Lead Opinion
delivered the opinion of the court:
Plaintiff, Tom Myers, alleges that defendant, Nelson Levy, caused his termination as the varsity football coach at Lake Forest High School (the school). On March 30, 2001, plaintiff filed a three-count amended complaint for “defamation, false light, and tortious interference with prospective economic advantage or business opportunity.” The trial court granted defendant summary judgment on each of the three counts, and plaintiff appeals. We affirm in part, reverse in part, and remand the cause for further proceedings.
FACTS
Plaintiffs amended complaint alleges that he was fired as football coach on January 25, 2001, but continues to serve as a teacher and the head varsity baseball coach at the school. Plaintiff graduated from the school in 1966 and has lived in Lake Forest for 34 years. The complaint recites plaintiffs experience as a college athlete and high school coach. Two of defendant’s sons had participated on plaintiffs football teams and graduated from the school. Defendant’s third son was a student athlete at the school at the time plaintiff was removed as football coach. Plaintiff alleges that defendant’s conduct was motivated by his son’s competition with plaintiffs son for the team’s quarterback position.
Plaintiff alleges that, on October 16, 2000, defendant communicated several written defamatory statements to “others.” The statements were contained in a letter addressed to Dr. Jonathan Lamberson, the school superintendent and principal, and Jill Bruder, the athletic director. Defendant recommended removing plaintiff as head football coach. The amended complaint alleges, and defendant concedes, that the correspondence included the following statements:
“a. [Plaintiff] shows little or no concern for players who are injured.
b. When a player is injured, [plaintiff] rarely, if ever calls and never visits, sends a get well card or in any other way expresses concern.
c. [Plaintiff] lacks true concern for the young men who devote so much of themselves to his program.
d. [Plaintiff] lacks the respect as a coach of virtually all of his players!;] *** they have no confidence in [plaintiff] as a leader or a motivator. Sadly they consider him a joke to be worked around, not with.
e. [Plaintiff] sets a very poor example for his coaches and players.
f. As poor as he is as a coach and leader of coaches, much more distressing is [plaintiffs] abysmal failure to support his players.
g. When the team loses, [plaintiff] and some of his assistants make the kids feel like they did not try hard enough.
h. Such is sad, despicable and inexcusable treatment of the group of boys who play their hearts out and are denied the chance to win by the buffoons that direct the action.
i. [Plaintiff] and his program fail miserably.
j. [Plaintiff sets] a poor example as a teacher, who consistently hired poor quality subordinates.
k. [Plaintiff] cared little or nothing about the well[-]being of his students *** [and] commanded the respect of neither his peers nor his pupils.
l. [Plaintiff] is *** grossly unprepared.
m. [Plaintiff] fails as an educator and a leader.”
On November 8, 2000, defendant sent Lamberson a petition letter calling for plaintiffs dismissal as football coach. The correspondence was accompanied by a list of football parents who purportedly agreed with and signed the letter. The envelope and the bottom of each page of the list were labeled “CONFIDENTIAL TO BE VIEWED BY DR. LAMBERSON ONLY.” Defendant allegedly misrepresented the number of signatures he collected and falsely reported that several parents had signed the petition. The record contains written statements signed by six football parents, including one circuit court judge, in which each confirms that defendant falsely reported that he or she signed the petition. In the November 8, 2000, communication to Lamberson, defendant stated that he had spent three years lobbying Bruder and the former superintendent for plaintiffs removal as football coach. The complaint alleges that defendant’s earlier public praise of plaintiff proves that he was not, in fact, dissatisfied with him.
Bruder recommended, Lamberson authorized, and the school board officially approved plaintiffs removal as head football coach on January 25, 2001. On the next day, the Chicago Sun-Times published two statements attributed to defendant. Defendant stated that “[tjhere has been a consistent unhappiness, widespread discontent, with [plaintiff] as football coach for more than a decade.” Defendant also stated, “I was probably the number one antagonist of an organized effort that involved hundreds of people. The thrust was not ■wins or losses, but rather that the kids don’t respect him.” On February 25, 2001, the Chicago Tribune published a third quotation in which defendant stated, “[yjou’ve had an incompetent coach in place for a decade who used to be a good coach.”
