third parties for purposes of tortious interference. They also argue that as Metra’s attorneys, they
had a conditional privilege to advise their client.

A party cannot tortiously interfere with its own business relationship. Quist v. Bd. of Trs.
of Cmty, Coll. Dist. No. 525, 629 N.E.2d 807, 811-12 (lil. App. Ct. 1994). Ordinarily, the agents
of a party to the business relationship cannot be liable for tortious interference either, because
they are not third parties to the relationship. Jd. Further, a conditional privilege exists if the
defendant “acts to protect a conflicting interest which is considered to be of equal or greater
value” than the plaintiff's interest in protecting a business relationship. Schott v. Glover, 440
N.E.2d 376, 379-80 (Ill. App. Ct. 1982) (discussing interference with contractual relationship,
and explaining that business relationship receives less protection under the law than contractual
relationship). Under the conditional privilege, an attorney, “when acting in his professional
capacity, [is] free to advise his client without fear of personal liability to third persons if the
advice later proves to be incorrect.” Jd, at 380. There are exceptions to these general rules,
however. Agents who act in their own personal interests and contrary to the interests of their
employer may be deemed third parties. See, e.g., Anderson v. Grayslake Sch. Dist. 46, No. 94 C
5133, 1995 WL 9190, at *5 (N.D. Ill. Jan. 6, 1995). Likewise, even where a conditional privilege
exists, the privilege does not shield a defendant who acts with malice. Delloma v. Consol. Coal
Co., 996 F.2d 168, 172 (7th Cir. 1993), For purposes of a claim for tortious interference with
prospective economic relationship, “malice” means “intentionally and without justification” (not
“vindictive or malevolent”). Jd. (citing Fellhauer, 568 N.E.2d at 878). A “defendant may abuse
the privilege, by making unjustified statements, by excessive publication of statements, or by

making statements in conflict with the interest which gave rise to the privilege.” Jd. Here,

19



Illinois Supreme Court allows retaliatory discharge claims for employees allegedly discharged
after filing Workman’s Compensation claims “precisely because there [is] no other remedy
available to vindicate the public policy involved.” Brudnicki v. Gen. Elec. Co., 535 F. Supp. 84,
89 (N.D. Ill. 1982) (citing Kelsey v. Motorola, Inc., 384 N.E.2d 353 (1978)).

Here, Emery has a remedy under the Railway Labor Act (“RLA”), 45 U.S.C. § 151, et
seq. Shrader, 70 F.3d at 258. Under the RLA, she can file a grievance. Both reinstatement and
back pay are available remedies, although punitive damages are not. Hysten v. Burlington N.
Sante Fe Ry. Co., 196 F. Supp. 2d 1162, 1168-69 (D. Kan. 2002). In contrast, under Illinois law,
punitive damages usually are available in retaliatory discharge cases, if warranted. Midgett v.
Sackett-Chicago, Inc., 473 N.E.2d 1280, 1283 (Ill. 1985). Had Emery been discharged by a
different employer, that fact would likely save her claim: Illinois courts have allowed retaliatory
discharge claims in cases where the available alternative remedy did not allow punitive damages,
reasoning that the deterrent effect of punitive damages is key to dissuading employers from
retaliating against employees. Jd. But the fact that Emery cannot recover punitive damages
under the RLA makes no difference here, because Emery cannot recover punitive damages from
Metra under Illinois law, either. Under 745 ILCS § 10/2-102, local public entities, like Metra,
are not liable to pay punitive damages in any action. Williams v. Northeast Ill. Reg’l Commuter
RR. Corp., No. 97 C 6606, 1998 WL 901695, at *9-10 (N.D. Ill. Dec. 17, 1998) (citing statute
and Smith v. Northeast Ill. Reg’! Commuter R.R. Corp., 569 N.E.2d 41 (Il. App. Ct. 1991)).
This court finds it unlikely that Illinois courts would extend the narrow tort of retaliatory
discharge to encompass a claim like Emery’s where she has an adequate alternative remedy.

Emery also argues that employees, like her, who report violations of the Occupational

13


defendants interfered with her prospects for a federal judicial appointment, her claim is entirely
too speculative. Emery had applied and interviewed for several federal judicial appointments.
Evidently, she was told that the “process might take several years to come to fruition, but that
Emery was a solid candidate for a judicial position.” (Compl. { 55.) The possibility of a federal
judicial appointment years in the future is not actionable. See Anderson, 667 N.E.2d at 1299
(“hope of receiving a job offer” insufficient). To hold otherwise, at least under the facts alleged
here, “would considerably broaden the scope of the tort.” Id. at 1301.

Accordingly, Count X survives doiely ts the extent Emery claims that (1) the individual
defendants intentionally interfered with her attorney-client relationships with Metra and JMLS,
and (2) defendant Noland intentionally interfered with her relationship with the NARTC.

E Civil Conspiracy (against all individual defendants)

The defendants seek dismissal of the civil conspiracy claim in Count XI on the ground
that a principal and agent cannot conspire with each other under Illinois law. Buckner v. Atlantic
Plant Maint., Inc., 694 N.E.2d 565, 571 (Ill. 1998). That is true, but defendants overlook the fact
that, unlike her § 1983 conspiracy claim, Emery brings her civil conspiracy claim solely against
the individual defendants, not against Metra. Thus, there is no issue of a principal conspiring
with its agents. Further, Emery’s conspiracy claim incorporated all of her substantive state law
claims, Because some of Emery’s substantive claims survive, her conspiracy claim also survives.
The defendants also argue that they cannot discern the general nature of her conspiracy claim or
which defendants allegedly conspired. The answer is quite simple: Emery alleges that all of the

individual defendants conspired to defame her and to intentionally interfere with her prospective

business advantage—the only substantive state law claims against the individual defendants that

