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No. 2--02--1208

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Michael P. Green, Ph.D., filed suit against defendants, Trinity InternationalUniversity (the University), Barry Beitzel, Ph.D., and Harold Netland, Ph.D., alleging breach ofcontract, invasion of privacy, and defamation stemming from the termination of his employment withthe University. Defendants moved to dismiss plaintiff's first amended complaint pursuant to sections2--615 and 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615, 2--619 (West 2002)). The trial court dismissed the first amended complaint in its entirety, with prejudice. Plaintiff appeals,arguing that (1) the trial court improperly considered factual defenses when evaluating the sufficiencyof his allegations, and (2) he sufficiently pleaded the elements of breach of contract, invasion ofprivacy, and defamation. We affirm in part, reverse in part, and remand.

The first amended complaint alleges that plaintiff first became employed as an associateprofessor with the University, a divinity school, in March 1995. In addition to his duties as anassociate professor, he also held the position of "Director of Supervised Ministries." During thecourse of his employment, plaintiff entered into successive one-year written contracts with theUniversity. The last contract between plaintiff and the University was dated March 5, 2001, andcovered a 12-month period beginning July 1, 2001. On April 10, 2001, plaintiff entered into acontract with the University for the summer session, which ran from July 30, 2001, through August17, 2001.

Plaintiff further alleges that, in 2000, he was under consideration for tenure. A committee(Committee) comprising members of the faculty senate was appointed to evaluate his tenureapplication. According to plaintiff, on November 8, 2000, he met with Beitzel, who was theUniversity provost, and Netland, the academic dean of the divinity school. At that meeting, Beitzeland Netland informed plaintiff for the first time that some students had criticized how he conductedhis classes. Then, on January 17, 2001, the faculty senate instructed the Committee to investigatethe criticisms by questioning randomly selected students about plaintiff's classroom decorum. Plaintiffalleges that he was to have no input with respect to any part of this process, which was not part ofthe tenure process set forth in the faculty handbook (Handbook). Plaintiff's tenure review processwas then extended to "not later than autumn 2001."

Plaintiff further alleges that his agreement to extend the tenure review process was contingentupon an agreement with University administration that, if he were denied tenure, the University wouldprovide him with a one-year employment contract for the 2002-2003 school year. Plaintiff allegesthat all members of the administration "were in accord" with him on this issue.

Subsequently, the Committee sought plaintiff's permission to interview students. TheCommittee informed plaintiff that the tenure review process would end if he withheld his permission. Plaintiff refused to give his permission and, on April 19, 2001, he was informed by letter that thefaculty senate had denied his application for tenure. On April 24, 2001, plaintiff received amemorandum from Beitzel informing him that his employment contract would not be renewed for the2002-2003 school year.

In count I of the first amended complaint, plaintiff claims that the University breached itscontract with him by suspending him from the duties outlined in the 2001-2002 written contract,cancelling his 2001 summer class, failing to notify him in a timely manner of the intention not torenew his contract for 2002-2003, and failing to follow the guidelines set forth in the Handbook.

In count II, plaintiff alleges invasion of privacy in the form of publicity placing him in a falselight. This claim is based on statements contained in three memoranda authored by Netland, whichwere distributed to University faculty, staff, and students in August 2001. The statements said thatplaintiff "has been relieved of his responsibilities as Director of Supervised Ministries, includingclassroom instruction and advisee group." Plaintiff alleges that, by failing to explain thecircumstances behind the termination, defendants communicated the false impression that plaintiff hadcommitted acts of moral turpitude. Plaintiff relies on sections of the faculty constitution which statethat, except in cases of moral turpitude, notice that an employment contract will not be renewed isto be given by March 1 of the terminal year. Plaintiff further claims that it was University practiceto ask for prayers for individuals involved in personnel changes. According to plaintiff, the omissionof such a request from the announcement of his termination also communicated that he hadcommitted acts of moral turpitude. Plaintiff further alleges that the University's acts andcommunications were performed maliciously for the purposes of placing him in disrepute among hispeers.