The record contains a letter addressed to a group of Lake Forest eighth-grade student athletes in which defendant praised plaintiff in the fall of 1997. The letter states, “Our community has a great coaching role model in [plaintiff]. [Plaintiff] makes every kid on his team feel good about himself. He is a personal role model for character, kindness, and fairness. His players grow from within, not from being bombarded by constant coaching demands. [Plaintiff] builds teams of self-confident kids who are not afraid to make a mistake. And, almost every year, [plaintiff] takes a bunch of under-sized, slow boys into the state play-offs.” In early 1998, defendant wrote a fiftieth birthday tribute to plaintiff in which defendant again praised plaintiff for his exceptional and compassionate coaching.
The defamation count alleges that defendant’s subsequent derogatory statements “injured [plaintiffs] reputation in the community, were false, were malicious, and made with a reckless disregard for their truth. These statements constitute libel and slander per se, and also caused or contributed to cause [plaintiff] to be removed as head varsity football coach at [the school], a position he dearly loved.” Plaintiff earned an additional $7,500 annual salary at the time he was removed from the coaching position.
The false light invasion of privacy count alleges that defendant’s newspaper quotations “placed [plaintiff] in a false light as same would be considered highly offensive by a reasonable person.” Defendant allegedly had knowledge of the falsity of the statements or acted in reckless disregard as to their truth or falsity and the false light in which plaintiff would be placed upon publication of the statements.
The count for tortious interference with prospective economic advantage alleges that defendant knew of and interfered with plaintiff s economic advantage or business opportunity to continue as head football coach. Defendant’s interference allegedly caused or contributed to cause plaintiffs removal. Each of the three counts included a prayer for $50,000 in compensatory damages and $1 million in punitive damages.
Defendant moved to dismiss the amended complaint, and the trial court denied the motion on November 1, 2001. Following the hearing, the trial court found that plaintiff is a public figure for purposes of the litigation.
Defendant subsequently filed a motion for summary judgment, in which he alleged that plaintiff could never prove that defendant acted with actual malice because 42 football parents provided defendant with statements similar to his own. Defendant argued that plaintiffs claims lack merit because the statements were true and because defendant did not act with reckless disregard as to their truth or falsity. Defendant quoted deposition testimony in which plaintiff acknowledged that defendant sincerely believed that each of the allegedly defamatory statements was true. Defendant’s motion also included the deposition testimony of Bruder and Lamberson. Lamberson testified that the decision to remove plaintiff as head football coach “had nothing to do with parental pressure.” Bruder similarly testified that “the failure to renew [plaintiffs] contract as the head football coach at Lake Forest High School for the year 2001 had absolutely nothing to do with the activities of [defendant].” Bruder stated that plaintiff was removed because summertime scheduling conflicts precluded him from serving as the head coach of both the football and baseball teams. At the hearing on the summary judgment motion, the parties essentially debated the truth of defendant’s statements regarding plaintiffs performance as the head football coach. Plaintiff also argued that the issue of whether defendant acted with actual malice was a jury question that could not be resolved on a summary judgment motion.
The trial court granted defendant summary judgment, concluding that defendant’s statements were privileged because he directed them toward the school, a governmental body. The court further concluded that defendant did not act with actual malice because he sincerely believed the veracity of the statements. Finally, the court emphasized Lamberson’s testimony that defendant’s petition did not influence the decision to remove plaintiff as coach. Plaintiff appeals from the November 1, 2001, finding that he is a public figure and from the November 18, 2002, order granting defendant summary judgment on all three counts.