23


filing FELA claim are the remedies under the Railway Labor Act, not FELA); Landfried v.
Terminal R.R. Assoc., 721 F.2d 254, 256 (8th Cir. 1983) (“Congress has not enacted a statute
prohibiting an employer from discharging an employee in retaliation for filing a FELA action.”);
see also Bielicke v. Terminal R.R. Assoc., 30 F.3d 877, 878 (7th Cir. 1994); Shrader, 70 F. 3d at
258,

B. Federal Common Law Retaliation (against Metra)

Emery also sues Metra, in Count I, for retaliation under federal common law. “There is
no federal general common law.” Erie R.R. Co. v Tompkins, 304 U.S. 64, 78 (1938). The
Supreme Court “has recognized the need and authority [only] in some limited areas to formulate
what has come to be known as ‘federal common law.’” Texas Indus., Inc. v. Radcliff Materials,
Inc., 451 U.S. 630, 640 (1981). “These instances are ‘few and restricted’ and fall into essentially
two categories: those in which a federal rule of decision is ‘necessary to protect uniquely federal
interests,’ and those in which Congress has given the courts the power to develop substantive
law.” Jd. (internal citations omitted). Thus, “absent some congressional authorization to
formulate substantive rules of decision, federal common law exists only in such narrow areas as
those concerned with the rights and obligations of the United States, interstate and international
disputes implicating the conflicting rights of States or our relations with foreign nations, and
admiralty cases.” Id. at 641 (footnotes omitted).

Emery cites not a single case recognizing a federal common law claim for retaliatory

discharge for an employee terminated for filing a FELA claim.' This court declines to be the

'Emery’s reliance on Smith v. Atlas Off-Shore Boat Services, Inc., 653 F.2d 1057 (Sth Cir.
1981), in which the Fifth Circuit recognized a general maritime tort for retaliatory discharge, is
unpersuasive. Admiralty law is one of the narrow areas that implicates uniquely federal interests.

4


Emery alleges that the individual defendants acted in their own personal interests, and against
Metra’s best interests, and did so with “a desire to harm Emery that was unrelated to the interests
of their client.” (Compl. ¢ 35.) For notice pleading purposes, this is sufficient?

Emery also claims that defendant Noland interfered with her relationship with the
NARTC. Emery alleges that after she was elected president of the NARTC’s Ilinois/Indiana
chapter, Noland made defamatory statements about her to Ronald Cuchna, an active member of
the NARTC, who in turn spoke to the Executive Director of NARTC, demanding cancellation of
Emery’s membership. Emery’s NARTC membership was cancelled and she was forced to step
down as president of the local chapter. Emery’s expectation of maintaining her presidency is not
too speculative to be actionable, despite the defendants’ argument to the contrary. She was not
merely a candidate for the position—she had been elected. C,f: Buchanan v. Serbin Fashions,
Inc., 698 F. Supp. 731, 734 (N.D. Ill. 1988).

Additionally, Emery claims the individual defendants interfered with her reasonable
expectation of continuing her business relationship with JMLS, its administration, professors,
graduates and students, According to Emery, she represented JMLS on a goodwill basis
Tegarding the school’s informational, promotional, and advertising materials. Additionally, she

had received an L.L.M. from the school and had an ongoing relationship with her professors,

Under Illinois law, if the defendant’s conduct is privileged, it is the plaintiff's burden to
plead and prove that the defendant’s actions were malicious or unjustified. Zdeb v. Baxter Int’l,
Inc., 697 N.E.2d 425, 431 (Ul. App. Ct. 1998) (citing Fellhauer, 568 N.E.2d at 878). If,
however, the defendant’s conduct “does not invoke a privilege, it is the defendant’s burden to
plead and prove justification as an affirmative defense.” Id. (citing Roy v. Coyne, 630 N.E.2d
1024, 1033-34 (Ill. App. Ct. 1994)). Unless the complaint demonstrates the existence of a
privilege, the defendant bears the “burden to plead and prove the privilege as an affirmative
matter, for there may be no way for a plaintiff to know in advance whether the defendant enjoys a
privilege, or indeed, whether he will ever claim that he does.”” Id. at 432.

20


valid relationships with employment and business opportunities.” (Compl. { 141.) (emphasis
added), Yet she identifies no particular employment or business opportunity, and thus, alleges no
more than the mere hope that these relationships might generate concrete opportunities. Emery
offers no Illinois case that applies the tort of interference with prospective business advantage so
expansively, and this court declines to do so. As a result, Emery has failed to allege an
interference claim with respect to JMLS’s faculty, administration, graduates and students.

The claims relating to her representation of JMLS, and the demise of that relationship,
survive, however. Emery alleges that she represented JMLS throughout 2001 and into 2002, and
that the individual defendants’ intentional and unjustifiable conduct led to the dissolution of that
relationship.!? Under Illinois law, a third party who intentionally causes the termination of an at-
will contract between an attorney and client may be liable for tortious interference with
prospective business advantage, because until the attorney-client relationship is terminated, the
at-will contract has value to the attorney. Callis, Papa, Jackstadt & Halloran, P.C. y. Norfolk &
W. Ry. Co., 748 N.E.2d 153, 161 (Ill. 2001).

As for Emery’s claim that the individual defendants interfered with her legitimate
expectancy of continued relationships with judges and attomeys “as valid relationships with
employment and business opportunities,” this claim fails for the same reason that her claim
regarding her relationships with the JMLS faculty, administration, graduates and students fails:
her claim is based merely on the hope that networking will evolve into a tangible business

opportunity, which is insufficient. Further, to the extent Emery claims that the individual

1A Ithough she does not specify when her representation of JMLS ended, at this stage of
the proceedings Emery is entitled to the inference that her attorney-client relationship with JMLS
ended after the job posting and defamatory statements.

