persons from associating with him.” Kolegas v. Heftel Broad. Corp., 154 Ul. 2d 1, 10, 607
N.E.2d 201, 206 (1992). The elements of a defamation claim are (1) a defamatory assertion of
fact about the plaintiff; (2) publication to a third party; and (3) injury to the plaintiff's reputation.
See Krasinski v. United Parcel Serv., Inc., 124 Ill. 2d 483, 490, 530 N.E.2d 468, 471 (1988).

Defamatory statements fall into two categories — defamation per se and defamation per
injury to his reputation is presumed. Kolegas, 154 Ill. 2d at 10, 607 N.E.2d at 206, Because the
injury to reputation is apparent, the plaintiff need not plead or prove special damages. Van
Horne v. Muller, 185 Ill. 2d 299, 307, 705 N.E.2d 898, 903 (1998). Statements that are
defamatory per quod, on the other hand, are capable of an innocent construction and require
extrinsic facts to explain the defamatory meaning. Kolegas, 154 Ill. 2d at 10, 607 N.E.2d at 206.
In an action for defamation per quod, a plaintiff must therefore plead and prove special damages
— extrinsic facts that show “actual damage to his reputation and pecuniary loss resulting from the
defamatory statement.” Dornhecker v. Ameritech Corp., 99 F. Supp. 2d 918, 933 (N.D. ill. 2000)
(citing Bryson v. News America Publ'ns, Inc., 174 Ill. 2d 77, 88, 672 N.E.2d 1207, 1214 (1996)).
The plaintiff in a per quod action must comply with the heightened pleading standard of Federal
Rule 9(g), requiring that special damages be “specifically stated.” Muzikowski v. Paramount
Pictures Corp., 322 F.3d 918, 927 (7th Cir. 2003).

Under Illinois law, words that “impute the commission of a criminal offense” are
considered actionable per se. Bryson, 174 Ill. 2d at 88, 672 N.E. 2d at 1214. Because the
allegedly defamatory statement — that Socorro was convicted of a crime and spent six months in

jail — clearly falls within the category of per se defamation, Socorro need not allege special



not arise from his employment; (3) was not inflicted during the course of employment; or (4) is
not compensable under the IWCA. Td. at 237, 408 N.E.2d at 202. Because “emotional distress is
compensable under the Act . . . [,] plaintiff cannot escape the exclusivity provisions on this
basis.” Id. Socorro argues in his response to the motion to dismiss that the IED occurred after
he had been terminated and therefore not in the course of his employment, and this construction
of the claim is consistent with his complaint. The IWCA thus does not present a bar to his claim.
Socorro has nonetheless failed to state a claim for IED. To do so, he must allege that the
conduct involved was extreme and outrageous, the defendant intended to inflict severe emotional
distress or knew there was a high probability that such distress would result, and the conduct
caused him severe emotional distress. Doe v. Calumet City, 161 Ill. 2d 374, 392, 641 N.E.2d
498, 506 (1994) (citing Public Finance Corp. v. Davis, 66 Ill. 2d 85, 360 N.E.2d 765 (1976)).
To meet the first element, the alleged conduct must be "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of human decency." Oates v. Discovery
Zone, 116 F.3d 1161, 1174 (7th Cir. 1997) (quoting Public Finance Corp,, 66 Ill. 2d at 90, 360
N.E.2d at 767). Hilton’s alleged conduct — firing him based on IMI’s erroneous report, either
before or after Socorro denied its veracity,’ and portraying him falsely to others — though
deplorable if proven, does not rise to the level of “outrageousness" required to sustain an TED
claim. See, e.g., Harriston v. Chicago Tribune Co., 992 F.2d 697 (7th Cir. 1993) (conduct not
extreme and outrageous where plaintiff was not permitted to supervise white employees; was
reprimanded and falsely accused of poor performance; was excluded from office activities and

decisions; was forced out of management position and not given promised promotion; and had

'Sqcorro’s complaint and response relay inconsistent versions of the sequence of events.