ANALYSIS
On appeal, plaintiff argues that defendant should not have been granted summary judgment because plaintiff is not a public figure and defendant abused a qualified privilege in working toward the removal of plaintiff as the football coach. Plaintiff contends that an issue of material fact exists that precluded the trial court from granting summary judgment. In all appeals from the entry of summary judgment, we conduct a de novo review of the evidence in the record. Espinoza v. Elgin, Joliet & Eastern Ry. Co.,
1. Defamation and False Light Invasion of Privacy
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 persons from associating with him. Bryson v. News America Publications, Inc.,
Illinois courts have recognized four categories of statements that are considered defamatory per se: (1) words that impute the commission of a crime; (2) words that impute infection with a loathsome communicable disease; (3) words that impute an inability to perform or a want of integrity in the discharge of duties of office or employment; or (4) words that prejudice a party, or impute lack of ability, in his or her trade, profession, or business. Dubinsky,
In Kuwik v. Starmark Star Marketing & Administration, Inc.,
If a defendant demonstrates the existence of a qualified privilege, the burden then shifts to the plaintiff to demonstrate an abuse of the privilege. The qualified privilege is abused if (1) the defendant acted with actual malice by making the statement with knowledge of its falsity or acting in reckless disregard as to the truth or falsity of the statement; or (2) the defendant committed “ ‘any reckless act which shows a disregard for the defamed party’s rights, including the failure to properly investigate the truth of the matter, limit the scope of the material, or send the material to only the proper parties.’ ” Gist,
The plaintiff need prove the common-law elements of defamation only by a preponderance of the evidence, but when the defendant establishes the existence of a qualified privilege, the plaintiff must prove by clear and convincing evidence that the defendant acted with actual malice. Martin v. State Journal-Register,
In Lovgren v. Citizens First National Bank of Princeton,
In cases where both defamation and false light invasion of privacy claims might exist, the plaintiff may proceed under either theory, or both, but only one recovery for each instance of publicity is possible. Dubinsky,
a. Statements regarding plaintiff’s performance
Plaintiff disputes the trial court’s conclusion that he is a public figure for purposes of this litigation. However, the court’s ruling on the issue is relevant only for determining whether defendant’s allegedly defamatory statements are privileged. The existence of a privilege would require plaintiff to prove by clear and convincing evidence that defendant acted with “actual malice.” In his reply brief, plaintiff makes the following concessions: “Plaintiff agrees that he must show actual malice on the defamation claim (Count I) to defeat any qualified privilege as to [defendant’s] letters to the [school] officials. Plaintiff also agrees that he must show actual malice as an element of his false light claim (Count II).”
Furthermore, plaintiff acknowledged during a deposition that he thought defendant sincerely believed each of the allegedly defamatory statements. A judicial admission is a party’s deliberate, clear, unequivocal statement about a concrete fact within the party’s peculiar knowledge. It is well settled that the party making the admission is bound by that admission and cannot contradict it. Eidson v. Audrey’s CTL, Inc.,
Plaintiff agrees that he must prove that defendant acted with actual malice in making the statements to the school officials. Therefore, his argument that he is not a public figure is rendered moot for the purposes of his defamation claim regarding those statements. In his reply brief, plaintiff alleges that defendant also communicated defamatory statements to the press, and that he need not prove that defendant acted with actual malice in making those statements because plaintiff is not a public figure. Plaintiff cites no authority for the proposition that the requirement of proof of actual malice depends on the recipient of the allegedly defamatory communication. Plaintiff does not explain why he need not prove actual malice regarding some of the allegedly defamatory statements and not others. See 210 Ill. 2d R. 341(e)(7) (“Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing”). Furthermore, we are aware of no authority that permits two different standards of proof to apply to a single count. See 735 ILCS 5/2 — 613(a) (West 2002) (“each [cause of action] shall be separately designated and numbered”). In light of the concessions in plaintiffs reply brief, we conclude that the single defamation count, as alleged, requires plaintiff to prove that defendant acted with actual malice when he made the statements to both the school officials and the press. Our disposition does not preclude plaintiff from seeking leave to amend his complaint to divide his defamation allegations into two counts. 735 ILCS 5/2 — 616 (West 2002). If plaintiff chooses to amend his complaint, the trial court may consider whether defendant’s communications to the press were privileged and whether he abused that privilege.