22



filed within twenty-one days.

Additionally, the court recognizes that the defamation claim, as it stands, makes it
difficult for the defendants to answer or assert affirmative defenses.’ The court therefore grants
the defendants’ request for a more definite statement. Emery is directed to supplement her
defamation allegations within twenty-one days to include facts regarding the speaker, listener,
timing and context of each alleged defamatory statement, to the extent she has such knowledge.
Cozzi, 1997 WL 308841, at *6.

Cc. Tortious Interference with Contract (against Noland, Barnett, Rosen, Capra
& Valkan)

Emery’s claim for tortious interference with contract, set forth in Count IX, fails. Under
Illinois law, there can be no claim for tortious interference with contract unless a valid and
enforceable contract exists between the plaintiff and another. A-Abart Elec. Supply, Inc. v.
Emerson Elec. Co., 956 F.2d 1399, 1404 (7th Cir. 1992), In the complaint, Emery makes the
conclusory allegation that she had a valid, enforceable contract with Metra, an allegation that
Metra challenges. In her opposition brief, Emery effectively concedes that she was an at-will
employee. In Ilinois, at-will employees have no enforceable contract rights against their

employers, and thus cannot bring claims for tortious interference with a contract." Dames &

"For example, an attorney “is absolutely privileged to publish defamatory matter
concerning another in communications preliminary to a proposed judicial proceeding, or in the
institution of, or during the course and as a part of, a judicial proceeding in which he participates
as counsel, if it has some relation to the proceeding.” Zdeb v. Baxter Int'l, Inc., 697 N.E.2d 425,
429 (Ill. App. Ct. 1998) (quoting Restatement (Second) of Torts § 586 (1977)).

’The civil rights cases Emery cites are inapposite. The fact that an at-will employee can
bring employment discrimination claims under 42 U.S.C. § 1981 (prohibiting racial
discrimination in making and enforcing contracts) has no bearing on whether an at-will employee
can bring a state law claim for tortious interference with contract.

17



(N.D. Il. 1993) (barring both § 1985 and § 1983 claims against board of education). The
doctrine likely would not apply “where corporate [or government] employees are shown to have
been motivated solely by personal bias. In that case, the interests of the corporation [or
government entity] would have played no part in the employees’ collective action, so the action
could not have been taken within the scope of employment.” Hartman v. Bd. of Trs. of Cmty.
Coll. Dist. No. 508, 4 F.3d 465, 470 (7th Cir. 1993) (emphasis added). Further, although the
doctrine can apply whether single or multiple unconstitutional acts are involved, in “egregious
circumstances” intra-entity collaborative decisions that result in unconstitutional actions fall
outside the scope of the doctrine. Wright, 40 F.3d at 1508-09 (§ 1985 case). Considering those
factors, it makes sense that the doctrine will rarely, if ever, apply in police misconduct cases. A
claim that several police officers conspired to frame a person for murder, see Newsome, 2000
WL 528475, at *15, would not be barred by the intracorporate conspiracy doctrine, the rationale
being that the officers were neither acting in the interests of the police department, nor in the
scope of their official duties.

In contrast, this claim relates to an allegedly collaborative decision at Metra regarding
what statements to make about Emery’s termination. Such a collaborative decision falls directly
within the type of routine, collaborative business decisions shielded by the intracorporate
conspiracy doctrine. Emery, however, argues that her claim is not barred by the intracorporate
conspiracy doctrine because the complaint alleges that the individual defendants were acting in
their own self-interest. Where personal bias is the sole motivation, the doctrine does not apply.
Hartman, 4 F.3d at 470 (but plaintiff cannot avoid the intracorporate conspiracy doctrine “by

showing that [government] employees were motivated in part by personal bias”). Although


disclosed, and caused him to suffer “a tangible loss of other employment opportunities.”
Townsend, 256 F.3d at 669-70. Additionally, the stigmatizing information must have been
disclosed incident to the discharge. Siegert, 500 U.S. at 234; Newton v. Chicago Sch. Reform Bd.
of Trs., No. 96 C 7078, 1997 WL 603838, at *6 (N.D. Ill. Sept. 24, 1997).

It is not evident from the complaint that any of the allegedly defamatory statements were
made incident to Emery’s discharge. Nowhere in Count V, or anywhere else in her complaint,
does Emery allege that any defendant made a defamatory statement about her incident to her
termination. Further, although Emery incorporates into Count V at least 21 purportedly
defamatory statements that defendants made about her from January 15, 2002 through the
present, it is unclear which, if any, of those statements were made incident to her termination on
March 4, 2002. Emery argues that because her termination occurred within the “January 15,
2002 through the present” time frame in which the defamatory statements were made, “it is clear
from the Complaint that the statements were made in relation to her discharge.” (P1.’s Opp. at
17.) The court disagrees. As argued by Emery, all of the allegedly defamatory statements made
over a one-year period? were statements incident to her discharge. That argument ignores the
law. To be actionable under § 1983, a defamatory statement must be published “in the context of
termination,” (i.e., incident to termination). McMath v. City of Gary, Ind., 976 F.2d 1026, 1032
(7th Cir. 1992). Neither defamatory statements made after the employee’s termination nor
defamatory statements made in an effort to cause an employee to quit are actionable under

§ 1983. Siegert, 500 U.S. at 234; Newton, 1997 WL 603838 at *7. This is not to suggest that the

5The one-year period counts only the time through the filing of the complaint.
6


first. There is no unique federal interest at issue, nor is there congressional authorization to create
substantive law. Indeed, as discussed in the previous section, although Congress could have
created a remedy under FELA for employees like Emery, it declined to do so. Count II is
dismissed for failure to state a claim.