9



No. 96 C 7228, 1997 WL 312048, at *5 (N.D. Ill. June 6, 1997) (stating that “courts in this
district . .. have held that the defamatory language need not be quoted verbatim”). As stated
above, the Court finds that Socorro’s allegations meet this requirement and thus satisfy Rule 8.

2. False Light Invasion of Privacy

To prevail on a claim of false light invasion of privacy, Socorro must show that (1) he
was placed in a false light before the public as a result of the defendant’s actions; (2) the false
light 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, 154 Ill. 2d at 17-18, 607 N.E.2d at 209-210.
“Publicity” in the false light context involves more than relaying the statement to a third person;
rather it means “communicating the matter to the public at large or to so many persons that the
matter must be regarded as one of general knowledge.” Roehrborn v. Lambert, 277 Ill. App. 3d
181, 184, 660 N.E.2d 180, 183 (1995).

Hilton argues that Socorro has not adequately alleged that the false statements were
communicated to the public. Socorro’s complaint does, however, allege that Hilton repeated “to
third persons not associated with Hilton the information provided by IMI” and “that Socorro was
terminated by Hilton for falsification of his Application.” Compl. §{] 23-24. Under the liberal
notice pleading regime of Rule 8, these statements are sufficient to allege the publicity element.
Socorro may be able to demonstrate that the “third persons” he refers to are so numerous as to
meet the publicity requirement, and he is entitled to attempt to prove his claim.

Hilton relies on decisions stating that false light claims cannot be maintained if the

statement is not “publicized outside the workplace community to the public at large.” Hilton’s



damages and is “entitled to the usual rules for notice pleading established by Rule 8.”
Muzikowski, 322 F.3d at 926.

Because Socorro’s allegations provide adequate notice of his claim and its basis,
dismissal is inappropriate. Without the benefit of discovery, it is not necessary for Socorro to
state precisely who said what to whom. Wynne v, Stevenson, No. 02 C 5263, 2002 WL
31804497, at *2 (N.D. Ill. Dec. 13, 2002); cf Conley, 355 U.S. at 47-48 (“[S]implified ‘notice
pleading’ is made possible by the liberal opportunity for discovery and the other pretrial
procedures established by the Rules to disclose more precisely the basis of both claim and
defense... .”).

Hilton maintains that federal pleading rules require Socorro to “plead the precise
language of the defamation.” Hilton’s Mot. to Dismiss at 3. It cites several decisions from this
District that apply a haec verba pleading requirement in defamation actions. See, e.g., Silk v.
City of Chicago, No. 95 C 0143, 1996 WL 312074 (N.D. Ill. June 4, 1996); Manion v. Lima
Mem’! Hosp., No. 93 C 6138, 1994 WL 178316 (N.D. Ill. May 9, 1994). These cases all rely,
however, on a district court decision, Vantassell-Matin v. Nelson, 741 F. Supp. 698, 707 (N.D.
Ill. 1990), which in turn cites another district court opinion, Seaphus v. Lilly, 691 F. Supp. 127
(N.D. Ill. 1988) (citing an Eighth Circuit case), for the proposition that a plaintiff must recite the
precise language alleged to be defamatory. We question whether theses cases are consistent with
Rule 8 and the concept of notice pleading. But in any event, most courts that have applied this
standard have found it satisfied relatively easily; an allegation is considered “specific enough” if
it permits the defendant to understand the specific nature of the claim and form a responsive

pleading. Wynne, 2002 WL 31804497, at *2; see, e.g., Cozzi v. Pepsi-Cola Gen. Bottlers Inc.,


employment ... while [the employee] is fulfilling [his] duties or engaged in something
incidental thereto.” Scheffler Greenhouses, Inc. v. Indus. Comm ’n, 66 Ill. 2d 361, 367, 362
N.E.2d 325, 327 (1977). The IWCA therefore operates to bar common law liability only for
injuries attributable to Hilton’s acts while Socorro was in its employ; liability for acts that
occurred after his termination are not barred.