Count III of the first amended complaint alleges defamation per se, based on statements madeby Beitzel in a letter dated November 30, 2001, to Dr. Martin D. Snyder, associate secretary of theAmerican Association of University Professors (AAUP). Beitzel wrote the letter in response to aletter from Snyder expressing concern about how the University handled plaintiff's tenure application. Snyder had become involved in the situation at plaintiff's request. Beitzel copied several otherindividuals on the letter, including Gregory Waybright, University president; W. Charles Thor, Jr.,chair of the University's board of regents; Netland; Daniel O. Aleshire, executive director of theAssociation of Theological Schools; and Mary Breslin, associate director of the North CentralAssociation of Colleges and Schools. Plaintiff was also copied on the letter.

Plaintiff sets forth 10 statements that he alleges were false and injured his professionalreputation as a teacher and clergyman. To summarize, the statements indicated that several studentsreported concerns that plaintiff was "rude, abrasive, and even acerbic" in class, devoted a largeamount of class time to noncourse considerations, and was unprofessionally candid with studentsabout matters not directly related to class materials. Beitzel added that, "if true," some of thestatements plaintiff made were "shocking, extremely bothersome, and there is one that I believeborders on prejudice." Beitzel's letter also indicated that some students had tried to discuss theseissues with plaintiff directly, but they did not feel that plaintiff was responsive to them. In addition,Beitzel stated that University administrators had discussed these concerns with plaintiff on multipleoccasions between 1998 and 2000. Beitzel said that on one such occasion one of the Universitydeans told plaintiff that if the University had to deal with this type of concern once more, plaintiff was"out of here." Plaintiff alleges that the University, through Beitzel, made these statements with theintent to injure his reputation or with reckless disregard of the consequences that might result fromthem.

In a combined motion to dismiss, defendants argued, pursuant to section 2--615 of the Code,that plaintiff failed to state a cause of action under any of his theories. Further, pursuant to section2--619 of the Code, defendants asserted that count III should be dismissed because a qualifiedprivilege applied to the allegedly defamatory statements. The trial court agreed with defendants,dismissing all counts of the first amended complaint with prejudice. Plaintiff filed a timely notice ofappeal from the trial court's order.

ANALYSIS

A motion pursuant to section 2--615 attacks the legal sufficiency of a complaint. Provenzalev. Forister, 318 Ill. App. 3d 869, 878 (2001). Such a motion admits as true all well-pleaded facts,but not conclusions of law or factual conclusions that are unsupported by allegations of specific facts. Provenzale, 318 Ill. App. 3d at 878. When deciding a section 2--615 motion, the court mustdetermine whether the allegations of the complaint, viewed in the light most favorable to the plaintiff,are sufficient to state a cause of action upon which relief may be granted. Abbasi v. Paraskevoulakos, 187 Ill. 2d 386, 391 (1999). A cause of action will not be dismissed on thepleadings unless it clearly appears that the plaintiff would not be entitled to relief under any set offacts. Abbasi, 187 Ill. 2d at 391.

A motion to dismiss pursuant to section 2--619(a)(9), on the other hand, raises an "affirmativematter avoiding the legal effect of or defeating the claim" (735 ILCS 5/2--619(a)(9) (West 2002)). Such a motion "is properly used to raise affirmative matters that negate the claim, not to challengethe essential allegations of the plaintiff's cause of action." Provenzale, 318 Ill. App. 3d at 878. Wereview de novo the dismissal of a complaint pursuant to either section 2--615 or section 2--619. Krilich v. American National Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563, 571 (2002).

BREACH OF CONTRACT

The elements of a cause of action for breach of contract include: (1) an offer and acceptance,(2) consideration, (3) definite and certain contractual terms, (4) the plaintiff's performance of hiscontractual obligations, (5) the defendant's breach of the contract, and (6) damages resulting fromthe breach. Barille v. Sears Roebuck & Co., 289 Ill. App. 3d 171, 175 (1997). Plaintiff asserts thatthe University breached the 2001-2002 written employment contract, the Handbook that wasincorporated into the written contract, and an agreement to employ plaintiff for the 2002-2003 schoolyear. We will address each of these alleged contracts in turn.