Lon § 1983 Claim for Deprivation of Liberty Interest (against all defendants)

In Count V, Emery claims that she has a constitutionally protected liberty interest in her
Teputation and that the defendants, through defamatory statements they made about her, deprived
her of this constitutional right without due process of law in violation of § 1983. Actually,
Teputation itself is not a liberty interest protected by the Fourteenth Amendment. Siegert v.
Gilley, 500 U.S. 226, 233 (1991). Rather, to the extent there is a protected liberty interest at
issue here, it is Emery’s interest in pursuing the occupation of her choice. See Townsend v.
Vallas, 256 F.3d 661, 669 (7th Cir. 2001). Defamation becomes actionable as a constitutional
claim “when a state actor casts doubt on an individual’s ‘good name, reputation, honor or
integrity’ in such a manner that it becomes ‘virtually impossible for the [individual] to find new
employment in his chosen field ....’” Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 617
(7th Cir. 2002) (quoting Townsend, 256 F.3d at 670) (emphasis added). “[S]erious impairment
of one’s future employment” is not even enough. Jd. (citation and internal quotation marks

omitted). Further, the plaintiff must show that stigmatizing’ information about him was publicly

Texas Indus., Inc., 451 U.S. at 641.

?Comments that are sufficiently stigmatizing to implicate the due process clause include
charges of dishonesty, disloyalty and immorality. In contrast, charges of incompetence or neglect
of duty do not. Newton y. Chicago Sch. Reform Bd. of Trs., No. 96 C 7078, 1997 WL 603838, at
*6 (N.D. IIL. Sept. 24, 1997) (citing Hadley v. County of DuPage, 715 F.2d 1238, 1245 (7th Cir.
1983)).


Moore v. Baxter & Woodman, Inc., 21 F. Supp. 2d 817, 824 (N.D. Ill. 1998); McKay v.
Pinkerton’s Inc., 607 N.E.2d 237, 240 (Ill. App. Ct. 1993); Lusher v. Becker Bros., Inc., 509
N.E.2d 444, 445 (Il. App. Ct. 1987). Count X is therefore dismissed.

D. Intentional Interference with Prospective Economic Advantage
(against Noland, Barnett, Rosen, Capra & Valkan only)

In Count X, Emery seeks to hold the individual defendants liable for intentional
interference with prospective economic (or business) advantage. Under Illinois law, to state a
claim for intentional interference with prospective economic advantage, a plaintiff must allege:
“(1) his reasonable expectation of entering into a valid business relationship; (2) the defendant’s
knowledge of the plaintiff's expectancy; (3) purposeful interference by the defendant that
prevents the plaintiff's legitimate expectancy from ripening into a valid business relationship;
and (4) damages to the plaintiff resulting from such interference.” Fellhauer v. City of Geneva,
568 N.E.2d 870, 878 (Ill. 1991). Emery claims that the individual defendants interfered with her
reasonable expectation of continuing her business relationships with (1) Metra, (2) NARTC,

(3) JMLS, its administration, professors, graduates and students, and (4) various judges and
attorneys. Emery claims that she reasonably expected each of these business relationships to
continue “as valid relationships with employment and business opportunities.” (See, e.g., Compl.
| 141.) The court addresses each of these claims in turn.

Regarding Emery’s claim that the individual defendants interfered with her ongoing
business relationship with Metra, the individual defendants do not question at this stage whether
her expectation of continuing the relationship with Metra was reasonable. Rather, they move to

dismiss on the ground that Emery has not alleged that they, Metra’s employees and attorneys, are

18



cases, “a conspiracy cannot exist solely between members of the same entity.” Payton v. Rush-
Presbyterian-St. Luke’s Medical Center, 184 F.3d 623, 632 (7th Cir. 1999). The doctrine shields
entities and their employees “from conspiracy liability for routine, coltaborative business
decisions” that are later alleged to be unconstitutional. Newsome v. James, No. 96 C 7680, 2000
WL 528475, at *15 (N.D. Ill. Apr. 26, 2000). Thus, “managers of a corporation jointly pursuing
its lawful business do not become ‘conspirators’ when acts within the scope of their employment
are said to be discriminatory or retaliatory.” Wright v. Ill. Dept. of Children & Family Servs., 40
F.3d 1492, 1508 (7th Cir. 1994) (citation and internal quotation marks).

The Seventh Circuit has ruled that the doctrine applies to all claims under 42 U.S.C.
§ 1985, and applies when the claim is against individual members of a single corporate or
governmental entity. /d. The Seventh Circuit has not yet addressed whether the doctrine extends
to § 1983 cases. Some courts have extended the doctrine to § 1983 cases involving employment
claims and claims against school administrators. See, e.g., Salto v. Mercado, No. 96 C 7168,
1997 WL 222874, at * 1 (N.D. Ill. Apr. 24, 1997) (collecting cases). In contrast, courts facing
§ 1983 claims involving police misconduct have refused to apply the doctrine. See, ¢.g., Moreno
v. Town of Cicero, No. 01 C 1726, 2002 WL 31017932, at *3 (N.D. Ill. Sept. 5, 2002); Newsome,
2000 WL 528475, at *15; Salto, 1997 WL 222874, at *1. Emery does not argue that the doctrine
should not apply to any § 1983 claims, but rather only that it is inapplicable to her claim.