Plaintiff also alleges for the first time on appeal that defendant defamed plaintiff to the football parents. We conclude that plaintiffs new claim that defendant communicated defamatory statements to the parents is waived because the claim is not included in the complaint. See Haudrich v. Howmedica, Inc.,
The record contains evidence that defendant praised plaintiffs character and coaching ability at least twice from the fall of 1997 to the spring of 1998. A short time after his son began competing with plaintiffs son for the team’s quarterback position, defendant submitted the letters to Lamberson and Bruder harshly criticizing plaintiffs performance and referring to him as a “joke” and “buffoon.” The curious timing of defendant’s conduct suggests that a question of fact exists as to whether defendant acted knowingly or recklessly when he lobbied the two administrators to discharge plaintiff as coach.
Defendant next contends that summary judgment was nevertheless appropriate because his communications to Lamberson and Bruder qualify as a petition to a governmental body and, therefore, his statements are immunized under the Noerr-Pennington doctrine. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc.,
The Noerr-Pennington doctrine stems from a Supreme Court opinion holding that parties who petition the government for governmental action favorable to themselves cannot be sued under the Sherman Anti-Trust Act, even though their actions are motivated by anticompetitive intent. United Mine Workers of America v. Pennington,
In Westfield Partners, Ltd. v. Hogan,
This case is distinguishable. Counts I and II of the amended complaint are not directed toward defendant’s attempt to influence governmental decision making. Instead, plaintiff takes issue with alleged defamation and false light invasion of privacy that occurred during that petitioning. We conclude that the rule announced in McDonald v. Smith,
The Court has elsewhere suggested that the Noerr-Pennington doctrine stems from the petition clause of the first amendment. See City of Columbia v. Omni Outdoor Advertising, Inc.,
Defendant argues that he is entitled to absolute immunity under the Noerr-Pennington doctrine, which itself rests on the petition clause. We reject defendant’s argument because the Supreme Court clearly stated in McDonald that the petition clause does not bar a defamation claim as long as the plaintiff proves that the defendant acted with actual malice. Because counts I and II are related in that each requires a showing of actual malice, we similarly rely upon McDonald in rejecting defendant’s Noerr-Pennington defense to the false light invasion of privacy claim.
We conclude that, because a question of fact exists as to whether defendant acted with actual malice or a reckless disregard of plaintiffs rights, the trial court incorrectly granted defendant summary judgment on plaintiffs claims for defamation (see Gist,
b. Statements regarding plaintiff’s reputation among the football parents
Plaintiff alternatively claims defamation based on defendant’s statements to Lamberson and Bruder that many parents supported his campaign to remove plaintiff as football coach. The statements are defamatory per se because they tend to harm plaintiffs reputation by imputing widespread disapproval among the parents of the children he coached. In Illinois, an allegedly defamatory statement is not actionable if it is substantially true, even though it is not technically accurate in every detail. Gist,
A defendant bears the burden of establishing the “substantial truth” of his assertions, which he can demonstrate by showing that the “gist” or “sting” of the defamatory material is true. Gist,
Defendant’s November 8, 2000, letter to Lamberson listed the names of 105 football parents and 36 players who purportedly signed the petition. Apparently in the interest of candor, defendant also included the names of several other football parents who declined to sign the petition. During discovery, defendant produced the signatures of only 29 parents and 23 players who actually supported the petition, but defendant’s motion for summary judgment included supporting statements from 42 parents. Attached to plaintiffs amended complaint were affidavits in which six parents testified that defendant falsely reported to Lamberson that they had signed. Although we do not condone defendant’s misrepresentation, we conclude that he established the gist of his assertion that many parents did not approve of plaintiffs performance as coach. Because no reasonable jury could find by clear and convincing evidence that defendant had not established the substantial truth of that particular statement, we conclude that the trial court properly resolved the question on defendant’s motion for summary judgment. See Gist,
The dissent contends that the positive denials of a few parents support plaintiffs claims of defamation and false light invasion of privacy. We respectfully disagree. Although the six parents’ affidavits verify plaintiffs assertion that defendant exaggerated the level of discontent among all of the parents, they do not establish “ ‘incremental damage to the plaintiffs reputation.’ ” (Emphasis in original.) Gist,
2. Interference with Prospective Economic Advantage
Finally, we consider plaintiffs argument that he is entitled to a trial to determine whether defendant improperly interfered with plaintiffs employment as football coach. “ ‘To state a cause of action for intentional interference with prospective economic advantage, a plaintiff must allege (1) a reasonable expectancy of entering into a valid business relationship, (2) the defendant’s knowledge of the expectancy, (3) an intentional and unjustified interference by the defendant that induced or caused a breach or termination of the expectancy, and (4) damage to the plaintiff resulting from the defendant’s interference.’ ” (Emphasis added.) Voyles v. Sandia Mortgage Corp.,
Plaintiff argues that the causation element is an unresolved question of fact precluding the entry of summary judgment. Plaintiff cites Bruder’s testimony that defendant told her that he would work toward her removal as the athletic director if she did not terminate plaintiffs employment as the football coach. However, both Bruder and Lamberson testified that defendant’s conduct did not affect the decision to remove plaintiff as the coach. Plaintiffs assertion as to the importance of defendant’s threat to Bruder is speculative and contrary to the unequivocal and uncontroverted testimony of Bruder and Lamberson.