2001-2002 WRITTEN CONTRACT

Plaintiff alleges that the University breached the 2001-2002 contract by suspending him fromhis academic and administrative duties. In its motion to dismiss, the University counters that plaintiffcannot state a cause of action for breach of this contract because the University paid plaintiff the fullamount of his compensation and benefits. The University relies on statements Beitzel made in hisletter of November 30, 2001, which is attached as an exhibit to the complaint. In ruling on themotion to dismiss, it appears that the trial court relied on the alleged payment of the contract amountas the basis for its ruling that plaintiff failed to state a cause of action as to the 2001-2002 contract. The court stated as follows:

"In this particular case there was a buyout *** by the University of Green's one yearcontract for the academic year, '01/02, and for the summer employment year--correspondedto the summer employment year.

The--Green contends that there are other benefits that should have accrued to him. For example, the opportunity or right, if you will, to continue teaching, that sort of thing.

I do not find that as part of the contract. All benefits have been conferred by thecontract. If anything, Green owed the obligation back to the University to perform at his end. He could claim he was prevented to perform, but even if he does, there are no damages of anynature because he has essentially had the buyout provisions extended, the University statesthat it has paid or [is] fully prepared to pay everything under that contract, and I find nobreach as to that."

As we stated in Provenzale, when presenting a hybrid motion to dismiss it is improper to submit evidentiary material going to the truth of the allegations contained in the complaint becausea motion pursuant to either section 2--615 or 2--619 concedes the truth of all well-pleadedallegations. Provenzale, 318 Ill. App. 3d at 879. A court may not consider depositions, affidavits,or other supporting materials when ruling on a section 2--615 motion. Provenzale, 318 Ill. App. 3dat 879. Moreover, a party may not submit evidentiary material in support of a section 2--619 motionfor the purpose of contradicting well-pleaded facts in the complaint. Provenzale, 318 Ill. App. 3d at879. By introducing evidence pertaining to the alleged payment of amounts due to plaintiff pursuantto the 2001-2002 contract, the University improperly presented evidentiary material going to the truthof the allegations contained in the complaint. The trial court incorrectly considered and relied on thisevidence.

The University contends that payment on the contract is a valid basis for dismissing the breachof contract count pursuant to section 2--619. This argument fails for two reasons. First, theUniversity did not raise it below. It moved to dismiss count I of the first amended complaint, whichcontained the breach of contract claims, under section 2--615 only. It is improper for the Universityto assert a new theory for the first time on appeal. See Carter v. Dunlop, 138 Ill. App. 3d 58, 60(1985). The University's contention that its entire motion to dismiss was brought pursuant to bothsection 2--615 and section 2--619 is disingenuous and belied by the motion itself. Second, even ifthe payment argument were properly before the court, the letter upon which the University relies doesnot provide a sufficient factual basis to establish its defense. Section 2--619(a) states that "[i]f thegrounds [for such a motion] do not appear on the face of the pleading attacked the motion shall besupported by affidavit." 735 ILCS 5/2--619(a) (West 2002). The University contends that, becausethe Beitzel letter indicating that plaintiff was paid the full contract amount was attached as an exhibitto the first amended complaint, plaintiff cannot now assert that the statements were untrue. Thisargument fails, however, because the exhibit was attached in support of plaintiff's defamation claim,to demonstrate the allegedly defamatory statements published by Beitzel. Plaintiff never admitted theallegations contained in the letter. Rather, he alleged that the statements in the letter were false. Further, the University's argument that plaintiff has never contested its assertion that he has been paidthe full contractual amount is irrelevant. Plaintiff is not required to contest facts at this stage of theproceedings. This is not a summary judgment motion, but a motion to dismiss in which all well-pleaded facts are taken as true. Accordingly, we hold that it was error for the court to dismissplaintiff's breach of contract claim based on the defense of payment.