Whether the doctrine applies in a given § 1983 case, just as in a § 1985 case, depends on
“whether the wrongful conduct was performed within the scope of the conspirators’ official

duties.” Doe v. Bd. of Educ. of Hononegah Cmty. High Sch. Dist. #207, 833 F. Supp. 1366, 1382



survive dismissal. According to the Seventh Circuit, “‘[I}t is enough in pleading a conspiracy
merely to indicate the parties, general purpose, and approximate date, so that the defendant has
notice of what he is charged with.’” Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003)
(quoting Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002)). The complaint adequately
puts the individual defendants on notice of the civil conspiracy claim against them. Count XI
therefore survives the motion to dismiss,
III. “Motions” Raised in the Briefs

Both sides attempt to make various motions in their briefs. This is procedurally
improper. According to this district’s local rules, all motions must be presented to the court, and
are subject to dismissal if not properly noticed. N.D. Ill. L.R. 5.3, 78.2. Emery asks the court to
strike certain references by defendants to the other judicial proceedings. The court denies the
motion, but notes that it found no need to consider those other proceedings. The defendants seek
a more definite statement on numerous counts, in the event the court does not dismiss. As
explained above, the court grants this request solely with respect to the defamation claim, Count
VIL. Finally, Emery seeks leave to amend the complaint to add two counts, alleging retaliation in
violation of § 1983 and OSHA. The court denies this motion for failure to properly present it,
and for failure to attach the proposed new pleading. Bank of Wanakee v. Rochester Chees Sales,
Inc., 906 F.2d 1185, 1192 (7th Cir. 1990).
Conclusion

The defendants’ motion to dismiss is granted in part and denied in part, for the reasons set
forth above. Specifically, Count XI and parts of Counts VII and X survive. Counts I through VI,

VII, IX and XI, part of Count X, and Count VII as it relates to Metra are dismissed. Emery has

24



‘Minute Order Form (06/97)

United States District Court, Northern District of linois

weesieraicge | __JomnB.Gotscha | Soa
CASE NUMBER 02 C 9303 DATE 9/18/2003
CASE Emery vs. Northeast IL Regional Commuter Railroad Corporation
TITLE d/b/a Metra/Metropolitan Rail, et al.
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(74) a Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due. .
(4) oO Ruling/Hearing on set for at :
(5) a Status hearing is set for 11/14/03 at 9:30AM.
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(©) Oo Trial[set for/re-set for] on at
(8) QO [Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
DFRCP4(m) (Local Rule 41.1 OFRCP41(a)(1) O FRCP41(a)(2).
ao = [Other docket entry) ENTER MEMORANDUM OPINION & ORDER. Defendants’ motion to
dismiss (4-1] is granted in part and denied in part. Counts I through VI, VIEL, [X and XI, part of Count
X, and Count VI as it relates to Metra are dismissed. Emery has twenty-one days from the date of this
order (1) to file an amended complaint, if she is able to cure the defects addressed in the court’s order;
and (2) to file a more definite statement for Count VI. Defendants then have 30 days to file a responsive
pleading.
(11) Ml [For further detail see order attached to the original minute order.)

‘No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.
| Notified counsel by telephone,

Vv | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

Ce |

24nd Latuisia’s'n
SAB hd Bt d3SC0

D

itor atts

mailing deputy initials

ane


therefore simply governs whether, as a matter of law, an employee has waived her right to bring
an ADEA claim. Whitehead, 187 F.3d at 1192, An OWBPA violation might be relevant if
Emery had signed a waiver of her ADEA claims, then sought to raise them on the ground that the
waiver was invalid. See Williams v. Gen. Motors Corp., 901 F. Supp. 252, 255 (E.D. Mich.
1995) (“only conclusion that necessarily follows [from OWBPA violation] is that an employee
who has suffered such a violation has not lost the right to press claims of age discrimination
under ADEA”). But that is not the case here. Emery does not allege that she signed such a
waiver. More significantly, Emery makes no claim that Metra discriminated against her based on
her age. A violation of the OWBPA, by itself, is not grounds for an age discrimination claim.
Whitehead, 187 F.3d at 1192. Count XII is therefore dismissed for failure to state a claim.

118 State Law Claims

A. Retaliatory Discharge (against Metra)

Emery also brings a state law claim for retaliatory discharge against Metra (Count J), but
this claim must be dismissed. Although Illinois law recognizes tort claims for retaliatory
discharge, it does so on a narrow basis, The general rule is that “an employer may fire an
employee-at-will for any reason or no reason at all.” Jacobson v. Knepper & Moga, P.C., 706
N.E.2d 491, 492 (Ill. 1998). The retaliatory discharge tort is a very limited exception to that
general rule. Jd, To establish such a claim, a plaintiff must allege that “(1) he was discharged in
retaliation for his activities; and (2) the discharge is in contravention of a clearly mandated public
policy.” Jd. at 493. According to the Illinois Supreme Court, retaliatory discharge claims have
been allowed in only two situations: “when an employee is fired for filing, or in anticipation of

the filing of, a claim under the Workers’ Compensation Act” and “when an employee is

11



Emery alleges that the individual defendants acted against Metra’s interests and solely in their
own self-interest, that allegation is inconsistent with her claim that the individual defendants
conspired with Metra. Her conspiracy claim is thus logically inconsistent. If, as Emery alleges,
Metra and the individual defendants shared the same conspiratorial goal of depriving her of her
interest in pursuing the occupation of her choice, then the individual defendants necessarily must
have been acting in Metra’s expressed interests (even if they were also motivated by their
personal biases against Emery). Under no set of facts could a jury conclude that the individual
defendants, acting entirely independent of Metra’s interests, conspired with Metra toward a
common goal. Emery’s claim that the defendants, including Metra, conspired together is barred
by the intracorporate conspiracy doctrine. Count VI is therefore dismissed.