Because the IWCA abrogated employer liability for common law negligence actions,
Small v. Chicago Health Clubs, Inc., 843 F. Supp. 398, 403 (N.D. Ill. 1994), it bars Socorro’s
NIED claim as to any injury inflicted while in Hilton’s employ. As for NIED that occurred after
Socorro’s termination, Hilton argues that Socorro has not alleged that Hilton breached a duty
recognized by Hlinois law. To state a NIED claim, Socorro must allege that the defendant owed
him a duty which it breached, proximately causing him injury, Parks v. Kownacki, 193 Ill. 2d
164, 181, 737 N.E.2d 287, 296-97 (2000). Although Socorro is not, as Hilton contends, obliged
to plead facts in federal court, to state a claim he must identify a legally cognizable duty that
Hilton breached. Jd., 737 N.E.2d at 297. It appears from the complaint that Socorro alleges that
Hilton owed him a duty to investigate the truth or falsity of IMI’s report. He has cited no
authority, however, supporting the existence of such a duty, even after Hilton’s motion raised this
issue. Socorro’s NIED claim is therefore dismissed as to defendant Hilton.

4. Intentional Infliction of Emotional Distress

Although Socorro argues otherwise, the IWCA also bars a claim against the plaintiff's
employer for intentional infliction of emotional distress (IED) that arises out of and in the course
of employment. See Collier v. Wagner Castings Co., 81 Ill. 2d 229, 236-37, 408 N.E.2d 198,

201-02 (1980). Socorro can avoid the IWCA’s bar if the injury (1) was not accidental; (2) did



4

p
aa Order Form (06/97)

United States District Court, Northern District of INinois

seer MagierneJuage | __Matthew F. Kennelly “than Aslgned Suge

CASE NUMBER 02 C 8120 DATE 4/28/2003
CASE Socorro vs. IMI Data Search, Inc.
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) Q Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due____.

(3) oO Answer brief to motion due___. Reply to answer brief due.

(4) a Ruling/Hearing on setfor at

(5) jer} Status hearing[held/continued to] [set for/re-set for]on_____setfor at

(6) o Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_——at

(7) Oo Trial[set for/re-set for]on__at

(8) a [Bench/Jury trial] [Hearing] held/continuedto__—__—at

(9) Oo This case is dismissed [with/without} prejudice and without costs[by/agreement/pursuant to)
OFRCP4(m) O Local Rule 41.1 CIFRCP41(a(1) O FRCP41(a)(2).

qo) =i [Other docket entry} For reasons set forth on the attached order, defendant Hilton’s motion to

dismiss (7-1,9-1) is granted in part and denied in part. Defendant IMI’s motion to dismiss (8-10 is also
granted in part and denied in part. Counts 3,5 and 6 are dismissed. Defendants are directed to answer

Socorro’s remaining claims within seven days of this order.

ql) {For further detail see order attached to the original minute order.}
‘No notices required, advised in open court. Document
No notices required. umber of notices Number
Notices mailed by judge's staff. MAY 0 2 2003
Notified counsel by telephone. date dock
ov | Docketing to mail notices.
Mail AO 450 form. t docket initials
Copy to judge/magistrate judge. yang LoMsiy Fy
° Wade ;
co m i date mailed notice
OR deputy's Ee je ites
initials —
Datetime received in-s) 4
central Cletk's ‘Guu il railing deputy initiate



and Hilton as a “user of a consumer report” under the FCRA. See id. § 1681a.

IMI acknowledges that the limitation of liability provision does not bar claims related to
the disclosure of false information with malice or willful intent to injure the consumer. IMI
argues, however, that Socorro has insufficiently alleged that IMI acted with malice or willful
intent. IMI contends that Socorro “must allege facts ftom which actual malice may be inferred.”
IMI’s Mot. to Dismiss 15. This argument is frivolous. Rule 9 specifically provides that malice
may be averred generally. Fed, R. Civ. P. 9(c). Having chosen to remove this case to federal
court, IMI can no longer reap the benefit of Illinois’ pleading standards, which “of course do[]
not apply in a federal court.” Muzikowshi, 322 F.3d at 926. In federal court, a complaint “cannot
be dismissed on the ground that it is conclusory or fails to allege facts. The federal rules require .
- only that the complaint state a claim, not that it plead the facts that if true would establish . . .
that the claim was valid.” Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). Socorro’s
allegations provide IMI with “notice of the crux of the plaintiff's charges” and therefore meet the
requirement of Rule 8. McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000).