This error notwithstanding, plaintiff has not properly alleged a breach. He merely alleges thathe was suspended from his duties, not that he was suspended without pay. If plaintiff has in fact beenfully compensated, we fail to see how the University could have breached its contractual obligationor how plaintiff could have suffered any damage. Plaintiff cannot avoid the effect of payment bysimply omitting any mention of it from the complaint. However, because the University has notproperly raised payment as an affirmative defense (see 735 ILCS 5/2--613(d), 2--619(a) (West2002)), we cannot say at this point that plaintiff would not be entitled to relief under any set of facts. Therefore, we remand to give plaintiff an opportunity, if the facts warrant, to amend the portion ofcount I pertaining to the 2001-2002 contract. We further note that while plaintiff requests $80,000in his prayer for relief, nothing in the first amended complaint alleges how he was damaged as a resultof the alleged breach. Any amendment would have to address this deficiency as well.

FACULTY HANDBOOK

Plaintiff alleges that, as part of his tenure application, the faculty senate (Senate) directed theCommittee to interview arbitrarily selected students about plaintiff's classroom decorum. Plaintifffurther alleges that this constituted an improper modification of the tenure process set forth in theHandbook. The trial court determined, and the parties agree, that the Handbook is part of theUniversity's written contract with plaintiff.

The Handbook incorporates the faculty constitution, which states as follows with respect tothe tenure interview procedure:

"Each applicant will be thoroughly and seriously interviewed by a subcommittee ofthe Senate (appointed by the Dean) on the following four areas. It is suggested that thecommittee assign one (or more) of each of these four areas to each committee member andthat the committee member prior to the meeting construct a list of basic questions in his orher assigned area to ask the candidate.

After the subcommittee has (1) viewed the video tape of a recent class lecture and (2)met with the candidate for a time of serious questioning, they shall go into executive sessionto prepare a confidential one- or two-page summary (suitable for sharing with the Senate andultimately the Board of Directors). The summary should be placed in the faculty personnelfile in the Dean's Office.

The four areas for the interview are:

1. Personal Christian Life.

* * *

2. Theological acuteness.

* * *

3. Teaching effectiveness.

a. Mastery of one's own subject matter and discipline of instruction.

b. Openness to students' questions and needs, including gender, racial, and ethnicsensitivity.

c. Syllabus design, integrity, and educational outcomes.

d. Effectiveness in lecture delivery and use of educational audio-visual toillustrate lectures.

e. Effectiveness of testing, grading, and assignment skills.

f. Breadth of vision for theological education and the other disciplines anddepartments of the Divinity School.

4. Institutional effectiveness and depth of commitment to Trinity's philosophy of ministryand its future.

a. Regular participation in the community life of the Divinity School: such aschapel, faculty prayers, faculty committees, faculty meetings and suchadditional assignments as may be requested from time to time.

b. Openness and skills in advising and counseling students (regular hours,effective advisee group on Thursdays, knowledge of catalog, evidence ofpastoral concern for spiritual formation in students).

c. Evidence of enthusiasm for the seminary's philosophy of education andministry.

d. Shares a global vision for the future growth of Christ's Church around theworld, in the United States, in the Evangelical Free Church of America and onour campus."

According to the faculty constitution, the Senate consists of all tenured full professors. "Itserves as a legislative body making recommendations to the Board of Regents through the AcademicDean. It is particularly concerned with these recommendations: sabbaticals, leaves with pay, leaveswithout pay, Overseas Residence and Discipleship (ORD); Parish Residency Orientation (PRO),recommendations for advancement in rank, recommendations for tenure, and questions of dismissalof tenured faculty." (Emphasis added.)

The Handbook's description of the Senate's powers is quite general. Given the broad natureof the Senate's authority and the fact that the faculty constitution lists "recommendations for tenure"as one of the Senate's particular concerns, we believe that the Senate's recommendation regardingstudent interviews falls under the umbrella of the Senate's legislative powers. Plaintiff has not allegedany facts that support his contention that the Senate lacked such authority. For this reason, plaintiffcannot state a cause of action for violation of the Handbook.