The dissent asserts that “it is error for the majority to presuppose that even uncontroverted testimony from Bruder and Lamberson would not raise a material question of fact, because it is the fact finder’s province to assess the credibility of Bruder and Lamberson.”
We reverse the entry of summary judgment on the defamation and false light invasion of privacy claims, affirm the entry of summary judgment on the claim of interference with prospective economic advantage, and remand the cause for proceedings that are consistent with this opinion.
Affirmed in part and reversed in part; cause remanded.
McLAREN, J., concurs.
Concurrence Opinion
specially concurring in part and dissenting in part:
I dissent on two grounds. First, the defamation and false light counts should be reinstated, not just as to defendant’s statements concerning plaintiffs competence as a coach, but also as to defendant’s statements concerning plaintiffs reputation among the parents of football players. Contrary to the majority, I believe that a reasonable jury could find that defendant did not prove the substantial truth of the latter statements.
The majority reduces the issue of substantial truth to the question of whether one number forms a substantial part of another number. For the majority, the question is simply whether a jury reasonably could find that defendant’s allegation that 105 football parents and 36 football players signed the petition for removal was substantially proven with evidence that only 42 parents and 23 players signed the petition. Given the disparity between these numbers, I cannot see how a court can presume that no reasonable jury could find that defendant’s assertion was not substantially proven. Yet, in my view, this is not the real question before us. The majority has diluted plaintiffs allegations of false light invasion of privacy (hereinafter false light) and defamation. Plaintiffs claims for defamation and false light do not rest entirely on defendant’s failure to produce the signatures he claimed to have obtained. Plaintiff might have asked us simply to infer that the signatures defendant failed to produce never existed, but he does more than that. He attaches to his complaint statements from 6 of the 150 alleged signatories in which they positively deny that they signed the petition. In my view, plaintiffs claim that defendant falsely asserted that these six individuals signed the petition itself constitutes a claim for false light and defamation. Therefore, the majority could not rightfully uphold the dismissal of plaintiffs complaint unless no reasonable jury could find that defendant failed to establish the gist of his claim that these individuals signed the petition. The majority does not undertake this analysis, however, but instead diverts attention from the substance of plaintiffs allegations. What plaintiff has alleged is not simply defendant’s failure to substantiate his claim to have X number of signatures, but also defendant’s outright falsehood that he had obtained the signatures of the six individuals. Symptomatic of the majority’s erroneous approach is how it concludes its analysis: “[W]e conclude that [defendant] established the gist of his assertion that many parents did not approve of plaintiffs performance as coach.”
The majority suggests that my position “would effectively eliminate the defense of substantial truth.” (Emphasis omitted.)
I dissent also from the affirmance of the trial court’s summary judgment on count III, which alleges tortious interference with prospective economic advantage. While I agree with the majority that “Bruder and Lamberson testified that defendant’s conduct did not affect the decision to remove plaintiff as the coach,” I do not agree that their testimony was “unequivocal and uncontroverted.”