E. Older Worker Benefit Protection Act (against Metra)

In Count XII, Emery claims that Metra violated the Older Workers Benefit Protection Act
(“OWBPA”), 29 U.S.C. § 626(f) by offering to allow her to resign as Associate General Counsel
if she agreed to waive all of her rights and claims, but failing to give her 21 days to consider the
offer. Emery clearly misses the point of the OWBPA. The OWBPA, an amendment to the Age
Discrimination in Employment Act (“ADEA”), “‘govems the effect under federal law of waivers
or releases on ADEA claims ....’” Whitehead v. Okla. Gas & Elec. Co., 187 F.3d 1184, 1191
(10th Cir. 1999) (quoting Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427 (1998)). Under
§ 626(f), a waiver of an ADEA claim is valid only if it is made knowingly and voluntarily. 42
US.C. § 626(f)(1). Section 626(f) sets forth the minimum requirements for a waiver to be
deemed knowing and voluntary, which includes a requirement that the employer give the

employee at least 21 days to consider the agreement. /d, at § 626(f)(1)(F){i). The OWBPA

10



publication and termination must occur simultaneously. But defamatory statements made weeks

(let alone months) before or after termination are not statements made in the context of

I
termination. Morris v. Lindau, 196 F.3d 1;

1|(2d Cir. 1999) (defamation must occur close in

fan
ay
&

Lprivation of liberty interest); see also

Ej
= pe

y=

time to dismissal to succeed on § 1983 cl

im it
Rodriguez de Quinonez v. Perez, 596 F.2d) n.3 (1st Cir. 1979) (questioning sufficiency

of nexus between plaintiffs’ termination af latory comments published a week earlier).
Pea ea

Emery may have a state law de: i. claim for such statements, but not a § 1983
oll

claim. She has not alleged that any defamatory statements were made in the context of her

termination, nor would it be reasonable to make such an inference here. There is no way to
ascertain from the complaint which, if any, of the multitude of purportedly defamatory statements
were made in the context of her termination. Although notice pleading is sufficient, this claim,
as pleaded, fails adequately to allege that any statements were made incident to Emery’s
discharge. Count V is therefore dismissed for failure to state a claim.

D. § 1983 Conspiracy Claim (against all defendants)

Because Emery’s underlying § 1983 claim fails to state a claim, Emery’s claim in Count
VI that the defendants conspired to violate her constitutional rights in violation of § 1983 must
also be dismissed. Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir. 1982) (no conspiracy
claim absent actual denial of a civil right). Even if Emery’s § 1983 claim had survived, however,
her conspiracy claim would still be dismissed because the intracorporate conspiracy doctrine bars
Emery’s claim.

Under the intracorporate conspiracy doctrine, which originated in the context of antitrust


some of whom had asked her to publish papers in various law reviews and journals. Emery
alleges that the individual defendants (apparently all of them) posted a job notice for the
Associate General Counsel position at JMLS two months after she had been removed from the
position, even though they already knew that defendant Rosen would get the position. As a result
of this posting, she received calls from various people regarding her job status at Metra.
According to Emery, the posting, together with “widespread publishing of defamatory
statements,” led to the demise of her relationships with JMLS, its faculty, administration,
graduates and students.

The claims relating to JMLS’s faculty, administrators, graduates and students are far too
attenuated to state a claim for intentional interference with prospective business advantage.
Under Illinois law, a person who is the leading candidate for a job and allegedly loses the
position as a result of defendant’s interference has no claim because the “hope of receiving a job
offer is not a sufficient expectancy.” Anderson v. Vanden Dorpel, 667 N.E.2d 1296, 1299 (Ill.
1996). Illinois courts have likewise rejected claims by professors whose renewable contracts
were not renewed, finding that the plaintiff lacked a sufficient expectation of continued
employment. /d. at 1300 (discussing Werblood v. Columbia Coll., 536 N.E.2d 750 (Hl. App. Ct.
1989) and Williams v. Weaver, 495 N.E.2d 1147 (Ill. App. Ct. 1986)). Given such precedent, the
fact that professors had asked her to publish papers in the past is too speculative to support her
claim. Further, by claiming the individual defendants interfered with her reasonable expectation
of continued business relationships with professors, administrators, students and graduates, she is
essentially claiming that they interfered with her prospects for networking. Indeed, according to

the complaint, Emery reasonably expected each of these business relationships to continue “as

21



termination on March 4, 2002, and continuing through the present. As a result, Emery
commenced this lawsuit, alleging various counts involving constitutional deprivations of liberty
and property interests in violation of 42 U.S.C. § 1983, conspiracy to violate her constitutional
tights, retaliatory discharge and demotion, defamation, self-compelled defamation, tortious
interference with contractual relations, tortious interference with prospective business advantage,
civil conspiracy, and a violation of the Older Workers Benefit Protection Act, 29 U.S.C. 626(f).
The defendants seek dismissal of all counts for failure to state a claim.

Emery concedes that no cause of action exists for retaliatory demotion or self-compelled
defamation under Illinois law, so both Count I, to the extent it raises a retaliatory demotion claim,
and Count VIII are dismissed without discussion. Likewise, Emery concedes that her claim in
Count IV, for deprivation of her property interest in her job in violation of § 1983, cannot
survive. The remaining counts are addressed below.

Analysis
1 Federal Claims

A. Retaliation under FELA (against Metra)

Emery’s claim for retaliation under FELA against Metra, raised in Count II, is dismissed
for failure to state a claim. As the Seventh Circuit has recognized, “neither [FELA] nor any other
source of federat law creates a federal right against retaliatory discharge” for a plaintiff who is
fired after filing a FELA claim. Graf v. Elgin, Joliet & E. Ry., 790 F.2d 1341, 1344 (7th Cir.
1986); Shrader v. CSX Transp., Inc., 70 F.3d 255, 258 (2d Cir. 1995); Mayon v. S. Pac. Transp.