2002-2003 CONTRACT

Plaintiff also alleges that he and the University agreed that, because the tenure review processwas extended into the fall of 2001, his last contract would be for the 2002-2003 school year in theevent he was denied tenure. Plaintiff asserts that the University breached the 2002-2003 contract by terminating him on April 24, 2001. In our view, the crux of plaintiff's argument is that theUniversity breached its promise to offer him continued employment, not that the University breachedthe 2002-2003 contract itself. There is no written 2002-2003 contract, and plaintiff has not set forthany terms of the alleged agreement that would allow us to conclude that the parties entered into abinding employment contract for 2002-2003.

Moreover, we find untenable plaintiff's reliance upon the Handbook as the basis of the allegedbreach of the agreement pertaining to the 2002-2003 school year. According to plaintiff, theUniversity's breach arises from its failure to notify him of his termination in a timely manner, asrequired by the Handbook. The Handbook states that "The failure of the administration to issue anew contract by March 1 of the preceding school year will amount to notice of discontinuance of theteacher's services." Thus, plaintiff contends that the University was required to notify him by March1, 2001, if it did not intend to renew its contract with him for the 2002-2003 school year. TheUniversity responds that it was not required to provide plaintiff with notice and, even if it were, it wasnot required to do so until March 1, 2002.

Unlike the parties, we do not presume that the Handbook applies to the alleged agreementregarding the 2002-2003 school year. In order to state a cause of action for breach arising fromfailure to comply with the Handbook, plaintiff must allege facts demonstrating that the Handbookcreated binding contractual rights. See Hentosh v. Herman M. Finch University of HealthSciences/The Chicago Medical School, 314 Ill. App. 3d 1009, 1011 (2000). The following traditionalrequirements of contract formation must be met: (1) the language of the policy statement mustcontain a promise clear enough that the employee would reasonably believe that an offer has beenmade; (2) the statement must be disseminated to the employee in such a manner that he is aware ofits contents and reasonably believes it to be an offer; and (3) the employee must accept the offer bycommencing or continuing to work after learning of the policy statement. Duldulao v. St. Mary ofNazareth Hospital Center, 115 Ill. 2d 482, 490 (1987). While plaintiff alleged facts pertaining to theHandbook's incorporation into his written contracts with the University, he has not done so withrespect to the alleged 2002-2003 agreement. In fact, he has not alleged any details whatsoeverregarding the terms of this alleged agreement. We will not presume that the Handbook was part ofthe alleged 2002-2003 agreement merely because it had been a part of the previous written contractsbetween the parties.

Thus, there is no basis for plaintiff's premise that the Handbook created binding contractualrights with respect to the alleged 2002-2003 agreement. Consequently, the Handbook provisions donot apply to the University's decision not to renew plaintiff's employment contract for that schoolyear. This means that, even if there were a valid contract between the parties with respect to 2002-2003, the most that can be said is that it created an at-will employment relationship (see Hentosh, 314Ill. App. 3d at 1011 ("hiring and employment terms are presumptively subject to the will of theemployer unless the parties specifically contract otherwise")). The University terminated thisrelationship on April 24, 2001, when it notified plaintiff that it would not renew his employmentcontract for the following school year.

INVASION OF PRIVACY

Plaintiff alleges that the University's communications to students and faculty regarding histermination made it appear that he had committed an act of moral turpitude, thereby placing him ina false light. To state a claim for false-light invasion of privacy, a plaintiff must allege that (1) theplaintiff was put in a false light before the public as a result of the defendant's actions; (2) the falselight would be highly offensive to a reasonable person; and (3) the defendant acted with knowledgethat the statement was false or with reckless disregard for whether the statement was true or false. Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 17-18 (1992).

We conclude that plaintiff cannot satisfy the first element of this cause of action. Thememoranda stated only that plaintiff had been relieved of his duties. As plaintiff acknowledges, thesestatements were true. Consequently, the statements themselves cannot be construed as false orputting plaintiff in a false light. Plaintiff maintains, however, that his cause of action arises from whatthe memoranda did not say. Specifically, he asserts that the University's "terse" statements createdthe impression that he was terminated because he had committed an act of moral turpitude. Thisargument fails for several reasons.