Bruder and Lamberson both testified that the decision not to retain plaintiff as head football coach was due entirely to a new bylaw of the Illinois High School Association that allows coaches of teams in sports programs that do not have summer seasons to have a maximum of 25 summer training days with each team. Bruder and Lamberson both testified that plaintiffs contract to coach football was not renewed solely because they believed he would be unable to comply with the bylaw and still effectively coach both baseball and football.
While Bruder and Lamberson both were challenged extensively in their depositions on this claim, I will focus primarily on Bruder’s description of her rationale for not recommending that plaintiff be retained as football coach, because Lamberson testified that he deferred to Bruder’s judgment on that point. Bruder testified that defendant began pressing for plaintiffs termination as football coach in January 2000 and continued his efforts throughout the following summer and fall. She also testified that, although the bylaw came into effect in June 2000, she did not decide to release plaintiff as football coach until January 2001. She further testified that, in October 2000, defendant told Bruder that if plaintiff was not fired as football coach, “they” would have Bruder fired. To impeach her on these points, plaintiffs counsel showed Bruder an e-mail from defendant to one Joanne Mullen, dated October 29, 2000, in which defendant reported that Bruder had decided not to retain plaintiff as football coach. Defendant wrote, however, that he still wanted to send Bruder a petition to “provide overwhelming parental support” for plaintiff’s termination rather than some “wimpy” alternative remedy. Bruder agreed that the e-mail was sent after defendant had threatened her, but she denied that she had already made her decision to fire plaintiff when the e-mail was sent. I do not see how Bruder’s testimony can be described as “uncontroverted” given this impeachment of her claim that she did not accede to defendant’s demands.
Bruder’s claim as to why plaintiff was fired was controverted in other ways as well. She testified that, when she admonished plaintiff in October 2000 that the bylaw might have the effect of barring him from coaching both football and baseball, in which case he would be forced to choose between the two, he responded that he did not wish to give up a sport, but, if forced to choose, would select baseball. Bruder testified that, throughout November and December, plaintiff continued to protest the prospect of having to select a sport and reiterated that he would select baseball if forced to choose. Bruder testified, however, that when she decided in January 2001 that plaintiff could not coach both baseball and football, she “unilaterally” decided to remove him from football, not baseball:
“Q. Before you made the final decision in January 2001, okay, did you consult with — did you ask [plaintiff] at that time, the decision has been — did you tell him, lookit [sic], we — we’ve made the decision, you can only have one? Did you say it to him that way or did you just tell him you are no longer the head football coach?
A. I — to the best of my recollection, I believe I said that I’d already made the decision.
Q. That you had already made the decision?
A. Yes.
Q. Okay. But the decision you’re talking about to us today is the decision that — that he could not hold both varsity positions, correct?
A. Correct.
Q. Okay. My question to you is—
A. Mm-hmm.
Q. —in January of 2001 when you said you made [sic] decision that he could not hold both positions—
A. Mm-hmm.
Q. —did you offer him to now choose between either football or baseball in January 2001?
A. No, I did not.
Q. So at that time you unilaterally made the decision that you would — or you make a recommendation, I take [sic] — Dr. Lamberson makes the ultimate decision, according to your testimony— that it was your decision that he longer be the head varsity football coach, correct?
A. That is correct.
Q. So as you sit here today, you don’t know what decision he would have made in January of 2001 had you offered him one or the other, correct?
A. I don’t know what — -that it [sic] would be correct, um-hum.” Thus, although plaintiff had remarked previously that he would select baseball if forced to choose between sports, Bruder did not rely on those remarks or obtain new input from plaintiff in recommending that plaintiff be removed as football coach. Why did she choose baseball for plaintiff without obtaining his input? She could not have been relying entirely on the bylaws, for they did not determine which sport of the two plaintiff should coach. Although Bruder never explicitly stated her reasons for choosing baseball for plaintiff, the following exchange is revealing:
“Q. *** And after considering the issues on the side voiced by [defendant], you eventually made the decision to remove [plaintiff], correct?
A. Wasn’t the only part of the decision that—
Q. I know—
A. —was made—
Q. It wasn’t the only part, but those issues were considered, correct?
A. Yes.
# sf:
Q. *** [I]n January of 2001, you never asked [plaintiff], which job do you want? Do you want to — in January before you made the final decision, you didn’t ask him, which job do you want, to be the head varsity football coach or the head varsity baseball coach, correct?