However, Socorro’s NIED claim is barred by the FCRA’s preemption provision, and his
TED claim against IMI suffers from the same deficiencies as his claim against Hilton. The Court

therefore dismisses these claims as to defendant IMI.

11


her calls monitored and her vehicle vandalized). Socorro’s naked statement that the conduct was
“outrageous” does not make it so. Accordingly, the Court dismisses Socorro’s claim for IED.
J. Common Law Negligence
Hilton maintains that Socorro’s negligence claim must be dismissed because Socorro
does not identify a duty that is recognized by Illinois law. Count 5 of the complaint alleges that
Hilton breached a “duty to investigate the truth or falsity of whether Socorro was a) convicted of
acrime and b) spent six months in jail.” Compl. { 49. As stated above, Socorro has failed to
support the existence of such a duty under Illinois law. His negligence claim is therefore
dismissed.
Socorro concedes that count 6 — negligent hiring, retention, or supervision — should be
dismissed, and we therefore grant Hilton’s motion as to this claim.
B. IMI’s Motion to Dismiss
IMI maintains that Socorro cannot maintain his claims against it because the Fair Credit
Reporting Act preempts common law defamation, invasion of privacy, and negligence actions
arising from a consumer reporting agency’s disclosure of consumer information. The Act
provides in relevant part:
Except as [otherwise provided by the Act], no consumer may bring any action or
proceeding in the nature of defamation, invasion of privacy, or negligence with
respect to the reporting of information against any consumer reporting agency...
based on information disclosed pursuant to 1681g, 1681h, or 1681m of this title,
or based on information disclosed by a user of a consumer report to or for a
consumer against whom the user has taken adverse action, based in whole or in
part on the report except as to false information furnished with malice or willful

intent to injure such consumer.

15 U.S.C. § 1681h(e). IMI qualifies as a “consumer reporting agency,” Socorro as a “consumer,”

10



Mot. to Dismiss at 5 (quoting Jones v. Sabis Educ. Sys., Inc., No. 98 C 4252, 1999 WL 1206955
(N.D. Ill. Dec. 13, 1999)). These cases are inapposite, however, because contrary to Hilton’s
contentions, Socorro does allege that the statements were communicated to persons “not
associated with Hilton”— in other words, to persons outside the work environment.

3. Negligent Infliction of Emotional Distress

Hilton contends that Socorro’s claim of negligent infliction of emotional distress (NIED)
is barred by the Illinois Workers Compensation Act, 820 ILCS 305/1 et seq., and that in any
event Socorro has not sufficiently stated a claim. The IWCA “provides the exclusive remedy for
accidental injuries” that occur in the workplace. Hunt-Galliday v. Metro, Water Reclamation
Dist,, 104 F.3d 1004, 1016 (7th Cir. 1997). The Act contains the following exclusivity
provision:

No common law or statutory right to recover damages from the employer . . . for

injury or death sustained by any employee while engaged in the line of his duty as

such employee, other than the compensation herein provided, is available to any

employee who is covered by the provisions of this Act... .
820 ILCS 305/5(a). The IWCA also provides that the compensation under the Act “shall be the
measure of [an employer’s] responsibility.” Id. 305/11.

An injury is compensable under the IWCA, however, only if it “aris[es] out of and in the
course of the employment.” 820 ILCS 305/2; Orsini v. Indus. Comm’n, 117 Il. 2d 38, 44, 509
N.E.2d 1005, 1008 (1987). These requirements are “used conjunctively, and therefore both
elements must be present” for the IWCA and its exclusivity provisions to apply. Jd. The phrase

“in the course of employment” refers to “the time, place and circumstances” of the injury. Jd.

“An injury is received in the course of employment where it occurs within a period of



substantially lower rate of compensation than the Hilton position.