First, the statements are not worded in such a way that a reasonable person would concludethat plaintiff had been fired for an act of moral turpitude. The University said nothing regarding thereasons behind the termination, much less that the reason was moral turpitude. Because there isabsolutely no mention of the commission of any act of moral turpitude, it would not be reasonableto draw such an inference from the statements.

Second, the bases of plaintiff's contention that the statements implied an act of moral turpitudeare not persuasive. Plaintiff relies on provisions in the Handbook stating that, except in cases ofmoral turpitude, the University must provide written notice of the decision to terminate a tenuredprofessor's services after at least two-thirds of the Senate have voted and affirmed the decision. Plaintiff, however, was not a tenured professor. Therefore, this provision did not apply to him andcannot have formed the basis for any invasion of privacy claim. Plaintiff also cites the provision ofthe Handbook stating that, with respect to a nontenured professor, the University "typically" decidesnot to renew a teaching contract by March 1 of the terminal year. This provision cannot be the basisof any alleged impression that plaintiff committed an act of moral turpitude because the University'sstatements contain no details as to when plaintiff was terminated, nor does plaintiff allege that readersof the memoranda had knowledge of the timing of his termination. Furthermore, the provisionpertaining to nontenured professors says nothing about acts of moral turpitude.

Plaintiff further states that the University "could have included language *** wishing [him]well, thanking him for his previous service, or even explaining why [he] would no longer beperforming his duties." While the University could have included such language, it was by no meanslegally obligated to do so.

In addition, plaintiff contends that the University's failure to ask the faculty and students topray for him cast him in a false light. Plaintiff argues that it was the University's practice to requestprayers for individuals involved in personnel changes. According to plaintiff, "when prayers arepurposefully omitted, the message the faculty receives is *** obvious." We disagree. Any readerwho sought to assign a meaning to the lack of a request for prayers could have arrived at myriadpossible explanations. Even in the context of a religiously affiliated school such as the University,it is illogical and unreasonable to conclude that the omission of a request for prayers inescapablywould lead one to conclude that plaintiff committed an act of moral turpitude or a "serious breachof his duties as a minister and teacher." That being said, we express no opinion regarding plaintiff'scontention that we should judge the University's statements or omissions by the standards of thereligious community of which the University is a part, rather than the more general "reasonableperson" standard. In light of our holding that the University's statements are not actionable under anystandard, it is not necessary for us to address this issue. For the same reason, we need not addressthe University's argument that this issue involves an ecclesiastical controversy in which the courtshould not involve itself. Last, our disposition of this issue obviates the need to address theUniversity's assertion that plaintiff was required to plead special damages to sustain his invasion ofprivacy claim.

DEFAMATION

Plaintiff's final contention is that he properly stated a claim against the University fordefamation per se. The allegedly defamatory statements were contained in a letter, authored byBeitzel, responding to an inquiry from Dr. Martin D. Snyder of the AAUP. Snyder wrote to theUniversity at plaintiff's request and, according to plaintiff, "outlined his serious concerns pertainingto the University's handling of alleged student complaints about Green's professional performance,Green's [sic] denial of his application for tenure, and Green's summary suspension from all duties atthe Divinity School." Beitzel's response purported to present the sequence of events that led up tothe denial of tenure. Beitzel copied Daniel O. Aleshire of the Association of Theological Schools andMary B. Breslin of the North Central Association of Colleges and Schools on the letter, in additionto plaintiff and University officials. Aleshire and Breslin had not been copied on Snyder's letter to theUniversity.