Co., 805 F.2d 1250, 1252-53 (5th Cir. 1986) (only remedy available for employee terminated for


Safety and Health Act of 1970 (“OSHA”), 29 U.S.C. § 651, have actionable retaliatory discharge
claims under Illinois law. Without saying so explicitly, Emery essentially argues that she
qualifies as a whistle-blower. The case on which she relies, Sherman v. Kraft General Foods,
Inc., 651 N.E.2d 708, 712 (Il. App. Ct. 1995), was a case in which the plaintiff reported OSHA
violations. Illinois courts have recognized retaliatory discharge claims brought by employees
allegedly discharged after reporting violations of various federal laws.’ Brandon, 277 F.3d at
942 (collecting cases). Those cases involved violations of nuclear regulations, radioactive
materials regulations, federal record keeping regulations, federal securities laws, and OSHA. Id.
The impact of reporting such violations in those cases clearly extended beyond protecting an
individual’s rights and interests, and implicated the general welfare of others. The court is not
persuaded that Emery’s claim similarly implicates the general public welfare. She filed her
FELA claim based on personal, physical injuries she incurred when she tripped over some raised
electrical sockets at work. Complaining of a trip-and-fall is categorically different from reporting
asbestos-related occupational hazards. See Sherman, 651 N.E.2d at 712. Moreover, even if such
a claim could be characterized as whistle-blowing, the reporting of a federal violation is not the
issue here. Emery does not allege she was discharged for filing a FELA claim or complaint, but

that she was discharged for filing her FELA lawsuit, which occurred two-and-a-half years after

‘Illinois allows retaliatory discharge claims in such situations because Ilinois recognizes
that public policy interests are found in both federal law as well as state law. Johnson v. World
Color Press, Inc., 498 N.E.2d 575, 576 (Ill. 1986). Llinois thus allows retaliatory discharge
claims where Congress has declared a clearly mandated public policy that is national in scope.
Ia.

14



Emery adequately satisfies the pleading requirements here. Indeed, more than twenty of
the alleged defamatory statements at issue are pled as direct quotes. The problem defendants
have with the complaint is that Emery neither specifies which defendant made which statement
nor offers any context for the statements. Relying on cases from other circuits, defendants claim
that Emery’s defamation claim should be dismissed for failure to plead “the time, place, content,
speaker, and listener of the alleged defamatory matter.” Caudle v. Thomason, 942 F. Supp. 635,
638 (D.D.C. 1996). The court disagrees. No court in this district has ever required that degree of
specificity for a defamation claim. See, e.g., Woodard v. Am. Family Mut. Ins. Co., 950 F. Supp.
1382, 1388 (N.D. Il. 1997) (requiring only content, not date, of libelous publication). Indeed,
courts recognize that plaintiffs may not be able to state precisely which defendant made which
statement, or to whom, without the benefit of discovery. Wynne v. Stevenson, No. 02 C 5263,
2002 WL 31804497, at *2 (N.D. Ill. Dec. 13. 2002); Cozzi v. Pepsi-Cola Gen. Bottlers, Inc., No.
95 C 3648, 1997 WL 308841, at *6 (N.D. Ill. June 2, 1997). Emery’s defamation claim against
the individual defendants is sufficient.

As for the defamation claim against Metra, “a corporation is jointly and severally liable
for [defamatory] statements actionable against its employee when the employee is acting within
the scope of his employment.” Reed v. Northwestern Publ’g Co., 530 N.E.2d 474, 484 (IIL.
1988). But Emery specifically alleges that the defamatory statements made by Noland, Barnett,
Rosen, Capra and Valkan “were not made within the scope of their official duties, but for
personal motives,” (Compl. { 39.) In so alleging, Emery has effectively pled herself out of court
with respect to her claim against Metra. The defamation count, as it relates to Metra, is therefore

dismissed. Emery may of course amend if she is can cure this defect; any amendment must be

16


promoted to Associate General Counsel-Litigation. In July 1999, Emery tripped over some
raised electrical sockets at Metra’s offices, resulting in a serious knee injury. Consequently, she
had several surgeries and took a limited disability leave. Because her injury occurred at work,
Emery filed a claim with Metra’s Risk Management Department. Metra refused to pay the
majority of her medical bills. After two years of attempting to resolve her claim with the Risk
Management Department, Emery retained counsel to represent her in a FELA lawsuit against
Metra.

Shortly after filing suit, Emery had her annual performance review with defendant
Noland. Although she had always received annual performance bonuses in previous years, she
did not receive a bonus, despite exemplary performance. Moreover, after she filed her FELA
suit, she was told she could no longer represent Metra in FELA cases, was screened off all FELA
cases, was denied access to all information concerning FELA cases, and was demoted to Senior
Attorney. Metra also moved to disqualify Emery’s counsel, Hoey, Farina & Downes (a firm
which also represented many other plaintiffs in FELA actions against Metra), from all FELA
cases involving Metra, accusing Emery of unethical behavior and disclosing attorney-client
confidences, such as her knowledge of Metra’s trial strategies, settlement practices and
procedures, and case reserves. According to Emery, she never committed any such ethical
violations.

Emery alleges that the defendants proceeded to defame her to various judges, attorneys,
the John Marshall Law School (“JMLS”), its faculty, administration, graduates and students, and

the National Association of Railroad Trial Lawyers (“NARTC”), beginning before her


twenty-one days from the date of this order to file an amended complaint to the extent she can
cure any of the defects addressed in this order. Likewise, Emery has twenty-one days to file a
more definite statement for Count VIL. In the event Emery does not amend, or amends but fails
to state a federal claim, the court will decline to exercise supplemental jurisdiction and the case
will be dismissed.

