Parker v. Bank of Marion

                               NO. 5-97-0104

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

DENNIS C. PARKER,                )  Appeal from the
                                 )  Circuit Court of
     Plaintiff-Appellant,        )  Williamson County.
                                 )
v.                               )  No. 95-L-25
                                 )
BANK OF MARION and FRED BECKER,  )  Honorable
                                 )  William H. Wilson,
     Defendants-Appellees.       )  Judge, presiding.
_________________________________________________________________

     JUSTICE MAAG delivered the opinion of the court:
     The plaintiff, Dennis C. Parker, brought an action alleging
defamation and infliction of emotional distress against defendants,
Bank of Marion and the president of the bank, Fred Becker.  The
trial court directed a verdict in favor of the Bank and Becker at
the close of Parker's case in chief.  Parker now appeals.
     The facts are as follows.  Becker hired Parker as an officer
of the Bank on January 10, 1994.  On February 9, 1994, Becker fired
Parker.  There were two vice presidents of the Bank present at this
termination meeting.  Becker told Parker that several women had
alleged that Parker had "touched" them in the work environment. 
Parker asked for specific facts.  Parker then proceeded to
volunteer information about an incident that had occurred earlier.
This earlier incident involved touching a female bank employee. 
Neither Becker nor the vice presidents had heard about the
particular incident that Parker described.  
     Becker then asked Parker about an incident that had allegedly
transpired the night before.  Parker claimed that nothing happened
the night before.  Parker requested more information about the
allegations so that he could defend himself.  This request was
refused.  Parker was then asked to resign.  The reason given for
the resignation request was that Parker could not effectively work
with the staff.  Parker refused.  Becker then told Parker he was
terminated.
     Shortly after firing Parker, Becker called an assistant
cashier and two loan officers into his office and told them he had
fired Parker for "touching women".  Later that day, Becker called
in eight female employees, as a group, none of whom were officers
of the bank, and told them he had fired Parker and why.  Soon after
firing Parker, Becker went to the bank's remote facility and met
with the vice president, a loan secretary, and a customer service
representative.  He told these three people that Parker had been
fired for touching women.
     On March 8, 1994, Becker met with the board of directors of
the bank.  Becker told the board that Parker had been fired for
conducting himself improperly with some of the ladies at the bank.
     Parker claims that he sought other jobs in banking after he
was fired but to no avail.  He claims he felt ashamed, dirty, hurt,
and confused after being fired.  This caused him to seek the advice
of a mental health professional.  Parker claims he can no longer
interact with close friends and that he is withdrawn.
     Based on the above facts, Parker filed a two-count complaint. 
The first count alleged defamation.  Count I charged that Becker,
as an agent of the Bank, falsely accused him of sexually harassing
female employees by touching them and that these words were false
and defamatory per se.  Count II alleged that the Bank, through its
agent Becker, intentionally or recklessly inflicted severe
emotional distress upon Parker by its extreme and outrageous
conduct in publishing the accusations knowing that to do so would
result in Parker suffering severe emotional distress.
     At the close of plaintiff's case, the Bank and Becker moved
for a directed verdict as to both counts.  Both motions were
granted.  Parker now appeals the trial court's ruling.
     The issues presented for review are:
     1.   Whether the trial court erred in directing a verdict on
          count I (defamation) against Parker on the basis of an
          erroneous finding that, as a matter of law, the phrase
          "fired for touching women" can be innocently construed.
     2.   Whether the trial court erred in directing a verdict on
          count II (infliction of emotional distress) against
          Parker on the basis of an erroneous finding that no
          verdict by the jury that the conduct of Becker and the
          Bank was extreme and outrageous could ever stand.
     Parker contends that the trial court erred in directing a
verdict on the defamation claim because the phrase "fired for
touching women" cannot be innocently construed.  
     Becker and the Bank are accused of publishing defamatory
statements about Parker.  Liability for defamation exists where
there is:  a false and defamatory statement concerning another, an
unprivileged publication of that statement to a third party, fault
