauvais-Jarvis, 
    2013 IL App (1st) 120070
    , ¶ 102.
    Although we recognize that we may affirm the trial court’s judgment on any basis appearing in the record, the issue
    has not been fully developed in the record before us. We believe that it would be premature for us to address the
    merits of this issue until it has. See id. ¶ 103.
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    No. 1-15-2205
    ¶ 121 Reversed and remanded.
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