ENTER:

J@AN B. GOTTSCHALL
Inited States District Judge
DATED: September 18, 2003

25



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ELLEN K. EMERY, )
)
Plaintiff, )
v. ) Case No. 02 C 9303
)
NORTHEAST ILLINOIS REGIONAL )
COMMUTER RAILROAD CORPORATION ) Judge Joan B. Gottschall
d/b/a METRA/METROPOLITAN RAIL, et al., CKETED
)
Defendants. ) D0

SEP 1 9 2003

MEMORANDUM OPINION & ORDER

In a twelve-count complaint raising various federal and state claims, plaintiff Ellen Emery
has sued her former employer, defendant Northeast Hlinois Regional Commuter Railroad
Corporation d/b/a METRA/Metropolitan Rail (“Metra”), as well as Metra’s executive director
Philip Pagano, general counsel Michael Noland, associate general counsel Theresa Barnett, and
senior attorneys Sue-Ann Rosen, Richard Capra, and Constance Valkan. The defendants have
moved to dismiss all counts under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. As
explained below, the defendants’ motion is granted in part and denied in part.

Background

Emery, an experienced trial attorney, was employed by Metra as in-house counsel from
June 23, 1997 until she was terminated on March 4, 2002. Her practice focused on cases
involving the Federal Employer Liability Act (“FELA”), 45 U.S.C. § 51, et seg., and she

evidently was quite successful in her profession; within six months of being hired, she was


discharged in retaliation for the reporting of illegal or improper conduct, otherwise known as
‘whistle blowing.” Jd.; Brandon v. Anesthesia & Pain Mgmt. Assoc., Ltd., 277 F.3d 936, 940
(7th Cir. 2002).

As a railroad employee, Emery has no right to file a claim under the Workers’
Compensation Act, 820 ILCS 305/1, et seq. Starks v. N.E. Ill. Reg’l Commuter R.R. Corp., 245
F. Supp. 2d 896, 898 (N.D. Il. 2003) (FELA offers exclusive remedy for railroad employees
seeking to recover for personal injury incurred in course of employment). Emery, however,
argues that her FELA lawsuit is analogous to a claim under the Workers’ Compensation Act, and
her retaliatory discharge claim, by analogy, is actionable. The court grants that the causes of
action are in some respects analogous, and it is possible that an Illinois court, faced with a claim
that an individual was fired for asserting rights to compensation for FELA injuries, might well
find that a sufficient public policy interest was implicated.* But the inquiry in the Ilinois courts
as to whether a claim of retaliatory discharge lies is not limited to a determination of whether
there are important public policy interests at stake when a worker brings an action to recover for
work-related injuries, “[O]ne of the factors that a court considers in deciding whether to allow a
retaliatory discharge claim is the existence of an alternative remedy. The tort . .. was not
intended to serve as a substitute means for enforcement of particular laws.” Stebbings v. Univ. of

Chicago, 726 N.E.2d 1136, 1141 (Ill. App. Ct. 2000) (internal citations omitted). Indeed, the

‘Although no Illinois courts have addressed whether filing a FELA claim implicates
clearly mandated public policy interests, in Sabich v. National Railroad Passenger Corp., No. 90
C 3344, 1991 WL 256651, at *1 (N.D. Il. Nov. 20, 1991), the only case cited by the parties that
is directly on point, the court rejected the argument that filing a FELA claim implicates a clearly
mandated Illinois policy and concluded that the Illinois Supreme Court would not recognize such
aclaim. Jd.

12



she initially blew the whistle.‘

The defendants raise the additional argument that, as an attorney, Emery cannot bring a
retaliatory discharge claim. The general rule is that attorneys cannot bring claims for retaliatory
discharge under Illinois law against their employer/client because in most circumstances, “a
client may discharge his attorney at any time, with or without cause.” Balla v. Gambro, Inc., 584
N.E.2d 104, 108-109 (Ill. 1991). As explained above, Emery fails to state a claim for retaliatory
discharge regardless of her status as attorney. The court therefore need not address whether
Emery’s case presents a basis for departure from this general rule. Count I is dismissed.

B. Defamation (against Metra, Noland, Barnett, Rosen, Capra & Valkan)

In Count VII, Emery brings a defamation claim against Metra, Noland, Barnett, Capra
and Valkan. For defamation claims, federal courts require a plaintiff to plead defamation “with
some specificity.” Betten v. Citibank F.S.B., No. 94 C 5460, 1995 WL 387802, at *3 (N.D. Il.
June 28, 1995). A plaintiff bringing a defamation claim is required to plead “the alleged
defamatory words published or spoken by the defendant.” Chisholm v. Foothill Capital Corp.,
940 F. Supp. 1273, 1284 (N.D. Ill. 1996). The reason for this rule is that “general knowledge of
the exact language used is necessary [for defendants] to form a responsive pleading.” Jd.
(citation and internal quotation marks omitted). Nevertheless, while courts give lip service to an
in haec verba pleading requirement, at least in this district, a plaintiff need not allege the

defamatory language verbatim. See id.

“Despite Emery’s suggestion to the contrary, in Arres v. IMI Cornelius Remcor, Inc., 333
F.3d 812, 814 (7th Cir. 2003), an opinion recently issued by the Seventh Circuit, the court did not
hold that every report of a violation of federal law implicates Illinois’ public policy. Rather, it
stated that “the state’s public policy encourages employees to report suspected violations of
federal law if that law advances the general welfare of Illinois citizens.” Jd.

15