To state a claim for defamation, a plaintiff must allege sufficient facts to show that (1) thedefendant made a false statement concerning him, (2) there was unprivileged publication to a thirdparty through the fault of the defendant, and (3) this caused damage to the plaintiff. Krasinski v. United Parcel Service, Inc., 124 Ill. 2d 483, 490 (1988). A statement is considered defamatory perse when its defamatory character is apparent on its face. Kolegas, 154 Ill. 2d at 10. Such statementsare so obviously and materially harmful that injury to the plaintiff's reputation is presumed. Kolegas,154 Ill. 2d at 10. The following four categories of statements are considered defamatory per se: "(1)words which impute the commission of a criminal offense; (2) words that impute infection with aloathsome communicable disease; (3) words that impute an inability to perform or want of integrityin the discharge of duties of office or employment; or (4) words that prejudice a party, or impute lackof ability, in his or her trade, profession or business." Kolegas, 154 Ill. 2d at 10. Even if a statementfalls into one of these categories, it is not defamatory per se if it is reasonably capable of an innocentconstruction. Kolegas, 154 Ill. 2d at 11. Courts must consider written or oral statements in context,giving the words and their implications their natural and obvious meaning. Anderson v. VandenDorpel, 172 Ill. 2d 399, 412 (1996), quoting Chapski v. Copley Press, 92 Ill. 2d 344, 352 (1982).

In addition, statements that cannot be reasonably construed as factual assertions are protectedby the first amendment and may not be the basis of a defamation action. Kolegas, 154 Ill. 2d at 14,citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 111 L. Ed. 2d 1, 18, 110 S. Ct. 2695, 2706(1990). The University contends that the allegedly defamatory statements may either be innocentlyconstrued or constitute nonactionable opinion. We agree.

In his brief, plaintiff does not explain how each of the 10 statements is defamatory per se. Instead, he argues that the gist of the statements, when taken together, imputes both a lack of abilityin his profession and a want of integrity in the discharge of his duties. In our view, the statementscan be divided into the following three categories: (1) indications that the University had received a steady stream of student complaints between 1998 and 2000 that plaintiff acted rudely when dealingwith students, spent too much class time on "non-course considerations," and was unprofessionallycandid; (2) statements that the nature of the student allegations were "shocking, extremelybothersome," and "border[ing] on prejudice"; and (3) indications that both students and Universityadministrators had conversations with plaintiff about these concerns, with the students indicating thatthey did not feel any sense of "being heard."

We determine that any statements that plaintiff acted rudely, spent too much class time onmaterial unrelated to his course, and was "unprofessionally candid" constitute nonactionable opinion. What is considered rude or unprofessional differs from person to person. Likewise, Beitzel'simpression that the facts underlying the student complaints were "shocking" and, in his opinion,"border[ing] on prejudice" are opinions.

The statements that (1) students had made complaints over the years and had discussed themwith plaintiff without satisfactory resolution, and (2) the University had discussed these complaintswith plaintiff several times between 1998 and 2000, are capable of innocent construction and do notgive rise to a defamation claim. They do not necessarily imply that plaintiff was unskilled orunqualified in his profession, or that he lacked integrity. Rather, they could reasonably be construedto mean that plaintiff did not fit in with the University or that his philosophies did not mesh with thoseof the University.

In Anderson, our supreme court held that an employer's comments to an employee'sprospective employer that she did not "follow up on assignments" and did not get along with hercoworkers could reasonably be construed to signify "nothing more than that the plaintiff did not fitin with [the defendant's] organization and perform well in that particular position." Anderson, 172Ill. 2d at 415. In Marczak v. Drexel National Bank, 186 Ill. App. 3d 640, 643 (1989), the courtruled that the following statement was capable of innocent construction: " '[The plaintiff] did notperform up to the high standards expected of officers of the Bank. She had some problems gettingalong with her supervisors and other officers; at times she was uncooperative and did not have theBank's best interest at heart; and she did recently refuse to perform one of the responsibilities of herposition.' " In so holding, the court concluded that the statement could be interpreted to mean thatthe plaintiff had trouble getting along with others and did not fit into the organization. Marczak, 186Ill. App. 3d at 645. Beitzel's comments about plaintiff can reasonably be construed in a similarfashion. Plaintiff has not cited any authority in which statements similar to those at issue in this casehave been sufficient to sustain a cause of action for defamation per se.

In light of our determination that plaintiff cannot state a cause of action for defamation perse, we need not address defendant's contention that a qualified privilege applied to Beitzel'sstatements.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed in partand reversed in part, and the cause is remanded for further proceedings consistent with thisdisposition.

Affirmed in part and reversed in part; cause remanded.

O'MALLEY and CALLUM, JJ., concur.