Socorro filed this lawsuit in Illinois state court; defendants removed the case to federal
court after he amended his complaint to include a claim under the Fair Credit Reporting Act.
Socorros’s amended complaint contains seven counts: defamation by both Hilton and IMI;
tortious interference with prospective economic advantage by IMI; infliction of emotional
distress by Hilton and IMI; false light invasion of privacy by Hilton and IMI; negligence by
Hilton; negligent hiring, retention and/or supervision by Hilton; and violations of the FCRA by
both Hilton and IMI. Defendants have moved to dismiss the state law claims pursuant to Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim.

DISCUSSION

A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit.
Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Accepting the plaintiff's
allegations as true, the Court will dismiss a claim only if “it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley y. Gibson, 355 U.S. 41, 45-46 (1957).

A. Hilton’s Motion to Dismiss

1. Defamation

Hilton argues that Socorro’s defamation and false light claims should be dismissed
because they “are not pled with the requisite specificity required under Illinois law,” and because
Socorro “has not alleged sufficient facts to state a claim.” Hilton’s Mot. to Dismiss at 3.

Under Illinois law, a statement is considered defamatory if it “tends to cause such harm to

the reputation of another that it lowers that person in the eyes of the community or deters third


was then employed by another firm and had been for a considerable period of time. On July 24,
2000, Hilton offered Socorro the position of Director of Travel Industry Sales/Travel Partner
Relations. Socorro accepted and reported to work on August 14. On his first day, he completed
several employment forms, among them a Hilton employment application. On the application
Socorro truthfully replied “no” to the question whether he had ever been convicted of a felony or
misdemeanor. A paragraph at the bottom of the application form stated “I authorize Hilton to
investigate my background. . . .” Because he did not initial this paragraph, Socorro maintains
that he did not give permission for a background check.

Some time after Socorro had begun his employment at Hilton, Hilton hired IMI to
investigate Socorro’s background and particularly whether he had any criminal convictions.
Around September 7, 2002, IMI reported to Hilton, albeit mistakenly, that Socorro had been
convicted of a misdemeanor and had served six months in jail.

Socorro was not informed of the background check, but on October 9, a managing
director called Socorro and asked him if he had ever been convicted or spent six months in jail.
Socorro, again truthfully, replied that he had not. Hilton did not, however, investigate the
veracity of his denial or press IMI to verify its report. On October 10, Hilton informed Socorro
that he had been terminated for falsifying his application. After multiple requests for a copy of
his personnel file, on February 5, 2001, Hitlon provided him a partial file.

Socorro alleges that after his termination, Hilton repeated to third parties that Socorro was
fired because he lied on his application and that he was a convict who had spent six months in
jail. Socorro credits his extended inability to secure new employment, despite various attempts,

to these false statements. Socorro did finally secure new employment in May 2001, but at a



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
EDWARD SOCORRO, )
)
Plaintiff, )
)
vs. ) Case No. 02 C 8120
} i,
IMI DATA SEARCH, INC. and ) ait "Cee,
HILTON HOTELS CORP., ) “ iy 7)
) 92
Defendants. ) 2003

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Plaintiff Edward Socorro sued Hilton Hotels Corp., his former employer, and IMI Data
Search, Inc., the company Hilton hired to perform a background check on him. The seven count
complaint alleges violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and
Illinois common law. The case is before the Court on defendants’ motions to dismiss Socorro’s
state law claims, For the reasons stated below, defendants’ motions are granted in part and
denied in part.

BACKGROUND

On a motion to dismiss, the Court accepts the plaintiff's factual allegations as true and
construes all inferences and ambiguities in his favor. Thompson v. Ill. Dep’t of Prof'l
Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Kelly v. Crosfield Catalysts, 135 F.3d 1202, 1205
(7th Cir. 1998). Socorro’s complaint alleges the following factual scenario.

Sometime before July 2000, Hilton contacted Socorro about a job possibility. Socorro



”

CONCLUSION
For the reasons stated above, defendant Hilton’s motion to dismiss [Nos. 7-1, 9-1] is
granted in part and denied in part. Defendant IMI’s motion to dismiss [No. 8-1] is also granted

in part and denied in part. Counts 3, 5 and 6 are dismissed. Defendants are directed to answer

Socorro’s remaining claims within seven days of this order.

MATTHEW F. KE! LLY
United States Distric{ Judge

Date: April 28, 2003

12