amounting at least to negligence on the part of the publisher, and
either actionability of the statement irrespective of special harm
or the existence of special harm caused by the publication. 
Restatement (Second) of Torts 558 (1977); Krasinski v. United
Parcel Service, Inc., 124 Ill. 2d 483, 490, 530 N.E.2d 468, 471
(1988).  However, one who publishes a defamatory statement of fact
is not subject to liability for defamation if the statement is
true.  Restatement (Second) of Torts 581A (1977); Sivulich v.
Howard Publications, Inc., 126 Ill. App. 3d 129, 131, 466 N.E.2d 1218, 1220 (1984). 
     In the case at bar, the statement "fired for touching women"
was true.  Parker admitted that he had touched certain women
employees, although he denied doing so in a sexual manner.  Parker
never produced any evidence that Becker said he was fired for
"sexually harassing" female employees.  He did produce evidence
that tended to show that Becker's statement was interpreted by
others to mean that Parker was fired for sexual harassment.  This
interpretation, while understandable, cannot be the basis of
liability.  The words spoken were true.  See Harte v. Chicago
Council of Lawyers, 220 Ill. App. 3d 255, 260, 581 N.E.2d 275, 277
(1991) (statements are actionable per quod and not per se if they
necessitate innuendo to explain their defamatory meaning and
require evidence demonstrating that substantial injury resulted to
plaintiff from their use).
     Since an essential element of the defamation claim is missing,
i.e., the false statement, the trial court was correct in directing
a verdict on count I.
     Parker further contends that the trial court erred in
directing a verdict against him on his claim of infliction of
emotional distress.  We agree.
     The three elements necessary for a cause of action for
reckless infliction of emotional distress are:  the defendant's
conduct was extreme and outrageous, the defendant knew that there
was a high probability that his conduct would cause severe
emotional distress, and the conduct in fact caused severe emotional
distress.  Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 20,
607 N.E.2d 201, 211 (1992), citing McGrath v. Fahey, 126 Ill. 2d 78, 86, 533 N.E.2d 806 (1988).  "[T]he nature of the defendant's
conduct must be so extreme as to go beyond all possible bounds of
decency[] and to be regarded as intolerable in a civilized
community."  Kolegas, 154 Ill. 2d  at 21, 607 N.E.2d  at 211.  
     The extreme and outrageous nature of the conduct may arise not
so much from what is done as from an abuse by the defendant of some
relation or position which gives him power to damage the
plaintiff's interests.  W. Prosser, Torts 12, at 56 (4th ed.
1971); see Kolegas, 154 Ill. 2d  at 21, 607 N.E.2d  at 211. 
     At trial it was shown that Becker was aware that Parker valued
his reputation highly.  Despite Becker's knowledge of Parker's
strong feelings about having and maintaining a good reputation
within the community, Becker told numerous bank employees of
Parker's discharge and the reason for the discharge.  While Bank
officers and management may have a legitimate reason to know why
Parker was discharged, it is questionable whether there is a
legitimate purpose for informing nonmanagerial employees of the
circumstances of the discharge.  For nearly a century, Illinois has
recognized that if a defendant has knowledge that the plaintiff is
especially sensitive, susceptible, or vulnerable to mental distress
as a result of certain words or conduct, a cause of action will lie
for unreasonably causing the distress.  See Braun v. Craven, 175 Ill. 401, 51 N.E. 657 (1898); see also W. Prosser, Torts 12, at 58
(4th ed. 1971).  
     All parties conceded that Parker was an at-will employee.  As
an at-will employee, Parker could have been discharged for any
reason or no reason at all, with only limited exceptions.  See
Kelsay v. Motorola, Inc., 51 Ill. App. 3d 1016, 366 N.E.2d 1141
(1977) rev'd on other grounds, 74 Ill. 2d 172, 384 N.E.2d 353
(1978).  This does not mean that an employer is free to publicize
unnecessarily the circumstances of the discharge.  This is
particularly true when the reason is susceptible to
misinterpretation and the employee is known to be especially
sensitive about his reputation.
     For the foregoing reasons, the court erred in granting a
directed verdict as to count II.  Pedrick v. Peoria & Eastern R.R.
Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 514 (1967).
     We therefore affirm the court's order directing a verdict
against the plaintiff on count I, the defamation count, and we
reverse the court's order directing a verdict against the plaintiff
on count II, the emotional distress count.  The cause pleaded in
count II is remanded for further proceedings consistent with this
opinion.
     For the foregoing reasons, the ruling of the circuit court is
affirmed in part and reversed in part, and the cause is remanded.
     Affirmed in part and reversed in part; cause remanded.

