Calling Ex-Chief 'Dumb, Unmotivated Lump' Is Not Defamation: Lawyers

JOLIET, IL —A pair of law firms hired to defend Joliet and city manager Jim Capparelli have asked a federal judge in Chicago to dismiss Dawn Malec's federal lawsuit against her former employer claiming her constitutional rights were violated by removing her as Joliet police chief without due process of law.

Malec's lawsuit seeks compensatory damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to reputation and other non-pecuniary losses, with prejudgment interest, court documents show.

According to Clark Baird Smith attorney Kelly Coyle, the lawyer defending the city of Joliet, Malec alleges that Capparelli made two groups of defamatory statements about her, "one, by allegedly telling a member of Joliet's Board of Fire and Police Commissioners that she was a 'dumb, unmotivated lump,' and two, by allegedly telling citizens at Joliet City Council meetings that Malec was insubordinate and could not follow department rules.

This month's motion to dismiss Malec's lawsuit was also submitted by Capparelli's lawyer, Chicago attorney Michael Layden of Prendergast Layden, Ltd.

"These alleged statements are non-actionable," Coyle argued for Joliet. "First, Capparelli’s alleged statements to the BFPC constitute opinion. Calling someone 'dumb' or 'unmotivated' is not capable of being proven and, therefore, is non-actionable opinion. Therefore, these alleged comments cannot form the basis of a defamation per se claim and should be dismissed."

Malec, retired in July, after 28 years on Joliet's Police Department. Capparelli named her Joliet police chief in January 2021 and then got rid of her that October. After realizing that Joliet's ordinances prohibited him from firing her, Malec was allowed to return to her previous rank and salary as a patrol lieutenant.

Malec's federal lawsuit cited several articles published about her in the Joliet Patch in her defamation lawsuit against Joliet and Capparelli including "Ex-Police Chief Dawn Malec Seeks $400K Settlement From Joliet" on Dec. 30, 2021, and one from Oct. 6, 2021, headlined, "Dawn Malec Fired As Joliet Police Chief, Replaced By Robert Brown."

In their motion to dismiss Malec's lawsuit, the law firms defending Capparelli and Joliet informed the federal judge that "Capparelli made the alleged defamatory statements while acting in his official capacity, in which he is immune to suit, also necessarily requires dismissal of the claim against him in his individual capacity."

The lawyers defending Joliet argued "other courts have found statements similar to Plaintiff’s allegations were opinion and could not serve as the basis for defamation."

Clark Baird Smith cited a 1999 lawsuit where a federal court ruled calling the plaintiff “incompetent" and "stupid" were "not capable of being proven true or false as they are inherently subjective.

Clark Baird Smith argued the other group of comments by Capparelli at a City Council meeting —suggesting Malec was insubordinate and could not follow department rules —is also non-actionable.

"Taken at face value, Capparelli’s alleged statements at the City Council meeting simply addressed Plaintiff’s performance as a City employee," Coyle informed the judge. "No mention apparently was made about Plaintiff’s 'employability' with other entities."

Malec's federal lawsuit claimed that Joliet removed her as police chief in violation of the Illinois Whistleblower Act. Malec had disclosed personnel file information to City Council member Sherri Reardon in hopes of convincing Reardon Joliet needed to move ahead with firing Joliet Police Sgt. Javier Esqueda, who appeared on several CBS Channel 2 TV interviews suggesting that fellow Joliet police officers and supervisors were responsible for the death of Eric Lurry, also tampering with evidence to cover up Lurry's death from January 2020.

"Plaintiff’s claim that the Defendants violated the Illinois Whistleblower Act is also deficient on its face," Coyle noted. "Plaintiff’s Whistleblower claim focuses on her disclosure of an investigation report to a member of the City Council in order to convince the City Council to move forward with terminating an officer’s employment.

"In her Complaint, Plaintiff alleged that she believed Capparelli’s order to defer the officer’s termination 'would lead to an appearance of corruption and favoritism,'" Coyle's motion to dismiss continued. "Plaintiff’s allegations nevertheless fail because she allegedly disclosed information to the very party who was supposedly engaging in improper conduct. In that respect, Illinois appellate courts have clarified that when an employee communicates an alleged violation to the very same person who has committed the violation, no 'disclosure' exists within the meaning of IWA."