A. That is correct.
Q. You said — that is correct. And in January of 2001, after this campaign by [defendant], and after all of the issues that you considered, voiced by [defendant] as the number one antagonist, you chose not to offer [plaintiff], in January of the year 2001, to remain as head varsity football coach. You said at that time that he was no longer gonna be renewed as the head varsity football coach. Correct?
A. Correct.
Q. Thank you, when you said earlier that a parent can voice concerns, and you take into consideration what a parent may say about the athletic programs that — athletic high school — you take into consideration, as you did in the issues in this case, correct?
A. Correct.
Q. Okay. And that’s because you are responsive as a community leader or community — what did we suggest you were earlier — a community professional exercising professional judgment — it’s okay for you to take into consideration their opinion — their—not only their opinions but there [sic] — their opinions, correct?
A. It’s part of my job, yes.”
Bruder acknowledged not only the obvious fact that, as the athletic director of a public high school, she considers the opinions of community members in making her decisions regarding the school’s athletic programs; she also acknowledged that she considered defendant’s opinion of plaintiff in reaching her decision not to retain plaintiff as football coach. A jury reasonably could find, in light of these admissions, that defendant’s campaign against plaintiff influenced Bruder’s decision not to retain plaintiff as football coach and that her conclusory denial that defendant influenced her was self-serving and incredible. The majority recounts none of the flaws in Bruder’s account but simply notes that Bruder testified that “plaintiff was removed because summertime scheduling conflicts precluded him from serving as the head coach of both the football and baseball teams.”
Lamberson’s testimony also is telling. Lamberson testified that he had several meetings with Bruder in the fall of 2000. The topic was the growing disapproval among football parents of plaintiffs coaching. Plaintiff was present at the first and last of these meetings. At the first meeting, which occurred near the end of the football season, plaintiff remarked that he was the subject of a “witch hunt” and asked whether he would be removed as football coach. Lamberson deferred to Bruder, who told plaintiff that the decision would not be made until well after the season had ended. At the next meeting, Lamberson and Bruder discussed the petition that she had recently received from defendant and other football parents. At the following meeting, Bruder told Lamberson that she “was coming to closure on the decision about whether [plaintiff] would be the head football coach for next year.” Plaintiff was present at the next meeting. Before plaintiff entered the meeting room, Bruder told Lamberson that she “felt very comfortable moving in the direction of not having [plaintiff] as head football coach so that he could dedicate fall time opportunities for the baseball program.” Bruder did not mention the possibility of retaining plaintiff for football rather than baseball. When plaintiff entered the room, Bruder told him she was “leaning in the direction of having him focus on baseball” but had not made a final decision. Afterwards, plaintiff told the press that he had been fired as football coach.
Lamberson’s testimony was consistent with Bruder’s in that both indicated that Bruder decided, independently of plaintiff, not only that plaintiff would no longer coach both football and baseball but that baseball, not football, would be the sport that plaintiff would continue to coach. Neither Lamberson nor Bruder clearly indicated what led Bruder to retain plaintiff for baseball instead of football. However, as noted above, certain aspects of Bruder’s testimony suggest that she was influenced by defendant’s lobbying. I believe there is enough ambiguity in the relevant testimony to raise a fact question for the jury as to whether defendant influenced Bruder’s decision to remove plaintiff as football coach.
The majority claims that “[p]laintiff has offered no evidence to impeach Bruder and Lamberson.”
Notes
While I disagree with this description, I would find summary judgment inappropriate even if Bruder’s and Lamberson’s testimony was flawless. Plaintiff has alleged that Bruder’s and Lamberson’s deliberations over whether to retain plaintiff as football coach under the bylaws occurred simultaneously with defendant’s defamatory campaign to remove plaintiff as incompetent. Given this context, it is error for the majority to presuppose that even uncontroverted testimony from Bruder and Lamberson would not raise a material question of fact, because it is the fact finder’s province to assess the credibility of Bruder and Lamberson.