     KUEHN, J. concurs.

     PRESIDING JUSTICE WELCH, concurring in part and dissenting in
part:
     Although I concur with the majority's result regarding count
I, I must respectfully dissent to the result reached regarding
count II.
     Our supreme court has defined conduct considered "extreme and
outrageous":  
     "Conduct is of an extreme and outrageous character where
     `recitation of the facts to an average member of the community
     would arouse his resentment against the actor[] and lead him
     to exclaim, "Outrageous!"'  [Citation.]  Such conduct must be
     differentiated from the `mere insults, indignities, threats,
     annoyances, petty oppressions, or other trivialities' that are
     part of the costs of complex society from which the law
     provides no protection.  [Citation.]  Whether conduct is
     extreme and outrageous is judged on an objective standard
     based on all the facts and circumstances of a particular
     case."  Doe v. Calumet City, 161 Ill. 2d 374, 392 (1994).
Our supreme court also previously noted that defendant's conduct
must be so extreme as to go beyond all possible bounds of decency
and must be regarded as intolerable in a civilized community. 
Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 21 (1992). 
Based upon the facts in this case, I do not believe that the
conduct in the instant action rises to the level of extreme and
outrageous conduct.
     Although I do not condone defendant's actions, I do not
believe that the conduct is so outrageous in character and so
extreme in degree as to go beyond all bounds of human decency.  See
Miller v. Equitable Life Assurance Society of the United States,
181 Ill. App. 3d 954, 957 (1989).  The reason for Parker's
termination, "for touching women", an act admitted to by Parker,
was only told to the employees of the bank, its officers, and
management.  It was not told to customers or publicized in the
local newspaper.  Although it may not have been necessary to
disclose the reason for Parker's termination, I do not believe that
Becker's conduct rises to the level of extreme and outrageous.
     The decision as to where to draw the line for allowing
intentional infliction of emotional distress actions "is based in
large part on common sense and intuition more `subtle than any
articulate major premise.'"  Miller, 181 Ill. App. 3d at 975,
quoting Lochner v. New York, 198 U.S. 45, 75, 49 L. Ed. 937, 949,
25 S. Ct. 539, 547 (1905) (Holmes, J., dissenting).  Upon reviewing
the record, I do not believe that Becker's conduct was extreme and
outrageous.  Accordingly, I respectfully dissent.                                      NO. 5-97-0104
                                     IN THE
                          APPELLATE COURT OF ILLINOIS
                                 FIFTH DISTRICT
___________________________________________________________________________
DENNIS C. PARKER,                )  Appeal from the
                                 )  Circuit Court of
     Plaintiff-Appellant,        )  Williamson County.
                                 )
v.                               )  No. 95-L-25
                                 )
BANK OF MARION and FRED BECKER,  )  Honorable
                                 )  William H. Wilson,
     Defendants-Appellees.       )  Judge, presiding.
___________________________________________________________________________

Opinion Filed:                   June 16, 1998
___________________________________________________________________________

Justices:      Honorable Gordon E. Maag, J.
                         
               Honorable Clyde L. Kuehn, J.,
               Concurs

               Honorable Thomas M. Welch, P.J.,
               Concurs in part and dissents in part
___________________________________________________________________________
                         
Attorney       A. Courtney Cox, Hart & Hart, 602 West Side Public Square,
for            Benton, IL 62812-0937
Appellant      
___________________________________________________________________________

Attorneys      Joel A. Poole, Beverly D. Garner, Polsinelli, White,
for            Vardeman & Shalton, P.C., 100 South Fourth Street, Suite
Appellee       1110, St. Louis, MO 63102
___________________________________________________________________________