A key allegation raised in Malec's lawsuit is that Joliet and Capparelli engaged in defamation against her. Malec's lawsuit argues the city granted a Joliet Patch Freedom of Information Act request furnishing what Malec contends was a "confidential" letter sent by Malec's attorney, Naomi Frisch of the Chicago law firm of Asher, Gittler & D'Alba.

That letter revealed Malec was willing to leave and retire in 2022 if Joliet gave her a lump sum payout of $400,000 "to compensate her for the damage to her reputation."

After the Joliet City Council rejected Malec's settlement proposal, Malec continued to collect a lieutenant's salary for the first six months of this year, before retiring in early July.

"In this case, Plaintiff claims that the City put her in a false light by maliciously disclosing her attorney’s settlement demand in response to a FOIA request," the lawyer at Clark Baird Smith informed the federal judge. "Plaintiff further claims that the City could have withheld the letter as exempt under FOIA ... Plaintiff’s allegations fall far short of a false light claim."

Coyle, Joliet's outside municipal counsel, argued "as a preliminary matter, the City is immune from Plaintiff’s false light claim based on Section 2-107 of Tort Immunity Act: A local public entity is not liable for injury caused by any action of its employees that is libelous or slanderous or for 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.

"Plaintiff’s claim that the letter placed her in a false light also does not pass muster under the common law test for that tort. By her own admission, the letter was drafted by her attorney, who set forth her legal positions in this matter. In essence, the settlement letter contended that the City and Capparelli discriminated against Plaintiff, or otherwise treated her poorly, for a variety of reasons. Illinois courts have held, however, that there must be proof that the published statement was knowingly false."

Clark Baird Smith argues Malec has not pointed to any statement in her lawyer's demand letter to Joliet "that was false and/or that the City knew to be false.

"There also is no Complaint allegation that suggests the disclosure of a settlement letter would be highly offensive to claimant," Coyle pointed out. "Indeed, if anyone would be highly offended by the letter’s disclosure, it was the Defendants. Moreover, as Plaintiff herself alleges in this Complaint, the information Plaintiff seems to contend was offensive had already been publicized in the newspaper. As such, the publicizing of allegedly negative information for a second or third time cannot constitute a highly offensive disclosure. The proverbial cat was already out of the bag."

Malec's lawsuit claims Joliet could have rejected Joliet Patch's FOIA for her $400,000 settlement demand letter based on exemptions in the Illinois Freedom of Information Act.

"Indeed, Section 7 of FOIA contains multiple exemptions that public agencies can claim to withhold certain information from public disclosure," Coyle agreed. "Unfortunately for Plaintiff, none of them apply to her letter, which FOIA presumes was 'open for inspection or copying.'

"Plaintiff’s letter addresses the alleged misconduct of City officials and whether or not they were properly performing their public duties. Nothing in the letter constitutes an unwarranted invasion of personal privacy. It has nothing to do with her personal life, her medical condition, or any other subject matter that would be outside of the public’s purview.

"In the instant case, Plaintiff’s attorney submitted the letter for her client’s own personal reasons as an outside party. Plaintiff’s attorney was not representing the City’s interests. She was representing Plaintiff’s own 'independent interests of its own apart from those of the agency.'

"As such, Plaintiff’s attorney’s settlement demand letter does not fall within the inter-agency deliberative privilege exemption under Section 7(1)(f). In sum, the City is absolutely immune. Moreover, without being able to allege information sufficient to demonstrate that anything in the settlement letter was literally 'false,' that the disclosure was highly offensive, or that it was done with malice, Plaintiff’s false light claim fails on all fronts and should be dismissed."

Related Joliet Patch coverage about Dawn Malec:

Malec's Gender Discrimination Suit Won't Prevail: Joliet

Ex-Police Chief Dawn Malec Seeks $400K Settlement From Joliet

Demoted Chief Retires: 'It Was An Honor To Have Been Your Chief'